People v. Delaloza CA2/7 ( 2021 )

Filed 8/12/21 P. v. Delaloza CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B300210
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA045286)
v.
ALEJANDRO REY
DELALOZA,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Roger Ito, Judge. Reversed and
remanded with directions.
Adrian K. Panton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Senior Assistant Attorney General, Michael R.
Johnsen, Supervising Attorney General, and Charles S. Lee,
Deputy Attorney General, for Plaintiff and Respondent.
_____________________
A jury convicted Alejandro Rey Delaloza in December 1999
of two counts of first degree murder with a multiple-murder
special-circumstance finding, conspiracy to commit murder and
several other serious felonies. On February 13, 2019,
represented by counsel, Delaloza filed a petition for resentencing
under Penal Code section 1170.95.1 After receiving opposition
memoranda from the district attorney and supporting
memoranda from Delaloza’s counsel, the court denied the petition
without issuing an order to show cause, finding Delaloza had
failed to make a prima facie showing he was entitled to relief.
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Delaloza’s Trial for Murder and Other Crimes
Delaloza was charged in a second amended information on
November 22, 1999 with conspiracy to commit murder (§ 182,
subd. (a)(1)) and two counts of murder (§ 187, subd. (a)) with
special allegations that in each offense a principal had been
armed with a handgun (§ 12022, subd. (a)(1)).2 A multiple-
murder special-circumstance allegation (§ 190.2, subd. (a)(3)) was
included for each of the two murder counts. Delaloza was also
charged with two counts of robbery (§ 211) and aggravated
1 Statutory references are to this code.
2 The information and first amended information charged
both Delaloza and Richard Penunuri with the crimes. The second
amended information charged only Delaloza.
2
assault (§ 245, subd. (a)(1)) in connection with an incident
unrelated to the murders.
Our opinion affirming Delaloza’s convictions described the
evidence presented at trial. (People v. Delaloza (June 6, 2001,
B140454) [nonpub. opn.].) Michael Murillo and Brian Molina
were shot to death at close range as they slept on the patio of a
home in Whittier. The People’s theory of the case was that the
murders had been committed by Richard Penunuri, a member of
the Eastside Whittier Cole Street gang, who mistook the victims
for two other men, Carlos Arias and Luke Bissonnette, and that
Delaloza, a member of the same gang, had conspired with
Penunuri to murder Arias and Bissonnette and aided and abetted
Penunuri in the attack on Murillo and Molina.
Several hours before the murders Delaloza, Penunuri and
other members of their gang had committed robbery and assault
in a supermarket parking lot. One of their victims testified
Penunuri displayed a gun, later shown to be consistent with the
murder weapon.
Approximately two hours later, Bissonnette and Arias were
sitting on the hood of a car in Bissonnette’s grandfather’s
driveway when Delaloza and Penunuri drove up in Delaloza’s car
and parked across the street. Penunuri got out of the car.
Bissonnette was afraid because he believed Penunuri thought
Bissonnette had left the Eastside Whittier Cole Street gang and
was associating with a different gang. When Penunuri asked
Bissonnette to come with him to Delaloza’s car, Bissonnette ran
and hid. After Penunuri and Delaloza left, Bissonnette returned
to his home.
Arias told the police that, when Penunuri approached
Bissonnette in the driveway, Penunuri said things that made
3
Arias believe Penunuri intended to harm both Bissonnette and
Arias. They both ran. Just before he ran, Arias saw Penunuri
pointing a gun at him. Penunuri chased him a short way but did
not catch up to him.
When Bissonnette arrived home, Molina and Murillo were
asleep on the patio. The patio was dark; Molina had a sweatshirt
covering his face. Bissonnette went inside and prepared to go to
bed. Approximately 30 minutes later Bissonnette heard
numerous rapidly fired gunshots. After the shooting stopped, he
looked out the bedroom window and saw Penunuri running
across the street. Neighbors who heard the shots and looked out
their windows testified they saw a car matching the description
of Delaloza’s car driving slowly down Bissonnette’s street. No one
saw Penunuri get into the car.
