People v. Morales ( 2024 )

Filed 6/21/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A166731
v. (Sonoma County Super. Ct.
IVAN MORALES, No. SCR-682933-1)
Defendant and Appellant.
In 2018, a jury found defendant Ivan Morales guilty of robbery and
attempted premeditated murder, among other offenses, and found he
personally and intentionally discharged a firearm causing great bodily injury
in the commission of the robbery and attempted premeditated murder. In
2020, we affirmed the judgment. (People v. Morales (Aug. 25, 2020, A154263)
2020 WL 4999934 [nonpub. opn.] (Morales).)
In 2022, Morales filed a petition to vacate the attempted murder
conviction and for resentencing under former Penal Code section 1170.95
(now section 1172.6). The trial court found Morales failed to make a prima
facie claim for relief and denied the petition without issuing an order to show
cause. Morales appeals from the order denying his petition.
We affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Crimes
On the afternoon of July 12, 2016, Morales and his longtime friend
Sergey Gutsu robbed an armored truck stopped at a bank in Windsor,
California. Glenn,1 an employee of the armored truck company, had just
exited the truck and was carrying a bag containing $30,000 in paper currency
when Morales shot him multiple times with an AK-47 semi-automatic rifle.
Gutsu grabbed the bag of money, and the two of them drove away. Glenn
sustained three rifle-shot wounds and suffered life-threatening injuries, but
he survived. (Morales, supra, 2020 WL 4999934, at *1–2 and fns. 4 and 5.)
Later the same afternoon, Calistoga police officer Luis Paniagua
attempted a traffic stop of a blue Suburban that matched the description of a
vehicle reported to have been involved in a robbery. Gutsu, who was driving
the Suburban, emerged from the vehicle and began shooting at the officer
with a semi-automatic pistol. Morales, who was also in the Suburban, ran
away. Officer Paniagua arrested Gutsu at the scene of the traffic stop, and
Morales was apprehended a few hours later. An AK-47 was found in the
Suburban; Morales’s wife was its registered owner. (Morales, supra, 2020
WL 4999934, at *1–2, fn. 2.)
The Criminal Trial
Morales was charged with robbery (Pen. Code,2 § 211), attempted
premeditated murder of Glenn (§§ 664, 187, subd. (a)), assault with an
assault weapon (§ 245, subd. (a)(3), attempted premeditated murder of a
peace officer (§§ 664, 187, subd. (a)), assault on a peace officer with a semi-
1 At trial, Glenn testified using his first name only.
2 Further undesignated statutory references are to the Penal Code.
2
automatic firearm (§ 245, subd. (d)(2)), shooting at an occupied motor vehicle
(§ 246), and driving a vehicle without the owner’s consent (Veh. Code,
§ 10851, subd. (a)). As to the charges of attempted premeditated murder of
Glenn and robbery, it was alleged that Morales personally discharged a
firearm and proximately caused great bodily injury in the commission of the
offense. (§ 12022.53, subd. (d) (§ 12022.53(d)).)
Morales and Gutsu were tried together with separate juries, but Gutsu
pleaded no contest to all charges before his case went to his jury. (Morales,
supra, 2020 WL 4999934, at *3 and fn. 7.)
The Prosecution’s Theories of Liability
At trial, the prosecution’s theory was that Morales and Gutsu robbed
Glenn together, Morales shot Glenn in Windsor,3 Gutsu fired at Officer
Paniagua in Calistoga, each of the shootings was an attempted premeditated
murder, and Morales was liable for the acts committed by Gutsu under the
natural and probable consequences doctrine because, as the prosecutor told
the jury, taking part in the robbery “ties Defendant Morales to all other
crimes that were committed during the commission of that robbery.”
