1

Filed 7/25/24 P. v. Olague CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES JOSEPH OLAGUE,

Defendant and Appellant.

C092670

(Super. Ct. No. CR20035627)

OPINION ON TRANSFER

In May 2006, a jury found defendant James Joseph Olague and two codefendants, 

Ernesto Duran Arrellano and Oscar Hurtado Cervantes, guilty of the “first-degree murder 

(Pen. Code, § 187; undesignated statutory references are to the Penal Code) of Robert 

Stepper and Eric Folsom, and attempted murder of Vicki Folsom and Jessica Valdez on 

Halloween 2002.” (People v. Olague et al. (Apr. 7, 2009, C053372) [nonpub. opn.] 

(Olague).) The jury also found true enhancements that these crimes were committed for 

the benefit of a criminal street gang (§ 186.22, subd. (b)(4)) and a principal personally 
2

discharged a firearm causing death or bodily injury (§ 12022.53, subd. (a)), as well as the 

special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and intentional 

killings as participants in a criminal street gang (§ 190.2, subd. (a)(22)). (Olague, supra,

C053372.) We affirmed defendant’s convictions, enhancements, and special 

circumstance findings in an unpublished decision issued April 7, 2009. (Ibid.)

Defendant petitioned the trial court for resentencing based on the elimination of 

the natural and probable consequences doctrine under Senate Bill No. 1437 (Reg. Sess. 

2017-2018) (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019) (Senate Bill 1437). Following 

the appointment of counsel, extensive briefing, and a hearing, the trial court denied 

defendant’s petition in a written ruling. The court explained that the jury had been 

instructed that to find the special circumstances true, they had to determine, as to each 

defendant, that “he acted with the intent to kill, either as the actual killer or as a direct

aider and abettor or co-conspirator who with the intent to kill aided, abetted, counseled, 

commanded, induced, solicited, requested, or assisted the actual killer.” Accordingly, 

when the jury found the special circumstances were true, the jury determined defendant 

had an “actual intent to kill,” thus “making [defendant] ineligible for relief under the 

resentencing statute.” 

Defendant appealed contending his resentencing petition and associated filings 

“raised a reasonable doubt that the jury found” he had “intended to kill,” thus requiring 

the trial court to issue an order to show cause. We disagreed with defendant’s arguments

in an unpublished opinion issued January 24, 2022. Nonetheless, because of legislative 

changes occurring following the close of briefing, we ordered the matter remanded to 

allow the trial court to determine whether defendant could demonstrate a prima facie case 

for relief as to his attempted murder convictions. We otherwise affirmed the trial court’s 

order.

Defendant petitioned the California Supreme Court for review, and on April 24, 

2024, the Supreme Court transferred the case back to us with directions to vacate our 
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previous decision and reconsidered the matter in light of People v. Curiel (2023) 15 

Cal.5th 433 (Curiel). Having done so, we conclude the jury instructions and associated 

findings preclude defendant from making a prima facie case for relief as to his two 

murder convictions. The briefing on transfer has not addressed defendant’s two 

attempted murder convictions, and we accept the parties’ previous concession that

remand is required as to the two attempted murder convictions to allow the trial court to 

determine whether defendant can state a prima facie case for relief under amended 

section 1172.6 relevant to these convictions. We will otherwise affirm.

I. BACKGROUND

A. The Underlying First Degree Murder and Attempted Murder Convictions

We take certain facts and procedural history from the unpublished opinion we 

issued in 2009 affirming defendant’s convictions in Olague, supra, C053372:

“On September 21, 2003, an indictment was filed alleging that defendants and 

others—Christina Marie Marten, Nathaniel Easlon, Richard Betancourt, and (later added) 

Gilberto Lopez—committed the following crimes:

“Count 1: First-degree murder of Robert Stepper (§ 187, subd. (a)), with 

enhancements alleging the murder was committed for the benefit of a criminal street gang 

(§ 186.22, subd. (b)(4)), Cervantes used a firearm which caused death or bodily injury 

(§ 12022.53, subds. (a), (d)), and a principal personally discharged a firearm causing 

death or bodily injury (§ 12022.53, subd. (a)). Count 2: First-degree murder of 

Eric Folsom, with enhancements as above. Count 3: Attempted murder of Vicki Folsom 

(§§ 187, subd. (a); 664, subd. (a)), with enhancements as above. Count 4: Attempted 

murder of Jessica Valdez, with enhancements as above.

