People v. Cordero CA2/1 ( 2023 )

Filed 7/31/23 P. v. Cordero CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B323014
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA129304)
v.
DANIEL CORDERO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Joseph R. Porras, Judge. Affirmed.
Paul Couenhoven, 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, Assistant
Attorney General, Michael C. Keller and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Daniel Cordero was convicted of second degree murder as
an accomplice to a first degree murder. He appeals from an
order, after an evidentiary hearing, denying his petition for
resentencing under Penal Code section 1172.6 (former section
1170.95),1 contending that to be guilty of aiding and abetting
murder, the aider and abettor must harbor the specific intent to
commit the murder. Implied malice is not a sufficient mens rea
for aiding and abetting a murder, he argues, because it does not
meet the requirement that an aider and abettor harbor the
specific intent to commit murder. After rejecting the premise
that Cordero was found to have harbored only implied malice, we
follow several published opinions in concluding that an aider and
abettor can be convicted of second degree murder even if he does
not expressly intend to aid a killing, but only knows that his or
her conduct endangers the life of another and acts with conscious
disregard for life. We therefore affirm the order denying Coreas’s
resentencing petition.
BACKGROUND
I. Charges, Trial and Direct Appeal
Neither party presented new evidence at the evidentiary
hearing on Cordero’s resentencing petition. The court based its
denial of Cordero’s petition on the testimony in the trial
transcripts. Because Cordero does not challenge the sufficiency
of the evidence supporting denial of his petition, our recitation of
the facts will be brief.
On March 20, 2012, Roxy Borboa and others arrived at CM
Racing shop in South Gate in a car driven by Jaime Torres.
When they arrived at the shop, Cordero and Christian Calderon
1 Undesignated statutory references will be to the Penal
Code.
2
approached, and Calderon asked the group where they were
from, a common gang challenge, and said the area was his “hood.”
Calderon brandished a handgun but then put it away. Cordero,
also carrying a gun, asked Torres’s group whether they had a
problem “with his homey or his neighborhood.” He said he and
Calderon were from Aztlan, a street gang, and this was their
neighborhood. He pressed his gun against a passenger’s cheek
and told him that if there was a problem he would pull the
trigger. Calderon and Cordero then stepped away from the car
and Torres accelerated quickly away.
Calderon and Cordero both fired their guns. Calderon’s
bullet struck Borboa in the head, killing her. Cordero said,
“Dome shot” (meaning gunshot to the head), and went into the
shop.
At trial, the jury was instructed with CALCRIM
instructions Nos. 400 (general aiding and abetting principles),
401 (aiding and abetting—intended crimes), 402 (the natural and
probable consequences doctrine), 520 (first or second degree
murder with malice aforethought), and 521 (first degree murder).
CALCRIM No. 401 provided that the prosecution must
prove that the aider and abettor defendant “intended to aid and
abet the perpetrator in committing the [murder] [¶] . . . [¶] . . .
[and that he] kn[ew] of the perpetrator’s unlawful purpose
and . . . specifically intend[ed] to, and [did] in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator’s commission of
that crime.”
The jury convicted Calderon of first degree murder and
found that he intentionally discharged a firearm, which
proximately caused death to Roxy Borboa.
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The jury acquitted Cordero of first degree murder but found
him guilty of second degree murder, four counts of assault with a
semiautomatic firearm, and one count of shooting at an occupied
vehicle. (Pen. Code, §§ 187, subd. (a), 245, subd. (b), 246.) The
jury found true as to all counts that the crimes involved the
intentional use of firearms and were committed to benefit a
criminal street gang. (§ 186.22, subd. (b)(1).)
The trial court sentenced Cordero to a term of 79 years to
life.
We affirmed the conviction but remanded the case for
resentencing on the enhancements. (People v. Cordero (Apr. 30,
2018, B280146) [nonpub. opn.].)
A. Resentencing Petition
In 2019, Cordero filed a petition for resentencing under
former section 1170.95 (now § 1170.6), which the trial court
denied based on its finding that Cordero was a major participant
in a felony leading to the murder and acted with reckless
indifference to human life. We reversed and remanded the
matter because the record, which reflected that the prosecutor
had relied on the natural and probable consequence doctrine as
an alternate theory, did not show as a matter of law that Cordero
was ineligible for resentencing relief. (People v. Cordero (Apr. 2,
2021, B307245) [nonpub. opn.].)