In his closing argument, the prosecutor described how Morales and
Gutsu acted together in committing the robbery, emphasizing that Morales
was the shooter at the robbery in Windsor: “[W]e have Defendant Morales
shooting the guard, sticking up the guard; we have Defendant Gutsu running
3 Glenn described his shooter as wearing a ski mask, so he was unable
to identify Morales as the shooter. In contrast, Officer Paniagua identified
Gutsu as the person who shot at him and, in fact, he arrested Gustu
immediately after this shooting.
3
and grabbing the bag [of money]. And so they’re both perpetrators. They’re
each aiding and abetting each other” in the robbery. (Italics added.)4
As to the charge of attempted premeditated murder of Glenn, the
prosecutor argued Morales was the direct perpetrator as his conduct and
mental state met the elements of the offense. The prosecutor said, “[L]et’s
look at first what’s just required to prove attempted murder: That the
defendant took at least one ineffective step toward killing another person.
Well, that’s established by pulling the trigger of the gun and shooting. But
then the next part. The defendant intended to kill that person. . . . [H]ow do
we know that this defendant, Defendant Morales, intended to kill Glenn?”
(Italics added.)
The prosecutor argued Morales’s intent to kill could be inferred based
on Morales’s conduct before the shooting and his statements to the police
after the shooting.5 He also relied on the manner of the shooting as
circumstantial evidence of Morales’s intent.6 The prosecutor next argued the
4 The prosecutor again emphasized that Morales was the one who shot
Glenn when he discussed the firearm enhancement associated with the
robbery charge: “Morales personally used a firearm during the commission of
that robbery, and it requires that the defendant personally and intentionally
discharged a firearm. So he shot it, and that . . . act of shooting it and hitting
Glenn caused great bodily injury.”
5 The prosecutor identified (1) Morales’s statement to the police after
the robbery about a “discussion that he had with Sergey Gutsu prior to the
robbery, about circumstances that would require killing the guard,” (2)
Morales’s indication to the police that he believed Glenn was dead after the
shooting, (3) text messages Morales sent to Gutsu before the current offenses
(in one text to Gutsu, he wrote, “But now the AK is upset. It does not get to
taste blood.”), and (4) Morales’s internet searches before the current offenses
for information about the damage inflicted by an AK-47.
6 The prosecutor told the jury that Morales pulled the trigger of his
assault rifle and then decided “to pull that trigger again to fire the second
4
attempted murder was deliberate and premeditated, citing the same
circumstances he relied on to show Morales’s intent to kill.
As to the charge of attempted premeditated murder of Officer
Paniagua, the prosecutor told the jury, “we look at the same type of evidence,
but now in relation to Sergey Gutsu.” Thus, the prosecutor argued Gutsu
was the direct perpetrator of the shooting in Calistoga, and Morales was
liable for Gutsu’s crimes (assault on a peace officer, shooting an occupied
vehicle, driving without the owner’s consent, as well as attempted
premeditated murder) because those crimes were a natural and probable
consequence of the robbery in Windsor.
Acknowledging that Morales disputed that he shot Glenn, the
prosecutor also explained to the jury that Morales “can still be guilty of the
attempted murder of Glenn, even if Defendant Gutsu shot Glenn.” In other
words, the prosecutor suggested—as an alternative theory of liability—that,
even if the jury could not agree Morales was the shooter in Windsor, he could
still be guilty of the crimes related to the shooting of Glenn under the natural
and probable consequences theory. He continued, “But as we will review in
this case, the evidence is overwhelmingly clear that this defendant,
Defendant Morales, is the defendant that shot Glenn.”
shot. And when he fired that shot, and he literally, literally ripped Glenn’s
body apart, what did he do? He kept that rifle fixed on him. He pulled that
trigger. He ripped his body apart again. He pulled that trigger, and he
ripped his body apart again. And he pulled that trigger five separate, distinct
times. Five times, he made the conscious, deliberate decision to pull that
trigger.” The prosecutor observed that Morales only stopped shooting
because his rifle jammed. (Officer Paniagua testified that the AK-47 he
found in the Suburban was jammed and therefore was inoperable.)
