People v. Delaloza CA2/7

Filed 8/21/23 P. v. Delaloza CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B318526
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. VA045286-02)
ALEJANDRO REY DELALOZA,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Roger Ito, Judge. Affirmed.
Adrian K. Panton, 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, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Charles S. Lee, Deputy Attorney General,
for Plaintiff and Respondent.
_________________________
A jury convicted Alejandro Rey Delaloza in December 1999
of two counts of first degree murder with a multiple-murder
special-circumstance finding, conspiracy to commit murder and
several other serious felonies. Following an evidentiary hearing
pursuant to Penal Code section 1172.6, subdivision (d)(3),1 the
superior court denied Delaloza’s petition for resentencing, finding
beyond a reasonable doubt that Delaloza was guilty of the
first degree murder of the two victims under a currently valid
theory of murder and was also guilty beyond a reasonable doubt
of conspiracy to commit murder. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Delaloza’s Murder Convictions
Michael Murillo and Brian Molina were shot to death at
close range in the early morning of October 24, 1997 as they slept
on the back patio of a home in Whittier. The evidence at
Delaloza’s trial established that the murders had been committed
by Richard Penunuri, a member of the Eastside Whittier
Cole Street criminal street gang, who mistook the victims for two
other men, Carlos Arias and Luke Bissonnette.2
Several hours before the murders (shortly before midnight
on October 23, 1997) Delaloza, Penunuri and two or three other
members of the Cole Street gang assaulted and robbed several
1
Statutory references are to this code.
2
Although the People and Delaloza dispute what reasonable
inferences may be drawn from the evidence presented at trial as
they relate to Delaloza’s culpability, there is no significant
disagreement about Delaloza’s participation with Penunuri in the
events leading up to, and immediately after, the murders of
Murillo and Molina.
2
men in a supermarket parking lot. One of their victims testified
Penunuri brandished a gun, later shown to be consistent with the
murder weapon. According to this witness, Delaloza, who had
robbed another of the victims at knifepoint, was not with
Penunuri when the firearm was displayed.
Approximately two hours later, Bissonnette and Arias were
sitting on the hood of a car in the driveway of the home of
Bissonnette’s maternal grandfather on Hornell Street when
Delaloza and Penunuri drove up in Delaloza’s car and parked
across the street. Penunuri got out of the car and stated his gang
affiliation as he approached Bissonnette. Bissonnette feared for
his life because he believed Penunuri thought Bissonnette had
left the Cole Street gang and was associating with a different
gang.3 When Penunuri told Bissonnette to come with him to
Delaloza’s car, Bissonnette ran and hid. Similarly, Arias told the
police that Penunuri said things as he approached Bissonnette in
the driveway that Arias believed indicated Penunuri intended to
harm both Bissonnette and Arias, causing both men to run. Just
before he ran, Arias saw Penunuri pointing a gun at him.
Penunuri chased him a short way but did not catch up to him.
After Penunuri and Delaloza left about 15 minutes later,
Bissonnette returned to his home, which was nearby on
Goodhue Street.
Bissonnette’s mother, who was sleeping at the
Hornell Street house with her grandchildren, testified she was
3
Bissonnette explained, because he and Penunuri knew each
other and he knew Penunuri was a member of Eastside Whittier
Cole Street, he understood Penunuri’s identification of his gang
affiliation to mean that Penunuri was accusing him of associating
with a rival gang.
3
awakened by a loud noise around 2:30 a.m., looked outside
through a window and saw what appeared to be several men
walking back and forth and also saw Delaloza’s car. Opening the
front door, she initially saw Delaloza on the front walkway of the
house. Penunuri and a third individual came forward. When she
asked what they were doing, Penunuri responded by asking her if
she had seen Arias and told her he was looking for “them.”
Penunuri then clarified he was looking for Bissonnette, not
Bissonnette’s brother. Delaloza was standing only two or three
feet from Penunuri, near enough to the conversation to hear what
was being said.