Both Molina and Murillo had been shot in the head at close
range. Murillo was dead at the scene. Molina died at a hospital.
A witness to the robbery in the parking lot supplied police
with the license plate number of the car used by the perpetrators,
which led the police to Delaloza. After Delaloza was arrested for
robbery, a search of his house uncovered a box of ammunition in
the bedroom. A firearms examiner later determined one of the
bullets in the box had been loaded and then ejected from the
same gun used in the murders.
In a tape recorded statement played to the jury, Delaloza
initially denied any involvement in the robbery or murders. He
claimed he was at home asleep when these crimes were
committed. Confronted with his father’s statement he did not
return home until 3:45 a.m., Delaloza admitted driving Penunuri
to Bissonnette’s house around 3:00 a.m. According to Delaloza,
Penunuri wanted to speak to a woman named Monique who lived
4
there. They believed Monique might be up at that early hour
since she had a baby. Delaloza parked one house down from
Bissonnette’s and waited in the car while Penunuri went to talk
to Monique.3 When he heard gunshots, he started to leave
thinking someone was shooting at Penunuri. Delaloza drove
away, Penunuri ran to the car and jumped in saying, “Let’s go,
man.” Penunuri did not tell Delaloza what had happened at
Bissonnette’s house, and Delaloza did not ask as he drove
Penunuri home. Delaloza insisted he did not see Penunuri with a
gun at any time during the evening.
2. Jury Instructions
In its instructions to the jury the trial court defined aiding
and abetting using CALJIC No. 3.01 and gave CALJIC No. 3.02
(1997 rev.) explaining liability for natural and probable
consequences: “One who aids and abets another in the
commission of a crime or crimes is not only guilty of those crimes,
but is also guilty of any other crimes committed by a principal
which is a natural and probable consequence of the crimes
originally aided and abetted. [¶] In order to find the defendant
guilty of the crimes of robbery and murder, as charged in Counts
1, 2, 5 and 6, you must be satisfied beyond a reasonable doubt
that: [¶] 1. The crime or crimes of robbery and murder were
committed; [¶] 2. That the defendant aided and abetted those
crimes; [¶] 3. That a co-principal in that crime committed the
crime[s] of robbery and murder; and [¶] 4. The crimes of robbery
3 Monique’s mother, called as a prosecution witness, testified
she had told Penunuri several months earlier that he and his
fellow gang members were not allowed at Monique’s house and
she never would have allowed Monique to have guests at
3:00 o’clock the morning.
5
and murder of Brian Molina and Michael Murillo were a natural
and probable consequence of the commission of the crimes of
assault and murder of Luke Bissonnett[e] and Carlos Arias. [¶]
You are not required to unanimously agree as to which originally
contemplated crime the defendant aided and abetted, so long as
you are satisfied beyond a reasonable doubt and unanimously
agree that the defendant aided and abetted the commission of an
identified and defined target crime and that the crime of robbery
& murder was a natural and probable consequence of the
commission of that target crime.”
The court defined murder using CALJIC No. 8.10, malice
using CALJIC No. 8.11, and deliberate and premeditated murder
using CALJIC No. 8.20. As to the special-circumstance
allegation, the court used a redacted and, as a result, rather
garbled version of CALJIC No. 8.80.1 (1997 revision). The first
two paragraphs of the instruction were read to the jury as drafted
by the CALJIC committee: “If you find the defendant in this case
guilty of murder of the first degree, you must then determine if
the following special circumstance is true or not true: multiple
murder. [¶] The People have the burden of proving the truth of a
special circumstance. If you have a reasonable doubt as to
whether a special circumstance is true, you must find it to be not
true.” The court deleted the third paragraph of the proposed
pattern instruction, which was inapplicable under the facts of
Delaloza’s case.
