People v. Geronimo CA2/8 ( 2024 )

Filed 5/30/24 P. v. Geronimo CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B330022
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA443976-01)
v.
ABRAHAM GERONIMO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Neil Rosenbaum, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo), we review this appeal of an order denying
defendant’s petition for resentencing brought under Penal Code1
section 1172.6. We affirm.
BACKGROUND
On August 23, 2016, the People charged defendant
Abraham Geronimo by amended information with one count of
attempted willful, deliberate, and premeditated murder in
violation of sections 664 and 187, subdivision (a) and one count of
assault with a firearm in violation of section 245,
subdivision (a)(2). As to the attempted murder count, it was
alleged that a principal personally and intentionally used and
discharged a firearm causing great bodily injury pursuant to
section 12022.53, subdivisions (b), (c), (d) and (e)(1). It was also
alleged both offenses were committed for the benefit of a criminal
street gang. (§ 186.22(b)(1)(C).)
A jury found Geronimo guilty of both charges and found the
enhancement allegations true. The trial court sentenced
Geronimo to 25 years to life with the possibility of parole.
For context only, we recite the facts of the case from our
opinion affirming Geronimo’s conviction. Geronimo and Julio R.
were spraying paint over rival gang graffiti on a garage door near
the victim’s house. The victim went outside to move his car and
Julio told him, “Don’t mess with me.” (People v. Geronimo (Dec.
12, 2017, B277467) [nonpub. opn.].) Geronimo seemed to be
acting as a “lookout,” i.e., “looking” and “keeping an eye out.”
Before the shooting, Geronimo crossed the street and stayed in
the area. Julio R. fired a handgun at the victim three times and
1 Statutory references are to the Penal Code.
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wounded him in the leg. Both men then fled to Geronimo’s
house. (People v. Geronimo, supra, B277467.)
On August 15, 2022, Geronimo filed a petition for
resentencing pursuant to section 1172.6. He also requested and
was granted appointment of counsel. The People filed a response
to the petition to which they attached the instructions given to
the jury at trial. Geronimo filed a reply brief. On April 24, 2023,
after reviewing the briefs of the parties, the trial court denied the
petition, finding that the jury was not instructed the natural and
probable consequences doctrine or any theory of imputed malice
and therefore Geronimo was not entitled to relief as a matter of
law.
In denying the petition, the trial court stated, “The court
has read and considered the original petition, obviously, and then
I had looked at the People’s response to the petition and then the
defense reply to the response. [¶] . . . [¶] So the court has taken a
look at a couple of things in the case. The court did not do any
fact-finding in this case. It just looked at the conviction record.
[¶] And the defendant was convicted of attempted murder. There
was no natural and probable consequence that was given to the
jury. Also, there was no theory that could be imputed onto the
defendant, based on the instructions. [¶] As such, the court is
going to find the defense has failed to make a prima facie case,
and it will find the defendant is legally ineligible for relief
pursuant to [section] 1172.6.” Geronimo timely appealed.
On August 21, 2023, we appointed counsel to represent
Geronimo on appeal. On January 18, 2024, counsel filed a no-
issue brief pursuant to People v. Delgadillo. Counsel advised us
appellant was told he may file his own supplemental brief within
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30 days. Counsel sent Geronimo transcripts of the record on
appeal as well as a copy of the brief.
On January 19, 2024, this court sent Geronimo notice that
a brief raising no issues had been filed on his behalf. We advised
him he had 30 days within which to submit a supplemental brief
or letter stating any issues he believes we should consider. We
also advised him that if he did not file a supplemental brief, the
appeal may be dismissed as abandoned.
On April 15, 2024, we received Geronimo’s supplemental
brief, in which he concedes the jury was not instructed on the
natural and probable consequences doctrine. He contends,
however, he was convicted under a theory where malice was
imputed to him based solely on his participation in the tagging of
the apartment building.