“The indictment also alleged special circumstances for multiple murder and 

intentional killings as participants in a criminal street gang (§ 190.2, subds. (a)(3), 

(a)(22)[)]. The prosecutor sought the death penalty against Arellano and Cervantes only, 

not against Olague.
4

“At trial, the prosecution presented evidence supporting its theory that, although 

the Norteño and Sureño gangs were rivals, their members cooperated in committing these 

crimes because Arellano (a Norteño leader or ‘shot caller’) and nonparty 

Candelario Garza (a Sureño leader) cooperated in the sale of drugs in Woodland. 

Arellano (a Norteño) ordered the hit because victim Stepper (a Norteño) owed him 

money for drugs, and Arellano wanted to send a message to others who owed money and 

re-instill fear in the community. Christina Marten (a Norteño) brought Stepper to the 

place of attack. The shooter was Cervantes, who was not a gang member but who 

associated with Norteños, Sureños, and Crips. Stepper was the target, and the other 

victims were shot either because they were in the ‘kill zone’ or because Cervantes 

intentionally shot them in an attempt to eliminate witnesses. Easlon (a Crips gang 

member) acted as lookout. Arellano’s neighbor, Gilberto Lopez (a Sureño), was the 

getaway driver. Olague (a Sureño) was on the street at the time of the shooting to ensure 

that all participants did what they were supposed to do.

“Evidence adduced at trial included the following:

“Easlon and Betancourt (Norteño) testified about a gathering at Arellano’s 

apartment before Halloween 2002. Arellano asked Easlon and Betancourt to ‘fuck up’ 

(beat up) Robert Stepper, who owed Arellano about $500 to $800 and was not doing what 

he was supposed to be doing to help the drug trade. Easlon (who owed Arellano [$1],600 

for drugs) and Betancourt refused to do the actual deed, because Stepper was their friend. 

Arellano asked Cervantes, who was also there, to ‘handle it.’ Cervantes agreed and was 

given some drugs. Easlon, to pay off his debt, agreed to Arellano’s request to station 

himself at the end of the street on Halloween and ‘make sure nobody we know goes down 

that street . . . .’ Lopez came to the door and was told by Arellano, ‘[i]t’s going to go 

down,’ and Lopez was needed as the getaway driver. (Though Lopez had a ‘beef’ with 

Cervantes, who impregnated Lopez’s girlfriend, there was evidence that Lopez did not 

know Cervantes would be involved.) Arellano took a phone call, then said ‘Jaime’ and 
5

Garza were on the way over with the gun and told Easlon and Betancourt to leave. 

Easlon testified he knows three ‘Jaimes,’ one of which is Olague. Easlon did not stay and 

therefore did not know if it was Olague who showed up. However, Easlon testified it was 

Olague who showed up when the crime took place.

“On Halloween, around 10:00 p.m., as planned, Easlon concealed himself at the 

end of Oak Avenue to stand watch. Marten walked Stepper down Oak Avenue and then 

left. Stepper began chatting with the other victims near a pickup truck in victim Valdez’s 

driveway. Olague, whose job was to make sure others did their job, walked Cervantes 

partway down the street.

“As related by the surviving victims, a man approached the victims, ‘kind of’ 

grinned, pulled out a gun, aimed the gun at Stepper’s head, and fired from a distance of 

two feet (killing Stepper). The shooter then pointed the gun at the others and fired 

multiple times (killing 17-year-old Eric Folsom and injuring 14-year-olds Vicki Folsom 

and Jessica Valdez). At trial, one of the survivors identified Cervantes as the shooter, 

though she had not identified him [in] a photo lineup.

