P. v. Cortez CA2/8 filed 8/19/26

Filed 8/19/26 P. v. Cortez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS ALBERTO CORTEZ,

Defendant and Appellant.

B337410

(Los Angeles County
Super. Ct. No. XCNBA358040-02)

APPEAL from an order of the Superior Court of LosAngeles County. Renee Korn, Judge. Affirmed.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey,Assistant Attorney General,Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, forPlaintiff and Respondent.

_________________________

Defendant and appellant Luis Alberto Cortez appeals from the trial court’s order denying, at the prima facie stage, his third petition for resentencing under Penal Code section 1172.6.Defendant raises two issues on appeal related to CALCRIM No.401, theaiding and abetting jury instruction given at his 2010 trial.Defendant contends that CALCRIM No. 401 impermissibly allowed the jury to convict him of murder on a theory of imputed malice, and because the record of conviction does not conclusively negate that possibility, the trial court’s summary denial of his petition was in error. Defendantalsocontends his failure to raise this instructional errorin his direct appeal is not a procedural bar to sentencing relief under section1172.6.
While this appeal was pending, the Supreme Court issued its decision in People v. Lopez (2026) 19 Cal.5th 639, 657–659 (Lopez), concluding the text and purpose of section 1172.6 did not support imposition of a procedural bar to relief to those defendants who had not challenged the language of CALCRIM No. 401 on direct appeal.As that issue has been resolved, we do not discuss it further.
We otherwise conclude the record of conviction conclusively establishes defendant’s ineligibility for sentencing relief as a matter of law, and therefore affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant and codefendant Joshua Christopher Jones were charged with the October 23, 2008 murder of Christian Garcia.(§ 187, subd. (a).) Gang and firearm use allegations were alleged. (§§ 186.22, subd. (b), 12022.53, subds. (d) & (e)(1).)
Defendant and Jones were jointly tried before a jury in August to September of 2010. The jury found Jones guilty of first degree murder, and found true both the gang allegation and the firearm use allegation. The jury found defendant guilty of second degree murder, found true the gang allegation, and found not true the firearm use allegation.
Defendant was sentenced to 15 years to life. The court imposed and stayed a 10-year term on the gang enhancement and awarded defendant 779 days of presentence custody credits. Ondirect appeal, the trial court was ordered to strike the gang enhancements as to both defendants and, in accordance with section 186.22, impose instead a 15-year minimum parole eligibility term. Both defendant’s and Jones’s convictions were otherwise affirmed. (People v. Jones et al. (July 12, 2013, B230147) [nonpub. opn.].)
After the passage of Senate Bill No. 1437 (Stats. 2018, ch.1015, § 4), defendant filed a petition for resentencing under section 1172.6 (former § 1170.95). The trial court appointed defendant counsel and received briefing from the parties. In February 2020, after a hearing, the court denied defendant’s resentencing petition, finding him ineligible for relief as a matter of law. Defendant filed a second resentencing petition after the passage of Senate Bill No.775 (Stats. 2021, ch. 551, § 2), which was also denied at the prima facie stage.
In March 2024, defendant filed, in propria persona, his third petition for resentencing. In his form petition, defendantonce again checked the boxes asserting under oath that he was charged by an information that allowed the prosecution to proceed under a theory of imputed malice, that he was convicted of murder, and that he could not now be convicted of murder in light of the amendments to the murder statutes effected by Senate Bill Nos. 1437 and 775. Defendant requested the appointment of counsel.
On March 14, 2024, the trial court summarily denied defendant’s third petition without appointing counsel or requesting briefing from the parties. The court explained that in reaching its decision, it relied only on defendant’s petition and court documents from the record of conviction, including the felony information, the jury instructions, questions asked by the jury and answered by the court, and the verdict forms. The court notedthe jury was not instructed with the natural and probable consequences doctrine. Based on its review of the record, the courtconcluded defendant was convicted as a direct aider and abettor and not under a theory of imputed malice. As with the prior two petitions, the court concluded defendant had failed to make a prima facie showing of eligibility for relief.
This appeal followed.
DISCUSSION
Defendant concedes the prosecutor’s theory of the case was that the shooting of the victim was an intentional murder of a rival gang member in retaliation for codefendant Jones having been stabbed a few weeks earlier, and that the prosecutor argued Jones was the shooter or direct perpetrator and defendant was the aider and abettor. Defendant contends however that CALCRIM No. 401 allowed the jury to convict him of murder as an aider and abettor based on a theory of imputed malice, and the trial court erred in summarily denying his petition because the record of conviction does not conclusively negate that possibility. Based on our review of the record, we disagree. (People v. Hickman (2025) 110 Cal.App.5th 1262, 1268 [denial of resentencing petition at prima face stage reviewed denovo].)
A trial court is justified in summarily denying a petition under section 1172.6 at the prima facie stage if the documents from the record of conviction conclusively refute the allegations made by the defendant in his petition. (People v. Curiel (2023) 15Cal.5th 433, 460 (Curiel).) In fact, “ ‘the parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief.’ ” (Id. at p. 464.)