5
The Defense
Morales did not dispute that he was at the crime scenes in Windsor and
Calistoga. But defense counsel argued Morales participated in the robbery
under duress and it was Gutsu who shot Glenn.
Jury Instructions
The trial court instructed the jury with CALCRIM Nos. 400 (aiding and
abetting: general principles), 401 (aiding and abetting: intended crimes), 402
(natural and probable consequences doctrine), 416 (evidence of uncharged
conspiracy), 417 (liability for coconspirators’ acts), 600 (attempted murder),
601 (attempted murder: deliberation and premeditation), and 3150
(personally used firearm: intentional discharge and discharge causing injury
or death), among others.
For CALCRIM No. 402 on the natural and probable consequences
doctrine, the jury was instructed: “The defendant is charged in Count III with
Robbery, and in Count I with Attempted Premeditated Murder of Glenn, and
Count II with Attempted Premeditated Murder of Peace Officer Luis
Paniagua. Count V with Assault on a Peace Officer with a Semi-Automatic
Firearm, Count VI with Willful Unlawful and Malicious Discharge of a
Firearm at an Occupied Motor Vehicle, Count VII with Assault by an Assault
Weapon on Glenn.
“You must first decide whether the defendant is guilty of Robbery. If
you find the defendant is guilty of this crime, you must then decide whether
he is guilty of Attempted Premeditated Murder of Glenn (Count I), Attempted
Premeditated Murder of Officer Luis Paniagua (Count II)[,] Assault on a
Peace Officer with a Semi-Automatic Firearm (Count V), Willful Unlawful
and Malicious Discharge of a Firearm at an Occupied Motor Vehicle (Count
VI), Assault by Assault Weapon on Glenn (Count VII).
6
“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 Attempted Premeditated
Murder of Glenn (Count I), Attempted Premeditated Murder of Officer Luis
Paniagua (Count II), Assault on a Peace Officer with a Semi-Automatic
Firearm (Count V), Willful Unlawful and Malicious Discharge of a Firearm at
an Occupied Motor Vehicle (Count VI), Assault by Assault Weapon on Glenn
(Count VII), the People must prove that:
“1. The defendant is guilty of robbery;
“2. During the commission of the robbery a co-participant in that
robbery committed the crime of Attempted Premeditated Murder of Glenn
(Count I), Attempted Premeditated Murder of Officer Luis Paniagua (Count
II), Assault on a Peace Officer with a Semi-Automatic Firearm (Count V),
Willful Unlawful and Malicious Discharge of a Firearm at an Occupied Motor
Vehicle (Count VI), Assault by Assault Weapon on Glenn (Count VII);
“AND
“3. Under all of the circumstances, a reasonable person in the
defendant’s position would have known that the commission of Attempted
Premeditated Murder of Glenn (Count I), Attempted Premeditated Murder of
Officer Luis Paniagua (Count II), Assault on a Peace Officer with a Semi-
Automatic Firearm (Count V), Willful Unlawful and Malicious Discharge of a
Firearm at an Occupied Motor Vehicle (Count VI), Assault by an Assault
Weapon on Glenn (Count VII) was a natural and probable consequence of the
commission of the robbery.
“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.
7
“A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing intervenes. In deciding whether a
consequence is natural and probable, consider all of the circumstances
established by the evidence.
“To decide whether [the] crime of robbery was committed, please refer
to the separate instructions that I will give on that crime[].” (Italics added
and original italics deleted.)
Similarly, with CALCRIM No. 417 on liability for coconspirators’ acts,
the trial court instructed the jury that a “member of a conspiracy is also
criminally responsible for any act of any member of the conspiracy if that act
is done to further the conspiracy and that act is a natural and probable
consequence of the common plan or design of the conspiracy. This rule
applies even if the act was not intended as part of the original plan.”7
(Underlining deleted.)
