Denial of a Penal Code section 1172.6 petition affirmed where the jury’s true finding on a drive-by shooting special circumstance allegation, together with the court’s instructions, conclusively demonstrated petitioner was ineligible for relief. In 2005, petitioner was convicted of first degree murder, together with true findings on a drive-by shooting special circumstance and on allegations that he personally used a firearm and a principal was armed with a firearm. The jury was instructed on aiding and abetting under the natural and probable consequence doctrine. The trial court summarily denied petitioner’s 1172.6 petition at the prima facie stage. Petitioner appealed. Held: Affirmed. Section 1172.6 permits resentencing for certain individuals convicted of murder under the natural and probable consequences doctrine. The court disagreed with petitioner’s argument that the jury could have interpreted the jury instructions in such a way as to find him guilty based on the theory that the murder was the natural and probable consequence of aiding the discharge of a firearm. The jurors were instructed they could only convict petitioner of first degree murder if they found he had committed that crime as a direct perpetrator or based on aiding and abetting either premeditated and deliberate malice aforethought murder, or murder perpetrated by a drive-by shooting with the intent to kill. The jurors were also instructed they had to find petitioner guilty of murder in the first degree in order to find the drive-by shooting special circumstance true. By the jury’s true finding of the drive-by shooting special circumstance, coupled with the earlier findings that the jury must have necessarily made to find petitioner guilty of first degree murder (as either the perpetrator or an aider and abettor), the record of conviction conclusively demonstrated the jury found he had acted with the requisite intent and conduct to convict him of a currently valid theory of first degree murder, rendering him ineligible for relief under section 1172.6. The court distinguished People v. Pacheco (2022) 76 Cal.App.5th 118 and People v. Offley (2020) 48 Cal.App.5th 588.
Case Summaries
