Opinion
F085370
06-30-2023
THE PEOPLE, Plaintiff and Respondent, v. ISIDORO MATA, Defendant and Appellant.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Erin R. Doering and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. 1219225. Dawna Reeves, Judge.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Erin R. Doering and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2010, a jury convicted defendant Isidoro Mata of multiple counts, including first degree murder and three counts of attempted murder, in connection with a series of drive-by shootings during which defendant was the driver. This appeal arises from the denial of defendant's second petition for resentencing based on the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The trial court previously denied defendant's first petition for recall and resentencing of his murder conviction and we affirmed, concluding defendant was ineligible for relief as a matter of law based on the jury's express finding that defendant "acted with an intent to kill that was deliberate and premeditated" as to the murder.
The trial court construed defendant's second petition for recall and resentencing as a challenge to his attempted murder convictions and denied relief without issuing an order to show cause or holding an evidentiary hearing. The court concluded the jury's findings established defendant personally acted with the intent to kill with regard to each attempted murder. Defendant now appeals the denial of his second petition for recall and resentencing.
We affirm the court's order.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010, a jury convicted defendant of 11 offenses, including first degree murder (Pen. Code, § 187; count I), attempted murder (§§ 664, 187; counts II, III, &VII), shooting at an occupied building (§ 246; counts IV-VI), shooting at a person from a motor vehicle (former § 12034, subd. (c); count VIII), assault with a firearm (§ 245, subd. (a)(2); counts IX-X), and active participation in a criminal street gang (§ 186.22, subd. (a); count XI) in connection with a series of drive-by shootings. (Undesignated statutory references are to the Penal Code.) The verdict form as to count I reflects the jury found defendant guilty of first degree murder in violation of section 187, subdivision (a) and further found that "the defendant did act intentionally, deliberately and with premeditation." The jury also found numerous sentence enhancement allegations to be true and concluded with regard to the attempted murder charges that "the defendant did act intentionally, deliberately, and with premeditation."
The People filed a request for us to take judicial notice of the files from the prior appeals in this case, F061132 and F080013, asserting the trial court should and did consider the record of conviction in ruling on defendant's section 1172.6 petition at the prima facie stage. Defendant did not respond to or oppose the request. Pursuant to Evidence Code sections 452, subdivision (d), and 459 and California Rules of Court, rule 8.252, we grant the People's request to take judicial notice as it relates to our prior opinions in this matter, to which both parties refer in their briefs. Notably, here, the People presented to the trial court documents from the record of conviction they considered relevant to the prima facie determination-including, but not limited to, excerpts from the jury instructions, the verdict forms, the charging document, the abstract of judgment, and copies of our prior unpublished opinions in this matter-and they are included in the appellate record. Because we cannot conclude the remaining records in the file are relevant to our disposition of the instant appeal and they do not appear to have been presented to the trial court in the first instance, we decline to grant the People's request for judicial notice as to the remainder of the record. (See People v. Young (2005) 34 Cal.4th 1149, 1171, fn. 3 [court may not take judicial notice of any matter that is irrelevant]; see also People v. Preslie (1977) 70 Cal.App.3d 486, 493 [generally, court should not take judicial notice of matter that has not been presented to and considered by the trial court in the first instance]; People v. Hardy (1992) 2 Cal.4th 86, 134 [noting the general rule cautions against granting judicial notice of matters not presented to the trial court].)
Defendant's First Petition for Resentencing
In February 2019, defendant submitted a petition for resentencing pursuant to former section 1170.95 (now § 1172.6), using a printed form. He checked boxes stating a charging document had been filed against him allowing the prosecution to proceed under a felony-murder theory or the natural and probable consequences doctrine; at trial, he was convicted of first or second degree murder under a felony-murder theory or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437). He also checked a box indicating that he was convicted of first degree murder but could not now be convicted because he was not the actual killer, he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree, and he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime or felony. He also checked a box stating, "I request that this court appoint counsel for me during this re-sentencing process." He did not attach or include any additional information or documents to his petition.