The fourth paragraph as drafted provides, “If you find that
a defendant was not the actual killer of a human being, or if you
are unable to decide whether the defendant was the actual killer
or an aider and abettor or co-conspirator, you cannot find the
special circumstance to be true as to that defendant unless you
6
are satisfied beyond a reasonable doubt that such defendant with
the intent to kill aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted any actor in the commission of
the murder in the first degree. . . .” However, as revised by the
court, the jury was instructed, “If you find that a defendant was
not the actual killer of a human being, or an aider and abettor or
co-conspirator, you cannot find the special circumstance to be
true unless you are satisfied beyond a reasonable doubt that such
defendant with the intent to kill aided, abetted, or assisted any
actor in the commission of the murder in the first degree.”4
The court also instructed that Delaloza had been accused of
having committed the crime of conspiracy to commit murder,
which “requires proof that the conspirators harbored express
malice aforethought, namely, the specific intent to kill unlawfully
another human being.” The court further instructed, “A
conspiracy is an agreement entered into between two or more
persons with the specific intent to agree to commit the crime of
murder and with the further specific intent to commit that crime
4 The instruction the court actually read differed from its
own redacted written version: “If you find that a defendant was
not the actual killer of a human being, or an aider and abettor or
co-conspirator, you cannot find the special circumstance to be
true unless you are satisfied beyond a reasonable doubt that such
defendant with the intent to kill aided, abetted, or assisted in any
act in the commission of murder in the first degree.” (Italics
added.) The written version of an instruction generally controls if
it conflicts with the oral version. (People v. Wilson (2008)
44 Cal.4th 758, 804; People v. Osband (1996) 13 Cal.4th 622,
717.) Nonetheless, “the jury is not informed of this rule. It is
thus possible the jury followed the oral instruction.” (Wilson, at
p. 804.)
7
followed by an overt act committed in this state by one or more of
the parties for the purpose of accomplishing the object of the
agreement.” Finally, the court instructed in the language of
CALJIC No. 6.11, “A member of the conspiracy is not only guilty
of the particular crime that to his knowledge his confederates
agree to and did commit, but is also liable for the natural and
probable consequences of any crime or act of a co-conspirator to
further the object of the conspiracy, even though that crime or act
was not intended as a part of the agreed-upon objective and even
though he was not present at the time of the commission of the
crime or act.”
During a pre-instruction conference the prosecutor
withdrew her request that the court instruct the jury with
CALJIC No. 8.65.5 Accordingly, the jury was not instructed on
the concept of transferred intent.
3. Verdict, Sentence and Appeal
The jury convicted Delaloza on all charges and found true
the special allegations, including the multiple-murder special-
circumstance allegation. The court sentenced Delaloza to an
indeterminate state prison term of life without parole plus
29 years to life.
We affirmed the judgment on appeal, rejecting Delaloza’s
contention the evidence was insufficient to support his
convictions for murder and conspiracy to commit murder. We
also held the trial court had not abused its discretion by
permitting members of the victims’ families to wear lapel ribbons
5 CALJIC No. 8.65 provided, “When one attempts to kill a
certain person, but by mistake or inadvertence kills a different
person, the crime, if any, so committed is the same as though the
person originally intended to be killed, had been killed.”
8
in memory of the victims and Delaloza had not been prejudiced
by the court’s use of a since-disapproved anti-nullification
instruction (former CALJIC No. 17.41.1).
In evaluating Delaloza’s argument regarding the
sufficiency of the evidence, we emphasized that, to convict
Delaloza of murder as an aider and abettor, the People did not
need to prove he knew Penunuri intended to kill Arias and
Bissonnette. “Proof defendant knew Penunuri intended an
assault with a deadly weapon would be sufficient under the
natural and probable consequences doctrine.” Similarly, to
convict Delaloza of conspiracy to commit murder, “the People had
to prove beyond a reasonable doubt defendant entered into an
agreement with Penunuri to commit that offense or another
offense, such as assault, of which murder was a natural and
reasonable consequence.”6
After summarizing the evidence at trial, we pointed out,
“The People concede there is no direct evidence defendant knew
Penunuri intended to assault or kill Arias and Bissonnette and
no direct evidence he conspired or aided and abetted Penunuri in
the commission of those crimes. Rather, the People maintain the
jury could infer such knowledge and intent from circumstantial
evidence including the group character of gang members.”