“As Lopez drove the getaway car, Cervantes hit the dashboard and said, ‘I got 

‘em, I got ‘em.’ Lopez had not expected any shooting. He later told Garza that 

Veronica Lugo (girlfriend of Guillermo Ramirez, who had been with Lopez) was in an 

alley and heard the gunshots. Lugo testified she was summoned to an apartment the next 

day where several people, including Cervantes and Olague, were present. Garza, Lopez, 

and Ramirez led her into a bedroom and told her to keep her mouth shut or she and her 

children would be killed.

“An expert in criminal gangs, Sergeant Steven Gill, said rival gangs do work 

together in drug activity and will commit a crime such as murder together to further their 

criminal enterprise, enhance both gangs’ reputations, and further instill fear and 

intimidation in the community and other gang members. A non-gang member’s 

participation would be a way to be accepted by the gangs.
6

“All three defendants testified at trial and denied any involvement. Arellano (age 

34 at trial) said he was a Norteño for 10 years but was not a shot caller. He denied any 

pre-Halloween meeting, denied ordering or suggesting that anyone kill Stepper, and said 

he did not even know Cervantes or Olague before Halloween 2002, except for an incident 

where he almost got into a fight with Olague (whom he pegged as a Sureño). Arellano 

admitted that on one occasion he told Cervantes to ‘handle it’ but testified he was telling 

Cervantes to go get a pipe to smoke drugs. Stepper was Arellano’s friend, did not buy 

drugs from him, and did not owe him money. On Halloween, Arellano was on his way 

home, saw Stepper, said hello, and noticed a car full of people wearing blue (a Sureño 

color). Arellano said his only prior crimes were spousal abuse, selling drugs, and 

participating in a prison riot in which he was just following gang orders, though he was in 

front of his cohorts.

“Cervantes (age 28 at trial) testified he has never belonged to a gang, though he 

knew gang members. He knew Olague before Halloween, but not Arellano. When 

arrested, Cervantes said he ‘knew this day was coming,’ but he thought he was being 

arrested for violating probation. Cervantes denied telling his cellmate . . . about the case 

and denied tampering with his handcuffs (evidence of which was adduced as an escape 

attempt). Cervantes had a prior felony conviction for selling drugs and a drug-related 

misdemeanor. Alibi witnesses testified Cervantes was with them that night.

“Olague (age 29 at trial) testified he was a gang member when he lived in Los 

Angeles (he equivocated on whether it was Sureño) and associated with ‘southerners’ 

when he moved to Woodland. He was friendly with Cervantes. Olague did not know or 

have any contact with Arellano, except Olague ran from a brief confrontation with 

Arellano as a member of a rival gang in a parking lot about a month before the crimes. 

Olague denied any involvement in the crimes. He came upon the crime scene after a 

friend dropped him off and he was walking to a friend’s house. Olague admitted two 

prior felony convictions, for auto theft and verbally threatening his ex-wife.
7

“To advance the defense theory that the police pressured the accomplices to make 

false confessions consistent with the prosecution’s theory, the defense hammered at 

inconsistencies in the accomplices’ statements, and a defense expert testified about how 

police interrogations can elicit false confessions.

“In May 2006, the jury returned verdicts finding all three defendants guilty on all 

counts and finding true all enhancement allegations.

“In June 2006, the jury set the sentence for Arellano and Cervantes at life without 

the possibility of parole on the two counts of first degree murder.

“The trial court denied defense motions for new trial.

“On July 28, 2006, the trial court sentenced Arellano to prison for life without 

possibility of parole on Counts 1 and 2 (first degree murder). The court sentenced 

Arellano to nine years on Count 4 (attempted murder) and a consecutive term of two 

years, four months on Count 3 (attempted murder). The court imposed three 25-years-tolife terms for the section 12022.53, subdivisions (d) and (e), enhancements on Counts 1 

through 3 and a 20-year term for the section 12022.53, subdivision (c), enhancement on 

Count 4.

“[¶] . . . [¶]

“Olague received the same sentence as Arellano, except Olague received the 

midterm sentence of seven years (rather than the upper term of nine years) for the Count 

4 attempted murder.” (Olague, supra, C053372, fns. omitted.)