When Bissonnette arrived home, Molina and Murillo were
asleep on the back patio. The patio was dark. Molina had a
sweatshirt covering his face. Bissonnette went inside and
prepared to go to bed. Approximately 30 minutes later
Bissonnette heard numerous, rapidly fired gunshots. After the
shooting stopped, he looked out the bedroom window and saw
Penunuri running down the street. Neighbors who heard the
shots and looked out their windows testified they saw a car
matching the description of Delaloza’s driving away very slowly
(approximately five miles per hour). One witness testified she
saw the car stop at the corner and someone get out of the
passenger’s side of the car before it left the area.
A sheriff’s department firearms examiner who responded to
the Goodhue Street crime scene the morning of the murders
recovered 11 expended nine-millimeter cartridge cases, seven
expended nine-millimeter bullets or bullet fragments and one live
nine-millimeter round from the backyard. He testified all the
expended cartridge cases and bullets had been fired from the
same gun.
4
A witness to the robberies in the parking lot supplied police
with the license plate number of the car used by the perpetrators,
which led the police to Delaloza. After Delaloza was arrested, a
search of his house uncovered a box of nine-millimeter
ammunition in the bedroom. There were 41 rounds in the box,
which held 50 rounds. The firearms examiner determined one of
the bullets in the box had been loaded and then ejected from the
same gun used in the murders.
In a tape-recorded statement played to the jury, Delaloza
initially denied any involvement in the parking lot robberies or
the murders of Molina and Murillo. He claimed he was at home
asleep when those crimes were committed. Confronted with his
father’s statement he did not return home until 3:45 a.m.,
Delaloza admitted driving Penunuri to Bissonnette’s
Goodhue Street house between 3:00 and 4:00 a.m. According to
Delaloza, Penunuri wanted to speak to a former girlfriend named
Monique who lived there. Penunuri believed Monique might be
up at that early hour since she had a baby. Delaloza parked just
down the street from Bissonnette’s house (which he described as
“right before the turn” in the street) and waited in the car while
Penunuri went to talk to Monique.
According to his statement, when Delaloza heard gunshots,
he started to leave thinking someone was shooting at Penunuri.
As Delaloza drove away, Penunuri ran to the car and jumped in
saying, “Let’s go, man.” Penunuri did not tell Delaloza what had
happened at Bissonnette’s house, and Delaloza did not ask as he
drove Penunuri home. Delaloza insisted he did not see Penunuri
with a gun at any time during the evening.
Gang experts testified for both the prosecution and
Delaloza. Delaloza’s expert (the only witness called by the
5
defense) testified, when a vehicle is used for a gang-related drive-
by-type shooting, the gang members would typically try to
prevent the vehicle from being linked to one of them, both by
concealing the license plate (or using a stolen one) and disposing
of the vehicle after the shooting. He acknowledged a gang
member might help another commit a crime if he knew it was
happening and that the more “hard core” the individual was, the
more likely he was to participate. He agreed Delaloza’s
Cole Street tattoos indicated he had been “very, very loyal to the
gang and it was important to him.” However, based on a
hypothetical similar to the evidence in the case, the expert did
not believe the driver of the car necessarily knew his passenger
was going to shoot anyone at the Goodhue Street house.
The prosecution’s expert (testifying only in the People’s
rebuttal case) testified a gang member in a car who was armed
would usually pass the firearm around for discussion,
particularly if it was intended that the gun would be used in a
crime that was about to occur, explaining, “[T]hen they know
exactly what’s going on, who is going to hold it, and, you know, all
the—that’s going on with that crime.” Given a lengthy
hypothetical based closely on the testimony, the expert opined
that the individual waiting in the car would know “what was
going to go down at the Goodhue address where [Bissonnette]
lived.” Discussing in particular that the driver left the area very
slowly after the shooting, the expert explained, “It seems pretty
clear to me that it was set up in advance. I mean, if a car is
parked down the street and then shots are fired and then he
cruises down another area around a corner where he picks up
another individual, how would that individual know he was going
to get picked up there unless that was preplanned.”
6
The jury convicted Delaloza of conspiracy to commit
murder (§ 182, subd. (a)(1)) and on two counts of murder (§ 187,
subd. (a)) with true findings on the multiple-murder special-
circumstance (§ 190.2, subd. (a)(3)) and principal-armed-with-a
firearm allegations (§ 12022, subd. (a)(1)).4 The jury also found
Delaloza guilty of robbery (§ 211) and aggravated assault (§ 245,
subd. (a)(1)) in connection with the supermarket parking lot
incident. The court sentenced Delaloza to an indeterminate state
prison term of life without parole plus 29 years to life.
