Filed 12/27/22 P. v. Robles CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE ROBLES,

Defendant and Appellant.

 B310393

 (Los Angeles County

 Super. Ct. No. TA106590)

APPEAL from an order of the Superior Court of Los 

Angeles County, Curtis B. Rappe, Judge. Reversed and 

remanded with directions.

Diane E. Berley, 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, Idan Ivri and Daniel C. Chang, Deputy 

Attorneys General, for Plaintiff and Respondent.

__________________________________
2

Jesse Robles, who was convicted of first degree murder in 

2011, appeals from an order denying his petition for resentencing 

under Penal Code section 1172.6.

1 He contends the trial court 

erred in denying his petition without issuing an order to show 

cause and conducting an evidentiary hearing. We agree. His 

record of conviction, including the jury’s true findings on felonymurder and gang-murder special circumstance allegations, does 

not show he is ineligible for relief under section 1172.6 as a 

matter of law. Accordingly, we reverse the order and remand the 

matter for further proceedings.

BACKGROUND

I. Trial and Direct Appeal

A. The charges

As relevant to the proceedings before us, Robles and his 

codefendants, brothers Hector Prieto and Jose Prieto,2 were 

charged with three counts of murder (§ 187, subd. (a)) and one 

count of second degree robbery (§ 211) against an additional

victim. As to the murders, the third amended information, filed 

February 22, 2011 (hereafter referred to as “the information”), 

alleged three special circumstances: multiple murders (§ 190.2, 

subd. (a)(3)); felony murder (§ 190.2, subd. (a)(17)); and gang 

1 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6, with no change in text (Stats. 2022, 

ch. 58, § 10). Robles filed his petition prior to this renumbering, 

and he therefore referred to the statute as section 1170.95 in his 

petition. In this opinion, for the sake of consistency, we refer to 

the statute by its current designation, section 1172.6. 

Undesignated statutory references are to the Penal Code.

2 Hereafter, we refer to Robles’s codefendants by their first 

names to avoid confusion.
3

murder (§ 190.2, subd. (a)(22) [“The defendant intentionally 

killed the victim while the defendant was an active participant in 

a criminal street gang, as defined in subdivision (f) of Section 

186.22, and the murder was carried out to further the activities of 

the criminal street gang”]). As to the gang-murder special 

circumstance, the information alleged, in pertinent part, “that a 

principal intentionally killed [the victims], and that the 

defendant, Hector Martin Prieto, intended to kill [the victims] 

while the defendants were active participants in a criminal street 

gang and the murders were carried out to further the activities of 

the criminal street gang.” (Internal capitalization omitted.) 

The information also alleged as to the murders that Hector 

personally and intentionally discharged a handgun, causing the 

death of the three victims (§ 12022.53, subd. (d)), and a principal 

personally and intentionally discharged a handgun, causing the 

death of the three victims (§ 12022.53, subd. (e)(1)). As to the 

robbery count, the information alleged Jose personally used a 

handgun. (§ 12022.53, subd. (b).) The information alleged all 

offenses were committed for the benefit of, at the direction of, or 

in association with a criminal street gang within the meaning of 

section 186.22, subdivision (b)(1)(C).

B. The trial

Robles, Hector, and Jose were tried together.

1. The crimes

We provide a brief account of the facts and circumstances of 

the crimes to provide context for our legal analysis on the issue 

before us. We derive this account from the opinion in Robles’s

and Jose’s direct appeal, as the parties to the present appeal did 

in their appellate briefing. Our legal analysis does not depend

upon an interpretation of the facts and circumstances of the 
4

crimes; rather, it is dependent upon the procedural record of the 

case (e.g., jury instructions given, and verdicts rendered).

On March 29, 2009, when the crimes occurred, 22-year-old 

Jose, 19-year-old Hector, and 19-year-old Robles (collectively, the 

defendants) were members of the same gang. That morning, Jose 

and Hector discussed plans to commit a robbery to raise money to 

bail their mother out of jail. Robles was present during the 

discussion. According to Jesus Saldana, a fellow gang member 

who was also present during this discussion and who testified at 

trial, Robles agreed to help Jose and Hector and told them, “ ‘I got 

your back.’ ” (People v. Prieto (Nov. 30, 2012, B233309) [nonpub. 

opn.], pp. 4-5 (Prieto).)

