People v. Godoy CA2/4 ( 2023 )

Filed 8/1/23 P. v. Godoy CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B323320
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA017946)
v.
KENNETH GODOY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathryn A. Solorzano, Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Gabriel Bradley,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________________________
In 1996, defendant and appellant Kenneth Godoy
(Godoy) was convicted on two counts of attempted murder
for his involvement in a shooting. In 2022, Godoy filed a
petition for resentencing under former Penal Code section
1170.95.1 The trial court denied Godoy’s petition without
issuing an order to show cause, concluding Godoy failed to
make a prima facie showing he was eligible for relief. Godoy
contends the record of conviction shows it is possible that the
jury convicted him under an imputed malice theory. In
addition, Godoy argues the court erred by relying on the
facts from this court’s prior opinion of Godoy’s direct appeal
from his conviction, People v. Godoy (Dec. 15, 1999, B107094
[nonpub. opn.]). Because Godoy is ineligible for relief as a
matter of law, we affirm the order denying the petition.
1 All subsequent statutory references are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered section 1170.95 to
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive
changes to the statute. All further references to the statute will be to
the new section number.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Charges and Conviction2
On May 12, 1994, two teenagers waiting at a bus stop
were victims of a drive-by shooting. Though seriously
injured, both survived. One of the victims saw three males
in the van from which the shots were fired. A police officer
who witnessed the shooting saw two gun muzzle flashes and
smoke coming from the van. The officer pursued the van in
her vehicle until the van crashed. Three male occupants
jumped out and ran off. During the ensuing foot pursuit, the
police officer “got a good look at [Godoy]” when he turned
around and faced her with a gun in his hand before she gave
up the pursuit for safety reasons.
Additional officers joined in the pursuit in an
unmarked patrol car. They saw Godoy near their vehicle,
and when they identified themselves to him, Godoy fled.
One of the officers would later identify Godoy as the
individual they encountered. A bystander alerted one of the
officers to the fact that Godoy had dropped a gun, a
nine-millimeter semi-automatic, near the spot where Godoy
was standing when he was first confronted by the officers.
Another set of police officers saw Godoy at a shopping
center and ordered him to stop, which he did.
Approximately 15 minutes after the pursuit began, Godoy
was detained when he was positively identified by the initial
2 Our summary of the facts and procedural history is taken from
the opinion of Godoy’s direct appeal. We do not rely on the facts in
resolving this appeal.
3
officer that pursued him when he jumped out the van.
A .38-caliber semi-automatic handgun was also found in an
area where the van was pursued. It was stipulated that the
casings found in the van and at the crime scene were from
the recovered nine-millimeter and .38-caliber guns.
At trial, Godoy asserted a mistaken identity defense
based on the theory that he was in the area to purchase
heroin. One of Godoy’s codefendants, David Singerman
(Singerman), admitted that he was present in the van with
two other “guys” but denied that he was one of the shooters.
The other codefendant, Sergio Robles (Robles), relied on a
mistaken identity defense, but he presented no evidence.
Among the jury instructions given were CALJIC
instructions on principals (CALJIC No. 3.00), aiding and
abetting (CALJIC No. 3.01), and attempted murder (CALJIC
No. 8.66). The court did not instruct the jury on the natural
and probable consequences or felony murder doctrines.
During the rebuttal closing argument, the prosecutor
contended that while Robles should be found guilty of
attempted murder, Robles should not be found guilty of
personal use of a firearm as to one of the victims.3 In
making this argument, the prosecutor asserted, “You know,
if the judge and I go to a liquor store to commit a robbery,
and the judge is just the driver of the car, and I go over
there, and [. . .] during the robbery somebody gets killed
3 We previously granted the People’s unopposed request to take
judicial notice of the reporter’s transcript from Godoy’s direct appeal
containing trial counsel’s closing arguments.
4
unintentionally or by accident, I’m an accomplice. [¶] I,
through my actions [. . .] facilitated the crime. And these are
principals. All of these three guys are principals in this case.
[¶] The only difference, though, is that his honor, because
he’s the one that had the gun, or whichever one had the gun,
and went in there and shot somebody, he would be charged
with personal use.”
The jury convicted Godoy of two counts of first degree
attempted murder. As to both counts, the jury found true
the allegations that the attempted murders were willful,
deliberate, and premeditated, that Godoy was armed with a
firearm, that Godoy personally used a firearm, and that
Godoy personally inflicted great bodily injury on the victims.
As to his codefendants, the jury found that Robles did not
use a firearm and did not personally inflict great bodily
injury on the victims, while it found that codefendant
Singerman did use a firearm but did not personally inflict
great bodily injury on the victims. Godoy was sentenced to
two consecutive life sentences plus 16 years for the
enhancements. The judgment against Godoy was affirmed
in his direct appeal.