Disclaiming any reliance on the testimony of the prosecution’s
gang expert that gang members behave in certain ways, we
nonetheless held the evidence was sufficient for the jury to find,
“when defendant drove Penunuri to Bissonnette’s home that
6 In their respondent’s brief in Delaloza’s direct appeal, the
People argued circumstantial evidence supported a finding that
he and Penunuri shared a “common intent—and hence
agreement—either to commit a murder or armed assault.”
9
evening, he knew Penunuri intended to commit an assault on
Bissonnette or Arias or both. This is sufficient to uphold his
convictions for murder and conspiracy.”7
3. Delaloza’s Section 1170.95 Petition for Resentencing
On February 13, 2019 Delaloza, represented by the
alternate public defender, filed a petition for resentencing under
section 1170.95.8
On April 4, 2019 the district attorney filed two responses to
the petition. In one, the district attorney argued Delaloza was
not eligible for relief because the record of conviction, including
the jury’s verdict, made clear Delaloza had been convicted of first
degree murder as a direct aider and abettor who acted with the
specific intent to kill. In the second, the district attorney argued
7 We identified as constituting substantial evidence for
Delaloza’s convictions under the natural and probable
consequences doctrine the fact that Delaloza apparently provided
the ammunition for Penunuri’s gun; Penunuri had displayed the
gun during the robbery earlier in the evening and again when
initially confronting Bissonnette; Delaloza witnessed Bissonnette
and Arias run from Penunuri, who gave chase; Delaloza did not
park directly in front of Bissonnette’s home when he and
Bissonnette purportedly went there to visit Monique and then,
immediately after the shots were fired, Delaloza was seen
cruising in his car slowly by the house “as if he knew Penunuri
would be running out to get into the car”; and Delaloza lied to the
police about his whereabouts when the murders were committed.
8 Although the petition was both incomplete and
inaccurate—there was no declaration from Delaloza as required
by section 1170.95, subdivision (b)(1)(A), and the petition
asserted Delaloza had been convicted of murder under the felony-
murder rule—neither the district attorney nor the superior court
indicated the petition should be denied on that basis.
10
section 1170.95 violated the separation of powers doctrine and
was unconstitutional.
Delaloza, through his counsel, replied to both memoranda,
arguing that section 1170.95 was constitutional and that he had
made a prima facie showing his murder convictions were based
on the natural and probable consequences doctrine. He urged the
court to issue an order to show cause and to hold an evidentiary
hearing to determine whether he should be resentenced.
After considering “the entirety of the court file,” as well as
argument from counsel at a hearing on July 29, 2019, the
superior court denied the petition. The court explained, “Based
on this court’s own review of the fact pattern, notwithstanding
there was in fact apparently the natural probable consequence
given and argued, that the fact pattern simply does not fit the
purview of 1170.95 giving Mr. Delaloza the opportunity to or this
court the jurisdiction to grant his relief.”9
Delaloza filed a timely notice of appeal.
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowed the felony-murder exception
to the malice requirement for murder. (People v. Lewis (July 26,
9 Because it found Delaloza had failed to make a prima facie
showing of eligibility for relief, the court stated it was
unnecessary to address the prosecutor’s argument that
section 1170.95 is unconstitutional.
11
2021, S260598) __ Cal.5th __ [2021 Cal. Lexis 5258, p. 2] (Lewis).)
With respect to the former change, “to amend the natural and
probable consequences doctrine, Senate Bill 1437 added
section 188, subdivision (a)(3) (section 188(a)(3)): ‘Except [for
felony-murder liability] as stated in subdivision (e) of Section 189,
in order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.’”
