Filed 2/9/21 P. v. Romero CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON ROMERO,

Defendant and Appellant.

 B306870

 (Los Angeles County

 Super. Ct. No. BA362787)

APPEAL from an order of the Superior Court of Los 

Angeles County. Renee F. Korn, Judge. Affirmed. 

Brett Harding Duxbury, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Daniel C. Chang and Michael C. Keller, 

Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
2

Jason Romero appeals from the denial of his petition for 

resentencing under Senate Bill No. 1437 (SB 1437), which 

“amend[ed] the felony murder rule and the natural and probable 

consequences doctrine . . . 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The trial court found 

Romero ineligible for relief as a matter of law because the record 

demonstrates he was convicted as a direct aider and abettor. 

We affirm.

PROCEDURAL BACKGROUND

On August 7, 2009, Jose R. was killed in a drive-by 

shooting involving Romero, Christian Venegas, and Hernaldo 

Ramos.1 The prosecution’s theory at trial was that Venegas was 

the shooter; Romero directly aided and abetted by procuring a car 

and a driver to accomplish the drive-by shooting; and Ramos was 

the driver, who aided and abetted either directly (if he knew 

about the gun), or under a natural and probable consequences 

theory (if he did not). Romero was found guilty of first degree 

murder and the jury found true additional firearm and gang 

enhancements. He was sentenced a term of 50 years to life. 

In his direct appeal, Romero asserted the trial court 

committed instructional error, including that the instruction on 

natural and probable consequences was incomplete or misleading 

1 For purposes of this opinion, we need only summarize the 

facts underlying Romero’s conviction. They are set forth in detail 

in the opinion affirming the judgment against Romero (People v. 

Venegas et al. (Nov. 5, 2012, B233131) [nonpub. opn.]) and the 

decision denying his petition for writ of habeas corpus (In re 

Romero (Oct. 9, 2018, B288243) [nonpub. opn.]). 
3

because it allowed the jury to conclude murder, rather than first 

degree murder, was a natural and probable consequence of the 

target crime of assault. We rejected Romero’s argument, noting 

that “the record indicates the natural and probable consequences 

theory was only argued as to Ramos, not Romero. The prosecutor 

contended Romero was guilty of directly aiding and abetting 

murder.” (People v. Venegas, supra, B233131, at pp. 10–11.) 

Alternatively, we concluded, “even if the trial court should 

have explicitly instructed the jury that first degree murder, not 

just murder, must have been a reasonably foreseeable 

consequence of the assault, . . . any error was harmless beyond a 

reasonable doubt” because “[t]he evidence was overwhelming that 

if Romero was guilty at all, he was guilty of a deliberate, 

premeditated murder.” (Venegas, supra, B233131, at pp. 12–13.) 

We further observed, “the jury asked whether it could find 

Romero guilty of first degree murder as an aider and abettor, 

even if it concluded Venegas was not the perpetrator. This 

question suggested that while the jurors may have had some 

doubt that Venegas was the shooter, they had no doubt Romero 

was guilty of first degree murder.” (Venegas, supra, B233131, at 

p. 13.) We affirmed the judgment against Romero.

Romero raised similar issues in his petition for writ of 

habeas corpus to the Supreme Court. There, he argued he was 

entitled to a new trial in light of People v. Chiu (2014) 59 Cal.4th 

155, 158–159 (Chiu), which held that an aider and abettor may 

not be convicted of first degree murder under the natural and 

probable consequences doctrine. Although he conceded the 

prosecution rested on a theory of “straight aiding and abetting,” 

he argued the jurors were nevertheless provided a second theory 

for conviction because the trial court instructed them on a 
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natural and probable consequences theory of aiding and abetting 

a planned assault. According to Romero, the jury could have 

applied the natural and probable consequences instruction to him 

as well as to Ramos, despite the prosecution’s argument. 

On transfer from the Supreme Court, we found the trial 

court instructed the jury in error under Chiu, but the error was 

harmless beyond a reasonable doubt because the record showed

the jury relied on a direct aiding and abetting theory. (In re 

Romero, supra, B288243, at p. 4.) In reaching this conclusion, 

we again relied on the evidence provided at trial, the 

prosecution’s theory of the case, and the jury’s question.

Additionally, we observed the trial court instructed the jury 

to only consider a direct aiding and abetting theory as to Romero 

when it responded to the jury question whether it could find 

Romero guilty of first degree murder as an aider and abettor, 

even if it concluded Venegas was not the perpetrator. The court

answered the question as follows: “In order to convict Mr. 

Romero under an aiding and abetting theory, the People must 

prove that he aided and abetted a perpetrator. That perpetrator 

may be any other person. An aider and abettor may be convicted 

of murder in the 1st or 2nd degree. For the elements of aiding 

and abetting, please refer to instructions 400 and 401.” We found 

the trial court’s reference to CALCRIM Nos. 400 and 401, which 

describe direct aiding and abetting, and its failure to refer the 

jury to CALCRIM Nos. 403 and 520, which explain the theory of 

natural and probable consequences, “was a clear indication to the 

jury that it should base its verdict regarding Romero on direct 

aiding and abetting principles.” (In re Romero, supra, B288243, 

at p. 4.)
5

On May 22, 2019, Romero filed a petition for resentencing 

pursuant to SB 1437. The trial court appointed counsel, and the 

parties were given an opportunity to be heard on the petition. 

