Filed 9/17/24 P. v. Gutierrez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JONATHAN GUTIERREZ,

 Defendant and Appellant.

2d Crim. No. B330656

(Super. Ct. No. BA369668)

(Los Angeles County)

Jonathan Gutierrez appeals from an order denying his 

Penal Code section 1172.6 petition for resentencing.1 The denial 

occurred at the prima facie stage of the proceedings. 

In April 2012 a jury convicted appellant and his 

codefendants – David Contreras and Andrew Garcia – of the first 

degree murder of Moises Castro. (§§ 187, subd. (a), 189.)

Contreras was the actual killer. As to each defendant, the jury 

found true allegations that a principal had discharged a firearm 

1 All statutory references are to the Penal Code unless 

otherwise stated.
2

causing death (§ 12022.53, subds. (d), (e)) and that the crime had 

been committed for the benefit of a criminal street gang. 

(§ 186.22, subd. (b)(1)(C).) The trial court sentenced each 

defendant to prison for 50 years to life: 25 years to life for first 

degree murder plus a consecutive term of 25 years to life for the 

firearm-gang enhancement. (§ 12022.53, subds. (d), (e).) 

Appellant and his codefendants appealed. We affirmed the 

judgment in an unpublished opinion: People v. Gutierrez et

al. (March 27, 2014, B244448, as modified on April 23, 2014) 

(Gutierrez I).) 

In 2022 appellant filed his section 1172.6 petition. He

claims that an instruction given at his trial – former CALJIC No. 

3.00 – allowed the jury to convict him of murder by imputing 

malice to him based solely on his participation in a crime. The 

instruction provided in relevant part: “‘Persons who are involved 

in committing a crime are referred to as principals in that crime. 

Each principal, regardless of the extent or manner of 

participation is equally guilty. Principals include: [¶] 1. Those 

who directly and actively commit the act constituting the crime, 

or [¶] 2. Those who aid and abet the commission of the crime.’ 

(Italics added.)” (Gutierez I, supra, slip opn. at p. 7.)

We conclude appellant failed to make a prima facie case 

that he “could not presently be convicted of murder . . . because of 

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

(§ 1172.6, subd. (a)(3).) In addition, adverse legal determinations 

in Gutierrez I are the law of the case and preclude appellant from 

obtaining relief. Accordingly, we affirm.

Facts

Our factual summary is taken verbatim from the factual

summary at pages 2-4 of the unpublished Gutierrez I slip
3

opinion.2 We summarize the facts “for background purposes and 

to provide context for the parties’ arguments.” (People v. Flores

(2022) 76 Cal.App.5th 974, 978, fn. 2.) In determining whether 

appellant made a prima facie case for relief, we do not consider 

the facts as stated in Gutierrez I. (See Id. at p. 988 [“the factual 

summary in an appellate opinion is not evidence that may be 

considered at an evidentiary hearing to determine a petitioner’s 

eligibility for resentencing. (§ [1172.6], subd. (d)(3) . . . .) If such 

evidence may not be considered at an evidentiary hearing to 

determine a petitioner’s ultimate eligibility for resentencing, we 

fail to see how such evidence could establish, as a matter of law, a 

petitioner’s ineligibility for resentencing at the prima facie 

stage”].)

“In March 2010 [appellant] and Garcia were members of 

the Breed Street criminal street gang. One or two days before 

March 29, 2010, [appellant, Garcia and Contreras] were inside 

Maria Luna's apartment . . . . [Appellant] and Garcia said that 

they were going to ‘jump’ Contreras into the gang. A gang expert 

explained: ‘Gang members can join a gang by being jumped in, 

which means they’re beaten by numerous members of the gang.’ 

“[Appellant, Garcia, and Contreras] left Luna’s apartment 

and returned about 20 minutes later. . . . [Appellant] and Garcia 

said that they had jumped Contreras into the gang. [Appellant] 

also said that he was going to take Contreras on his ‘first 

mission.’ A gang expert testified that a ‘mission’ is a criminal act 

committed by a gang member. The more violent the act, the more 

the reputation of the gang and gang member will be enhanced. 

2 We previously took judicial notice of the record on appeal 

in Gutierrez I, including our opinion. 
4

Murder ‘is the ultimate crime that . . . gangs commit to instill the 

most fear and intimidation in the community.’ 

