People v. Morales CA2/3 ( 2024 )

Filed 5/20/24 P. v. Morales CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B325035
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA179633)
v.
CESAR MORALES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael E. Pastor, Judge. Affirmed.
Susan Morrow Maxwell, 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, Scott A. Taryle and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
In 2001, a jury convicted Cesar Morales of first degree
murder and of attempted murder. Years later, he petitioned for
resentencing under Penal Code1 section 1172.6, which limited
accomplice liability for murder. After holding an evidentiary
hearing under that section, the trial court found there was
insufficient evidence Morales harbored express malice/intent to
kill. It accordingly reduced the attempted murder conviction to
assault with a firearm and resentenced Morales on that
conviction. As to the first degree murder conviction, the trial
court found that section 1172.6 did not permit it to reduce the
conviction to second degree murder and to resentence him.
Morales appeals, contending that the trial court misapplied the
law concerning second degree implied malice murder, there was
insufficient evidence he committed that crime, and section 1172.6
does allow trial courts to reduce the degree of murder. We reject
these contentions and affirm the order.
BACKGROUND
I. Evidence from Morales’s criminal trial
Morales, Ubaldo Cervantes, Jose Martinez, and Juan
Naranjo were jointly tried for the murder of Joey Valentino and
the attempted murder of Gustavo Alvarado.2 We take some of
the background from the Court of Appeal opinion affirming the
judgments of conviction against Morales and Cervantes, People v.
Cervantes (2004) 118 Cal.App.4th 162.
1 All further undesignated statutory references are to the
Penal Code.
2 The trial had two juries, one for Martinez and a second for
Morales, Cervantes, and Naranjo.
2
“On January 2, 1999, at approximately 2:30 a.m., Schundra
Estrada heard a car engine outside her residence on Loosmore
Street in the Cypress Park area of Los Angeles. Estrada then
heard footsteps of more than one person leaving the car, followed
by approximately eight gunshots from around the corner on
Pleasant View Avenue. Estrada next heard footsteps running to
the car, car doors closing and more than one voice saying, ‘go, go,
go, go.’ Estrada looked outside and saw a white Honda leave the
scene. . . .
“Police officers found Joey Valentino lying in a pool of blood
on Pleasant View Avenue. Gustavo Alvarado was a few feet
away. Both had been beaten about the face and shot in the head
at a downward trajectory. Alvarado additionally had been shot in
the back. One of Valentino’s teeth had been knocked from his
mouth. Valentino died as a result of the gunshot wound to the
head. Alvarado lost an eye and remains paralyzed below the
chest.[3] Valentino and Alvarado were students at the time of the
shooting and did not belong to a gang or carry weapons, and
Valentino was in the Army Reserve.
“Shortly after the shooting, Los Angeles police officers
followed a white Honda that refused to yield. Two males ran
from the passenger side of the Honda toward a California
Department of Transportation (Caltrans) yard and evaded the
officers. The driver, Juan Naranjo, remained seated in the
Honda and was apprehended. Martinez fled from the driver’s
side of the Honda. Shortly before the officers caught Martinez, he
3 Alvarado testified at trial that he could not remember
anything about the shooting.
3
discarded a nine-millimeter Glock handgun. Martinez wore dark
blue knit gloves and had a 30-round magazine clip for the Glock.
“In a search of the Caltrans yard, officers found a TEC-9
handgun, a loaded magazine for that weapon, a .357 magnum
handgun and a latex glove. Two blue gloves were found at the
entrance of the yard. A blue knit cap and another pair of dark
gloves were found near the yard.
“A nine-millimeter Luger cartridge was found in the
Honda. Cervantes’s fingerprints were on the inside of the front
passenger window of the Honda, which was registered to
Morales. A hair fragment found on one of the knit caps shared 10
to 12 similarities, out of a possible 15, with Cervantes’s hair. A
bloodstain on the razor wire on top of the fence around the
Caltrans yard contained Morales’s DNA.
“Seven expended shell casings were found at the scene of
the attack, and five additional casings were found across the
street. A criminalist testified the Glock had fired 10 of the 12
casings. The 11th casing could have been fired by the Glock but
was not fired by the TEC-9. The 12th casing could have been
fired from the TEC-9 but was not fired by the Glock.” (People v.