DISCUSSION
Senate Bill No. 1437 (2017–2018 Reg. Sess.) eliminated the
natural and probable consequences doctrine as a basis for
liability for murder (and later, attempted murder). It also limited
the scope of the felony murder rule. (People v. Lewis (2021)
11 Cal.5th 952, 957) (Lewis).) Petitions for resentencing carry
out the intent of Senate Bill No. 1437, which was “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);
Lewis, at p. 967.) Petitions under section 1172.6 address
convictions where a defendant was not the shooter but was held
vicariously liable on one of several theories of liability identified
in the statute. If the record establishes ineligibility for
resentencing as a matter of law, the petition has been properly
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denied. (Lewis, at pp. 970–972.) However, the petition and
record must establish conclusively that the defendant is ineligible
for relief. (People v. Lopez (2022) 78 Cal.App.5th 1,14 [a
“petitioner is ineligible for resentencing as a matter of law if the
record of conviction conclusively establishes, with no factfinding,
weighing of evidence, or credibility determinations, that . . . the
petitioner was the actual killer.”].) (Ibid.) When a trial court
denies a section 1172.6 petition based on the failure to make a
prima facie case for relief, our review is de novo. (Ibid.)
After appointment of counsel, the trial court assesses when
a prima facie case for relief has been made. The prima facie
inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) In
assessing whether a defendant has made a prima facie case for
relief pursuant to section 1172.6, ruling on a resentencing
petition, the trial court is entitled to review the record of
conviction, which includes the jury summations, jury
instructions, verdict forms, and prior appellate opinions. (Lewis,
at p. 971–972.) However, Lewis cautions that although appellate
opinions are generally considered to be part of the record of
conviction, the prima facie bar was intentionally set very low, the
probative value of an appellate opinion is case-specific; a trial
court should not engage in “ ‘factfinding involving the weighing of
evidence or the exercise of discretion.’ ” (Id. at p. 972.)
Here, the jury was instructed on aiding and abetting only
(CALCRIM No. 401). The instruction reads: “To prove that the
defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that: [¶] 1. The perpetrator
committed the crime; [¶] 2. The defendant knew that the
perpetrator intended to commit the crime; [¶] 3. Before or during
the commission of the crime, the defendant intended to aid and
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abet the perpetrator in committing the crime; [¶] AND [¶] 4. The
defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime. [¶] Someone aids and
abets a crime if he or she knows of the perpetrator’s unlawful
purpose and he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime. [¶] If all of these requirements are
proved, the defendant does not need to actually have been
present when the crime was committed to be guilty as an aider
and abettor. [¶] If you conclude that defendant was present at the
scene of the crime or fails to prevent the crime, you may consider
that fact in determining whether the defendant was an aider and
abettor. However, the fact that a person is present at the scene
of a crime or failed to prevent the crime does not, by itself, make
him or her an aider and abettor.”
The jury was also instructed on attempted murder
(CALCRIM No. 600): “To prove that the defendant is guilty of
attempted murder, the People must prove that: [¶] 1. The
defendant took at least one direct but ineffective step toward
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 intend 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 the plan had not interrupted the attempt.”
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As confirmed by our review of the record of conviction, the
jury was not instructed on the natural and probable
consequences doctrine or any other theory of imputed malice.
Nonetheless, Geronimo argues that the prosecutor’s focus on
Julio R.’s actions confused the jury into thinking it could find
Geronimo guilty by imputing Julio R.’s mental state to him.
We disagree. The instructions make clear that Geronimo
himself had to have the intent to kill. They do not direct or
permit the jury to impute Julio R.’s mental state to Geronimo just
because he was present at the scene, as Geronimo contends. As a
“general rule,” courts presume that juries can and will dutifully
follow the instructions they are given. (People v. Washington
(2017) 15 Cal.App.5th 19, 26.) Because Geronimo was convicted
under a theory of direct aiding and abetting, he is ineligible for
relief under resentencing relief.
We decline to independently review the record. (People v.
Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J. VIRAMONTES, J.
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