“ . . . At about noon on March 29, 2010, [appellant, Garcia, 

and Contreras again] left Luna’s apartment. Approximately 15 

to 20 minutes later, [Amber] Maples[, who was inside Luna’s 

apartment,] heard four or five gunshots. Three minutes after the 

gunshots, [appellant, Garcia, and Contreras] ran into the 

apartment. They were ‘out of breath, sweaty, panicky, nervous.’ 

Garcia and [appellant] ran to the bathroom, where they washed 

and urinated on their hands. An expert on gunshot residue 

testified that suspects will sometimes urinate on their hands in 

an attempt to remove traces of gunshot residue. 

“Contreras went to the kitchen and spoke with Elisa 

Penalber, a friend of Maria Luna. . . .

“Penalber saw [appellant, Garcia, and Contreras] ‘stashing 

the guns.’ There were three guns, and she saw [appellant] put 

one inside a vacuum cleaner. Penalber asked [appellant] and 

Garcia if they had taken Contreras ‘on his first mission.’ One of 

them answered, ‘Yes,’ and stated that ‘he emptied the clip.’

[¶] . . . 

“Maples saw [appellant] and Garcia ‘wiping down some 

guns with . . . T-shirts.’ . . . Minutes later, the police arrived at 

the apartment and ordered everyone ‘to come out one by one with 

[their] hands up.’

“At about 12:25 p.m. on March 29, 2010, Moises Castro left 

his apartment to go to work. . . . Stephanie Rios was walking 

nearby. She saw Castro running toward an alley. Four or five 

men were chasing him. The men appeared to be 17 or 18 years 

old, and all of them were holding handguns. They were pointing 

the guns at Castro. Rios got ‘a good look’ at the face of the 
5

pursuer who was closest to Castro. She recognized him as 

Contreras, who had attended the same school as Rios. The other 

pursuers said ‘Stop’ and ‘Get that fool.’ Contreras . . . shot five 

times at Castro. Castro died from a gunshot wound to the left 

upper back. . . .

“After the shooting, Castro’s pursuers ran away and 

Stephanie Rios telephoned 911. Officer Jose Rios drove to the 

scene of the shooting. There, he heard a police radio broadcast 

that the suspects had run into an apartment at 125 Matthews 

Street. This was where Maria Luna lived. Rios and other officers 

went to that location, which was about 10 houses away from the 

shooting. 

“ . . . The police searched the apartment and found three 

handguns inside a vacuum cleaner. One of the handguns was an 

unloaded stainless steel .357 magnum revolver with wooden 

grips. (Gun #1.) The other two handguns – another stainless 

steel .357 magnum revolver with wooden grips and a blue steel 

.357 magnum revolver – were fully loaded. A firearms expert 

opined that a bullet jacket fragment found at the scene of the 

shooting had been fired from gun #1. . . .

“Gunshot residue was found on Contreras's hands but not 

on the hands of [appellant] and Garcia. . . .

“In a hypothetical question, the prosecutor presented the 

facts of the shooting to a gang expert. The expert opined that the 

shooting was committed for the benefit of a criminal street gang. 

The expert explained that the shooting ‘enhances [the gang’s] 

reputation as a violent criminal street gang. . . . [¶] It enhances 

the reputation of those members that are involved because 

murder is the ultimate crime to gain the most status.’”
6

Trial Court’s Ruling at Prima Facie Hearing

The trial court ruled: “[T]he record of conviction readily 

demonstrates [appellant] was convicted as an aider and abettor, 

and that neither felony murder, natural and probable 

consequences, or any theory upon which criminal liability could 

be imputed to defendant merely on the basis of his involvement 

in the crime was presented at trial by way of instructions to the 

jury or argument of counsel. The petition is therefore DENIED.” 

Section 1172.6

Section 1172.6, subdivision (a) provides that “[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 

[charges] when” certain conditions apply. One of the conditions is 

that the petitioner “could not presently be convicted of 

murder . . . because of changes to Section 188 or 189 made 

effective January 1, 2019.” (§ 1172.6, subd. (a)(3).) 

After a section 1172.6 petition is filed, “the court shall hold 

a hearing to determine whether the petitioner has made a prima 

facie case for relief. If the petitioner makes a prima facie 

showing that the petitioner is entitled to relief, the court shall 

issue an order to show cause.” (Id., subd. (c).) 