Cervantes, supra, 118 Cal.App.4th at pp. 165–166, fn. omitted.)
Statements Morales made to Dolores Ojeda4 were also
introduced at his trial as follows:
“On January 2, 1999, at approximately 9:30 p.m., Dolores
Ojeda, who worked as a surgical medical assistant, went across
the street to the home of Morales. Ojeda had known Morales for
approximately 12 years. Ojeda also knew Cervantes, Martinez
4 The defense impeached Ojeda with evidence that she was a
bigamist.
4
and Naranjo. Ojeda’s daughter dated Martinez for approximately
18 months. Ojeda spoke to Morales on the front porch of the
residence. Morales had slashes and cuts on his hands which were
swollen.
“Morales told Ojeda he received the cuts ‘jumping fences.’
Morales said he had gone to a party the previous night in Cypress
Park with Cervantes, Martinez and Naranjo to look for some
males who had made advances toward Morales’s girlfriend.
Naranjo drove and stopped when they saw two males. Morales,
Martinez and Cervantes questioned the two males about where
they were from and asked them about a ‘girlfriend.’ The two
males were held at gunpoint on their knees and said they did not
know what Morales was talking about. Morales struck one of the
males with his handgun and told Martinez to search the males
for weapons. Martinez did not find a weapon but Morales said
one of the males had a weapon. Morales shot one male because
his ‘friend was lying.’ When the second male ran, Morales and
Cervantes shot him. Morales, Cervantes and Martinez returned
to the Honda and told Naranjo nothing had happened. Morales
ran from the car after they were followed by the police and
jumped a fence near a freeway. Morales also told Ojeda he
thought the two males were the ‘wrong guys.’ Morales expressed
fear he might lose his job as a security guard.” (People v.
Cervantes, supra, 118 Cal.App.4th at pp. 166–167.)5
5 Martinez gave a statement to law enforcement that was
read only to his jury. Martinez’s statement essentially aligned
with Ojeda’s, claiming he did not shoot either victim, Morales
shot Valentino, and Morales and Cervantes shot Alvarado.
5
When he was arrested on January 4, 1999, Morales had
two lacerations on the palm of his right hand and the knuckles of
his left hand were swollen and bruised. Cervantes had a long cut
across his chest and several small cuts on his arms.
In 1998, before the crimes at issue occurred, Morales had
told a police officer that he used a nine millimeter Glock handgun
in his work as a security guard.
Ana Barraza testified that at the time of the shooting, she
was dating Morales and that her child’s father, a member of a
Cypress Park gang, had threatened her.
A gang expert testified at trial that Martinez, Cervantes
and Morales each had admitted membership in the same gang.
The expert further testified that gang members earn respect
within the gang by participating in certain criminal activities and
that when gang members exit a car with loaded firearms in
another gang’s territory, it is reasonably foreseeable that
someone is going to be shot. Shootings committed in another
gang’s territory would benefit Morales’s gang by earning it
respect.
II. Jury’s verdict and sentence
Morales’s jury was instructed on the natural and probable
consequences doctrine with CALJIC No. 3.02, with assault with
force likely to cause great bodily injury or assault with a firearm
as the target offenses. The jury found Morales guilty of first
degree murder and premeditated, willful, and deliberate
attempted murder. As to both counts, the jury found true
principal gun use (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b),
(c), (d) & (e)(1)) and gang (§ 186.22, subd. (b)(1)) allegations. The
jury found not true allegations that Morales personally used a
6
firearm and personally inflicted great bodily injury on the
victims.6
In 2001, the trial court sentenced Morales to 25 years to life
plus 20 years for the murder count and to life with a 15-year
minimum parole eligibility plus 20 years for the attempted
murder.
III. The petition for resentencing and evidentiary hearing
In 2019, Morales petitioned for resentencing under section
1172.6. The trial court found that Morales had stated a prima
facie case for relief, appointed counsel to represent Morales,
issued an order to show cause, and held an evidentiary hearing in
June 2022.7
At the evidentiary hearing, the parties did not introduce
new or additional evidence. The trial court instead reviewed the
reporter’s transcript from Morales’s criminal trial and heard
argument. It then found, as to both the murder and attempted
murder counts, that there was insufficient evidence Morales
acted with express malice. However, as to count 1 for murder,
the trial court found beyond a reasonable doubt that he would be
convicted of second degree murder under current law. The trial
court based its finding on the “use of a family vehicle, . . . , the
awareness of weapons, the motive, a dual motive of significance
because of jealousy and also his gang associations[,] [h]is ordering
that the vehicle be driven. His being involved, . . . , with the
6 As to both counts, Martinez’s jury found that he personally
discharged a firearm (§ 12022.53, subd. (c)).