B. Petition for Resentencing
In January 2022, Godoy filed a petition for
resentencing under section 1172.6. In his handwritten
petition, Godoy claimed that he was eligible for relief
because the jury was given instructions under the natural
and probable consequences theory, and because the jury
5
found that Godoy did not shoot the victims, fire a weapon, or
cause great bodily injury. The court appointed counsel for
Godoy and received briefing by the parties.
In response to the petition, the People asserted that
Godoy was not convicted under the natural and probable
consequences doctrine. Instead, he was prosecuted solely as
an actor with actual malice, and the jury convicted him of
willful, deliberate, and premeditated attempted murder. In
support of the petition, the People attached the prior opinion
from Godoy’s direct appeal, the jury instructions from trial,
and the jury verdicts.
In reply, Godoy’s court appointed counsel argued that
the prosecutor’s statements during the rebuttal closing
argument, together with the jury instructions given, showed
that Godoy may have been prosecuted under an imputed
malice theory.
At the hearing on the petition, the trial court noted
that the jury was “given standard attempted murder
instructions and the case was presented as a case where
[Godoy and his codefendants] were either actually the
shooter or aided and abetted the actual shooter.” The court
stated that it relied in part on Godoy’s prior appeal in
determining whether to issue an order to show cause and
found that Godoy’s claim was meritless based on the opinion
and jury instructions. Consequently, the trial court denied
the petition without issuing an order to show cause after
finding that Godoy did not make a prima facie showing of
entitlement to relief under section 1172.6. It concluded that
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“the jury was instructed on the necessary mens rea of intent
to kill,” and “was not instructed on the natural and probable
consequences doctrine or a target crime in that context.”
Godoy timely appealed.
DISCUSSION
A. Governing Law
The Legislature enacted Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (SB 1437) “to amend the felony murder rule
and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord,
§ 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).) SB 1437 also added now section 1172.6, providing
a procedure for defendants whose cases are final to seek
retroactive relief by petitioning the sentencing court to
vacate the conviction and resentence on any remaining
counts. (§ 1172.6, subd. (a).) Effective January 1, 2022,
Senate Bill No. 775 (2021-2022 Reg. Sess.) amended section
1172.6 to expand its coverage to individuals convicted of
“attempted murder under the natural and probable
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consequences doctrine.”4 (§ 1172.6, subd. (a); People v. Saibu
(2022) 81 Cal.App.5th 709, 747.)
A petition for relief under section 1172.6 must include
a declaration by the petitioner that he or she is eligible for
relief based on the requirements of subdivision (a), the
superior court case number and year of the petitioner’s
conviction, and a request for appointment of counsel, should
the petitioner seek appointment. (§ 1172.6, subd. (b)(1).)
“Within 60 days after service of a petition that meets the
requirements set forth in subdivision (b), the prosecutor
shall file and serve a response. The petitioner may file and
serve a reply within 30 days after the prosecutor’s response
is served. These deadlines shall be extended for good cause.
After the parties have had an opportunity to submit
briefings, the court shall hold a hearing to determine
whether the petitioner has made a prima facie case for relief.
If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order
4 Under the natural and probable consequences doctrine, a
“‘defendant may be held criminally responsible as an accomplice not
only for the crime he or she intended to aid and abet (the target crime),
but also for any other crime [nontarget crime] that is the “natural and
probable consequence” of the target crime.’” (People v. Hardy (2018) 5
Cal.5th 56, 92.) “To find an aider and abettor guilty of a nontarget
crime under the natural and probable consequences theory, the jury
must find that the defendant aided and abetted the target crime, that
a coparticipant in the target crime also committed a nontarget crime,
and that this nontarget crime was a natural and probable consequence
of the target crime the defendant aided and abetted.” (Ibid.)
8
to show cause.[5] If the court declines to make an order to
show cause, it shall provide a statement fully setting forth
its reasons for doing so.” (§ 1172.6, subd. (c).)
The record of conviction necessarily informs the trial
court’s prima facie inquiry, “allowing the court to distinguish
petitions with potential merit from those that are clearly
meritless.” (Lewis, supra, 11 Cal.5th at 971.) “‘“[T]he 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.”’ [Citation.]” (Ibid.) “In reviewing any part of the
record of conviction at this preliminary juncture, a trial court
should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’” (Id. at p. 972.)
However, “[i]f the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the
trial court may dismiss the petition.” (People v. Strong
(2022) 13 Cal.5th 698, 708; see also People v. Harden (2022)
81 Cal.App.5th 45, 52 (Harden) [“For example, if the record
shows that the jury was not instructed on either the natural
and probable consequences or felony-murder doctrines, then
the petitioner is ineligible for relief as a matter of law”].) We
review de novo whether the trial court properly denied
5 If the petitioner makes a prima facie showing of entitlement to
relief and issues an order to show cause, the trial court must hold an
evidentiary hearing to determine whether to vacate the murder or
attempted murder conviction, recall the sentence, and resentence the
petitioner on any remaining counts. (§ 1172.6, subds. (c)–(d)(1).)