If an order to show cause is issued, the court shall conduct 

an evidentiary hearing to determine the petitioner’s eligibility for 

relief. (§ 1172.6, subd. (d)(1).) At the evidentiary hearing the 

burden is on the People “to prove, beyond a reasonable doubt, 

that the petitioner is guilty of murder . . . .” (Id., subd. (d)(3).)
7

Prima Facie Stage of Section 1172.6 Proceeding

“[T]he prima facie inquiry . . . is limited. . . . ‘“[T]he 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.”’ . . . ‘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

(Lewis).)

“The record of conviction will necessarily inform the trial 

court's prima facie inquiry . . . , allowing the court to distinguish 

petitions with potential merit from those that are clearly 

meritless. This is consistent with the statute's overall purpose: to 

ensure that murder culpability is commensurate with a person's 

actions, while also ensuring that clearly meritless petitions can 

be efficiently addressed as part of a single-step prima facie review 

process.” (Lewis, supra, 11 Cal.5th at p. 971.) 

“Appellate opinions . . . are generally considered to be part 

of the record of conviction. . . . In reviewing any part of the 

record of conviction at this preliminary juncture, a trial court 

should not engage in ‘factfinding involving the weighing of 

evidence or the exercise of discretion.’ [Citation.] . . . [T]he ‘prima

facie bar was intentionally and correctly set very low.’” (Lewis, 

supra, 11 Cal.5th at p. 972.) “‘If the petition and record in the 

case establish conclusively that the defendant is ineligible for 

relief, the trial court may dismiss the petition. . . .’” (People v.

Curiel (2023) 15 Cal.5th 433, 450.)
8

Appellant Failed to Make a Prima Facie Case for Relief

Appellant acknowledges “that the jury was not instructed 

on felony murder or on the doctrine of natural and probable 

consequence[s].” He contends he made a prima facie case for 

relief because “[t]he jury may have relied on [another] ‘ . . . theory 

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

person’s participation in a crime.’ (Pen. Code § 1172.6, subd. 

(a)(1).)” 

Appellant’s imputed malice theory is premised on former 

CALJIC No. 3.00’s language that principals in the commission of 

a crime are “equally guilty.” Appellant argues that this language

“was misleading and allowed the jury to find him guilty based on 

imputed malice under the particular facts of this case, including 

the gang expert’s testimony and the context of the specific gang 

‘mission’ at issue.” “[J]urors were allowed to impute malice to 

[appellant] because he was on a gang ‘mission’ in which one of the 

gang members harbored malice.” 

Our Supreme Court has “recognized that [former CALJIC 

No. 3.00] ‘generally stated a correct rule of law,’ in that ‘[a]ll 

principals, including aiders and abettors, are “equally guilty” in 

the sense that they are all criminally liable.’” (People v. Amezcua

and Flores (2019) 6 Cal.5th 886, 918.) But “contrary to a possible 

implication of former CALJIC No. 3.00, an actual killer and an 

aider/abettor are not always guilty of the same offense. Rather, 

in a homicide prosecution not involving felony murder or the 

natural and probable consequences doctrine, the aider/abettor’s 

guilt is based on the combined acts of all the principals and on 

the aider/abettor’s own knowledge and intent. Consequently, in 

some circumstances an aider/abettor may be culpable for a 

greater or lesser crime than the actual killer. [Citation.] . . . 
9

[F]ormer CALJIC No. 3.00 ‘could be misleading if the principals 

in a particular case might be guilty of different crimes and the 

jury interprets the instruction to preclude such a finding.’”3 (Id. 

at pp. 917-918.)

In Gutierrez I Contreras contended the “equally guilty” 

language was erroneous, and Guitierrez joined in the contention. 

(Gutierrez I, supra, slip opn. at pp. 7-8.) We concluded: 

“‘[A]s a general proposition and in most cases, CALJIC No. 3.00 is 

a correct statement of the law. [Citations.] As such, [Contreras 

has] forfeited [his] claim of error since [he] failed to request 

modification or clarification in the court below. [Citations.]’ 

(People v. Mejia (2012) 211 Cal.App.4th 586, 624.)” (Id. at p. 8, 

bracketed material in original.) 