At the subsequent evidentiary hearing, neither party
presented new evidence.
Relying on the trial transcripts, the court stated, “There’s
no doubt in my mind that he’s guilty beyond a reasonable doubt
on an aiding and abetting theory from the initial hit up to
bringing out the gun, to shooting, to having his hand extended
toward the car. That, to me, definitely fits the classic definition
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of aiding and abetting.” The court stated it believed Cordero was
“guilty beyond a reasonable doubt of first degree murder of Roxy
Borboa, but the jury found him [guilty only] as to second degree.
So the court . . . finds beyond a reasonable doubt after full review
of the case that he is guilty of murder in the second degree.”
The court denied Cordero’s resentencing petition, and he
appeals.
DISCUSSION
Cordero does not contest the sufficiency of the evidence to
deny his resentencing petition but contends the trial court erred
in denying it because accomplice liability for second-degree
murder is no longer a valid theory. We disagree.
Because Cordero raises only a question of statutory
construction of the law defining murder, our review is de novo.
(People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
A. Legal Principles
“All murder that is perpetrated by . . . any . . . kind of
willful, deliberate, and premeditated killing . . . is murder of the
first degree.” (§ 189, subd. (a).) “All other kinds of murders are
of the second degree.” (Id. at subd. (b).)
“Murder, whether in the first or second degree, requires
malice aforethought. (§ 187.) Malice can be express or implied.
It is express when there is a manifest intent to kill (§ 188, subd.
(a)(1)); it is implied if someone kills with ‘no considerable
provocation . . . or when the circumstances attending the killing
show an abandoned and malignant heart’ (§ 188, subd. (a)(2)).
When a person directly perpetrates a killing, it is the perpetrator
who must possess such malice. [Citations.] Similarly, when a
person directly aids and abets a murder, the aider and abettor
must possess malice aforethought.” (People v. Gentile (2020) 10
5
Cal.5th 830, 844-845 (Gentile), superseded by statute on other
grounds as stated in People v. Glukhoy (2022) 77 Cal.App.5th
576, 584 (Glukhoy).)
“A person who aids and abets the commission of a crime is
culpable as a principal in that crime. (§ 31.) Aiding and abetting
is not a separate offense but a form of derivative liability for the
underlying crime.” (Gentile, supra, 10 Cal.5th at p. 843.) An
accomplice is guilty of a murder perpetrated by another “if the
accomplice aids the commission of that offense with ‘knowledge of
the direct perpetrator’s unlawful intent and [with] an intent to
assist in achieving those unlawful ends.’ ” (Ibid.)
A second-degree murder conviction may be obtained “only if
the prosecution can prove the defendant acted with the
accompanying mental state of mind of malice aforethought. The
prosecution cannot ‘impute[] [malice] to a person based solely on
his or her participation in a crime.’ ” (Gentile, supra, 10 Cal.5th
at p. 846.)
Because malice may be implied “if someone kills with ‘no
considerable provocation . . . or when the circumstances
attending the killing show an abandoned and malignant heart’ ”
(Gentile, supra, 10 Cal.5th at p. 844), it follows that “an aider and
abettor who does not expressly intend to aid a killing can still be
convicted of second degree murder if the person knows that his or
her conduct endangers the life of another and acts with conscious
disregard for life.” (Id. at p. 850.)
“Senate Bill 1437 ‘amend[ed] 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
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acted with reckless indifference to human life.’ (Stats. 2018, ch.
1015, § l, subd. (f).)” (Gentile, supra, 10 Cal.5th at p. 842.)
“To further that purpose, Senate Bill 1437 added three
separate provisions to the Penal Code. First, to amend the felony
murder rule, Senate Bill 1437 added section 189, subdivision (e):
‘A participant in the perpetration or attempted perpetration of
[qualifying felonies] 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.’ ” (Gentile, supra, 10 Cal.5th at p. 842.) Because
Cordero was not prosecuted under a theory of felony murder, this
provision is not at issue here.
“Second, 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, supra, 10 Cal.5th at pp. 842-
843.)
“Third, Senate Bill 1437 added section 1170.95 to provide a
procedure for those convicted of felony murder or murder under
the natural and probable consequences doctrine to seek relief
under the two ameliorative provisions above.” (Gentile, supra, 10
Cal.5th at p. 843.) The Legislature subsequently renumbered
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section 1170.95 as section 1172.6. (People v. Delgadillo (2022) 14
Cal.5th 216, 223, fn. 3.)