The court denied the petition, concluding defendant "failed to establish a prima facie case that he is entitled to relief." The court reasoned:
"The appellate opinion affirming [defendant]'s conviction and sentence reflects that [defendant] drove his car into a Modesto neighborhood and stopped in front of 4 different residences while his front seat passenger pointed and fired a rifle at various people resulting in the death of one victim and injury to another. [Defendant] was convicted of first degree murder under the theory that the murder was premedi[t]ated, deliberate and intentional.
"A review of the record of conviction and court file establishes that the jurors were instructed with Cal Crim 521 which outlined the theories of 1st degree murder as follows:
"Theory 1: Willful, deliberate and premeditated intention to kill
"and
"Theory 2: Aiding and abetting a firearm discharge from a motor vehicle.
"The jurors were further instructed that they need not agree on the theory of murder so long as they all agreed that defendant was guilty of 1stdegree murder under one of the theories. However, in this case the jurors unanimously agreed that that [sic] [defendant] was guilty of 1st degree murder under the theory that he acted with an intent to kill that was deliberate and premeditated by finding true the special allegation. This finding prevents [defendant] from establishing a prima face case for relief under ... section 1190.75 [sic] in that the Petition wrongfully asserts that he 'did not, with the intent to kill, aid, abet[,] counsel, command, induce, solicit or assist the actual killer[.]'"
In our initial unpublished opinion, our court agreed with the trial court and affirmed its order denying the petition challenging defendant's murder conviction and we concluded defendant was categorically ineligible for relief from his attempted murder convictions in light of the plain language of former section 1170.95. Following a transfer from the California Supreme Court directing our court to reconsider the matter in light of the passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), we again affirmed the denial of the petition as to defendant's murder conviction and concluded his petition did not challenge his attempted murder convictions. (See People v. Mata (May 3, 2022, F080013) [nonpub. opn.].) Accordingly, we held defendant must first raise his challenge to his attempted murder convictions in the trial court for its consideration in the first instance. (See ibid.)
Defendant's Second Petition for Resentencing
Defendant filed another petition for resentencing pursuant to section 1172.6 on May 24, 2022, asserting he was convicted of "murder, attempted murder, or manslaughter" following a trial and could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019. In a written order, the trial court noted it denied defendant's previous petition for recall and resentencing, and our court affirmed the denial. It stated, "Because the first Petition sought resentencing on only the Murder conviction, and in light of the ruling of the Fifth District Court of Appeals, this Court construes the current Petition as seeking resentencing as to the attempted murder convictions only." The court appointed defendant counsel and ordered the district attorney to file a response.
In their response to defendant's second petition for recall and resentencing, the People asserted defendant was convicted "of three counts of premeditated attempted murder," and he was not entitled to relief from those convictions as a matter of law. They further contended the petition for resentencing as to the murder conviction should be denied "based on the record of conviction and collateral estoppel." They argued the court was not precluded from and could rely on the facts as summarized in the appellate opinion at the prima facie stage. They further asserted, "the jury was instructed that in order to find attempted murder, the People must prove that [defendant] intended to kill the person.... But the jury found beyond that basic intent to kill and found [defendant] guilty of three counts of premeditated and intentional attempted murder." Specifically, as to each attempted murder count, the jury made "specific findings on each of the attempted murder counts that in attempting to murder the victims [defendant] acted 'intentionally, deliberately, and with premeditation.'" Additionally, the jury found "[defendant] was a principal" in the commission of the attempted murder, "and at least one of the principals intentionally and personally discharged a firearm." They argued our court's reasoning from our previous affirmance of the denial of defendant's petition as to his murder conviction applies equally to the attempted murder convictions. That is, "[t]o find that premeditated attempted murder was the natural consequences of shooting out of the car, disregards the express language of the verdict form. The jury found that [defendant] committed attempted murders not under the natural and probable consequence of his co-defendant shooting out of the window of the car he was driving, but [defendant] committed the attempted murders with premeditation and intent to kill."
The People attached to their response to this petition numerous exhibits that included defendant's petition for resentencing, the charging document, our court's prior opinions, the trial court's previous August 3, 2019, order denying defendant's first petition for resentencing, the abstract of judgment reflecting defendant's convictions and sentence, the verdict forms, a minute order reflecting the jury's verdict, and excerpts from the jury instructions in this matter, including instructions on aiding and abetting, the natural and probable consequences doctrine, homicide, murder with malice aforethought, alternative theories of murder, first degree murder and the two theories upon which defendant was prosecuted, second degree murder (discharge from a vehicle), provocation, transferred intent, attempted murder, deliberate and premeditated attempted murder, shooting at an inhabited house, and shooting from a motor vehicle.