On appeal, among other findings, we specifically upheld the substantiality of the 

evidence supporting the enhancement finding that all defendants had individually acted 

with the intent to kill Eric Folsom, as well as the denial of Olague’s acquittal motion, 

which had argued insufficient evidence supported “that he knew Cervantes planned to kill 

Stepper and shoot the others.” (Olague, supra, C053372.) In support of these 

conclusions, the prior opinion identified evidence establishing that the murder of any 

witnesses was part of the plan, which intended to “make a big statement to instill fear in 
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the community.” (Ibid.) Defendants elected to do the shooting on Halloween, when 

people would be outside, and the shooter’s act of seeing the witnesses with the intended 

victim and then shooting all victims at close range demonstrated express malice. (Ibid.) 

Further, Olague was implicated not only by accomplice testimony and his presence at the 

shooting. He also ran from the scene and threatened the jailhouse informant associated 

with the case. Substantial evidence supported the judgment against him. (Ibid.)

B. Defendant’s Petition for Relief

On April 4, 2019, defendant filed a pro per petition for relief under Senate Bill 

1437 arguing he was eligible for resentencing because he was not the actual killer, did not 

with intent to kill aid and abet the actual killer, and was not a major participant who acted 

with reckless indifference to human life. Defendant alternatively argued he was entitled 

to relief under the California Supreme Court’s decision in People v. Chiu (2014) 

59 Cal.4th 155 (Chiu), because it could not be established beyond a reasonable doubt that 

the jury had convicted him on a legally valid ground and that the trial court had failed to 

adequately instruct the jury with all elements necessary for a first-degree murder 

conviction. 

On April 24, 2019, the trial court appointed counsel for defendant and transferred 

the matter so that it could be coordinated with the proceedings concerning an earlier 

petition filed by defendant’s prior co-defendant Ernesto Arellano. Ultimately, the parties 

briefed whether defendant was precluded from making a prima facie showing by virtue of 

his gang special circumstance that had required the jury to determine that he aided and 

abetted with the intent to kill. Defendant’s brief on this issue acknowledged: (1) he had 

been tried under alternate direct aider and abettor and natural and probable consequences 

theories, and (2) that the jury had found the special circumstance gang finding true, but 

nonetheless argued he was still eligible for resentencing. Defendant reasoned that postjudgment changes to the natural and probable consequences theory had eliminated first 

degree liability for that theory, and that in accordance with People v. Brown (2016) 
9

247 Cal.App.4th 211 (Brown), the court could not use his gang special circumstance 

finding to conclude as a matter of law that he had been convicted of first degree murder 

on the direct aiding and abetting theory. Under Brown, the gang special circumstance 

was not dispositive, requiring the court consider “the totality of the circumstances” in 

light of the entire record to determine defendant’s eligibility for resentencing. Defendant 

indicated the record would be further addressed in later prima facie briefing. 

In contrast, the People argued, in pertinent part, that the gang special circumstance 

finding required the jury to determine that defendant had the intent to kill. Both CALJIC 

No. 8.80.1 (the generalized special circumstance instruction) and CALJIC No. 8.81.22 

(the gang special circumstance instruction) required the jury to determine that defendant 

individually held an intent to kill. Because the jury found the gang special circumstance 

true, defendant was therefore prevented from establishing his prima facie eligibility for 

resentencing. Brown was distinguishable because of the unique circumstances of that 

case,1 and even Brown acknowledged the possibility that a court could conclude any error 

in giving the natural and probable consequence instruction was harmless where a jury 

convicted a defendant of first degree murder with a true gang special circumstance 

finding. This was true, “ ‘because the special circumstance required finding the 

defendant intentionally killed. In such a situation, it might be concluded the jury 

necessarily rejected the natural and probable consequences theory of aider and abettor 

liability and instead found the defendant was either the actual killer or aided and abetted 

1

 The Brown court was unable to conclude, in that matter, that the special circumstance 

was dispositive regarding the harmlessness of defendant’s asserted error under Chiu, 

supra, 59 Cal.4th 155. Included among the reasons for this conclusion were irregularities 

concerning the taking of the verdicts (including the trial court’s reading of a guilty verdict 

on the murder count, while ignoring an executed and dated not-guilty verdict on that 

count), as well as the jury’s question shortly before verdicts were rendered concerning the 

natural and probable consequences doctrine, and the relatively weak case against Brown. 