“Under newly enacted section 1172.6, the process begins
with the filing of a petition containing a declaration that all
requirements for eligibility are met [citation], including that
‘[t]he petitioner could not presently be convicted of murder or
attempted murder because of changes to [Penal Code] Section
188 or 189 made effective January 1, 2019,’ the effective date of
Senate Bill 1437.” (People v. Strong (2022) 13 Cal.5th 698, 708
(Strong).)
B. Cordero Is Not Eligible for Resentencing Relief
Here, the trial court reviewed the evidence and found that
Cordero’s conduct, “from the initial hit up to bringing out the
gun, to shooting, to having his hand extended toward the car,” fit
“the classic definition of aiding and abetting.” The court
therefore found Cordero was guilty beyond a reasonable doubt of
second-degree murder. Because Cordero does not contest the
sufficiency of the evidence supporting this finding, we must
affirm the order denying his resentencing petition unless some
issue of law precludes accomplice liability for second-degree
murder.
Cordero argues that implied malice is not a sufficient mens
rea for aiding and abetting murder because it does not meet the
requirement that an aider and abettor harbor the specific intent
to commit murder.
We reject the argument for two reasons.
1. There Was No Finding of Implied Malice
First, there was no finding by either the jury at trial or the
court at resentencing that Cordero acted only with implied
malice. All murder requires malice, whether express or implied.
8
Malice is express when there is intent to kill. Malice is implied if
the actor “ ‘knows that his conduct endangers the life of another
and . . . acts with conscious disregard for life.’ ” (People v. Soto
(2018) 4 Cal.5th 968, 974.) First-degree murder further requires
willfulness, deliberation and premeditation. (§ 189, subd. (a).)
“[A] murder committed with express malice could constitute
second degree murder.” (People v. Rogers (2006) 39 Cal.4th 826,
867 [“the emotional, impulsive nature of the killing [could have]
precluded a finding of premeditation and deliberation but
[permitted a finding] that defendant nevertheless intended to
kill”].)
Just because the jury convicted Cordero only of second-
degree murder does not mean it found he did not intend the
murder, i.e., did not harbor express malice. The jury may have
found only that he did not act with willfulness, deliberation and
premeditation.
2. There is No Requirement that An Accomplice
and Perpetrator Share the Same Intent
Second, there is no requirement that an accomplice and the
perpetrator harbor the same specific intent to commit murder.
Direct aiding and abetting “requires proof that an aider and
abettor rendered aid with an intent or purpose of either
committing, or of encouraging or facilitating commission of, the
target offense.” (People v. Beeman (1984) 35 Cal.3d 547, 551,
italics added.) “ ‘It is the intent to encourage and bring about
conduct that is criminal, not the specific intent that is an element
of the [charged crime], which Beeman holds must be found by the
jury.’ ” (People v. McCoy (2001) 25 Cal.4th 1111, 1118, fn. 1,
italics added (McCoy); see also People v. Mendoza (1998) 18
Cal.4th 1114, 1132 [“The mental state required for an aider and
9
abettor is the same for all crimes and is independent of the
perpetrator’s mental state. The aider and abettor must
specifically intend to aid the perpetrator, whether the intended
crime itself requires a general or specific intent on the part of the
perpetrator”].)
As our Supreme Court stated in Gentile, “an aider and
abettor who does not expressly intend to aid a killing can still be
convicted of second degree murder if the person knows that his or
her conduct endangers the life of another and acts with conscious
disregard for life.” (Gentile, supra, 10 Cal.5th at p. 850.)
The aider and abettor therefore need not specifically intend
to commit the offense itself; he need only intend to facilitate
another’s commission of it. This would be the case, for example,
if the accomplice is indifferent to the victim but intends for
reasons of solidarity to assist the perpetrator in whatever he
chooses to do. An accomplice may thus be convicted of second
degree murder even though the primary party is convicted of first
degree murder.
Cordero urges us to disregard the above quoted statement
in Gentile (and the courts that followed it) because it is dicta. We
decline to do so.
First, the statement is not dicta. In Gentile, the evidence
suggested that the victim was beaten by both the defendant with
his hands and by his friend with a sledgehammer. (Gentile,
supra, 10 Cal.5th at p. 840.) A jury convicted the defendant of
first degree murder but did not find he used a deadly or
dangerous weapon in committing the crime, suggesting the jury
did not think he was the actual perpetrator. (Id. at p. 841.) After
reversal on appeal the prosecution elected to accept a reduction to
second degree murder. (Ibid.)
