Filed 11/28/23 P. v. Quintero CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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.

VALENTIN QUINTERO,

Defendant and Appellant.

 B328668

 (Los Angeles County

 Super. Ct. No. TA142993)

APPEAL from an order of the Superior Court of 

Los Angeles County, Sean D. Coen, Judge. Affirmed. 

Marta I. Stanton, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.
2

Valentin Quintero filed in the superior court a petition 

for resentencing pursuant to the predecessor to Penal Code 

section 1172.6.1 The court denied the petition without an 

evidentiary hearing because Quintero failed to make a prima 

facie showing for relief. Quintero appealed. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

A. Quintero’s Attempted Murder Convictions

On April 13, 2017, Quintero drove his girlfriend, Alexiz 

Orona to Melissa S.’s home. Orona got out of “Quintero’s 

car, pulled out a handgun, and fired shots at [Melissa S. and 

Johnnyne R].” (People v. Quintero (Sept. 2, 2020, B300920)

[nonpub. opn.].) As the intended victims “attempted to move to 

safety, Quintero told Orona, ‘Finish her, finish them.’ Thereafter, 

Orona fired another shot at [the individuals].” (Ibid.)

In May 2018, the People charged Quintero with the 

attempted murders of Melissa S. and Johnnyne R., among other 

crimes. (§§ 664, 187, subd. (a).) The case was tried to a jury in 

June 2019. 

Regarding the attempted murder counts, the court 

instructed the jury that “[e]very person who attempts to murder 

another human being is guilty of a violation of . . . sections 664 

and 187. [¶] Murder is the unlawful killing of a human being 

with malice aforethought. [¶] In order to prove attempted 

murder, each of the following elements must be proved[:] [¶] 1. A 

direct but ineffectual act was done by one person towards killing 

another human being; and [¶] 2. The person committing the act 

1 All subsequent statutory references are to the Penal Code.
3

harbored express malice aforethought, namely, a specific intent 

to kill unlawfully another human being.”

Regarding the liability of aiders and abettors as principals 

in a crime, the court instructed: “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. 

[¶] When the crime charged is attempted murder, the aider 

and abettor’s guilt is determined by the combined acts of all 

the participants as well as that person[’]s own mental state. If 

the aider and abettor’s mental state is more culpable than that 

of the actual perpetrator, that person’s guilt may be greater than 

that of the actual perpetrator. Similarly, the aider and abettor’s 

guilt may be less than the perpetrator’s, if the aider and abettor 

has a less culpable mental state.”

Regarding direct aiding and abetting, the court instructed: 

“A person aids and abets the commission of a crime when he 

or she: [¶] (1) [w]ith knowledge of the unlawful purpose of the 

perpetrator, and [¶] (2) [w]ith the intent or purpose of committing 

or encouraging or facilitating the commission of the crime, and

[¶] (3) [b]y act or advice, aids, promotes, encourages or instigates 

the commission of the crime. [¶] Mere presence at the scene of 

a crime which does not itself assist the commission of the crime 

does not amount to aiding and abetting. [¶] To be guilty as an 

aider or abettor, the defendant’s intent or purpose of committing 

or encouraging or facilitating the commission of the crime by the 

perpetrator must be formed before or during the commission of 

the crime. [¶] Mere knowledge that a crime is being committed 

and the failure to prevent it does not amount to aiding and 

abetting.”
4

The court further instructed the jury as to “compelling 

another to commit crime” (capitalization omitted) as follows: 

that “[a] person who, by threat, menace, command or coercion, 

compels another to commit any crime is guilty of that crime.”

The jury was not instructed on the natural and probable 

consequences doctrine.

The jury found Quintero guilty of the attempted 

murders and found not true allegations that Quintero acted 

willfully, deliberately, and with premeditation. The jury 

further found that a principal in the crimes personally used a 

firearm (§ 12022.53, subd. (b)) and personally and intentionally 

discharged a firearm (§ 12022.53, subd. (c)). The court sentenced 

Quintero to 12 years in prison. Quintero appealed.

In his direct appeal, Quintero argued, among other 

arguments, that the court erred in instructing the jury as 

to compelling another to commit a crime. In September 2020,

we affirmed the judgment in an unpublished opinion. (People v. 

Quintero (Sept. 2, 2020, B300920).) Regarding the alleged 

instructional error, we held that the instruction was supported 

by evidence that, after Orona fired her gun at the intended 

victims, Quintero told her, “ ‘Finish her, finish them,’ ” and

Orona then fired another shot at the intended victims.

B. Quintero’s Resentencing Petition

In November 2022, Quintero filed a petition to vacate 

his attempted murder convictions and be resentenced pursuant to 
5

section 1172.6.2 He requested the appointment of counsel, which 

the court granted.

In February 2023, the People filed a response to Quintero’s 

petition, asserting that Quintero is ineligible for relief under 

section 1172.6 because the jury was not instructed on “the 

natural and probable consequences doctrine,” and was instructed 

that they could not find him guilty of attempted murder unless 

the People proved that he “had the intent to kill the victim.”

The People supported the response with the jury’s verdicts, the 

instructions to the jury, and our 2020 opinion.

Quintero, through counsel, filed a reply stating that 

he “submits on the prosecution’s informal response to [his]

resentencing petition.”

At the conclusion of a hearing held in March 2023, the 

court denied the petition because Quintero “is not eligible for 

resentencing in this matter as . . . his jury was not instructed 

as to felony murder, nor natural and probable consequences.”

Quintero timely appealed. We appointed counsel to 

represent him.