The trial court denied the petition for resentencing, finding “the 

Court of Appeal has already ruled that Romero was convicted of 

murder as a direct aider and abettor. Quite simply, the facts do 

not support that Petitioner was convicted on a felony murder 

theory or murder under a natural and probable consequences 

theory.” Romero timely appealed. 

DISCUSSION

I. Governing Law

Effective as of January 1, 2019, SB 1437 was enacted to 

“amend the felony murder rule and the natural and probable 

consequences doctrine . . . 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Thus, SB 1437 

amended Penal Code section 1882 to require that a principal to 

murder act with malice aforethought, which will “not be imputed 

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

(§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) 

Likewise, felony murder liability under section 189 was limited to 

a defendant who was the “actual killer,” an aider or abettor in the 

commission of murder in the first degree, or “a major participant 

in the underlying felony [who] acted with reckless indifference to

human life.” (§§ 188, subd. (a)(3), 189, subd. (e), as amended by 

Stats. 2018, ch. 1015, §§ 2, 3.) In short, SB 1437 did not change 

2 All further statutory references are to the Penal Code 

unless otherwise specified.
6

the liability for a defendant who was convicted of murder as a 

direct aider and abettor. (People v. Martinez (2019) 31 

Cal.App.5th 719, 722–723 (Martinez).) 

Section 1170.95 sets forth a three-step procedure for 

defendants to seek resentencing if they could not be convicted of 

murder in light of the changes to sections 188 and 189.

(Martinez, supra, 31 Cal.App.5th at p. 723.) In step one, the 

defendant files a petition with the sentencing court to vacate the 

defendant’s murder conviction and to obtain resentencing on any 

remaining counts. (§ 1170.95, subd. (a).) The petition must 

satisfy the following three conditions to make the initial prima 

facie showing that he or she is eligible for relief: “(1) A complaint, 

information, or indictment was filed against the petitioner that 

allowed the prosecution to proceed under a theory of felony 

murder or murder under the natural and probable consequences 

doctrine. (2) The petitioner was convicted of first degree or second 

degree murder following a trial or accepted a plea offer in lieu of 

a trial at which the petitioner could be convicted for first degree 

or second degree murder. (3) The petitioner could not be convicted 

of first or second degree murder because of changes to Section[s] 

188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. 

(a).)

If the defendant has made the initial prima facie showing 

in step one, the trial court appoints counsel to represent him or 

her. (§ 1170.95, subd. (c).) In step two, the defendant must make 

a second prima facie showing that he or she is “entitled” to relief 

rather than “eligible” for relief. At this stage of the proceedings, 

the trial court may review the petition, its own file, and the 

record of conviction, including a Court of Appeal opinion and a 

jury’s findings in the underlying trial. (People v. Lewis (2020) 
7

43 Cal.App.5th 1128, 1137–1138 (Lewis), review granted Mar. 18, 

2020, S260598; People v. Verdugo (2020) 44 Cal.App.5th 320, 333, 

review granted Mar. 18, 2020, S260493; People v. Torres (2020) 

46 Cal.App.5th 1168, 1178, review granted June 24, 2020, 

S262011.)

If the defendant demonstrates he or she is entitled to relief 

in step two, the court must issue an order to show cause why 

relief should not be granted. (§ 1170.95, subd. (c).) If the court 

issues an order to show cause, a hearing will be held to determine 

whether to vacate the murder conviction. (Lewis, supra, 43 

Cal.App.5th at p. 1136.) In this third step of the proceedings, the 

parties “may rely on the record of conviction or offer new or 

additional evidence to meet their respective burdens.” (§ 1170.95, 

subd. (d)(3).)

II. The Record Reveals Romero Is Ineligible For Relief 

as a Matter of Law3

Romero contends the trial court erred to deny his petition 

because the record does not conclusively establish which theory 

the jury relied on to convict him. In making this argument, 

Romero urges us to review the record, including the evidence 

presented at trial, the prosecutor’s theory of the case, the jury’s 

question, and the trial court’s response, and reach a different 

conclusion from that of our previous two decisions. 

Having concluded beyond a reasonable doubt that the jury 

based his conviction on a theory that he directly aided and 

abetted the murder, we decline to reverse ourselves. The issue 

whether Romero acted as a direct aider and abetter has been 

3 Romero’s second request for judicial notice of the appellate 

court file from his direct appeal, People v. Romero, B233131, is 

granted. (Evid. Code, § 459.)
8

litigated and finally decided against him. (Lewis, supra, 43 

Cal.App.5th at p. 1138, review granted on a different ground,

Mar. 18, 2020, S260598; see generally 1 Witkin & Epstein, Cal. 

Criminal Law (4th ed. 2012) Defenses, § 208, pp. 683–684 

[collateral estoppel applies in criminal cases].) In any event, 

Romero had the burden to make a prima facie showing that he 

was eligible for relief. (Lewis, supra, at p. 1137.) Aside from pure 

speculation that the jury may have found him guilty of murder 

under a natural and probable consequences theory in the face of 

ample evidence to the contrary, Romero has failed to make such a 

showing under section 1170.95. 

DISPOSITION

The order denying Romero’s petition for resentencing under 

section 1170.95 is affirmed.

BIGELOW, P. J.

We Concur:

GRIMES, J.

STRATTON, J.