The same evening, Robles drove Hector in his (Robles’s) 

pickup truck and parked at a corner, near the apartment of 

Andrew Williams, a marijuana dealer. A woman named Rosa 

Avila, who testified at trial, drove Jose in her car and parked 

behind Robles. According to the prosecution’s gang expert, 

Williams’s apartment was located in an area the defendants’ 

gang had recently claimed as part of its territory; the area was 

previously claimed by another gang. (Prieto, supra, B233309, pp. 

5, 8, 12.) 

At around 7:00 p.m., Hector exited Robles’s truck and 

walked to Williams’s apartment. Jose exited Avila’s car and 

waited outside, near the front door of Williams’s apartment. 

Robles and Avila waited in their vehicles. According to Saldana, 

who testified at trial about a conversation he had with Hector 

after the shooting, Hector knocked on the apartment door and a 

man (Williams) answered. Hector asked the man for a $20

“ ‘sack’ ” of marijuana. When the man turned around, Hector 

shot him in the head and killed him. Next, Hector shot in the 
5

head and killed another man (Ronald Carter), who was sitting on 

a couch. Finally, Hector shot a woman (Sinecia Miller) in the 

head and killed her in the apartment. Hector took $4,000-$5,000 

and some marijuana and left the apartment. (Prieto, supra, 

B233309, pp. 5-6, 8.) 

Reginald Kemp, who testified at trial, was walking toward 

Williams’s apartment, on his way to purchase marijuana, when 

he heard gunshots. A man Kemp later identified as Jose was 

standing near the front door of Williams’s apartment. Jose 

approached Kemp, pointed a handgun at him, and asked, “ ‘What 

do you got?’ ” Jose grabbed Kemp’s money, and Kemp ran away. 

(Prieto, supra, B233309, pp. 5-6.) 

Hector returned to Robles’s truck, and Jose returned to 

Avila’s car. They drove to Avila’s apartment complex. After they 

arrived, Avila saw Hector, Jose, and Robles “ ‘high-fiving’ ” 

several other men. Late in the evening, the same day the crimes 

were committed, Hector posted bond for his mother, and she was 

released from jail the following morning. (Prieto, supra, 

B233309, pp. 6-7.) 

The prosecution’s gang expert opined that Hector, Jose, and 

Robles were members of a criminal street gang; and that 

hypothetical crimes, mirroring the facts of this case as presented 

through the prosecution’s evidence, would have been committed 

for the benefit of a criminal street gang. The defense’s gang 

expert opined that the hypothetical crimes would have been 

committed, not for the benefit of a gang, but to bail the mother 

out of jail. (Prieto, supra, B233309, pp. 11-15.) 

2. Jury instructions

At trial, the prosecution presented two theories of first 

degree murder: (1) willful, deliberate and premeditated murder, 
6

with Jose and Robles directly aiding and abetting Hector in the 

murders, and (2) felony murder, with Jose and Robles directly 

aiding and abetting a robbery Hector committed at Williams’s 

apartment. The trial court instructed the jury on both theories. 

The trial court also instructed the jury on each of the 

special circumstance allegations and explained to the jurors that 

they “must consider each special circumstance separately for each 

defendant.” (CALCRIM No. 700.) The court used CALCRIM No. 

703 to explain to the jury how to make a determination on the 

felony-murder special circumstance alleged against a defendant 

whom the jury found was not the actual killer:

“If you decide that any defendant is guilty of first degree 

murder but was not the actual killer, then, when you consider the 

special circumstance of Murder While Engaged in the 

Commission of Robbery, you must also decide whether the 

defendant acted either with intent to kill or with reckless 

indifference to human life.