C. The Instant Appeal

Quintero’s appointed counsel filed a brief identifying no 

issues on appeal and requesting that we follow the procedures 

outlined in People v. Delgadillo (2022) 14 Cal.5th 216, 232 

(Delgadillo) and exercise our discretion to conduct an 

independent review of the record. 

2 Quintero’s form petition states that it is filed pursuant 

to section 1170.95. By the time he filed his petition, however, 

section 1170.95 had been renumbered as section 1172.6. (See 

Stats. 2022, ch. 58, § 10.)
6

Quintero filed a supplemental brief in which he contends:

(1) The evidence at his 2019 trial does not support his conviction; 

(2) Evidence of statements made by intended murder victim 

Johnnyne R. is hearsay; (3) “[T]he prosecution knowingly 

introduced and encouraged false testimony”; (4) Evidence 

introduced to impeach his alibi defense was used “to intentionally 

confuse . . . and misguide the jury”; (5) He was misidentified 

as the driver of the car; (6) After four days of deliberation, the

“judge exhausted the jury into taking a vote,” which “violated 

[his] due process and right to a fair trial”; and (7) The absence 

of Johnnyne R. at trial “prejudiced” him because it suggested 

to the jurors that the witness was injured or dead. Quintero 

further contends that the jury’s finding that he did not act 

willfully, deliberately, and with premeditation establishes a 

prima facie showing for relief under section 1172.6. 

DISCUSSION

Section 1172.6 applies to attempted murders only when the

conviction is “based on the natural and probable consequences 

doctrine.” (People v. Coley (2022) 77 Cal.App.5th 539, 548.) 

When, as here, the defendant seeks to vacate an attempted 

murder conviction under section 1172.6 and the record of 

conviction shows that the court did not instruct the defendant’s 

jury on the natural and probable consequences doctrine, the

defendant is not entitled to relief as a matter of law. (Coley,

supra, at pp. 548–549; People v. Cortes (2022) 75 Cal.App.5th 

198, 205–206; cf. People v. Soto (2020) 51 Cal.App.5th 1043, 

1055, 1059; People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5.) 

“The jury instructions are part of the record of conviction 

and may be reviewed to make the prima facie determination.” 

(People v. Bodely (2023) 95 Cal.App.5th 1193, 1200.)
7

Here, the jury instructions given in Quintero’s 2019 trial 

establish that, to find Quintero guilty of attempted murder, the 

People had to prove beyond a reasonable doubt that the direct 

perpetrator acted with the specific intent to kill and that he, 

as an aider and abettor, harbored the same or a more culpable 

mental state. His jury was not instructed on the natural and 

probable consequences doctrine or any other theory by which 

malice could be imputed to him based solely on his participation 

in the crime. He was therefore ineligible for relief as a matter of 

law.

The first seven of Quintero’s contentions identified above

are not cognizable on appeal from an order denying a petition 

for resentencing under section 1172.6. As our colleagues in the 

Fourth District recently explained, section 1176.2 is intended 

“to permit the resentencing of defendants who were properly 

convicted under the law that applied at the time, but ‘could 

no longer be convicted of murder’ [or attempted murder]

because of recent legislative changes. [Citations.] A petition 

thus 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.” (People v. Burns

(2023) 95 Cal.App.5th 862, 867.) The first seven contentions 

Quintero raises in his supplemental brief, like the contentions 

the petitioner raised in Burns, have “nothing to do with the 

legislative changes to California’s murder law effected by 

Senate Bill No. 1437 (2017–2018 Reg. Sess.) . . . and Senate 

Bill No. 775 [(2021–2022 Reg. Sess.)]. Accordingly, he did not 

satisfy the section 1172.6, subdivision (a)(3) condition as part 
8

of his required prima facie showing.” (Burns, supra, at p. 867.)3 

Any relief for the errors Quintero now asserts was available 

to him by “appeal from the judgment of conviction. His failure 

to raise the[se] argument[s] on direct appeal forfeited [such]

claim[s] [citation], and the subsequent petition process created by 

the Legislature when it enacted Senate Bill No. 1437 did nothing 

to change the applicable law so as to resurrect . . . argument[s] he 

had already abandoned.” (Burns, supra, at p. 868, fn. omitted.) 

We therefore reject Quintero’s first seven contentions.

The last of Quintero’s contentions—that the jury’s finding 

that he did not act willfully, deliberately, and with premeditation 

establishes a prima facie showing for relief—is also without 

merit. A finding that a defendant’s attempted murder was 

willful, deliberate, and premeditated requires the defendant 

be sentenced to prison for life with the possibility of parole. 

(§ 664, subd. (a).) If that finding is not made, attempted murder 

is punishable by imprisonment for five, seven, or nine years. 

(Ibid.) Although the finding that Quintero did not act willfully, 

deliberately, and with premeditation thus reduced his possible 

punishment, it does not negate the finding implied in the jury’s 

verdict that Quintero acted with the intent to kill. The jury’s 

finding that he did not act willfully, deliberately, and with

premeditation, therefore, does not aid Quintero in establishing a 

prima facie showing for relief. 

Quintero and his counsel request that we exercise our 

discretion to independently review the record to determine 

3 Subdivision (a)(3) of section 1172.6 sets forth the 

requirement that the “petitioner could not presently be convicted 

of murder or attempted murder because of changes to Section 188 

or 189 made effective January 1, 2019.”
9

whether any arguable issues exist on appeal. (See Delgadillo, 

supra, 14 Cal.5th at p. 230.) We have conducted that review 

and conclude that no arguable issues exist.

DISPOSITION

The order from which defendant has appealed is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

WEINGART, J.