These documents reflect the jury was instructed with CALCRIM No. 402 on the natural and probable consequences doctrine in two separate instructions; the first related to counts I, II, and III for which shooting at an inhabited dwelling was the target offense and the second related to count VII (attempted murder) with shooting from a motor vehicle as the target offense. With the exception of the reference to the target offense, the instructions on the natural and probable consequences doctrine as to the attempted murder charges in counts II and III and count VII were identical and provided as follows (referring to the instructions on counts II and III):
"The Defendant is charged in Counts 4, 5, and 6 with Shooting at an Inhabited House, a violation of ... section 246 and in Counts Count [ sic ] 1, 2, and 3 with Murder and Attempted Murder.
"You must first decide whether the defendant is guilty of Shooting at an Inhabited House as charged in Counts 4, 5, and 6. If you find the defendant is guilty of these crimes, you must then decide whether he is guilty of Murder in Count 1 and Attempted Murder in Counts 2 and 3.
"Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time.
"To prove that the defendant is guilty of Murder and Attempted Murder, the People must prove that:
"1. The defendant is guilty of Shooting at an Inhabited House;
"2. During the commission of Shooting at an Occupied dwelling, a co-participant in that Shooting at an Inhabited House committed the crimes of a Murder and Attempted Murder;
"AND
"3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of Murder and Attempted Murder offenses were a natural and probable consequence of the commission of the Shooting at an Inhabited House.
"A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the Murder and or Attempted Murder was committed for a reason independent of the common plan to commit the Shooting at an Inhabited House, then the commission of Murder or Attempted Murder were not a natural and probable consequence of Shooting at an Occupied dwelling.
"To decide whether crimes of Murder and Attempted Murder were committed, please refer to the separate instructions that I will give you on those crimes."
The jury was instructed with CALCRIM No. 600 regarding attempted murder, which provided in part:
"To prove that the defendant is guilty of attempted murder [as charged in Counts 2, 3, and 7], the People must prove that:
"1. The defendant took direct but ineffective steps toward killing another person;
"AND
"2. The defendant intended to kill that person."
The attempted murder instruction (CALCRIM No. 600) referred to the "kill zone," providing: "A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the attempted murder of John Doe, the People must prove that the defendant not only intended to kill Johnny Silva and Robert Alcazar but also intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill anyone in the kill zone, then you must find the defendant not guilty of the attempted murder of John Doe."
The court then instructed the jury with CALCRIM No. 601, regarding the deliberation and premeditation allegations as to the attempted murder counts:
"If you find the defendant guilty of attempted murder under Counts 2, 3, and 7, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation
"The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting.
"The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved."
The verdict forms reflect the jury found true an allegation with regard to the attempted murder charges that "the defendant did act intentionally, deliberately, and with premeditation."
Defendant filed a reply in which he urged the court to independently review the record of conviction to determine whether he had made a prima facie showing. He also asserted, if the court concluded the doctrine of collateral estoppel applied to prevent reconsideration of his murder conviction, it should not apply to preclude his challenge to his attempted murder convictions.
After holding a prima facie hearing on September 22, 2022, at which the parties submitted on their briefs, the court denied defendant's second petition for recall and resentencing in a written order. In its order, the court stated, in relevant part, that relitigation of the issues argued and decided in prior proceedings is prohibited under the doctrine of collateral estoppel, so the court considered the instant petition "only with respect [to] [defendant]'s three attempted murder convictions." With regard to defendant's attempted murder convictions, the court stated: "The Fifth District court of appeal's opinion (F061132, 2012) affirming the [defendant]'s conviction and sentence reflects that [defendant] drove his car into a Modesto neighborhood and stopped in front of 4 different residences while his front seat passenger pointed and fired a rifle at various people."