Here, CALCRIM No. 400 told the jury that a person may be guilty of a crime either by directly committing it asthe perpetrator, or by aiding and abetting the direct perpetrator. CALCRIM No. 401 instructed the jury, in relevant part, that “[t]o prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1.The perpetrator committed the crime; [¶] 2.The defendant knew that the perpetrator intended to commit the crime; [¶] 3.Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4.The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets acrime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
CALCRIM No. 401 accurately states the law regarding culpability for aiding and abetting a crime. Defendant does not assert otherwise. Rather, he says the instruction is ambiguous with respect to his conviction forsecond degree murder.
In recent years,courts acknowledged an ambiguity in the language of CALCRIM No. 401 when the instruction was not tailored to the specific facts of the case. (See, e.g.,People v. Reyes (2023) 14 Cal.5th 981, 991 (Reyes); People v. Powell (2021) 63Cal.App.5th 689, 712–714.) The ambiguity recognized by these courts typically pertains to second degree murder based on implied malice. The ambiguity arises because the language of CALCRIM No. 401, an instruction of general applicability, is focused on aiding and abetting an underlying crime. (Reyes at p.991; accord, Lopez, supra, 19 Cal.5th at pp. 654–655.) But, with implied malice murder, accomplice liability is premised on aiding and abetting a life-endangering act.
Reyes explains: “In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.”(Reyes, supra, 14 Cal.5th at p. 991.) Following the Supreme Court’s decision in Reyes, the Judicial Council adopted a new jury instruction, CALCRIM No. 526, setting forth the elements of “aiding and abetting implied malice murder.” (CALCRIM No.526.)
Defendant relies on this ambiguity in arguing for a reversal of the trial court’s order and a remand for further proceedings on his petition.But defendant fails to acknowledge thelimited nature of the ambiguity recognized in CALCRIM No. 401.Defendant has not cited any case that concludes every defendant convicted of second degree murder is automatically entitled to an evidentiary hearing under section 1172.6 simply because his jury was instructed with CALCRIM No. 401. Indeed, a trial court’s review of a petition under section 1172.6 remains a case-specific inquiry informed by the record of conviction. (See, e.g., Curiel, supra, 15 Cal.5th at p.441; People v. Antonelli (2025) 17 Cal.5th 719, 731–732.)
The record of conviction here conclusively establishes that the jury found the murder of Garcia to be an express malice murder. The information charged defendant and Jones jointly with only one count of murder.This was not a case arising from a shooting in the course of another felony. In addition to CALCRIM Nos. 400 and 401, the jury was instructed on the definition and principles related to homicide, the degrees of murder, premeditation, manslaughter, self-defense, and imperfect self-defense (CALCRIM Nos. 500, 505, 520, 521 & 571). It is undisputed the jury was not instructed on the natural and probable consequences doctrine or felony murder.
The jury found codefendant Jones guilty of first degree murder. The jury therefore necessarily found that Jones acted with a premeditated intent to kill when he shot the victim. Thejury was tasked with determining whether the evidence also demonstrated beyond a reasonable doubt that defendant knew of Jones’s intent, intended to aid Jones in his purpose, and did in fact take an act that aided Jones in committing murder.(CALCRIM No. 401[“Someone aids and abets acrime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime”].) The jury answered that question in the affirmative by finding defendant guilty of murder.
Curiel instructs that the “essence of aiding and abetting is involvement in the crime of another. The aider and abettor must become ‘concerned’ with the crime itself. (§ 31.) ‘[A] person “chooses to become a part of the criminal activity of another”’ and ‘“says in essence, ‘your acts are my acts.’”’”(Curiel, supra, 15 Cal.5th at p. 468.) Put another way, it is the “mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.” (Ibid.) The jury’s verdicts, viewed in light of the jury instructions, conclusively demonstrate that the jury found defendant knowingly involved himself in and assisted the murder committed by Jones—a valid theory of culpability under the current murder statutes that is not based on imputed malice. There is nothing in the record to support the possibility the jury convicted defendant on a theory of imputed malice. The order denying defendant sentencing relief is therefore properly affirmed.
Finally, the People point out that the trial court failed to appoint counsel or request briefing on defendant’s third petition, but any error was harmless. (People v. Lewis (2021) 11Cal.5th 952, 970–971 [trial court must appoint counsel and allow briefing upon the filing of a facially sufficient petition].) Defendant did not raise this as a contention and the issue is therefore forfeited. In any event, the error was indeed harmless. (Lewis, at p. 973 [failure toappoint counsel and allow briefing is state law error only].) To establish prejudice, defendant would have had to demonstrate that it is reasonably probable that if he had been afforded counsel, his petition would not have been summarily denied at the prima facie stage. (Id. at p. 974.)Given our discussion above, defendant could not do so, even if he had asserted the error.
DISPOSITION
The March 14, 2024 order denying defendant’s third petition for resentencing under section 1172.6 is affirmed.

VIRAMONTES, J.

WE CONCUR:

WILEY, Acting P. J.

SCHERB, J.