9
appellant’s section 1172.6 petition without issuing an order
to show cause. (People v. Coley (2022) 77 Cal.App.5th 539,
545 (Coley); People v. Harrison (2021) 73 Cal.App.5th 429,
437.)
B. The Trial Court Properly Denied the Section
1172.6 Petition
Godoy argues that the trial court erred by denying his
petition for resentencing without issuing an order to show
cause because the record of conviction demonstrates that the
jury conceivably could have convicted him under an imputed
malice theory. Additionally, Godoy contends that the trial
court improperly denied his petition because it relied on the
facts from this court’s prior opinion. We disagree with
Godoy’s contentions.
1. Godoy was Not Convicted under the Natural and
Probable Consequences Doctrine
Based on its plain language, section 1172.6 provides
that a person convicted of attempted murder may be eligible
for relief only if that conviction was “under the natural and
probable consequences doctrine.” (§ 1172.6, subd. (a); Coley,
supra, 77 Cal.App.5th at 548 [“Section [1172.6] applies by its
terms only to attempted murders based on the natural and
probable consequences doctrine”].) Here, the trial court did
not instruct the jury on the natural and probable
consequences doctrine. The record shows that the jury
convicted Godoy of two counts of willful, deliberate, and
10
premeditated attempted murder, finding that Godoy was the
only defendant that both personally used a firearm and
inflicted great bodily injury on the victims. Accordingly, the
jury found Godoy was an actual shooter in the attempted
murders, and nothing suggests he was convicted under a
natural and probable consequences or other imputed malice
theory.
Godoy contends that although the jury was not
instructed on the natural and probable consequences
doctrine, the instructions that were given as to all the
defendants might have confused the jury. He argues that
CALJIC instructions on principals (CALJIC No. 3.006),
aiding and abetting (CALJIC No. 3.017), and attempted
murder (CALJIC No. 8.66), along with the prosecutor’s
analogizing this case to that of a liquor store robbery, made
it plausible that the jury convicted Godoy under an imputed
malice theory.8
6 CALJIC No. 3.00 states concerning principals, “[t]he persons
concerned in the commission or attempted commission of a crime who
are regarded by law as principals in the crime thus committed or
attempted and equally guilty thereof.” (Italics added.)
7 Regarding liability for direct aiding and abetting, CALJIC No.
3.01 instructed the jury that a person aids and abets the commission or
attempted commission of a crime when he or she acts “[w]ith
knowledge of the unlawful purpose of the perpetrator” and “[w]ith the
intent or purpose of committing or encouraging or facilitating the
commission of the crime.”
8 The felony murder doctrine is not applicable to attempted
murder. (People v. Wein (1977) 69 Cal.App.3d 79, 92 [“the felony-
murder rule has no application to a charge of attempted murder. An
attempted murder requires the intent to take a human life — an
(Fn. is continued on the next page.)
11
The jury was given instructions as to what was
required to convict each of the three defendants, whether as
a shooter or an aider and abettor, for attempted murder.
Although CALJIC No. 3.00 has the potential to be
misleading in some circumstances,9 the “equally guilty”
language in CALJIC No. 3.00 did not allow the jury to find
Godoy guilty of attempted murder without considering his
mental state. The instruction for attempted murder
(CALJIC No. 8.66) under which Godoy was convicted,
required the prosecutor to prove that “[t]he person
committing the act harbored express malice aforethought,
namely, a specific intent to kill unlawfully another human
being.” Further, the jury was expressly instructed to
consider Godoy’s guilt separately from his codefendants’.
(CALJIC No. 17.00 [“You must decide separately whether
each of the defendants is guilty or not guilty”].) Thus, by
convicting Godoy of attempted murder with the given
instructions, the jury necessarily found that Godoy himself
harbored express malice.
Godoy’s reliance on People v. Langi (2022) 73
Cal.App.5th 972 (Langi), for the proposition that it is
element which cannot be supplied by the application of the felony-
murder rule”].)
9 See People v. Nero (2010) 181 Cal.App.4th 504, 516, 518 [the
“equally guilty” language in CALJIC No. 3.00 is inconsistent with “the
notion that an aider and abettor’s mens rea ‘floats free’” and thus “can
be misleading”]; accord, People v. Amezcua and Flores (2019) 6 Cal.5th
886, 918 [“former CALJIC No. 3.00 ‘could be misleading if the
principals in a particular case might be guilty of different crimes and
the jury interprets the instruction to preclude such a finding’”].
