Filed 2/6/23 P. v. Molina CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SAMUEL JOSE MOLINA,

Defendant and Appellant.

F076855, F079353, F082641

(Super. Ct. No. VCF309326A)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. 

Paden, Judge.

Scott N. Cameron, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Eric L. 

Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

In 2014, appellant Samuel Jose Molina got into a verbal and then physical 

altercation with Oscar Ayo. Appellant’s codefendant, Frankie Luna, joined in the fight, 

and either appellant or Luna fatally stabbed Ayo.

Luna is not a party to this appeal. In 2016, Luna accepted a deal and he pleaded 

no contest to a charge of voluntary manslaughter. The plea agreement had an indicated 

prison sentence of 11 years. 

In 2017, appellant went to trial and a jury convicted him of second degree murder 

for Ayo’s death (Pen. Code, § 187, subd. (a)).1 The jury found true that appellant had 

committed this crime to further a criminal street gang (§ 186.22, subd. (b)). Appellant 

was sentenced to prison for 15 years to life. 

On appeal, the parties now agree that appellant should be retried because the jury 

was told it could find him guilty of murder, in part, based on the natural and probable 

consequences doctrine.2 That theory of guilt, however, is no longer permissible in 

California. Based on this record, we agree with the parties that it is impossible to 

determine whether or not appellant was convicted on a legally valid theory. As such, 

appellant’s criminal judgment must be reversed in its entirety, and this matter remanded 

for further proceedings, including the possibility of a new trial.

BACKGROUND

Because we agree with the parties that appellant’s judgment must be reversed and 

this matter remanded for further proceedings, we provide only a brief summary of the 

1 All future statutory references are to the Penal Code unless otherwise noted.

2 Under the natural and probable consequences doctrine, an aider and abettor could 

be found guilty not only of the intended, or target, crime but also of any other crime that a 

principal actually committed that was a natural and probable consequence of the target 

crime. (People v. Covarrubias (2016) 1 Cal.5th 838, 901.)
3.

material facts. We also summarize the procedural history of this matter, which has 

resulted in a consolidated appeal involving three separate but related cases.

I. A Brief Summary of the Material Facts from the Trial.

At trial, it was undisputed that appellant was an active Norteño gang member 

when this fatal stabbing occurred. The prosecution introduced expert testimony 

demonstrating that appellant’s accomplice, Luna, was also a Norteño gang member at 

that time. 

The jury learned that appellant had a motive to fight Ayo, at least in part, because 

they were both romantically involved with the same woman. On the night in question, 

appellant got into a verbal and then physical exchange with Ayo. Luna joined in the 

fight. During the altercation, Ayo was stabbed seven times, including a laceration of his 

heart, which resulted in his death. 

The trial court instructed the jury, in part, that appellant could be found guilty of 

murder under the natural and probable consequences doctrine. The prosecutor argued, in 

part, that the jury could convict appellant of second degree murder based on this theory. 

II. The Procedural History of this Matter.

While this appeal was pending, the Legislature substantially modified the law 

regarding accomplice liability for murder. (See Senate Bill No. 1437 (2017-2018 Reg. 

Sess.) (Senate Bill 1437).) This legislative change eliminated the natural and probable 

consequences doctrine as a basis for finding a defendant guilty of murder. (People v. 

Gentile (2020) 10 Cal.5th 830, 842–843.)

3

 Senate Bill 1437 also significantly narrowed 

the felony-murder exception to the malice requirement for murder. (See §§ 188, subd. 

(a)(3), 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 957.) Senate Bill 1437 

3 People v. Gentile, supra, 10 Cal.5th 830, was abrogated in part on another ground 

by Stats. 2021, ch. 551, § 2, which amended section 1172.6, subdivision (g), to expressly 

allow defendants whose convictions are not final to seek relief under Senate Bill 1437 on 

direct appeal.
4.

created a procedure under former section 1170.95 by which a person convicted of murder 

under the natural and probable consequences doctrine could file a petition with the 

sentencing court to have the conviction vacated. (See former § 1170.95, subd. (a).) 

Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6, with no 

change in its text. (Stats. 2022, ch. 58, § 10.)

A. Appellant’s petition for resentencing.

On April 15, 2019, this court granted a stay of this appeal so that appellant could 

petition the superior court for resentencing based on the change in law. Appellant filed a 

resentencing petition in the lower court, which the trial judge summarily denied. In May 

2019, appellant appealed that denial to this court, and that appellate case was numbered 

F079353. 

Upon application by appellant, this court ordered that the record was to be settled 

regarding what documents the lower court had reviewed in support of the denial of the 

initial petition. In response, the trial judge filed a settled statement in December 2019 

conceding he had erred in summarily denying the petition for resentencing in light of the 

jury instruction regarding the natural and probable consequences theory.

B. Appellant’s renewed petition for resentencing.

On May 14, 2020, this court granted a second stay of appeal in this matter so that 

appellant could file a renewed petition for resentencing. Appellant filed such a petition in 

the lower court, and a hearing eventually occurred in April 2021. After hearing 

arguments, the lower court denied appellant’s petition for resentencing. According to the 

court, substantial evidence had been introduced at trial establishing that appellant was the 

actual stabber. The court found that the prosecution had proven beyond a reasonable 

doubt that appellant was ineligible for relief. 

In April 2021, appellant appealed that second denial to this court. That appellate 

case was numbered F082641. 
5.

C. The various appeals are consolidated.

Via orders issued on July 22, 2019, and June 7, 2021, this court consolidated the 

three appeals which appellant had separately filed with us. Appellant’s opening brief 

addressed all three appeals. Accordingly, this opinion resolves the appeal following 

appellant’s criminal conviction (F076855), as well as the appeals following the denials of 

his two petitions for resentencing (F079353 and F082641).

DISCUSSION

I. Appellant’s Judgment Must be Reversed and this Matter Remanded for 

Further Proceedings, Including a New Trial if Necessary.

It is undisputed that appellant’s jury was instructed on a now legally invalid theory 

of conviction. In part, the court informed the jurors that they could find appellant guilty 

of second degree murder under the natural and probable consequences doctrine. 

Following legislative changes, however, this is no longer a permissible theory of guilt. 

(See People v. Gentile, supra, 10 Cal.5th at p. 842.)

The parties agree, as do we, that appellant suffered prejudice following this 

retroactive change in the law. At trial, an evidentiary conflict existed regarding who had 

stabbed Ayo. During closing argument, the prosecutor conceded to the jurors that the 

evidence did not establish beyond a reasonable doubt that appellant was the direct killer. 

The prosecutor further conceded it was probably Luna who had delivered the fatal 

wound. Nevertheless, the prosecutor asked the jury to find appellant guilty of first degree 

murder, contending that appellant had planned this killing in advance. In the alternative, 

the prosecutor asserted that appellant was guilty of murder because he had intended for 

Ayo to die and he had assisted Luna in stabbing Ayo. Finally, the prosecutor argued that, 

even if appellant had not held his own intent to kill, he could nevertheless be found guilty 

of murder as an aider and abettor under the natural and probable consequences doctrine. 

According to the prosecutor, appellant had physically assaulted Ayo knowing that 

another gang member, Luna, would join in the attack while possessing a knife, and it was 
6.

reasonably foreseeable Ayo’s death could result. The prosecutor asserted that appellant 

could be guilty of murder under the natural and probable consequences doctrine even if

appellant had been unaware that Luna was going to stab Ayo. The prosecutor also told 

the jurors that, although they needed to unanimously agree on a murder conviction, they 

did not need to unanimously agree on the theory underlying that conviction.4

As evidenced by the verdict, the jury rejected the prosecution’s argument that 

appellant had planned this killing in advance. The jury found appellant not guilty of first 

degree murder but, instead, guilty of second degree murder. The verdict form does not

indicate under which theory or theories the jurors found appellant guilty. 