Verdict
In 2018, the jury found Morales guilty of attempted premeditated
murder of Glenn, robbery, assault with an assault weapon, assault on a peace
officer (a lesser included offense of assault on a peace officer with a semi-
automatic firearm), and driving a vehicle without the owner’s consent. The
jury found true the allegations under section 12022.53(d) that Morales
personally discharged a firearm and caused great bodily injury in the
commission of the robbery and attempted premeditated murder of Glenn.
(Morales, supra, 2020 WL 4999934, at *1.) The jury did not find Morales
7 The jury was instructed as part of CALCRIM No. 416 (on evidence of
an uncharged conspiracy) that the prosecution contended Morales conspired
with Gutsu to commit robbery.
8
guilty of attempted murder of Officer Paniagua or shooting an occupied
vehicle.
Current Proceedings
In January 2022, Morales petitioned for resentencing under former
section 1170.95 (now section 1172.6).8 The prosecution filed an opposition
arguing Morales was not entitled to relief because the jury’s verdict
established that Morales was “the actual attempted killer.” Morales filed a
reply arguing he made a prima facie case because he was charged with
attempted murder of Glenn under the natural and probable consequences
doctrine and the jury’s finding that he intentionally discharged a firearm and
proximately caused great bodily injury under section 12022.53(d) did not
establish as a matter of law that he acted with malice aforethought.
In November 2022, the trial court denied the petition for resentencing
after “find[ing] that the record of conviction conclusively demonstrates that
the jury in this case convicted Morales of attempted murder based upon a
valid direct perpetrator theory of attempted murder, and not upon any
[invalid] natural and probable consequence theory.”
The trial court explained that the prosecution’s “entire theory for the
attempted murder was that the person who shot Glenn was the direct
perpetrator who had the intent to kill and took a direct but ineffective step
toward killing Glenn.” “A disputed issue at trial was whether Morales or
codefendant Gutsu was the shooter of victim Glenn,” and so the prosecution
“offered the natural and probable consequence theory to the jury . . . as a[n
8 Former section 1170.95 was renumbered 1172.6 without substantive
change effective June 30, 2022. (People v. Strong (2022) 13 Cal.5th 698, 708,
fn. 2 (Strong).) In this opinion, we will cite to section 1172.6, the current
version of the resentencing statute at issue.
9
alternative] basis for Morales’[s] liability for attempted murder only if the
jury determined that Gutsu (and not Morales) [was the shooter].” But, the
court reasoned, “once the jury found that Morales was the shooter [which we
know it did because it found he personally discharged a firearm and caused
great bodily injury under section 12022.53(d)], the natural and probable
consequence theory of liability for Morales became inapplicable. It would
only have been applicable if the jury had found that Gutsu (not Morales) was
the shooter.”
DISCUSSION
A. Elimination of Murder and Attempted Murder Liability Based on the
Natural and Probable Consequences Doctrine and Retroactive Relief
Under Section 1172.6
In 2018, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (Senate Bill 1437) “ ‘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, [and]
was not a major participant in the underlying felony who acted with reckless
indifference to human life.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis), quoting Stats. 2018, ch. 1015, § 1, subd. (f).) Effective January 1,
2019, Senate Bill No. 1437 amended sections 188 (defining the “malice”
required for murder) and 189 (defining first and second degree murder) to
eliminate murder liability based on the natural and probable consequences
doctrine and to significantly narrow the scope of the felony-murder rule.
(People v. Curiel (2023) 15 Cal.5th 433, 440 (Curiel); Strong, supra, 13
Cal.5th at p. 707, fn. 1; Lewis, supra, 11 Cal.5th at p. 959.)
Senate Bill 1437 also created a procedure (formerly at section 1170.95,
now at section 1172.6) for defendants convicted of murder under prior law to
seek retroactive relief if they “could not be convicted under the law as
10
amended.” (Lewis, supra, 11 Cal.5th at p. 957; Curiel, supra, 15 Cal.5th at
p.440.)