2. Delaloza’s Direct Appeal
We affirmed the judgment on appeal. (People v. Delaloza
(June 6, 2001, B140454) [nonpub. opn.] (Delaloza I).) In rejecting
Delaloza’s contention the evidence was insufficient to support his
convictions for murder and conspiracy to commit murder, we
emphasized that, to convict Delaloza of murder as an aider and
abettor, the People did not need to prove he knew Penunuri
intended to kill Arias and Bissonnette: “Proof defendant knew
Penunuri intended an assault with a deadly weapon would be
sufficient under the natural and probable consequences doctrine.”
Similarly, to convict Delaloza of conspiracy to commit murder,
“the People had to prove beyond a reasonable doubt defendant
entered into an agreement with Penunuri to commit that offense
or another offense, such as assault, of which murder was a
natural and reasonable consequence.” Although there was no
4
The court had instructed the jury in part with CALJIC
No. 3.01 defining aiding and abetting and gave CALJIC No. 3.02
(6th ed. 1997) explaining liability for natural and probable
consequences. For the special-circumstance allegations, the court
used a redacted and, as a result, rather garbled version of
CALJIC No. 8.80.1 (6th ed. 1997).
7
direct evidence Delaloza knew Penunuri intended to assault or
kill Arias and Bissonnette and conspired or aided and abetted
Penunuri in the commission of either offense, we held the
evidence was sufficient for the jury to find, “when defendant
drove Penunuri to Bissonnette’s home that evening, he knew
Penunuri intended to commit an assault on Bissonnette or Arias
or both.” Accordingly, we affirmed his convictions for murder and
conspiracy under the natural and probable consequences
doctrine.
3. Delaloza’s Petition for Resentencing
Delaloza, represented by the alternate public defender,
filed a petition for resentencing under section 1172.6 (former
section 1170.95) in February 2019. After receiving memoranda
from the district attorney and Delaloza’s counsel, the superior
court denied the petition, finding Delaloza had failed to make a
prima facie showing of eligibility for relief.
We reversed the order denying Delaloza’s petition,
explaining the record of conviction failed to demonstrate, as a
matter of law, the basis for the jury’s verdict—that is, that it
indisputably established the jury found Delaloza guilty as a
direct aider and abettor of Penunuri’s murder of Molina and
Murillo—and thus that Delaloza was necessarily ineligible for
resentencing relief. (People v. Delaloza (Aug. 12, 2021, B300210)
[nonpub. opn.] (Delaloza II).) We remanded the matter with
directions to the superior court to issue an order to show cause
and to conduct further proceedings in accordance with former
section 1170.95, subdivision (d).
The superior court on remand issued an order to show
cause on October 26, 2021 and set the matter for an evidentiary
hearing. At the hearing on February 17, 2022 the court stated it
8
had read and considered the entire trial transcript and confirmed
that neither Delaloza nor the district attorney had any additional
evidence to introduce.
After hearing argument of counsel and reviewing the
evidence at trial, the court denied the petition. Concluding the
only reasonable interpretation of the circumstantial evidence was
that Delaloza knew what Penunuri was going to do when he went
into the house, the court found “beyond a reasonable doubt that
Mr. Delaloza was in fact guilty of the crime of first degree murder
as to both the victims in this case, Brian Molina and Mike
Murillo.”
Delaloza filed a timely notice of appeal.
DISCUSSION
1. Accomplice Liability for Murder and Section 1172.6
Under the ameliorative changes to the law relating to
accomplice liability for murder effected by Senate Bill No. 1437
(Stats. 2018, ch. 1015), malice must be proved to convict a
principal of murder except under the narrowed felony-murder
rule set forth in section 189, subdivision (e), and may not be
imputed based solely on an individual’s participation in a crime
(§ 188, subd. (a)(3)), thereby eliminating the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843; see
People v. Reyes (2023) 14 Cal.5th 981, 984). The amended felony-
murder provision requires the People to prove specific facts
relating to the defendant’s individual culpability: The defendant
was the actual killer (§ 189, subd. (e)(1)); although not the actual
killer, the defendant, with the intent to kill, assisted in the
commission of murder in the first degree (§ 189, subd. (e)(2)); or
the defendant was a major participant in an underlying felony
9
listed in section 189, subdivision (a), and acted with reckless
indifference to human life, “as described in subdivision (d) of
Section 190.2,” the felony-murder special-circumstance provision
(§ 189, subd. (e)(3)). (See People v. Strong (2022) 13 Cal.5th
698, 708.)