In its order, the court detailed the charges and enhancements alleged against defendant and then emphasized certain jury instructions:
"As to the attempted murder charges alleged in counts 2, 3, and 7, the jury was instructed with CalCrim 600 which provided:
"'The defendant is charged in counts 2, 3, and 7 with attempted murder. To prove the defendant is guilty of attempted murder the People must prove that:
"'1. The defendant took direct but ineffective steps towards killing another person: and
"'2. The defendant intended to kill that person.
"'A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside of the plan had not been interrupted the attempt [sic].
"'A direct step can be in conjunction with the actions of another person who is seeking to commit to [sic] the same offense, so long as you find the defendant committed the required elements above. A defendant may aid and abet another person in the commission of this offense.
"'The term aid and abet is defined in other instructions to which you should refer.
"'A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or "kill zone." In order to convict the defendant of the attempted murder of "John Doe", the People must prove that the defendant not only intended to kill Johnny Silva and Robert Alcazar but also intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill anyone in the kill zone, then you must find the defendant not guilty'
"Jurors were also instructed with CalCrim 601 which instructed the jurors that if they found the defendant guilty of attempted murder in counts 2, 3, and 7 they must then decide if the defendant acted willfully, deliberately and with premeditation in committing each attempted murder. As to each attempted murder charge, the jurors returned verdicts of guilty and specifically found that defendant acted intentionally, deliberately and with premeditation in committing the offenses. The juror's verdicts also specifically establish that [defendant] committed each attempted murder for the benefit of, at the direction of or in association with the Surenos criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members in violation of 186.22(b)(1). Jurors further found that [defendant] was a principal in each attempted murder[] and at least one principal intentionally and personally discharged a firearm in violation of ... section 12022.53(c)(e)(1) [sic]."
The court concluded:
"Jurors were provided with instructions on the natural and probable consequences doctrine. However, the jury's verdicts expressly finding beyond a reasonable doubt that [defendant] committed the attempted murders with deliberation and premeditation conclusively demonstrates their finding that [defendant] acted with an intent to kill. This finding precludes [defendant]'s ability to establish a prima facie case for resentencing under ... Section 1170.95/1172.6."
On that basis, the court denied the petition for resentencing.
DISCUSSION
Defendant now challenges the denial of his second petition for recall and resentencing. We affirm the court's order denying the petition.
1. Senate Bill 1437 and Senate Bill 775
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[s] 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).) It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2-3.)
Accordingly, section 188 now provides that, "[e]xcept 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." (§ 188, subd. (a)(3), italics added.) The change reflects the Legislature's intent that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, "All murder ... which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." Senate Bill 1437 amended section 189, in part, by adding subdivision (e), which provides:
"A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
The legislation also added section 1172.6 (former § 1170.95), which provides a procedure by which defendants whose cases are final can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) Initially, former section 1170.95 permitted those "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts .. .." (Stats. 2018, ch. 1015, § 4, subd. (a).) Pursuant to Senate Bill 775, effective January 1, 2022, the Legislature amended the language of former section 1170.95, now section 1172.6, to expand the scope of the petitioning procedure to defendants convicted of attempted murder or manslaughter under a now prohibited theory. The legislation also clarified some of the procedural requirements in the statute.
Now, upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).) "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." (§ 1172.6, subd. (c).) If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court "shall issue an order to show cause." (Ibid.) "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (Ibid.)
In People v. Lewis (2021) 11 Cal.5th 952, the California Supreme Court held the trial court can rely on the record of conviction in determining whether the requisite prima facie showing has been made. (Id. at pp. 970-971.) The Lewis court noted the prima facie inquiry under section 1172.6, subdivision (c) is "limited." (Lewis, at p. 971.) But, "'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."' [Citation.]" (Ibid.)