7 The evidentiary hearing also considered a petition for
resentencing filed by Cervantes.
7
planning and preparation.” Further, Morales wore gloves and
fled with the other defendants. Thus, Morales’s actions
“demonstrate his subjective awareness of the dangers of his
actions and the very real awareness of the risk to human
life . . . in terms of his mens rea.” Finding that section 1172.6 did
not allow it to reduce the degree of murder, the trial court did not
resentence Morales on his first degree murder conviction.
But the trial court reduced the attempted murder count to
assault with a semiautomatic firearm and resentenced Morales to
eight years in prison. The trial court also struck the gang
enhancement as to that count.
DISCUSSION
I. Overview of Senate Bill No. 1437
To the end of ensuring a person’s sentence is commensurate
with the person’s individual criminal culpability, Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) limited
accomplice liability under the felony-murder rule, eliminated the
natural and probable consequences doctrine as it relates to
murder, and eliminated convictions for murder based on a theory
under which malice is imputed to a person based solely on that
person’s participation in a crime. (See generally People v. Reyes
(2023) 14 Cal.5th 981, 986 (Reyes); People v. Lewis (2021) 11
Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830,
842–843, superseded by statute on other grounds as stated in
People v. Birdsall (2022) 77 Cal.App.5th 859, 866, fn. 19.) Senate
Bill 1437 added section 189, subdivision (e) (limiting application
of the felony-murder rule) and section 188, subdivision (a)(3)
(stating that “to be convicted of murder, a principal in a crime
shall act with malice aforethought” and malice “shall not be
8
imputed to a person based solely on his or her participation in a
crime”). As amended by Senate Bill No. 775, effective January 1,
2022, these ameliorative changes to the law now expressly apply
to attempted murder and voluntary manslaughter.
Senate Bill 1437 also created a procedure, codified in
section 1172.6, for a person convicted of murder, attempted
murder, or voluntary manslaughter under the former law to be
resentenced if the person could no longer be convicted of those
crimes under current law. (People v. Lewis, supra, 11 Cal.5th at
p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A
defendant commences that procedure by filing a petition
containing a declaration that, among other things, the defendant
could not presently be convicted of murder, attempted murder, or
voluntary manslaughter under current law. (People v. Strong
(2022) 13 Cal.5th 698, 708.) If a petition establishes a prima
facie case for relief, the trial court must appoint counsel if
requested, issue an order to show cause, and hold an evidentiary
hearing at which the prosecution bears the burden of proving
beyond a reasonable doubt that the petitioner is guilty of murder
under the law as amended by Senate Bill 1437. (§ 1172.6,
subds. (b)(3), (c), & (d)(1).) At the section 1172.6, subdivision
(d)(3) evidentiary hearing, the parties may offer new or
additional evidence. The trial court sits as an independent
factfinder to determine beyond a reasonable doubt whether the
defendant is guilty of murder under a valid theory. (People v.
Garrison (2021) 73 Cal.App.5th 735, 745.)
On appeal, we review the trial court’s findings for
substantial evidence. (People v. Clements (2022) 75 Cal.App.5th
276, 298; accord, People v. Mitchell (2022) 81 Cal.App.5th 575,
591.) Under that standard of review, we “ ‘ “examine the entire
9
record in the light most favorable to the judgment to determine
whether it contains substantial evidence—that is, evidence that
is reasonable, credible, and of solid value that would support a
rational trier of fact in finding [the defendant guilty] beyond a
reasonable doubt.” ’ ” (Clements, at p. 298.) We presume in
support of the judgment the existence of every fact that can be
reasonably deduced from the evidence. (People v. Owens (2022)
78 Cal.App.5th 1015, 1022.) We do not resolve credibility issues
or evidentiary conflicts. (Ibid.) Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57.)
Before we may set aside a trial court’s order, it must be clear that
“ ‘ “upon no hypothesis whatever is there sufficient substantial
evidence to support [it].” ’ ” (People v. Zamudio (2008) 43 Cal.4th
327, 357.)