Section 1172.6 authorizes an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine or any other theory under which malice is
imputed based solely on that person’s participation in a crime to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not now
be convicted of murder because of these changes to the law
relating to accomplice liability for murder. As amended by
Senate Bill No. 775 (Stats. 2021, ch. 551, § 2), effective
January 1, 2022, Senate Bill No. 1437’s ameliorative changes to
the law of murder and section 1172.6’s provisions for
resentencing relief now expressly apply to individuals convicted
of attempted murder and voluntary manslaughter.
If, as here, the petitioner makes the requisite prima facie
showing he or she falls within the provisions of section 1172.6
and is entitled to relief, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder, attempted murder or voluntary manslaughter
conviction and resentence the petitioner on any remaining
counts. (§ 1172.6, subd. (d)(1).)
At the evidentiary hearing to determine whether the
petitioner is entitled to relief, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
10
made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) The
court may consider evidence “previously admitted at any prior
hearing or trial that is admissible under current law,” including
witness testimony. The petitioner and the prosecutor may also
offer new or additional evidence. (Ibid.) The superior court’s
decision to deny the petition after an evidentiary hearing, if the
court correctly understood the elements of the offense and the
proper standard and burden of proof were applied, is reviewed for
substantial evidence. (People v. Reyes, supra, 14 Cal.5th at
p. 988; People v. Vargas (2022) 84 Cal.App.5th 943, 951; People v.
Ramirez (2021) 71 Cal.App.5th 970, 985; People v. Hernandez
(2021) 60 Cal.App.5th 94, 113.)
2. Substantial Evidence Supports the Finding That
Delaloza Acted with Express Malice When Aiding the
Murders of Molina and Murillo
“An aider and abettor’s guilt is based on a combination of
the direct perpetrator’s acts and the aider and abettor’s own acts
and own mental state. Once it is proved that the principal has
caused an actus reus, the liability of each of the secondary parties
should be assessed according to his own mens rea. Thus, proof of
aider and abettor liability requires proof in three distinct areas:
(a) the direct perpetrator’s actus reus—a crime committed by the
direct perpetrator, (b) the aider and abettor’s mens rea—
knowledge of the direct perpetrator’s unlawful intent and an
intent to assist in achieving those unlawful ends, and (c) the
aider and abettor’s actus reus—conduct by the aider and abettor
that in fact assists the achievement of the crime.” (People v.
Perez (2005) 35 Cal.4th 1219, 1225 [cleaned up]; accord, People v.
Gentile, supra, 10 Cal.5th at p. 843 [“under direct aiding and
abetting principles, an accomplice is guilty of an offense
11
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’”].)
On appeal Delaloza emphasizes, although the superior
court found, based on circumstantial evidence, that Delaloza
knew Penunuri’s intent—what Penunuri was going to do when he
went into the back of Bissonnette’s Goodhue Street home—there
was no express finding that Delaloza acted with the intent to
assist Penunuri in committing those crimes and no specific
finding of “express malice.” Absent those findings, Delaloza
argues, the evidence did not establish he was guilty of murder
under section 188 as amended by Senate Bill No. 1437. And in a
single sentence without further elaboration, Delaloza also
contends it would not be reasonable to infer he acted with the
specific intent to kill based solely on his knowledge that Penunuri
was armed and that he intended to kill Bissonnette and Arias.5
Neither argument has merit. Section 1172.6,
subdivision (d)(3), only requires the superior court to determine
whether the prosecutor has proved beyond a reasonable doubt
5
Delaloza does not suggest the fact that Penunuri
mistakenly killed Molina and Murillo, rather than Bissonnette
and Arias, has any bearing on his culpability as a direct aider
and abettor of the murders. (Cf. People v. Bland (2002)
28 Cal.4th 313, 332 [CALJIC No. 8.65 correctly instructs, when a
defendant attempted to kill a certain person but by mistake or
inadvertence killed a different person, the crime committed, if
any, is the same as though the person originally intended to be
killed had been killed]; see also CALCRIM No. 562 [containing
substantially the same language as CALJIC No. 8.65].)