10
The issue before the Court was whether Senate Bill No.
1437 eliminated natural and probable consequences liability for
second-degree murder. On this issue, the San Diego County
District Attorney writing as amicus argued that Senate Bill No.
1437 should not be interpreted to eliminate entirely the natural
and probable consequences doctrine for murder, because to do so
would allow some accomplices to “ ‘literally g[et] away with
murder.’ ” (Gentile, supra, 10 Cal.5th at p. 850.) The District
Attorney gave two examples where accomplices who did not
expressly intend to aid a killing could escape liability for murder
if the doctrine was eliminated altogether. It was in answering
this argument and rejecting the District Attorney’s examples that
the Court said that “an aider and abettor who does not expressly
intend to aid a killing can still be convicted of second degree
murder if the person knows that his or her conduct endangers the
life of another and acts with conscious disregard for life.” (Ibid.)
The statement thus went to the heart of the issue before
the Court—whether Senate Bill No. 1437 should be interpreted to
eliminate natural and probable consequences liability for
accomplices to murder. It was therefore not dicta.
Even if the Gentile statement was dicta and therefore not
binding precedent, it is well settled that our high court’s “ ‘dicta
generally should be followed, particularly where the comments
reflect the court’s considered reasoning.’ ” (People v. Tovar (2017)
10 Cal.App.5th 750, 759; see also United Steelworkers of America
v. Board of Education (1984) 162 Cal.App.3d 823, 835 [“Even if
properly characterized as dictum, statements of the Supreme
Court should be considered persuasive”]; City of Los Angeles v.
San Pedro, L.A. & S.L.R. Co. (1920) 182 Cal. 652, 660 [“The
11
statements in the opinions of the [S]upreme [C]ourt of this
state . . . although obiter dicta, are very persuasive”].)
In our view the Gentile Court’s recognition of liability for
aiding and abetting murder on an implied malice theory reflected
“considered reasoning” because it flowed naturally within the
Court’s methodical argument. It is therefore persuasive and
should be followed. (See People v. Powell (2021) 63 Cal.App.5th
689, 713 [relying on the quotation from Gentile]; People v.
Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 499
[same; concluding that Powell was “entirely consistent with
Gentile in basing murder liability on the aider and abettor’s own
[implied malice] state of mind—conscious disregard for life”];
People v. Langi (2022) 73 Cal.App.5th 972, 979 [same; “a direct
aider and abettor of the killing who knew that his (or her)
conduct endangered the life of another and acted with conscious
disregard for life, may be guilty of second degree murder”];
Glukhoy, supra, 77 Cal.App.5th at p. 588 [same; “aiding and
abetting implied malice murder is a valid theory of liability for
second degree murder”].)
Consistent with Gentile, the jury was instructed that to
find Cordero held the requisite mens rea for aiding and abetting
the murder committed by Calderon, it needed to conclude only
that he acted with reckless disregard for human life when he
intentionally assisted Calderon by bracing the victims and
joining in the shooting.2
2 Specifically, the court instructed the jury with CALCRIM
No. 401 (aiding and abetting requires that the defendant
“specifically intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of” the
target crime); CALCRIM No. 520 (murder requires malice;
12
This was a proper instruction on a valid theory, supporting
a valid finding.
Cordero relies on McCoy for the proposition that to be
guilty of murder, an aider and abettor must share the
perpetrator’s “murderous intent.” He selectively quotes from
McCoy the following: “[O]utside of the natural and probable
consequences doctrine, an aider and abettor’s mental state must
be at least that required of the direct perpetrator . . . the aider
and abettor must know and share the murderous intent of the
actual perpetrator.” (McCoy, supra, 25 Cal.4th at p. 1118,
Cordero’s italics.)
Armed with this rule, Cordero argues that by convicting
him only of second degree murder, the jury necessarily found he
did not share Calderon’s murderous intent. Therefore, pursuant
to McCoy, the conviction must have resulted from application of
the natural and probable consequences doctrine.
We reject Cordero’s rule because he draws it from an
incomplete quotation of McCoy. We also reject his premise that
by convicting him only of second degree murder, the jury
necessarily found he did not share Calderon’s murderous intent.
The jury may simply have found he did not share Calderon’s
premeditation, deliberation and willfulness.
We set out the full McCoy paragraph in a footnote.3 For
our purposes, we observe that Cordero omits three material
implied malice requires, inter alia, conscious disregard for human
life).