“In order to prove this special circumstance for a defendant 

who is not the actual killer but who is guilty of first degree 

murder as an aider and abettor, the People must prove either 

that the defendant intended to kill, or the People must prove all 

of the following:

“1. The defendant’s participation in the crime began before 

or during the killing;

“2. The defendant was a major participant in the crime;

“AND

“3. When the defendant participated in the crime, he acted 

with reckless indifference to human life.
7

“A person acts with reckless indifference to human life 

when he knowingly engages in criminal activity that he knows 

involves a grave risk of death.

“The People do not have to prove that the actual killer 

acted with intent to kill or with reckless indifference to human 

life in order for the special circumstance of Murder in the 

Commission of a Robbery to be true.

“If you decide that any defendant is guilty of first degree 

murder, but you cannot agree whether the defendant was the 

actual killer, then, in order to find this special circumstance true, 

you must either find that the defendant acted with intent to kill 

or you must find that the defendant acted with reckless 

indifference to human life and was a major participant in the 

crime.

“If the defendant was not the actual killer, then the People 

have the burden of proving beyond a reasonable doubt that he 

acted with either the intent to kill or with reckless indifference to 

human life and was a major participant in the crime for the 

special circumstance of Murder While Engaged in the 

Commission of a Robbery to be true. If the People have not met 

this burden, you must find this special circumstance has not been 

proved true for that defendant.” (Italics added.)

Using CALCRIM No. 736, the trial court instructed the 

jury as follows on the gang-murder special circumstance:

“The defendants are charged, in connection with Counts 

One, Two, and Three, with the Special Circumstance of 

Committing Murder While An Active Participant In A Criminal 

Street Gang in violation of Penal Code section 190.2(a)(22).

“To prove that this special circumstance is true, the People 

must prove that:
8

“1. The defendant intentionally killed Andrew Williams 

(Count One), Ronald Carter (Count Two), and S[i]necia Miller 

(Count Three);

“2. At the time of the killing, the defendant was an active 

participant in a criminal street gang;

“3. The defendant knew that members of the gang engaged 

in or have engaged in a pattern of criminal gang activity;

“AND

“4. The murder was carried out to further the activities of 

the criminal street gang.

“Active participation means involvement with a criminal 

street gang in a way that is more than passive or in name only.

“The People do not have to prove that the defendant 

devoted all or a substantial part of his time or effort to the gang, 

or that he was an actual member of the gang.

“A criminal street gang is defined in another instruction, 

namely instruction number 1401, to which you should refer.” 

The trial court did not explain to the jury how to make a 

determination on this special circumstance if the jury found the 

defendant was not the actual killer like the court did when it 

instructed the jury on the felony-murder special circumstance.

3. Verdicts and sentence

The jury found Robles guilty of three counts of first degree 

murder as well as the robbery of Kemp (the man Jose confronted 

outside Williams’s apartment). As to the murders, the jury made 

true findings against Robles on the three special circumstances: 

multiple murders (§ 190.2, subd. (a)(3)); felony murder (§ 190.2, 

subd. (a)(17)); and gang murder (§ 190.2, subd. (a)(22)). The 

felony-murder special circumstance findings state, as to each 

count of murder: “We further find the allegation that the murder 
9

of [the victim] was committed by the defendant JESSE ROBLES, 

while the defendant was engaged in the commission of the crime 

of robbery in violation of Penal Code Section 211 and 212.5, 

within the meaning of Penal Code Section 190.2(a)(17) to be 

true.” The gang-murder special circumstance findings state, as to 

each count of murder: “We further find the allegation that the 

defendants intentionally killed [the victim] while the defendants 

were active participants in a criminal street gang as defined in 

subsection (f) of Penal Code Section 186.22 and the murder was 

carried out to further the activities of the criminal street gang 

within the meaning of Penal Code section 190.2(a)(22) to be true.” 

The jury also made true findings against Robles as to each

murder count that a principal personally and intentionally 

discharged a handgun which proximately caused death to [the 

victim] (§ 12022.53, subd. (e)(1)), and as to all counts that the 

offenses were committed for the benefit of, at the direction of, or 

in association with a criminal street gang within the meaning of 

section 186.22, subdivision (b)(1)(C). The jury also found Hector 

and Jose guilty of these offenses with true findings on the special 

allegations. 