II. Second degree implied malice murder
Morales raises two contentions about the trial court’s
finding he was guilty of second degree implied malice murder.
First, the trial court applied an incorrect legal standard to find
him guilty of that crime. Second, there was insufficient evidence
to support second degree implied malice murder. We reject these
contentions.
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) Malice may be express or
implied. (§ 188, subd. (a).) The primary difference between
express malice and implied malice is the former requires an
intent to kill but the latter does not. (People v. Soto (2018)
4 Cal.5th 968, 976.) Implied malice murder instead requires the
killing be proximately caused by an act, “ ‘ “ ‘the natural
consequences of which are dangerous to life, which act was
10
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.’ ” ’ ” (Reyes, supra, 14 Cal.5th at p. 988.)
Proximate causation requires the act to have been a substantial
factor contributing to the death. (Ibid.) And conscious disregard
for human life refers to a state of mind in which the person
knows the conduct is dangerous to others but does not care if
someone is hurt or killed. (People v. Murphy (2022) 80
Cal.App.5th 713, 726.)
The guilt of an aider and abettor to a crime, including
murder, is “based on a combination of the direct perpetrator’s
acts and the aider and abettor’s own acts and own mental state.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1117.) “A person aids
and abets the commission of a crime when [the person], (i) with
knowledge of the unlawful purpose of the perpetrator, (ii) and
with the intent or purpose of committing, facilitating or
encouraging commission of the crime, (iii) by act or advice, aids,
promotes, encourages or instigates the commission of the crime.”
(People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
Accordingly, a direct aider and abettor of implied malice
murder must, by words or conduct, aid the perpetrator’s
commission of a life-endangering act with the “knowledge that
the perpetrator intended to commit the act, intent to aid the
perpetrator in the commission of the act, knowledge that the act
is dangerous to human life,” and act “in conscious disregard for
human life.” (People v. Powell (2021) 63 Cal.App.5th 689, 713,
italics omitted, cited with approval by Reyes, supra, 14 Cal.5th at
p. 991 [implied malice murder requires proof of aider and
abettor’s “knowledge and intent with regard to the direct
perpetrator’s life endangering act”].) In other words, under
11
current law, “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.” (People v. Langi (2022) 73 Cal.App.5th 972, 979.)
In Reyes, our California Supreme Court clarified the type of
act committed by an aider and abettor that is dangerous to
human life for the purposes of implied malice murder. An act
that merely creates a dangerous situation in which death is
possible, depending on how circumstances unfolded, standing
alone will not satisfy the proximate causation requirement of
implied malice murder. (Reyes, supra, 14 Cal.5th at p. 989.)
Rather, implied malice murder requires a high probability that
death will result; the danger to life cannot be merely vague or
speculative. (Ibid.; People v. Cravens (2012) 53 Cal.4th 500, 513
[probability of death cannot be remote or merely possible].)
In Reyes, supra, 14 Cal.5th at page 985, for example, the
defendant Reyes was at a park with fellow gang members, one of
whom openly displayed a gun. After someone in Reyes’s group
called out to a passing car, the group chased the car, and
someone (not Reyes) shot at the car, killing its driver. (Ibid.)
The court found that Reyes’s act of traveling with an armed
fellow gang member into rival gang territory could result in a
gang confrontation during which it was possible someone could
get hurt or killed, but the act did not by itself “give rise to a high
degree of probability” death would result. (Id. at p. 989.)
Further, there was no evidence Reyes’s “acts precipitated or
provoked the shooting.” (Ibid.) And if the act of shooting was the
dangerous act, there had to be evidence Reyes knew the shooter
intended to shoot, intended to aid him in shooting, knew shooting
12
was dangerous to life, and acted in conscious disregard of life.
(Id. at pp. 991–992.)
Here, Morales makes the interconnected claims that first,
the trial court “failed to focus on” his “mental state as it related
to the ‘life-endangering act committed by the direct perpetrator,’ ”
Martinez, and second, there was insufficient evidence Morales
committed second degree implied malice murder.