(See Brown, supra, 247 Cal.App.4th at pp. 226-227, 232-233.) 
10

the actual killer while sharing the killer’s intent to kill.’ ” Further, and more 

fundamentally, the People argued that the court was not required to analyze whether it 

was harmless error to give the natural and probable consequence instruction. Rather, the 

court had to determine whether defendant had established that he could not now be 

convicted of murder. Given the prior direct aiding and abetting instruction and the 

special circumstance finding, defendant could not make this showing. 

At the January 23, 2020 hearing, the court elected to defer ruling on the preclusive 

effect of the special circumstance finding. Thereafter, the parties engaged in further 

briefing and argument regarding the prima facie showing, including defendant’s belated 

request for relief on the attempted murder counts. In the end, the court announced its 

decision to deny the petition at the September 1, 2020 hearing and then issued a written 

order concluding defendant had not made a prima facie showing that he was eligible for 

relief. Defendant was ineligible for relief by virtue of the jury’s enhancement findings 

that had required a determination that “he acted with the intent to kill, either as the actual 

killer or as a direct aider and abettor or co-conspirator who with the intent to kill aided, 

abetted, counseled, commanded, induced, solicited, requested, or assisted the actual 

killer.” Brown was distinguishable because of its unique facts. 

Defendant timely appealed. 

II. DISCUSSION

A. Background 

Senate Bill 1437, which took effect on January 1, 2019, limited accomplice 

liability under the felony murder rule and eliminated the natural and probable 

consequences doctrine as it relates to murder, to ensure that a person’s sentence is 

commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 

10 Cal.5th 830, 842-844 (Gentile).) As relevant to this appeal, natural and probable 

consequences and direct aiding and abetting were two different forms of aider and abettor 

liability. (Chiu, supra, 59 Cal.4th at p. 158; People v. Chavez (2018) 22 Cal.App.5th 
11

663, 682-683.) Under the natural and probable consequences doctrine, a person who 

knowingly aided and abetted a crime, the natural and probable consequence of which was 

murder, could be convicted of not only the target crime, but also of the resulting murder, 

irrespective of whether he or she harbored malice aforethought. (Gentile, supra, at 

p. 845.) In Chiu, the Supreme Court “held that the natural and probable consequences 

doctrine cannot support a conviction for first degree premeditated murder.” (Ibid; see 

Chiu, supra, at p. 167.) Senate Bill 1437 went further, amending section 188 to now 

provide that “[e]xcept 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); Stats. 2018, ch. 1015, § 2; Gentile, supra, at p. 846.)

The criminal liability of direct aiders and abettors did not change under Senate Bill 

1437. (Gentile, supra, 10 Cal.5th at p. 848; People v. Offley (2020) 48 Cal.App.5th 588, 

595-596.) Such persons who by act or advice aid, promote, encourage, or instigate the 

commission of murder, with knowledge of the direct perpetrator’s criminal purpose and 

with intent to commit, encourage or facilitate the commission of murder, remain 

criminally liable for murder. (Offley, supra, at pp. 595-596; see Chiu, supra, 59 Cal.4th 

at pp. 158, 161, 166-167.)

Senate Bill 1437 also added former section 1170.95 (now section 1172.6),

2 “which 

created a procedural mechanism ‘for those convicted of felony murder or murder under 

the natural and probable consequences doctrine to seek relief’ where the two substantive 

changes described above affect a defendant’s conviction.” (Curiel, supra, 15 Cal.5th at 

2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 

1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. 

Although defendant filed his petition under former section 1170.95, we cite to current 

section 1172.6 throughout the rest of this opinion.
12

p. 449.) The Legislature has since “amended the statute to expand the population of 

eligible offenders, codify certain aspects of [the Supreme Court’s] decision in [People v. 

Lewis (2021) 11 Cal.5th 952 (Lewis)], and clarify the procedure and burden of proof at 

the evidentiary hearing stage of proceedings. (Stats. 2021, ch. 551, § 1.)” (Ibid.)