12
that the petitioner is guilty of murder (or, when applicable,
attempted murder) under sections 188 and 189 as amended
effective January 1, 2019. The court has no obligation to make
specific findings as to any of the elements of murder. The
superior court here fully complied with this limited duty, clearly
finding both orally at the conclusion of the evidentiary hearing
and in its written minute order Delaloza was guilty beyond a
reasonable doubt of the first degree murders of Molina and
Murillo under a currently valid theory of accomplice liability for
murder. (Cf. People v. Camacho (2022) 14 Cal.5th 77, 123 [“we
review the trial court’s ruling, ‘not the court’s reasoning and, if
the ruling was correct on any ground, we affirm’”]; People v.
Zapien (1993) 4 Cal.4th 929, 976 [a decision correct in law will
not be disturbed on appeal because given for a wrong reason].)
Ample circumstantial evidence, much of which the superior
court summarized as it explained its reasons for denying
Delaloza’s petition, supported the court’s express and implied
findings that Delaloza was a direct aider and abettor of the
murders, acting with knowledge of Penunuri’s unlawful intent
and with an intent to assist Penunuri in accomplishing his goal.
Initially, as the court detailed, Delaloza and Penunuri (with two
or three confederates) acted in concert during the parking lot
assault and robberies and left together in Delaloza’s car, lending
credence to the prosecutor’s theory the two good friends and
fellow gang members were also actively working together during
the early morning hours when Penunuri, after arriving at the
Hornell Street house with Delaloza in Delaloza’s car, confronted
Bissonnette and Arias and then continued searching for them at
Bissonnette’s Goodhue Street home.
13
In addition, Penunuri brandished his gun during the
robberies and then again several hours later at the Hornell Street
house. Although, as the superior court acknowledged, there was
no direct evidence Delaloza saw Penunuri display the firearm on
either occasion, it was reasonable for the court to infer Delaloza
knew Penunuri was armed based on his proximity to Penunuri
during those encounters, as well as the forensic evidence that
strongly suggested Delaloza had given Penunuri the ammunition
that was used to kill Molina and Murillo.
The trial evidence, viewed in the light most favorable to the
order denying Delaloza’s petition (see, e.g., People v. Navarro
(2021) 12 Cal.5th 285, 303), also established that Bissonnette
thought his life was in danger because of Penunuri’s apparent
belief that Bissonnette had left Cole Street and was associating
with a rival gang (as Bissonnette testified). After driving
Penunuri to the Hornell Street house, where Penunuri confronted
Bissonnette and Arias, Delaloza heard Penunuri tell
Bissonnette’s mother that Penunuri was looking for the two men
(and not Bissonnette’s brother). Delaloza then drove Penunuri to
Bissonnette’s home on Goodhue Street, where he parked so his
car was not readily visible, rather than directly in front of the
house.
Finally, as the superior court discussed, Delaloza waited in
his parked car while Penunuri went to the house through the
backyard. Delaloza then heard gunshots. Although claiming to
sheriff’s investigators that he thought someone had been shooting
at Penunuri, when Penunuri came back to the car, Delaloza drove
away very slowly.
This evidence, considered in its entirety, rationally
supported a finding not only that Delaloza knew Penunuri
14
intended to find and kill Bissonnette and Arias but also that
Delaloza actively assisted Penunuri in carrying out that intent by
driving him to the Goodhue Street house after the initial
confrontation at the Hornell Street house and then waiting to act
as the get-away driver after Penunuri mistakenly shot Molina
and Murillo. (See People v. Clements (2022) 75 Cal.App.5th 276,
298 [“[w]hile the trial judge must review all the relevant
evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
rational fact finder’s findings beyond a reasonable doubt”].)