Effective January 1, 2022, Senate Bill No. 775, (2021–2022 Reg. Sess.)
“extended [retroactive] relief to defendants convicted of attempted murder
based on the natural and probable consequences doctrine.” (People v. Lovejoy
(2024) 101 Cal.App.5th 860, ___ [320 Cal.Rptr.3d 631, 634], italics added;
People v. Coley (2022) 77 Cal.App.5th 539, 544.)
As relevant to this appeal, section 1172.6, subdivision (a) (§ 1172.6(a)),
now provides that a person convicted of attempted murder under the natural
and probable consequences doctrine “may file a petition with the court that
sentenced the petitioner to have the . . . attempted murder . . . conviction
vacated and to be resentenced on any remaining counts when . . . the
following [three] conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of . . . attempted murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of . . .
attempted murder . . . following a trial . . . . [¶] (3) The petitioner could not
presently be convicted of . . . attempted murder because of changes to Section
188 or 189 made effective January 1, 2019.”
“When the trial court receives a petition containing the necessary
declaration and other required information, the court must evaluate the
petition ‘to determine whether the petitioner has made a prima facie case for
relief.’ [Citations.] If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial court may
dismiss the petition. [Citations.] If, instead, the defendant has made a
prima facie showing of entitlement to relief, ‘the court shall issue an order to
11
show cause.’ ” (Strong, supra, 13 Cal.5th at p. 708, quoting § 1172.6, subd.
(c).)
While the trial court generally should not reject a petitioner’s factual
allegations at the prima facie stage, “ ‘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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) “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.)
Following the issuance of an order to show cause, if the prosecution
does not stipulate that the petitioner is eligible for resentencing, “the court
must hold an evidentiary hearing at which the prosecution bears the burden
of proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder
or attempted murder’ under state law as amended by Senate Bill 1437.
(§ 1172.6, subd. (d)(3).)” (Strong, supra, 13 Cal.5th at p. 709.)
B. The Prima Facie Showing
Here, the trial court denied Morales’s petition on the ground he failed
to meet the third condition of a prima case for relief—that he could not
currently be convicted of attempted murder because of changes to the murder
statutes effected by Senate Bill 1437 (§ 1172(a)(3)).9
9 There is no dispute that Morales met the first two conditions of a
prima facie case. He was charged with attempted murder and the
prosecution was allowed to proceed under a theory of attempted murder
under the natural and probable consequences doctrine (§ 1172(a)(1)) and he
was convicted of attempted murder following a trial (§ 1172(a)(2)).
12
As we have described, at the prima facie stage, the trial court must
accept each allegation made by the petitioner “unless the allegation is refuted
by the record.” (Curiel, supra, 15 Cal.5th at p. 463.)
The allegation that “[t]he petitioner could not presently be convicted of
. . . attempted murder because of changes to . . . Section 188 or 189 made
effective January 1, 2019” (§ 1172(a)(3)) is refuted when “the record
conclusively establishes every element of the offense” (Curiel, supra, 15
Cal.5th at p. 463). This means that if the record of conviction in this case
conclusively establishes the jury found facts sufficient to support Morales’s
conviction of attempted murder under current law, he has not made his
prima facie case. (See id. at p. 465 [explaining the petitioner’s allegation
under section 1172.6(a)(3) would be refuted only if the jury’s verdicts
reflected all “the factual findings necessary to support a murder conviction
under current law”]; People v. Harden (2022) 81 Cal.App.5th 45, 48, 56, 59
(Harden) [where the jury was instructed on felony murder, but “the record of
conviction irrefutably establishes as a matter of law that the jury determined
[the petitioner] was the actual killer,” the trial court correctly denied her
petition at the prima facie stage].)
We independently review the trial court’s determination that Morales
failed to make a prima facie showing. (Harden, supra, 81 Cal.App.5th at p.