Section 1172.6, subdivisions (b) and (c) create a two-step process for evaluating a 

petitioner’s eligibility for relief. (Lewis, supra, 11 Cal.5th at pp. 960-962.) First, the trial 

court must determine whether the petition is facially sufficient under section 1172.6, 

subdivision (b). (Lewis, supra, at p. 960.) If the petition is facially sufficient, the court 

follows section 1172.6, subdivision (c), appointing counsel (if requested) and following 

the briefing schedule set forth in the statute. (Lewis, supra, at p. 966.) Following the 

completion of this briefing, the court determines whether a petitioner has made a prima 

facie showing that he or she is entitled to relief. (Ibid.)

“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 

117[2.6] 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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)

We independently review the trial court’s decision to deny a section 1172.6 

petition for resentencing at the prima facie stage. (People v. Harden (2022) 

81 Cal.App.5th 45, 52.)
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B. The First Degree Murder Convictions

Defendant contends the jury instructions and associated verdicts do not prevent 

him from making a prima facie case for relief. First, defendant argues the jury 

instructions in his case did not actually require the jury find he had the intent to kill. 

Second, he contends under Curiel, the jury’s finding that he had an intent to kill is not 

enough to establish current liability for aider and abettor murder. We find the record of 

conviction still affirmatively demonstrates defendant’s ineligibility for relief as to his two 

murder convictions.

A trial court properly denies a section 1172.6 petition if the jury made a true 

finding on a special circumstance that renders the defendant ineligible for relief. (See, 

Curiel, supra, 15 Cal.5th at p. 451.) However, as our high court recently explained in 

Curiel, a finding of intent to kill alone is not enough to refute a defendant’s allegations in 

a section 1172.6 petition. (Curiel, supra, at p. 463.) Rather, the jury’s findings would 

only preclude a prima facie showing where those findings establish all elements 

necessary to “conclusively refute a petitioner’s allegation that he or she could not be 

convicted of murder under current law.” (Ibid.)

Relevant to the issues raised in this appeal, defendant’s jury was instructed with 

CALJIC 8.80.1 on special circumstances generally. This instruction provided in pertinent 

part: “If you find a defendant in this case guilty of murder of the first degree, you must 

then determine as to that defendant, if one or more of the following special circumstances 

are true or not true . . . . [¶] . . . [¶] If you find that a defendant was not the actual killer 

of a human being, or if you are unable to decide whether the defendant was the actual 

killer or an aider and abettor or co-conspirator, you cannot find the special circumstance 

to be true as to that defendant unless you are satisfied beyond a reasonable doubt that 

such defendant with the intent to kill aided, abetted, counseled, commanded, induced, 

solicited, requested, or assisted any actor in the commission of the murder in the first 

degree. [¶] You must decide separately as to each of the defendants, the existence or 
14

nonexistence of each special circumstance alleged in this case.” (Italics added.) Thus, in 

order to find any of the special circumstances true, this instruction required the jury to

find each defendant acted with the intent to kill when performing any of several listed 

actions (including aiding and abetting) “in the commission of the murder in the first 

degree.” (CALJIC 8.80.1.)

The jury was also instructed with CALJIC 8.81.22, which provided in pertinent 

part: “To find that the special circumstance ‘intentional killing by an active street gang 

member’ . . . it must be proved: [¶] 1. A defendant intentionally killed the victim or, with 

the intent to kill, aided or abetted in the killing.” Defendant’s jury had also been 

instructed with CALJIC 3.01 on aiding and abetting generally, which explained: “A 

person aids and abets the commission or attempted commission of the crime when he: [¶]

(1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent 

or purpose of committing or encouraging or facilitating the commission of the crime, and 

[¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the 

crime.” 

Thus, when read together, CALJIC Nos. 3.01, 8.80.1, and 8.81.22 show defendant 

cannot state a prima facie case for resentencing relief on his convictions to which the 

gang special circumstances applied. First, there is no question that defendant was not the 

actual killer; therefore, when the jury found the gang special circumstance (§ 190.2, subd. 