The trial court sentenced Robles (and Jose) to three 

consecutive terms of life without the possibility of parole for the 

three first-degree, special-circumstance murders, plus 25 years to 

life on each of the murder counts for the firearm enhancement.3 

The court also sentenced Robles (and Jose) to a consecutive term 

3 Hector’s case was tried as a capital case, and during the 

penalty phase, the jury was unable to reach consensus as to his 

punishment.
10

of three years for the robbery of Kemp, plus 10 years for the gang 

enhancement.4

4. Direct appeal

Jose and Robles appealed from their judgments of 

conviction, raising contentions not germane to the matter before 

us. We modified the judgments to reflect Jose’s and Robles’s joint 

and several liability for victim restitution, and as to Robles, to 

reflect the correct statutory provision for the firearm 

enhancement (§ 12022.53, subd. (e)(1)). As so modified, we 

affirmed the judgments. (Prieto, supra, B233309, p. 42.) 

II. Robles’s Section 1172.6 Petition

In 2018, the Legislature enacted Senate Bill No. 1437 “to 

amend the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, 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.” (Sen. Bill No. 1437 (2017-2018 Reg. 

Sess.) Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) & 

189, subd. (e).) Senate Bill No. 1437 amended sections 188 

(defining malice) and 189 (felony murder) and added section 

1170.95, now renumbered section 1172.6, which established a 

procedure for vacating murder convictions and resentencing 

defendants who could no longer be convicted of murder in light of 

the amendments to sections 188 and 189. (Stats. 2018, ch. 1015, 

§ 4, pp. 6675–6677.)

4 For the robbery of Kemp, the trial court sentenced Jose to 

an additional, consecutive 10-year term for his personal use of a 

handgun.
11

On July 30, 2020, Robles filed a form petition for 

resentencing under former section 1170.95, now section 1172.6. 

In the petition, he checked boxes stating, in pertinent part, he 

was convicted of first degree murder pursuant to the felony 

murder rule or the natural and probable consequences doctrine, 

and he could not now be convicted of that crime because of

changes to sections 188 and 189, effective January 1, 2019. More 

specifically, he checked boxes stating he “was not the actual 

killer”; he “did not, with the intent to kill, aid, abet, counsel, 

command, induce, solicit, request, or assist the actual killer in 

the commission of murder in the first degree”; and he “was not a 

major participant in the felony or [he] did not act with reckless 

indifference to human life during the course of the crime or 

felony.” (Bold and underlining omitted.) He also checked the box 

requesting the trial court appoint counsel to represent him in 

connection with his petition. On or around August 6, 2020, 

Robles’s trial counsel contacted the court and stated he would be 

representing Robles in the trial court in connection with this 

petition. 

The district attorney filed a response to Robles’s petition.

Therein, the district attorney asserted, “in finding the active 

participant in a street gang and felony murder special 

circumstances true, the jury found [Robles] was a major 

participant in the robbery who acted with reckless indifference to 

human life, and directly aided and abetted the murder with 

intent to kill . . . . (§ 190.2, subd[s]., (a)(17), (22).)” Regarding the 

gang-murder special circumstance (§ 190.2. subd. (a)(22)), the 

district attorney asserted, the “jury was properly instructed that 

it must find that [Robles] acted with the intent to kill in order to 

find the active participant special circumstance true. Thus, in 
12

finding the special circumstance true, the jury found that he 

acted with intent to kill.” Based on these assertions, the district 

attorney argued Robles could still be convicted of first degree 

murder under sections 188 and 189, and he could not make a 

prima facie showing that he is entitled to relief. The district 

attorney attached to the response the opinion in Robles’s and 

Jose’s direct appeal, the jury’s verdicts against Robles, and the 

jury instructions given during the guilt phase of the trial.5

Robles’s trial counsel filed a reply brief on Robles’s behalf. 