52.)
C. The Trial Court Correctly Determined that the Jury Found Morales
Guilty of Attempted Murder Under a Valid Theory Under Current Law
“[W]e may look to the jury’s verdicts, and the factual findings they
necessarily reflect, to determine whether the record of conviction refutes the
factual allegations in [Morales]’s petition.” (Curiel, supra, 15 Cal.5th at p.
465, italics added.)
13
The evidence in this case showed that two individuals robbed Glenn of
a bag of money in front of a bank in Windsor and that one of the robbers shot
Glenn multiple times with an AK-47 semi-automatic rifle causing Glenn life-
threatening injuries during the robbery. Based on this incident, the
prosecution charged Morales with robbery and attempted premeditated
murder of Glenn.
The jury convicted Morales of robbery, which means it found, as a
factual matter, Morales was one of the two individuals who robbed Glenn.
The jury also found Morales guilty of attempted premeditated murder of
Glenn. Because the jury was instructed on the natural and probable
consequences doctrine, this finding by itself does not establish that the jury
found Morales was the direct perpetrator of an attempted premeditated
murder. Under the instructions given, the guilty verdict establishes that the
jury determined, first, that an attempted premeditated murder of Glenn
occurred and, second, that the crime was committed by either Morales or his
coparticipant in the robbery, Gutsu.
But these guilty verdicts were not the jury’s only findings regarding the
robbery and attempted premeditated murder of Glenn. The jury also found
Morales guilty of assault with an assault weapon and found true the
allegation under section 12022.53(d) that Morales personally and
intentionally discharged a firearm and caused great bodily injury in the
commission of the robbery and attempted premeditated murder of Glenn.
This means the jury made the factual finding that Morales was the robber
who shot Glenn multiple times with an AK-47 semi-automatic rifle.
Considered together, do these jury verdicts “reflect all of the factual
findings necessary to support a[n attempted] murder conviction under
14
current law” so that Morales is ineligible for relief under section 1172.6?
(Curiel, supra, 15 Cal.5th at p. 465.) We believe they do.
We reach this conclusion because the prosecution’s only factual basis
for the attempted premeditated murder charge was the shooting of Glenn
with an AK-47 semi-automatic rifle. No other act was alleged or shown to
have been committed by either robber that met the element of a direct but
ineffectual act toward killing Glenn, which element the jury was required to
find in order to convict Morales of attempted murder. (See People v.
Canizales (2019) 7 Cal.5th 591, 602 [“To prove the crime of attempted
murder, the prosecution must establish ‘the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing the intended
killing.’ ”]; CALCRIM No. 600.) Consequently, the jury’s finding that an
attempted murder was committed means the jury must have found, as a
factual matter, that one of the robbers, with intent to kill, took a direct but
ineffectual act toward killing Glenn by shooting him with an AK-47 semi-
automatic rifle.10 And, by finding Morales guilty of assault with an assault
weapon and finding the discharge allegation under section 12022.53(d) true,
the jury found Morales was the robber who shot Glenn with the AK-47 semi-
automatic rifle and, therefore, he was the direct perpetrator of the attempted
premeditated murder.
Thus, we are confident the jury necessarily made all the factual
findings required to establish Morales is guilty of attempted murder under
the still-valid theory that he, with the requisite mental state of intent to kill,
committed a direct but ineffectual act toward killing Glenn. (See Curiel,
10 And the jury’s finding of premeditation means it found the attempted
murder was done willfully and with deliberation and premeditation. (See
§ 664, subd. (a); CALCRIM No. 601.)
15
supra, 15 Cal.5th at p. 467 [to find an element of murder or attempted
murder satisfied at the prima facie stage, “we must be confident the jury
necessarily found” that element]; Harden, supra, 81 Cal.App.5th at p. 55
[“when viewing the verdicts as a whole, the jury’s true finding that [the
petitioner] personally inflicted great bodily injury necessarily means it
determined she strangled [the victim]”; thus, the jury necessarily found the
petitioner was guilty of murder under the still-valid theory that she was the
actual killer].)