First, nothing in the record suggests that the trial court
misunderstood or misapplied the law. Rather, the trial court
detailed the reasons for concluding, beyond a reasonable doubt,
that Morales would be convicted of second degree implied malice
murder under current law.8 The trial court cited Morales’s use of
his own car, use of guns, motive, and planning activity as
evidence of his mens rea. Otherwise, nothing the trial court said
suggests it misunderstood that Morales had to know that
Martinez intended to commit a life endangering act, intentionally
aided and abetted that act with conscious disregard to human
life, knowing the act was dangerous to human life.
Moreover, we do not agree with Morales’s assertion that
the trial court could not consider any part of Ojeda’s testimony
because the jury found he did not personally use a gun or inflict
great bodily injury. This finding certainly suggests that the jury
did not credit Ojeda’s testimony that Morales told her he shot
Valentino and Alvarado. While the trial court at the section
1172.6 evidentiary hearing had to accept those findings, it
8 Implied malice remains a valid theory of second degree
murder liability for an aider and abettor after Senate Bill 1437’s
enactment. (Reyes, supra, 14 Cal.5th at p. 991; People v. Gentile,
supra, 10 Cal.5th at p. 850.)
13
nonetheless could still consider Ojeda’s testimony. That is, a
trier of fact may accept part of a witness’s testimony and reject
another part, weaving a cloth of truth from the evidence.
(Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67.) Thus, the
trial court could consider Ojeda’s testimony in determining
whether beyond a reasonable doubt Morales aided and abetted
second degree implied malice murder, even while respecting the
verdict on the firearm enhancements.
Second, there was sufficient evidence that Morales directly
aided and abetted the life-endangering acts of shooting Valentino
and Alvarado with conscious disregard to human life. Morales
had a motive for the shootings: Morales was upset that men had
made advances to his girlfriend. Ojeda testified that Morales told
her some men had made advances to his girlfriend, and that he
and the others had searched for them. Ana Barraza corroborated
Ojeda’s testimony by herself testifying that she was dating
Morales at the time of the shootings and that her child’s father
had threatened her. This motive is probative of Morales’s
conscious disregard to human life. (See generally People v. Smith
(2005) 37 Cal.4th 733, 741 [motive for crime may be probative of
intent to kill].)
Planning activity further showed that Morales intended to
aid and abet the shootings. (See generally People v. Glukhoy
(2022) 77 Cal.App.5th 576, 599 [conduct before and after offense
relevant to determine whether defendant aided and abetted a
crime]; People v. Thomas (2011) 52 Cal.4th 336, 355 [defendant’s
actions leading to crime may be relevant to mens rea and intent
at time of crime].) Morales gathered fellow gang members in the
early morning hours, and they drove around in his car, looking
for the men who made the advances to Morales’s girlfriend. That
14
the men were in Morales’s car further supported an inference he
was the plan’s mastermind. Morales and his companions had
three guns and ammunition with them. And the evidence showed
that Morales knew about the guns and was himself armed with
one: he told Ojeda he had a gun, and two guns were found in the
Caltrans yard, where Morales fled after the shooting, further
corroborating this part of Ojeda’s testimony. Also, Martinez was
wearing gloves when he was apprehended, and a latex glove and
another set of gloves were found in the Caltrans yard. That all
three men had guns and gloves further evidenced a plan to shoot
the victims and to wear gloves to avoid identification.
Finally, evidence showed that Valentino and Alvarado were
beaten, made to kneel, and shot in their heads at a downward
trajectory. Alvarado was also shot in the back.9 Shooting victims
in the head area from within a few feet is a sufficiently particular
and exacting method of killing to permit an inference the
defendant was acting according to a preconceived design. (People
v. Halvorsen (2007) 42 Cal.4th 379, 422; accord, People v. Gomez
(2018) 6 Cal.5th 243, 283 [shooting victims at close range in head
or neck shows premeditation and deliberation]; People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 295 [close-range
9 Ojeda testified that Morales told her he and Cervantes shot
at Alvarado as he tried to escape. Other evidence corroborated
this portion of her testimony: law enforcement found Alvarado a
few feet from Valentino’s body, and Alvarado had been shot in the
back, as well as in the head.
15
shooting without provocation or evidence of struggle supports
inference of premeditation and deliberation].)10
The evidence established that Morales knew the victims
were going to be shot and that he aided that goal by arming
himself, trying to disguise his identity, pursuing the victims with
armed companions, and preventing their escape. The evidence
further established that he knew the victims were going to be
shot, because they were forced to kneel, inferentially at gunpoint,
at which point the shooter’s murderous intent was unmistakable.