3. Our Prior Opinions Do Not Preclude a Finding of Malice
Delaloza also contends our decisions in Delaloza I affirming
his convictions for murder and conspiracy to commit murder
under the natural and probable consequences doctrine and
Delaloza II finding he had made a prima facie showing of
eligibility for resentencing relief under section 1172.6 established
that the evidence at trial—and, therefore, the evidence before the
superior court at the section 1172.6, subdivision (d)(3),
evidentiary hearing—was insufficient to support convictions for
murder that require a finding Delaloza acted with express
malice. Accordingly, he argues, the superior court’s contrary
(implicit) finding was barred by law of the case and collateral
estoppel (issue preclusion).
The premise for Delaloza’s argument is incorrect. In
Delaloza I the People had argued the jury could infer Penunuri
intended to assault or kill Arias and Bissonnette and conspired or
aided and abetted Penunuri in the commission of those crimes
from circumstantial evidence in the trial record including the
15
group character of gangs, as explained by the prosecution’s gang
expert. Our opinion questioned whether it was reasonable to
infer how a member of a group acted on a particular occasion
based on expert testimony, even if accurate, about the tendencies
of members of the group to act in certain ways.6 Nonetheless, we
did not address what weight (if any) to give that evidence in
Delaloza’s case—an issue not presented by Delaloza on appeal—
because, we held, even without the expert testimony, there was
sufficient evidence to uphold the convictions for murder and
conspiracy to commit murder under the natural and probable
consequences doctrine with an assault on Bissonnette or Arias or
both as the target offense. The opinion did not suggest, let alone
hold, that the evidence—with or without the gang testimony—
was insufficient to support a finding of express malice: It was
simply unnecessary to reach that point given the applicability of
the natural and probable consequences doctrine.7
6
Several years before the decision in Delaloza I the Supreme
Court in People v. Gardeley (1996) 14 Cal.4th 605, 617 had
upheld the use of expert opinion testimony concerning the culture
and habits of criminal street gangs. And 10 years after
Delaloza I the Supreme Court in People v. Vang (2011) 52 Cal.4th
1038, 1047, explaining that “‘there is a difference between
testifying about specific persons and about hypothetical persons,’”
held answers to hypothetical questions based on other evidence
in the case—as the People’s gang expert gave at Delaloza’s trial—
were “‘probative, not inadmissible.’” (Accord, People v. Gonzalez
(2006) 38 Cal.4th 932, 946, fn. 3.)
7
Contrary to Delaloza’s argument, we did not hold the
evidence in the record considered as a whole was insufficient to
establish Penunuri and Delaloza planned the murders together,
16
The opinion in Delaloza II was even more explicit.
Defending the superior court’s ruling that the record of conviction
established Delaloza’s ineligibility for resentencing relief as a
matter of law, the Attorney General argued the true finding on
the multiple-murder special-circumstance allegation necessarily
meant the jury found Delaloza, although not the actual killer,
had aided or assisted in the commission of first degree murder
with the intent to kill.8 Our opinion agreed the Attorney General
would be correct if Delaloza’s jury had been properly instructed;
but, we explained, the modified instruction given by the trial
court was “essentially nonsensical.” “Perhaps,” we suggested,
“the jury was sufficiently insightful to decode the correct import
of CALJIC No. 8.80.1, notwithstanding the trial court’s multiple
errors when using it.” But, we concluded, we were not prepared
to attribute any meaning as a matter of law to the jury’s true
finding. Stated slightly differently, we held the jury might well
have found Delaloza guilty as a direct aider and abettor of
Penunuri’s murder of Murillo and Molina—a conclusion neither
mandated nor precluded by our opinion in Delaloza I—but that
was not indisputably established by the record of conviction.
Instead, we held, whether the evidence proved beyond a
reasonable doubt Delaloza was a direct aider and abettor of the
murders had to be determined (as it subsequently was) at an
evidentiary hearing under section 1172.6, subdivision (d)(3).
only that it was not reasonable to infer that they did so based
solely on the expert’s testimony of gang tendencies.
8
Delaloza in his direct appeal did not challenge the
sufficiency of the evidence to support the special-circumstance
finding. That issue was not addressed in Delaloza I.
17
In sum, whatever significance the doctrines of law of the
case and issue preclusion may have in determining eligibility for
resentencing relief under section 1172.6, they are irrelevant to
the superior court’s decision in Delaloza’s case.
DISPOSITION
The postjudgment order denying Delaloza’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
18