(a)(22)) true, it necessarily determined that “defendant . . . with the intent to kill, aided or

abetted in the killing.” (CALJIC No. 8.81.22; Olague, supra, C053372.) Moreover, the 

findings required to make this determination in light of CALJIC Nos. 3.01 and 8.80.1 

show the jury necessarily found defendant aided and abetted a murder in the first degree, 

including the mens rea and actus reus necessary to aid and abet murder. (Curiel, supra, 

15 Cal.5th at p. 463.) 

Unlike Curiel, where the jury instructions on the special circumstance had no 

mention of aiding and abetting or other findings establishing that the jury determined all 
15

elements necessary to find that the defendant was still guilty of aiding and abetting 

murder, (Curiel, supra, 15 Cal.5th at pp. 447, 462-471) here defendant’s jury was 

instructed on aiding and abetting principles, and when read together, the jury necessarily 

found defendant aided and abetted a murder in the first degree when it found the gang 

special circumstance true. (CALJIC Nos. 3.01, 8.80.1, and 8.81.22.) 

Nor are we persuaded that these findings should not be given preclusive effect. 

Defendant has not shown that the changes Assembly Bill No. 333 (2021-2022 Reg. Sess.) 

made to the laws regarding criminal street gangs (see, e.g., People v. Clark (2024) 15 

Cal.5th 743, 752) alters the jury determinations, that defendant with intent to kill aided 

and abetted first degree murder. The Curiel court has already acknowledged and rejected 

the argument that changes to the definition of criminal street gang justified the 

application of the exercise of equitable discretion against issue preclusion for an intent to 

kill finding derived from a gang special circumstance. (Curiel, supra, 15 Cal.5th at p. 

458, fn. 4 [this change did not alter “the substantive definition of intent to kill, so it has 

no bearing on the preclusive effect of the latter finding”].) We see no reason other parts 

of the same legislation should be afforded different treatment where none of them speak 

to the jury’s intent to kill finding. Accordingly, we conclude defendant cannot establish a 

prima facie case for relief from his murder convictions under section 1172.6 as a matter 

of law. 

C. The Attempted Murder Convictions 

The trial court’s order denying defendant’s section 1172.6 petition did not 

expressly deny his supplemental argument requesting resentencing on his attempted 

murder convictions. Nonetheless, defendant has challenged the trial court’s implicit 

rejection of this request. 

Prior to the passage of Senate Bill No. 775 (2021-2022 Reg Sess.) (Senate Bill 

775) (Stats. 2021, ch. 551), courts reviewing its applicability to final judgments had 
16

determined that former section 1170.95 did not apply to final attempted murder 

convictions. (See, e.g., People v. Turner (2020) 45 Cal.App.5th 428, 436.) 

However, Senate Bill 775 amended subdivision (a) of former section 1170.95 

(now section 1172.6) to read, in pertinent part: “A person convicted of . . . attempted 

murder under the natural and probable consequences doctrine . . . may file a petition with 

the court that sentenced the petitioner to have the petitioner’s . . . attempted murder . . . 

conviction vacated and to be resentenced on any remaining counts.” (Stats. 2021, ch. 

551, § 2.) This legislation took effect on January 1, 2022. (Cal. Const., art. IV, § 8; 

Stats. 2021, ch. 551.)

In light of this legislation, at the January 19, 2022 oral argument, the parties 

conceded that this matter should be remanded to allow the trial court to determine 

whether defendant can state a prima facie case for relief under amended section 1172.6

relevant to his attempted murder convictions. The parties have not expressed a different 

position following transfer from the California Supreme Court for reconsideration in light 

of Curiel. We accept the parties’ earlier concession and will remand the matter for this 

purpose.
17

III. DISPOSITION

The matter is remanded with directions for the trial court to reconsider defendant’s 

section 1172.6 request concerning his attempted murder convictions in light of the 

changes brought about by Senate Bill 775. The court’s order denying defendant’s section 

1172.6 petition concerning his convictions for murder is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

ROBIE, Acting P. J.

/S/

 

KRAUSE, J.