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possible the jury imputed malice to him based solely on his
participation in the crime, is misplaced. In Langi, the
defendant was convicted of second degree murder in
connection with the beating death of a robbery victim; the
victim fell and struck his head after someone in a group that
included the defendant punched him. (Id. at p. 975.) “As the
case was tried, the jury could have found appellant guilty as
an aider and abettor even if it found that someone else threw
the fatal punch.” (Id. at p. 980.) The conviction was based
on two jury instructions “of central significance” given at
trial: (1) CALJIC No. 8.31 on second degree murder and
(2) CALJIC No. 3.01 on aiding and abetting. (Id. at p. 981.)
The second degree murder instruction required the jury to
find the perpetrator had deliberately performed a fatal act,
such as a punch, “with knowledge of the danger to, and with
conscious disregard for, human life,” but it did not require
finding that the perpetrator’s purpose was to kill the victim.
(Id. at pp. 981–982.) For the jury to convict the defendant as
an aider and abettor of second degree murder, they could
have found appellant only intended to encourage the
deliberate punch, regardless of whether or not he “intended
to aid or encourage [the] killing,” or “knew of and
disregarded the risk of such a killing.” (Id. at p. 983.)
Because the record of the defendant’s second degree murder
conviction did not conclusively negate the possibility that the
jury found him guilty as an aider and abettor on an imputed
malice theory, an evidentiary hearing was required. (Id. at
pp. 983–984.)
13
Unlike in Langi, Godoy was convicted of attempted
murder, and therefore, the jury instructions in this case did
not include the second degree murder instruction that
resulted in the ambiguity found in Langi. In contrast to the
second degree instructions, the attempted murder
instructions required the jury to find that Godoy committed
the act with express malice. (People v. Covarrubias (2016)
1 Cal.5th 838, 890 [“‘Attempted murder requires the specific
intent to kill and the commission of a direct but ineffectual
act toward accomplishing the intended killing’ ”]; see Coley,
supra, 77 Cal.App.5th at pp. 547–548 [holding Langi
inapplicable where the attempted murder conviction was
based on jury instructions requiring intent to kill].) The jury
was further instructed that an aider and abettor had to act
“[w]ith knowledge of the unlawful purpose of the
perpetrator,” and “[w]ith the intent or purpose of
committing, encouraging, or facilitating the commission of
the crime.” (CALJIC No. 3.01.) Thus, the jury was required
to find that even an aider and abettor in this case knew of
the killer’s purpose and intended to encourage the killing.
Godoy asserts that the liquor store robbery analogy
that the prosecutor used in his closing rebuttal argument
also suggested that Godoy could have been convicted under a
theory of imputed malice. However, the prosecutor directed
these comments toward Robles. Further, the trial court
expressly instructed the jury: “The arguments of the
lawyers are not evidence. It is the lawyers’ interpretation of
the evidence to you.” We presume the jury followed the
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court’s instructions, especially given that the challenged
remarks concerned a different codefendant. (People v.
Chhoun (2021) 11 Cal.5th 1, 30; see also People v. Cortes
(2022) 75 Cal.App.5th 198, 206 [“The prosecutor made a
single comment on a legal theory in closing that was not
presented in the case. Nothing in the charges, the
instructions, or the balance of the trial permitted the jury to
find [the defendant] guilty on a theory other than direct
aiding and abetting or liability as a perpetrator of murder
and attempted murder”].)
2. Any Error by the Trial Court in Relying on the
Facts from the Prior Appellate Opinion was
Harmless
Godoy claims the trial court improperly considered and
relied on the factual summary in this court’s prior appellate
opinion when it denied his petition. Section 1172.6,
subdivision (d)(3) permits the court to “consider the
procedural history of the case recited in any prior appellate
opinion.” (Cf. People v. Flores (2022) 76 Cal.App.5th 974,
987–988 [concluding the factual summary in an appellate
opinion cannot be used to establish, as a matter of law,
ineligibility for resentencing at the prima facie stage].) Even
if the trial court relied on the fact pattern in this court’s
prior opinion in denying Godoy’s petition, it would at most
amount to harmless error. The record of conviction
demonstrates that Godoy is ineligible for relief under section
1172.6 as a matter of law because he was not convicted of
attempted murder under the natural and probable
15
consequences doctrine. (See People v. Mejorado (2022) 73
Cal.App.5th 562, 572 [error in failing to appoint counsel is
harmless “if we can determine that the record of conviction
‘“‘contain[s] facts refuting the allegations made in the
petition’”’”]; cf. Harden, supra, 81 Cal.App.5th at 47–48
[defendant ineligible as a matter of law where record
“conclusively establish[ed]–with no factfinding, weighing of
evidence, or credibility determinations” the jury convicted
him on a still-valid theory of murder].) Based on the
foregoing, the trial court did not err in denying his petition
without issuing an order to show cause.
DISPOSITION
The order denying Godoy’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Mori, J.
We concur:
CURREY, P. J.
COLLINS, J.
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