(Gentile, at pp. 842-843.)
Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, supra, __ Cal.5th at p. ___
[p. 2]; Gentile, supra, 10 Cal.5th at p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), requires the
court to appoint counsel to represent the petitioner, if requested;
to direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply; and to determine if the
petitioner has made a prima facie showing that he or she is
entitled to relief. (See Lewis, supra, __ Cal.5th at p. ___ [p. 5].)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
12
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, __ Cal.5th at p. ___ [p. 30].) However, “the prima facie
inquiry under subdivision (c) is limited. Like the analogous
prima facie inquiry in habeas corpus proceedings, the court takes
petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved. If so, the court
must issue an order to show cause. . . . However, if the record,
including the court’s own documents, contain[s] facts refuting the
allegations made in the petition, then the court is justified in
making a credibility determination adverse to the petitioner.”
(Id. at pp. ___, internal quotation marks omitted [pp. 30-31];
see People v. Daniel (2020) 57 Cal.App.5th 666, 675, review
granted Feb. 24, 2021, S266336 [any error in denying petition at
prima facie stage without appointing counsel is harmless if the
record of conviction “conclusively demonstrates” petitioner is
ineligible for relief].)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230,
review granted Mar. 10, 2021, S266652; People v. Lopez (2020)
56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, S265974;
but see People v. Duke (2020) 55 Cal.App.5th 113, 123, review
granted Jan. 13, 2021, S265309.) The prosecutor and petitioner
13
may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens. (See Gentile, supra,
10 Cal.5th at pp. 853-854; People v. Drayton (2020)
47 Cal.App.5th 965, 981.)
2. The Record of Conviction Does Not Establish Delaloza Is
Ineligible for Resentencing as a Matter of Law
It is undisputed Delaloza’s jury was instructed he could be
convicted of murder as a natural and probable consequence of
aiding and abetting Penunuri’s aggravated assault of Bissonnette
and Arias. Moreover, as discussed, in holding substantial
evidence supported the murder convictions, we focused solely on
that now-prohibited basis for finding an accomplice guilty of
murder, expressly stating it was unnecessary for the People to
have proved Delaloza was aware of and shared Penunuri’s intent
to commit murder. Yet the superior court ruled Delaloza had
failed to make a prima facie showing of eligibility for relief,
concluding, based on its own review of the record, that the jury
necessarily found Delaloza had acted with express malice when
aiding and abetting Penunuri and thus could still be convicted of
murder notwithstanding Senate Bill 1437’s amendment to
section 188 prohibiting imputation of malice other than in cases
of felony murder.
The Attorney General amplifies the superior court’s
finding, contending, “The jury’s verdicts in this case establish
that it found appellant guilty under a theory that he directly
aided and abetted the murders. The jury’s true findings on the
multiple-murder special circumstances indicate it found that
appellant, who was not alleged to be the actual killer, necessarily
‘with the intent to kill, aided or assisted in any act in the
commission of murder in the first degree.’ (CALJIC
14
No. 8.80.1 . . . .)[10] Likewise, appellant’s conviction for conspiracy
to commit murder in count 4 confirmed that the jury found he
possessed the intent to kill when he dropped Penunuri off at
Bissonnette’s house.”
The Attorney General’s description of the rationale for the
jury’s verdict might well be correct; but we cannot say the record
of conviction indisputably established the jury found Delaloza
guilty as a direct aider and abettor of Penunuri’s murder of
Murillo and Molina, as required to deny the petition for
resentencing without issuing an order to show cause and
conducting an evidentiary hearing. (See, e.g., People v. Gonzalez
(2021) 65 Cal.App.5th 420, 429; People v. Aleo (2021)
64 Cal.App.5th 865, 873.) First, that is clearly not the import of
our decision affirming Delaloza’s convictions, which, as the
Supreme Court recently held in Lewis, supra, __ Cal.5th at
page ___ [p. 24], is properly considered part of the record of
conviction when evaluating a petitioner’s prima facie case under
section 1170.95.