Thus, unlike the defendant in Reyes, there was evidence Morales
knew the shooter intended to shoot, intentionally aided the
shooting, knew that the shooting was dangerous to human life,
and acted with conscious disregard to human life.
We therefore conclude that sufficient evidence supports the
trial court’s finding Morales guilty of second degree implied
malice murder.
II. Reduction to second degree murder
Morales’s final contention is the trial court erred by
refusing to reduce his first degree murder conviction to second
degree murder. Several courts have recently rejected a similar
contention, finding that the face of section 1172.6 does not permit
reducing the degree of murder.
We review the interpretation of a statute de novo. (People
v. Gonzalez (2023) 87 Cal.App.5th 869, 880.) We first examine
the statute’s words, giving them a plain and commonsense
10 Neither Valentino nor Alvarado had injuries to their hands,
suggesting they had no opportunity to defend themselves.
16
meaning. (Ibid.) If the plain language is clear and unambiguous,
our inquiry ends and the plain meaning governs. (Ibid.)
Section 1172.6, subdivision (d)(3), governs evidentiary
hearings, which occur if the defendant has made a prima facie
case for relief. At an evidentiary hearing, the prosecution has the
burden of proving beyond a reasonable doubt that the defendant
“is guilty of murder or attempted murder under California law as
amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).) If the prosecution
meets its burden, then the defendant is not entitled to relief, and
the court denies the petition for resentencing. (Ibid.) But if “the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (Ibid., italics added.) In
that instance, the conviction “shall be redesignated as the target
offense or underlying felony for resentencing purposes” if
“murder or attempted murder was charged generically, and the
target offense was not charged.” (Id. at subd. (e).)
At least two Courts of Appeal have found that, on its face,
section 1172.6 “does not contain a mechanism for a trial court to
reduce a first degree murder conviction to second degree murder.”
(People v. Gonzalez (2023) 87 Cal.App.5th 869, 880; accord, People
v. Didyavong (2023) 90 Cal.App.5th 85, review granted June 28,
2023, S280047, review dism. October 18, 2023.) Instead, section
1172.6 treats all murder as a single, generic crime and requires
resentencing only when a defendant could not now be convicted of
murder generically, without reference to the degree of murder.
(Didyavong, at p. 96.) Section 1172.6 thus permits only two
options in adjudicating a resentencing petition: (1) deny the
17
petition, leaving in place the murder conviction, or (2) grant the
petition, vacating the murder conviction and resentencing the
defendant on the remaining charges, target offense, or underlying
felony. (Gonzalez, at p. 881.)
Given section 1172.6’s use of the word “vacate,” we agree
that the statute permits a murder conviction only to be set aside
and does not permit reduction of the degree of murder.
Nonetheless, we are cognizant of the seemingly
incongruous position this leaves Morales in: a trial court has
found he is guilty of only second degree murder, yet, he stands
convicted of and sentenced on first degree murder, with no
remedy apparent, at least under section 1172.6. However, the
Legislature may properly enact reform one step at a time,
limiting the ameliorative effects of legislation to the class or
classes of person it thinks need it most. (Kasler v. Lockyer (2000)
23 Cal.4th 472, 488.) While section 1172.6 aims to ensure a
person’s sentence is commensurate with the person’s individual
criminal culpability, the Legislature chose to achieve that aim by
giving specified relief to a class of people who could not be
convicted of murder generically because of revisions to laws
regarding felony murder and the natural and probable
consequences doctrine. (See People v. Coley (2022) 77
Cal.App.5th 539, 549 [§ 1172.6 “is not a means by which a
defendant can relitigate issues already decided”]; People v.
Farfan (2021) 71 Cal.App.5th 942, 947 [“mere filing” of § 1172.6
petition does not afford petitioner new opportunity to raise trial
error claims or attack sufficiency of evidence to support jury’s
findings]; People v. DeHuff (2021) 63 Cal.App.5th 428, 438
[§ 1172.6 is not a direct appeal].) We are not free to substitute
our judgment for the Legislature’s about what might be a better
18
policy. (City and County of San Francisco v. Sweet (1995) 12
Cal.4th 105, 121.)
DISPOSITION
The order denying Cesar Morales’s Penal Code section
1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
ADAMS, J.
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