Therein, counsel argued Robles made a prima facie showing he is 

entitled to relief, and therefore he is entitled to an evidentiary 

hearing under section 1172.6, subdivision (d). Counsel asserted 

the trial court could not determine Robles is ineligible for relief

based on the felony-murder special circumstance “without 

weighing the evidence, which is forbidden” at the prima facie 

stage of the proceedings. Regarding the gang-murder special 

circumstance, counsel argued the district attorney did not cite 

case law indicating the finding rendered Robles ineligible for 

resentencing under section 1172.6 as a matter of law. 

On November 17, 2020, without hearing oral argument 

from the parties, the trial court issued an order summarily 

denying Robles’s petition “for the following reasons: (1) [Robles,] 

who was convicted of first degree murder with a felony murder 

special circumstance which required a jury finding he was a 

major participant who acted with reckless disregard for human 

life, as a matter of law, is not eligible for resentencing under 

[former] section 1170.95 [now renumbered as section 1172.6], and 

5 As set forth above, Hector had a penalty phase because 

his case was tried as a capital case.
13

(2) a petition for a writ of habeas corpus is the proper vehicle to 

challenge the special circumstance findings.” The court 

acknowledged in its order the split of authority among Courts of 

Appeal at that time regarding whether a pre-Banks and Clark6

felony-murder special circumstance finding rendered a petitioner 

ineligible for relief under section 1172.6 as a matter of law. The 

court did not specifically address in its order the effect of the 

gang-murder special circumstance finding on Robles’s eligibility 

for relief. The court attached to its order the opinion in Robles’s 

and Jose’s direct appeal, the jury’s verdicts against Robles, and 

the jury instructions given during the guilt phase of the trial. 

DISCUSSION

Robles contends he made a prima facie showing he is 

entitled to relief under section 1172.6, subdivision (c), and the 

matter must be remanded for the trial court to issue an order to 

show cause and hold a hearing under section 1172.6, subdivision 

(d). For the reasons explained below, we agree.

I. Section 1172.6 and Other Applicable Law

Under section 1172.6, subdivision (a), “A person convicted 

of felony murder or murder under the natural and probable 

consequences doctrine or other theory under which malice is 

imputed to a person based solely on that person’s participation in 

a crime . . . may file a petition with the court that sentenced the 

petitioner to have the petitioner’s murder . . . conviction vacated 

and to be resentenced on any remaining counts when all of the 

6 People v. Banks (2015) 61 Cal.4th 788, clarifying the 

meaning of the major participant element of the felony-murder 

special circumstance; People v. Clark (2016) 63 Cal.4th 522, 

clarifying the meaning of the reckless indifference to human life 

element of the felony-murder circumstance.
14

following conditions apply: [¶] (1) A complaint, information, or 

indictment was filed against the petitioner that allowed the 

prosecution to proceed under a theory of felony murder, murder 

under the natural and probable consequences doctrine or other 

theory under which malice is imputed to a person based solely on 

that person’s participation in a crime . . . . [¶] (2) The petitioner 

was convicted of murder . . . following a trial or accepted a plea 

offer in lieu of a trial at which the petitioner could have been 

convicted of murder. . . . [¶] (3) The petitioner could not 

presently be convicted of murder . . . because of changes to 

Section 188 or 189 made effective January 1, 2019.”

Senate Bill No. 1437 added the following provision to 

section 188: “Except as stated in subdivision (e) of Section 189, in 

order to be convicted of murder, a principal in a crime shall act 

with malice aforethought. Malice shall not be imputed to a 

person based solely on his or her participation in a crime.” 

(§ 188, subd. (a)(3).) The effect of this amendment was to 

“eliminate[ ] natural and probable consequences liability for first 

and second degree murder.” (People v. Gentile (2020) 10 Cal.5th 

830, 849 (Gentile).) Senate Bill No. 1437 also added subdivision 

(e) to section 189, limiting felony murder liability to a person who 

was the actual killer, acted with the intent to kill, or was a major 

participant in the underlying felony and acted with reckless 

indifference to human life. (Gentile, at p. 842.)