3 The full paragraph from which Cordero draws his
quotation is as follows:
“We have described the mental state required of an aider
and abettor as ‘different from the mental state necessary for
13
statements contradicting his characterization of McCoy’s holding.
First, Cordero leaves out the paragraph’s opening sentence, in
which the Court reminds us that “We have described the mental
state required of an aider and abettor as ‘different from the
mental state necessary for conviction as the actual perpetrator.’ ”
(McCoy, supra, 25 Cal.4th at p. 1117, italics added.) Second,
Cordero omits a footnote in which the court reiterated that “ ‘It is
the intent to encourage and bring about conduct that is criminal,
not the specific intent that is an element of the [charged crime],
which . . . must be found by the jury.’ ” (Id. at p. 1118, fn. 1,
italics added.)
conviction as the actual perpetrator.’ [Citation.] The difference,
however, does not mean that the mental state of an aider and
abettor is less culpable than that of the actual perpetrator. On
the contrary, outside of the natural and probable consequences
doctrine, an aider and abettor’s mental state must be at least
that required of the direct perpetrator. ‘To prove that a
defendant is an accomplice . . . the prosecution must show that
the defendant acted “with knowledge of the criminal purpose of
the perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating commission of, the
offense.” ([People v. Beeman].) When the offense charged is a
specific intent crime, the accomplice must “share the specific
intent of the perpetrator”; this occurs when the accomplice
“knows the full extent of the perpetrator’s criminal purpose and
gives aid or encouragement with the intent or purpose of
facilitating the perpetrator’s commission of the crime.” (Ibid.)’
[Citation.] [Fn.] What this means here, when the charged
offense and the intended offense—murder or attempted murder—
are the same, i.e., when guilt does not depend on the natural and
probable consequences doctrine, is that the aider and abettor
must know and share the murderous intent of the actual
perpetrator.” (McCoy, supra, 25 Cal.4th at pp. 1117-1118.)
14
Third and most importantly, Cordero, with an ellipses
spanning two and a half sentences, omits the Court’s explanation
of what it meant by the phrase “murderous intent”: “To prove
that a defendant is an accomplice . . . the prosecution must show
that the defendant acted . . . ‘with an intent . . . either of
committing, or of encouraging or facilitating commission of, the
offense.’ ” (McCoy, supra, 25 Cal.4th at p. 1118, italics added.)
Or as our Supreme Court later explained the concept, a
direct aiding and abetting theory “requires that ‘the aider and
abettor . . . know and share the murderous intent of the actual
perpetrator.’ (McCoy, supra, 25 Cal.4th at p. 1118.) For implied
malice, the intent requirement is satisfied by proof that the actual
perpetrator ‘ “knows that his conduct endangers the life of
another and . . . acts with conscious disregard for life.’ ’ ”
(Gentile, supra, 10 Cal.5th at p. 850, italics added.)
In sum, McCoy three times in the quoted paragraph
distinguishes an accomplice’s intent to aid the perpetrator from
the perpetrator’s intent to commit the target offense, thus
contradicting the rule Cordero would draw, that an accomplice
and perpetrator must share the same intent. We therefore reject
Cordero’s argument that accomplice liability depends on the
accomplice sharing a perpetrator’s specific intent to commit the
target crime.
C. Cordero Was Not Convicted of Aiding and Abetting
an Implied Malice Murder
Cordero argues that one cannot be convicted of “aiding and
abetting an implied malice murder” because direct aiding and
abetting requires intent to commit a crime, but in an implied
malice murder the direct perpetrator does not “intend” to commit
15
a murder. In other words, Cordero argues, “one cannot intend to
aid a crime that was not intended.”
The point is irrelevant because the crime Cordero was
convicted of aiding—the murder of Borboa by Calderon—was
intentional. The jury convicted Calderon of first degree murder.
A “defendant is guilty of first degree murder if the People have
proved that he acted willfully, deliberately, and with
premeditation. The defendant acted willfully if he intended to
kill.” (CALCRIM No. 521.) “An intent is the ‘ “functional
equivalent” ’ of express malice.” (People v. Moon (2005) 37 Cal.4th
1, 29.) Because Calderon was convicted of an intentional murder,
Cordero’s jury convicted him of aiding and abetting an express
malice crime.
DISPOSITION
The trial court’s order denying Cordero’s resentencing
petition is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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