2. Analysis
Defendant argues the court erred in denying his petition at the prima facie stage. He argues the "prosecutor offered several theories to support a conviction for murder as an aider and abettor. One was based on actual malice with intent to kill and premeditation," but "the most likely basis for the attempted murder convictions, was the doctrine of natural and probable consequences (NPC), based on the target offense of shooting at an inhabited dwelling." He argues the premeditation and deliberation finding as to each attempted murder conviction "does not suggest or imply that the aider and abettor intended to kill, but only that the perpetrator intended to kill." He contends CALCRIM No. 401 permitted the jury to find him guilty "if his accomplice had done the actual killing." He also argues, at the time of his 2010 trial, he could be convicted as an aider and abettor of attempted premeditated murder without a finding of personal premeditation" based upon People v. Lee (2003) 31 Cal.4th 613. He also argues the instructions permitted him to be convicted of counts II and III under the "kill zone" doctrine. He contends the "kill zone" doctrine for aiders and abettors was restricted and virtually eliminated by People v. Canizales (2019) 7 Cal.5th 591, 607-608, and he "'could not presently be convicted' of attempted premedi[t]ated murder under the 'kill zone' doctrine because of the 2019 Canizales opinion." The People note defendant was tried by himself, and they argue the "verdict forms show the jury found [defendant] was liable for the attempted murders as a direct aider and abettor." They contend, "[i]n convicting appellant of attempted murder as charged in counts II, III, and VII, the jury found true the allegation that 'the defendant did act intentionally, deliberately and with premeditation." They emphasize that the court "instructed the jurors that, to find the allegation true, they must find that the prosecution proved beyond a reasonable doubt that [defendant] 'intended to kill,' that 'he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill,' and that 'he decide[d] to kill before acting." So, the jury necessarily found defendant "intended to kill, that 'he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill,' and that 'he decide[d] to kill before acting.'" We agree with the People that defendant is ineligible for relief as a matter of law from his attempted murder convictions in light of the jury's findings.
Defendant cites to portions of the prosecutor's argument from trial to assert he "relied on indirect aiding and abetting, with murder as a natural and probable consequence of shooting at an occupied dwelling."
Defendant does not appear to be challenging the trial court's decision to construe his petition for recall and resentencing as only a challenge to his attempted murder convictions or the court's conclusion that he was collaterally estopped from challenging his murder conviction again in light of the trial court's previous denial (and our court's affirmance of the denial) of his first petition for recall and resentencing. Irrespective, we reiterate our conclusion and the related reasoning in our prior opinion in which we affirmed the denial of defendant's initial petition for recall and resentencing of his murder conviction. (See People v. Mata, supra, F080013.)
Here, defendant was tried alone and the jury was instructed: "If you find the defendant guilty of attempted murder under Counts 2, 3, and 7, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation." Relevant here, the instruction explained: "The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting." (Italics added, original italics omitted.) And the verdict forms further reflect the jury found defendant guilty of attempted murder as charged in counts II, III, and VII, and that "the defendant did act intentionally, deliberately and with premeditation" as to each count of attempted murder.
Accordingly, though the jury was instructed on the natural and probable consequences theory as a basis for convicting defendant of the attempted murder counts, the record of conviction-namely, the jury instructions and verdict forms-establishes the jury found, beyond a reasonable doubt, that defendant personally harbored the intent to kill with regard to the attempted murders; malice was not imputed to him. Thus, the court properly concluded defendant was ineligible for relief as a matter of law. (See People v. Lewis, supra, 11 Cal.5th at p. 971 ["'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"'"].)
In so concluding, we reject defendant's contention the jury's premeditation findings as to the attempted murder counts do "not suggest or imply that the aider and abettor intended to kill, but only that the perpetrator intended to kill." The premeditation and deliberation special allegation instruction as to the attempted murder counts (CALCRIM No. 601) and the verdict forms referred only to "the defendant." There was no basis upon which a jury could conclude it could find the allegation true if it concluded only "the perpetrator," rather than defendant, had the intent to kill. To the contrary, it is clear defendant's mental state was at issue as the only defendant in the case.
We note the attempted murders charged in counts II and III arose from the same shooting incident from which the murder conviction (count I) arose. And, as we previously held, the jury's verdict reflects it found "defendant acted intentionally and deliberately with regard to the murder." (People v. Mata, supra, F080013.)