When a defendant files a facially sufficient petition under 

section 1172.6, the trial court must appoint counsel to represent 

the petitioner, allow briefing from both sides, and hold a hearing 

to determine whether the petitioner has made a prima facie 
15

showing for relief. (§ 1172.6, subds. (b)-(c).)7 As our Supreme 

Court explained: “While the trial court may look at the record of 

conviction after the appointment of counsel to determine whether 

a petitioner has made a prima facie case for section [1172.6]

relief, the prima facie inquiry under subdivision (c) is limited. 

Like the analogous prima facie inquiry in habeas corpus 

proceedings, ‘ “the court takes petitioner’s factual allegations as 

true and makes a preliminary assessment regarding whether the 

petitioner would be entitled to relief if his or her factual 

allegations were proved. If so, the court must issue an order to 

show cause.” ’ [Citations.] ‘[A] court should not reject the 

petitioner’s factual allegations on credibility grounds without 

first conducting an evidentiary hearing.’ [Citations.] ‘However, 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.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971.)

If the trial court issues an order to show cause, the final 

step in the process is a hearing to determine if the petitioner is 

entitled to relief, where the trial court must vacate the 

petitioner’s murder conviction and resentence him or her on any 

remaining counts unless the prosecution can “prove, beyond a 

reasonable doubt, that the petitioner is guilty of murder . . . 

7 We note that at the time Robles filed his petition in July 

2020, former section 1170.95, subdivision (c) did not require a 

hearing at the prima facie stage of the proceedings, and the trial 

court did not hold one in this case. We cite to and quote from the 

current version of 1172.6. Any amendments to the statute since 

Robles filed his petition are not material to Robles’s contentions 

on appeal or our analysis of same.
16

under California law as amended by the changes to Section 188 

or 189 made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)

II. Robles Made a Prima Facie Showing He Is Entitled 

to Relief

It is undisputed here that Robles filed a facially sufficient 

petition under section 1172.6, subdivision (b). The question is 

whether he made a prima facie showing he is entitled to relief 

under section 1172.6, subdivision (c). 

The trial court did not instruct the jury in this case on the 

natural and probable consequences doctrine, but it did instruct 

the jury on felony murder. And, as set forth above, the jury 

returned true findings on the felony-murder special circumstance 

allegations. In People v. Strong (2022) 13 Cal.5th 698, 703

(Strong), decided after the trial court denied Robles’s petition, our 

Supreme Court held felony-murder special circumstance findings

made before the Supreme Court’s decisions in Banks and Clark—

like the felony-murder special circumstance findings against 

Robles—do not preclude a defendant from making a prima facie 

showing of eligibility for relief under section 1172.6. A court, in 

evaluating whether a defendant has made a prima facie case, 

may not “independently examine[] the record and determine[], 

applying the Banks and Clark standards, that sufficient evidence 

supports the earlier findings.” (Strong, at pp. 719, 720.) Thus, to 

the extent Robles’s jury found him guilty of first degree murder 

on a theory of felony murder, he has made a prima facie showing 

he is entitled to relief under section 1172.6, subdivision (c), and 

we must remand the matter for the trial court to issue an order to 

show cause and hold a hearing under subdivision (d).

The trial court also instructed the jury on the theory that 

Robles directly aided and abetted the murders. In the 
17

respondent’s brief on appeal, the Attorney General argues the 

jury’s true findings on the gang-murder special circumstance 

allegations demonstrate the jury found Robles directly aided and 

abetted the murders—a currently-valid theory of murder not 

affected by Senate Bill No. 1437—and therefore Robles is 

ineligible for relief as a matter of law. For the reasons explained 

below, we disagree.