We further concluded that the “equally guilty” language

was not misleading in view of other jury instructions: “[T]he trial 

court also gave CALJIC No. 3.01, which ‘advised the jury that it 

must base its decision of each [defendant’s] liability not simply on 

the mental state of the direct perpetrator of the crime, but on 

that [defendant’s] state of mind and the extent to which he knew 

of and intended to facilitate the purpose contemplated by the 

perpetrator.’ [Citation.] Moreover, the last paragraph of CALJIC 

No. 3.00 advised the jury that, when the crime charged is 

murder, the guilt of each participant depends upon his own 

mental state. ‘. . . CALJIC No. 3.01 [and the last paragraph of 

CALJIC No. 3.00] adequately clarified any ambiguity created by 

the “equally guilty” language of CALJIC No. 3.00. The charge as 

a whole, therefore, did not mislead the jury. . . .’” (Gutierrez I, 

3 Current CALJIC No. 3.00 provides that, “[e]xcept as to 

the crime of murder, each principal . . . is equally guilty.”
10

supra, slip opn. at p. 8, last pair of brackets in original, fn. 

omitted.)

The Gutierrez I opinion continued: “‘Even were we to find 

the instruction misleading under the facts of this case, which we 

do not, the error was harmless beyond a reasonable doubt. Given 

the strength of the evidence demonstrating that [appellant and 

his accomplices] . . . intend[ed] to kill [Castro], we find that if the 

instruction was error, beyond a reasonable doubt a rational jury’s 

verdict would not have been different had the challenged 

language been omitted. [Citation.]’” (Gutierrez I, supra, slip opn. 

at p. 8.)

“We independently review an order denying section 1172.6 

relief at the prima facie stage.” (People v. Berry-Vierwinden

(2023) 97 Cal.App.5th 921, 930 (Berry-Vierwinden).) Based on 

Berry-Vierwinden, as a matter of law appellant is not entitled to 

relief under section 1172.6. In 2010 Berry-Vierwinden was

convicted of first degree murder. In his section 1172.6 petition

for resentencing, he argued that the jury instructions permitted

the jury to convict him of murder by imputing malice to him

based solely on his participation in a crime. The allegedly

erroneous instruction was former CALCRIM No. 400, which

contained the “equally guilty” language of former CALJIC No.

3.00.4 

4 Former CALCRIM No. 400 provided: “‘A person may be 

guilty of a crime in two ways. One, he may have directly 

committed the crime. I will call that person the perpetrator. 

Two, he may have aided and abetted a perpetrator, who directly 

committed the crime. A person is equally guilty of the crime 

whether he committed it personally or aided and abetted the 

perpetrator who committed it.’” (Berry-Vierwinden, supra, 97

Cal.App.5th at pp. 926-927, italics added.)
11

The Court of Appeal noted that section 1172.6 provides 

relief only if the petitioner “‘could not presently be convicted of 

murder . . . because of changes to Section 188 or 189 made 

effective January 1, 2019’ by Senate Bill No. 1437 (2017–2018 

Reg. Sess.) (Senate Bill No. 1437). (§ 1172.6, subd. (a)(3), italics 

added.)” (Berry-Vierwinden, supra, 97 Cal.App.5th at p. 925.) 

The Court of Appeal concluded that “the trial court correctly 

denied relief at the prima facie stage because Berry-Vierwinden’s

claim of instructional error fails to establish that he” could not be

presently convicted because of these statutory changes. (Ibid.)

The Court of Appeal explained: “Senate Bill No. 1437 did

not change the law to prohibit direct aider and abettor liability on

an imputed malice theory – this was already settled California

law by the time of Berry-Vierwinden’s 2010 trial.” (BerryVierwinden, supra, 97 Cal.App.5th at p. 936.) “[A] court may 

deny the petition at the prima facie stage if the record of 

conviction conclusively establishes that the petitioner was 

convicted on a theory not affected by Senate Bill No. 1437.” (Id.

at p. 931; see also People v. Burns (2023) 95 Cal.App.5th 862, 867

(Burns) [“A [section 1172.6] petition . . . supplements a 

defendant’s traditional direct appeal by providing an opportunity 

to make arguments that did not exist at the time of the appeal, 

but have arisen since 2019 as a result of recent statutory 

amendments”]; Id. at p. 868 [“The Supreme Court’s McCoy

decision [People v. McCoy (2001) 25 Cal.4th 1111], as explained 

and developed in Samaniego [People v. Samaniego (2009) 172 

Cal.App.4th 1148] and Nero [People v. Nero (2010) 181 

Cal.App.4th 504], made clear that the direct perpetrator’s mental 

state could not be imputed to an aider and abettor, whose mental 

state had to be independently evaluated”].)
12

In Burns, supra, 95 Cal.App.5th 862, in 2010 Burns was 

convicted of murder after the jury had been instructed pursuant 

to former CALCRIM No. 400. The court denied Burns’s section 

1172.6 motion. It reasoned that the instruction “did not operate 

to offer the jury a theory of legal liability that can no longer 

support a conviction for murder as a result of the recent statutory 

changes” made by Senate Bill No. 1437. (Burns, at pp. 868-869.)