Second, as the Attorney General contends, a properly
instructed jury’s multiple-murder special-circumstance finding
would establish the jury found the defendant had acted with the
intent to kill. Here, however, the jury was given an essentially
nonsensical instruction: If it found Delaloza was not an aider
10 Although the superior court did not identify the multiple-
murder special-circumstance finding as the basis for denying
Delaloza’s petition, referring in far more general terms to the
jury’s necessary finding of intent, the Attorney General argues an
appellate court will generally affirm a trial court’s ruling if
correct on any ground, even if the court’s reasoning was incorrect.
(See, e.g., People v. Brooks (2017) 3 Cal.5th 1, 39; People v. Chism
(2014) 58 Cal.4th 1266, 1295, fn. 12.)
15
and abettor, then it could find the special circumstance true if he
was an aider and abettor who acted with the intent to kill.
Moreover, the oral version of the instruction, which the Attorney
General quotes in support of this argument, incorrectly (and
confusingly) referred to aiding and abetting “in an act” in the
commission of murder, while the written version of the
instruction properly referred to aiding and abetting “any actor.”
(See footnote 4, above.) Perhaps the jury was sufficiently
insightful to decode the correct import of CALJIC No. 8.80.1
notwithstanding the trial court’s multiple errors when using it.
But we are not prepared to attribute any meaning as a matter of
law to the jury’s true finding under these circumstances.
Finally, although the Attorney General argues that, in
finding Delaloza guilty of conspiracy to commit murder, the jury
unquestionably found he had the specific intent to murder at
least Bissonnette, the People, when urging this court to affirm
the conspiracy conviction in Delaloza’s direct appeal, contended
we could do so by finding the evidence sufficient to support a
finding of a common intent, and hence agreement, to commit
either murder or an armed assault. As discussed, we accepted
that argument and affirmed the conviction on the ground there
was a conspiracy to commit an aggravated assault; the murders,
we held, were the natural and probable consequence of that
agreement. The inconsistent position now advanced by the
Attorney General may be proper at an evidentiary hearing after
the superior court issues an order to show cause; it has no place
in evaluating whether Delaloza has made a prima facie case for
relief.
In any event, even if the jury found that Delaloza shared
Penunuri’s intent to kill Bissonnette, and not just to commit an
16
assault, pursuant to amended section 188, subdivision (a)(3),
Delaloza would be ineligible for resentencing relief as a matter of
law only if that finding necessarily meant he acted with malice as
a principal in the murders of Murillo and Molina without
imputing malice based solely on his participation in the
conspiracy to kill Bissonnette. The record does not permit that
conclusion.
The record is not clear whether Penunuri, once he was on
the patio, killed Murillo and Molina by mistake, believing they
were Bissonnette and Arias; recognized Murillo and Molina and
intended to kill them for some reason; or simply decided to shoot
the two people on the patio whoever they were, regardless of the
initial intent of his agreement with Delaloza. Because he waited
in his car for Penunuri, Delaloza was not privy to Penunuri’s
patio thought-process. Given that gap in the evidence and in
light of the several different theories on which the jury could
have convicted Delaloza of murder—as a direct aider and abettor
of Penunuri in committing the murders; as an aider and abettor
of Penunuri in committing an aggravated assault on the victims;
or as a coconspirator who intended that Bissonnette be killed
even if Penunuri’s murder of Murillo and Molina was
unintended—the record of conviction fails to demonstrate, as a
matter of law, the basis for the jury’s verdict and thus whether
Delaloza is necessarily ineligible for resentencing under
section 1170.95.
17
DISPOSITION
The postjudgment order denying Delaloza’s petition for
resentencing is reversed. On remand the superior court is to
issue an order to show cause and to conduct further proceedings
in accordance with section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
18