In Strong, the Supreme Court indicated “a special 

circumstance finding that requires proof of intent to kill” “might 

ordinarily be dispositive” and disqualify a defendant from relief 

under section 1172.6. (Strong, supra, 13 Cal.5th at p. 715.) As 

examples, the Supreme Court referenced the special 

circumstances defined in section 190.2, subdivision (a)(1), (7)-(13), 

(15)-(16), and (18)-(21); it did not cite the gang-murder special 

circumstance at issue here, set forth in section 190.2, subdivision 

(a)(22). (Strong, at p. 715.) As the Attorney General points out, 

in People v. Allison (2020) 55 Cal.App.5th 449, 460, disapproved 

on another ground in Strong, at page 718, footnote 3, we noted, 

without expressly deciding in that case, that a gang-murder 

special circumstance finding under section 190.2, subdivision 

(a)(22) would ordinarily preclude a defendant from making a 

prima facie showing of eligibility for relief under section 1172.6

because the special circumstance “require[s] that the defendant 

intentionally killed the victim.” 

Section 190.2 provides that a gang-murder special 

circumstance finding may be made against a defendant who is 

“not the actual killer” but “who, with the intent to kill, aids, 

abets, counsels, commands, induces, solicits, requests, or assists 

any actor in the commission of murder in the first degree.” 
18

(§ 190.2, subd. (c).) In the present case, however, based on the 

wording of the jury instructions given and the jury’s verdicts 

against Robles, we cannot conclude the jury found Robles directly 

aided and abetted the murders with intent to kill, 

notwithstanding the jury’s true findings on the gang-murder 

special circumstance allegations.

While the trial court’s jury instructions informed the jury it 

must consider each special circumstance separately for each 

defendant, the gang-murder special circumstance instruction 

(quoted above) did not explain to jurors that if they found a 

defendant was not the actual killer, they had to find that 

defendant personally acted with intent to kill in order to render a 

true finding on the gang-murder special circumstance. The 

felony-murder special circumstance instructions, in contrast, did 

specifically explain to the jury how to evaluate the felony-murder 

special circumstance if they found a defendant was not the actual 

killer: “If the defendant was not the actual killer, then the 

People have the burden of proving beyond a reasonable doubt 

that he acted with either the intent to kill or with reckless 

indifference to human life and was a major participant in the 

crime for the special circumstance of Murder While Engaged in 

the Commission of a Robbery to be true. If the People have not 

met this burden, you must find this special circumstance has not 

been proved true for that defendant.” (Italics added.) The jury 

was given no similar language with respect to the gang-murder

special circumstance.

As set forth above, the jury was instructed the prosecution 

had to prove four elements to prove the gang-murder special 

circumstance:
19

 “1. The defendant intentionally killed Andrew Williams 

(Count One), Ronald Carter (Count Two), and S[i]necia Miller 

(Count Three);

“2. At the time of the killing, the defendant was an active 

participant in a criminal street gang;

“3. The defendant knew that members of the gang engaged 

in or have engaged in a pattern of criminal gang activity;

“AND

“4. The murder was carried out to further the activities of 

the criminal street gang.”

It was undisputed at trial that Robles did not actually kill 

anyone. Thus, it is plausible the jury understood this instruction 

to mean it could return a true finding on the gang-murder special 

circumstance as to Robles if it found beyond a reasonable doubt 

that Hector “intentionally killed” the victims (and the other 

elements of the special circumstance were satisfied).

To be clear, the issue on appeal is not whether there was 

instructional error, and we reach no conclusion in that regard. 

Rather, we hold Robles’s record of conviction does not show he is 

ineligible for resentencing under section 1172.6 as a matter of 

law because the record does not show the jury found him guilty of 

first degree murder under a still-valid theory of murder: i.e., that 

he directly aided and abetted the murder with intent to kill. 

Accordingly, we reverse the order denying his petition for 

resentencing and remand the matter for the trial court to issue 

an order to show cause under section 1172.6, subdivision (c) and 

hold a hearing under subdivision (d).

DISPOSITION

The order denying the petition for resentencing is reversed 

and the matter is remanded. Upon remand, the superior court 
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shall issue an order to show cause pursuant to section 1172.6, 

subdivision (c) and hold a hearing under section 1172.6, 

subdivision (d).

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.