Like Berry-Vierwinden and Burns, appellant cannot satisfy 

the section 1172.6, subdivision (a)(3) requirement that he “could 

not presently be convicted of murder . . . because of changes to 

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

“[T]he record of conviction conclusively establishes that 

[appellant] was convicted on a theory not affected by Senate Bill 

No. 1437.” (Berry-Vierwinden, supra, 97 Cal.App.5th at p. 931.)

In any event, appellant is not entitled to relief because the 

following legal determinations in Gutierrez I were the law of the 

case at the prima facie hearing: (1) the “equally guilty” language 

of former CALJIC No. 3.00 did not mislead the jury into 

convicting appellant based on his accomplices’ state of mind; and 

(2) even if the language was misleading, the error was harmless 

beyond a reasonable doubt because of “ ‘the strength of the 

evidence demonstrating that [appellant and his accomplices] . . . 

intend[ed] to kill [Castro]. . . . ’”

5 (Gutierrez I, supra, slip opn. at 

p. 8, first pair of brackets added.)

5 We need not consider whether, for purposes of the prima 

facie hearing, the law of the case doctrine applied to Gutierrez I’s 

determination that appellant had forfeited his claim of 

instructional error by failing to request modification or 

clarification of the instruction during the jury trial.
13

“Under the law of the case doctrine, when an appellate 

court ‘“states in its opinion a principle or rule of law necessary to 

the decision, that principle or rule becomes the law of the case 

and must be adhered to throughout [the case’s] subsequent 

progress, both in the lower court and upon subsequent 

appeal . . . .”’ [Citation.] Absent an applicable exception, the 

doctrine ‘requir[es] both trial and appellate courts to follow the 

rules laid down upon a former appeal whether such rules are 

right or wrong.’” (People v. Barragan (2004) 32 Cal.4th 236, 246.)

Pursuant to the law of the case doctrine, the abovespecified legal determinations in Gutierrez I were binding at the 

prima facie hearing. (See People v. Medrano (2024) 98 

Cal.App.5th 1254, 1264 (Medrano) [law of the case doctrine 

applies at prima facie stage of section 1172.6 proceeding where 

the appellate court’s prior legal determination could not be 

controverted by new evidence introduced at an evidentiary 

hearing conducted pursuant to section 1172.6, subdivision 

(d)(3)].) Here, new evidence introduced at the evidentiary 

hearing could not controvert Gutierrez I’s determination that the 

“equally guilty” language of former CALJIC No. 3.00 did not 

mislead the jury into convicting appellant based on a theory of 

imputed malice. 

In view of the binding legal determinations in Gutierrez I, 

appellant cannot make a prima facie showing that he was 

“convicted of . . . murder under . . . [a] theory under which malice 

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

in a crime . . . .” (§ 1172.6, subd. (a).) The jury was not misled by 

the “equally guilty” language of CALJIC No. 3.00. It must have 

found that appellant had personally harbored the mental state 

required for first degree murder. 
14

“‘[T]he doctrine [of the law of the case] will not be adhered 

to where its application will result in an unjust decision, e.g., 

where there has been a “manifest misapplication of existing 

principles resulting in substantial injustice” [citation], or the 

controlling rules of law have been altered or clarified by a 

decision [or statutory amendment] intervening between the first 

and second appellate determinations [citation].’” (Medrano, 

supra, 98 Cal.App.5th at pp. 1262-1263, brackets in original.) 

Appellant has not shown that he falls within this exception to the 

application of the law of the case doctrine. 

Disposition

The order denying appellant’s section 1172.6 petition is 

affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

CODY, J.
Craig Elliott Veals, Judge

Superior Court County of Los Angeles

______________________________

Richard A. Levy, 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, Charles S. Lee, Deputy Attorney General, for 

Plaintiff and Respondent.