Morales argues the trial court erred in denying his petition at the
prima facie stage because “the jury could have found that [he] aided and
abetted an offense, the natural and probable consequence of which was
attempted first-degree murder committed by his codefendant” Gutsu. But, if
the jury had found Morales guilty of attempted premeditated murder under
the natural and probable consequences theory, it would not have found true
the allegation that he personally discharged a firearm causing great bodily
injury. We agree with the trial court’s reasoning: “once the jury found that
Morales was the shooter, the natural and probable consequence theory of
liability for Morales became inapplicable. It would only have been applicable
if the jury had found that Gutsu (not Morales) was the shooter.”
The cases Morales relies on are inapposite. In People v. Whitson (2022)
79 Cal.App.5th 22, 25–26, the petitioner was convicted of attempted murder
based on a drive-by shooting in which he was the driver and his confederate
was the shooter. The Court of Appeal held the petitioner made a prima facie
case for relief under Senate Bill 1437 because, under the instructions given, it
was possible the jury convicted the petitioner based on a finding that his
confederate harbored intent to kill. (Id. at p. 33.) Here, in contrast, the jury’s
verdicts, considered together, establish the jury found Morales harbored an
16
intent to kill, as the jury found, first, that the person who shot Glenn with an
AK-47 committed an attempted premeditated murder and, therefore,
necessarily had intent to kill and, second, Morales was that shooter.
In People v. Pacheco (2022) 76 Cal.App.5th 118, 122, the Court of
Appeal held that a jury finding of a gang special circumstance did not, by
itself, preclude relief under Senate Bill 1437 because the finding established
only the requisite mental state of intent to kill but did not establish the act
required for direct aiding and abetting of murder. Thus, “the jury’s true
finding on the gang special circumstance d[id] not conclusively establish [the
petitioner] could be found guilty of murder under current law (that he had
the intent to kill, and he directly aided and abetted the target crime of
murder).” (Ibid.) But, in the present case, the jury’s verdicts establish that
Morales both had intent to kill and took a direct but ineffective act toward
killing Glenn because, again, the jury found the shooting of Glenn was an
attempted premeditated murder and Morales was the shooter.
Finally, in People v. Offley (2020) 48 Cal.App.5th 588, 598, the Court of
Appeal held that the existence of an enhancement under section 12022.53(d),
by itself, “does not show that a defendant acted with malice aforethought”
and, therefore, does not preclude a petitioner from making a prima facie case
for resentencing relief. This holding does not help Morales because the
relevance of the section 12022.53(d) firearm discharge finding in this case is
not to prove the requisite mental state but to establish that the jury found
Morales was the shooter and, therefore, was the direct perpetrator of the
attempted premeditated murder. The required mental state was established
by the jury’s guilty verdict for attempted premeditated murder of Glenn, as
the jury found intent to kill, which is express malice (Curiel, supra, 15
Cal.5th at p. 461; § 188, subd. (a)(1)).
17
In sum, the trial court properly denied Morales’s section 1172.6 petition
at the prima facie stage because the jury verdicts establish all the factual
findings necessary to support an attempted murder conviction under current
law.
DISPOSITION
The order denying Morales’s petition under section 1172.6 is affirmed.
18
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Richman, J.
A166731, People v. Morales
19
Trial Court: Superior Court of Sonoma County
Trial Judge: Hon. Patrick Broderick
Ross Thomas, under appointment by the Court of Appeal, for Defendant and
Appellant
Rob Bonta, Attorney General; Lance E. Winters, Chief Assistant Attorney
General; Jeffrey M. Laurence, Assistant Attorney General; Seth K. Schalit
and Bridget Billeter, Deputy Attorneys General, for Plaintiff and Respondent
A166731, People v. Morales
20