Defendant's reliance upon People v. Lee, supra, 31 Cal.4th 613 is misplaced. In Lee, the California Supreme Court held "that section 664(a) properly must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted with willfulness, deliberation, and premeditation, even if he or she is guilty as an aider and abettor." (Id. at p. 627.) Notably, to that end, CALCRIM No. 601 contains optional language that may be included in the jury instructions and provides that the defendant or the principal, if not defendant, acted with the requisite mental state to establish deliberate and premeditated attempted murder. (See CALCRIM No. 601 [permitting for insertion of name or description of principal as alternative to defendant and providing for the inclusion of optional language that "[The attempted murder was done willfully and with deliberation and premeditation if either the defendant or ____ <insert name or description of principal> or both of them acted with that state of mind"].) But such language was not included here. Rather, the instructions and the verdict forms only permitted the jury to find the special allegation regarding deliberation and premeditation true if the jury found defendant acted intentionally with premeditation and deliberation. (Cf. Cabana v. Bullock (1986) 474 U.S. 376, 383, fn. 2 [concluding "jury's verdict does not necessarily reflect a finding that Bullock killed" where another instruction "explicitly informed the jury that it could find Bullock guilty if his accomplice had done the actual killing"].)
Accordingly, the court did not err in concluding the jury's true findings at trial on the premeditation and deliberation allegations as to the attempted murder convictions established, as a matter of law, that defendant intended to kill, and, thus, he was convicted under a theory of attempted murder that remains legally valid under current law. (See People v. Coley (2022) 77 Cal.App.5th 539, 548 ["Direct aiding and abetting remains a valid theory of attempted murder after the enactment of Senate Bill No. 775"]; People v. Cortes (2022) 75 Cal.App.5th 198, 206 [where record demonstrates the defendant "was not convicted on a theory of vicarious liability, he has failed to meet his burden of making a prima facie showing of entitlement to relief under" § 1172.6]; accord, People v. Lewis, supra, 11 Cal.5th at p. 959.) Put differently, because the record of conviction rebuts defendant's allegation he could not presently be convicted of attempted murder because of changes to section 188 or 189 effective January 1, 2019, the court did not err in denying his petition for relief.
We also agree with the People that to the extent defendant seeks relief based upon the court's alleged misinstruction to the jury on the "kill zone" doctrine-in light of People v. Canizales, supra, 7 Cal.5th at pages 607-608 -his argument falls outside the scope of section 1172.6. Section 1172.6 is limited to challenging murder, attempted murder, and manslaughter convictions that are no longer valid due to changes to sections 188 and 189 made by Senate Bill 1437, effective January 1, 2019. (§ 1172.6, subd. (a)(3).) Section 1172.6 is not intended to remedy trial errors. (See People v. Farfan (2021) 71 Cal.App.5th 942, 947 ["The mere filing of a section 1170.95 petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings"].) Accordingly, we also cannot conclude the court erred in denying defendant's petition on this basis.
In Canizales, the California Supreme Court held a jury may convict a defendant under the kill zone theory only when the jury finds that: "(1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm- that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death-around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm." (People v. Canizales, supra, 7 Cal.5th at pp. 596-597.) The Canizales court cautioned "that trial courts must be extremely careful in determining when to permit the jury to rely upon the kill zone theory" because it permits the jury to infer a defendant's intent to kill an alleged murder victim from the circumstances of the defendant's attack on a primary target. (People v. Canizales, supra, 7 Cal.5th at p. 597 .) "But, under the reasonable doubt standard, a jury may not find a defendant acted with the specific intent to kill everyone in the kill zone if the circumstances of the attack would also support a reasonable alternative inference more favorable to the defendant." (Ibid.) Accordingly, "[p]ermitting reliance on the kill zone theory in such cases risks the jury convicting a defendant based on the kill zone theory where it would not be proper to do so," such as "where a defendant acts with the intent to kill a primary target but with only conscious disregard of the risk that others may be seriously injured or killed." (Ibid.) So, the Canizales court held: "[I]n future cases trial courts should reserve the kill zone theory for instances in which there is sufficient evidence from which the jury could find that the only reasonable inference is that the defendant intended to kill (not merely to endanger or harm) everyone in the zone of fatal harm." (Ibid.)
We further note defendant raises this argument for the first time on appeal.
Notably, defendant asserts, "[u]nder the doctrines of NPC and 'kill zone,' the aider and abettor is liable for the perpetrator's premeditated attempted murder." But, as discussed, the record reflects the jury found defendant personally acted with premeditation and deliberation.
DISPOSITION
The court's order denying defendant's section 1172.6 petition for resentencing is affirmed.
[*]Before Hill, P. J., Detjen, J. and Pena, J.