When a trial court instructs a jury on multiple theories of guilt, and one is legally 

incorrect, reversal is required unless there is a basis in the record to find that the verdict 

was based on a valid ground. (People v. Aledamat (2019) 8 Cal.5th 1, 12.) Based on this 

record, we accept respondent’s concession that the government cannot establish beyond a 

reasonable doubt that this instructional error was harmless. (See Chapman v. California

(1967) 386 U.S. 18, 24 [the beneficiary of any constitutional error bears the burden to 

prove it was harmless].) It is impossible to conclude that the jury convicted appellant of 

second degree murder based on a legally valid theory. Thus, we agree with the parties 

that appellant’s murder conviction must be reversed, and we will likewise vacate the 

associated true finding regarding the gang enhancement. (See People v. Hola (2022) 77 

Cal.App.5th 362, 377 [vacating all associated enhancements to a reversed murder 

conviction].) 

We will remand this matter for further proceedings, including the possibility of a 

new trial. Under these circumstances, there are no due process or double jeopardy 

concerns prohibiting the possibility of a second trial because the prosecution made its 

4

In general, jurors need not unanimously agree on the theory underlying a murder 

verdict, but they must unanimously agree on the degree of murder. (People v. 

Potts (2019) 6 Cal.5th 1012, 1048.)
7.

case under the law as it previously existed. (People v. Hola, supra, 77 Cal.App.5th at 

p. 376; In re D.N. (2018) 19 Cal.App.5th 898, 902.) Accordingly, while appellant is 

entitled to have his second degree murder conviction reversed, the prosecution is entitled 

to retry him on that charge based on valid legal theories.5 (See People v. Hola, supra, 77 

Cal.App.5th at p. 377.)

Finally, the parties agree that, if appellant’s judgment is reversed and this matter 

remanded for the possibility of a new trial, then the vast majority of appellant’s 

remaining claims in this consolidated appeal are rendered moot. We agree. Therefore, 

we do not summarize or otherwise address most of appellant’s other contentions. 

However, appellant previously filed a request for judicial notice, which we will deny as 

explained in greater detail below. Appellant also asks us to review a Pitchess

proceeding.6In the interests of judicial economy and to assist the parties on remand, we 

agree with appellant that it is appropriate to review the Pitchess documents. We turn to 

those remaining issues.

II. We Deny Appellant’s Request for Judicial Notice.

On April 25, 2022, appellant filed a request for judicial notice in this court. 

Appellant asked us to notice the “Analysis by the Assembly Committee on Public Safety 

on Assembly Bill No. 333.” Through the declaration of counsel, appellant provided this 

court with a true and correct copy of the particular document. Appellant asserted that the 

information contained in his request was relevant because it tended to support some of his 

arguments on appeal. 

On April 29, 2022, we deferred ruling on appellant’s request for judicial notice 

pending consideration of this appeal on its merits. Respondent was granted 15 days to 

5 Because the jury acquitted appellant of first degree murder, he may not be retried 

on that charge, but he may be retried on any lesser-included offenses. (See People v. 

Aranda (2019) 6 Cal.5th 1077, 1095–1096.)

6 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
8.

file an informal response to appellant’s request. Respondent, however, failed to file 

anything further with this court regarding this request. 

Because the parties now agree, as do we, that appellant’s murder conviction must 

be reversed due to prejudicial instructional error, his request for judicial notice involves 

information which is no longer relevant to a material issue. Thus, this request is now 

moot, and we deny appellant’s request on that basis. (Evid. Code, § 452; People ex rel. 

Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [“any matter to be 

judicially noticed must be relevant to a material issue”].)

III. The Trial Court did not Abuse Its Discretion in Declining to Disclose any 

Records to the Defense Following the Pitchess Review.

Prior to trial, appellant filed a Pitchess motion seeking discovery of specified 

personnel records of a former sheriff’s detective who had investigated a prior shooting 

incident involving appellant. The court granted the motion and, in June 2016, it 

conducted an in camera hearing regarding the personnel records for this former detective. 

A custodian of records from the Tulare County Sheriff’s Department was sworn as a 

witness. A reporter transcribed the proceeding. The custodian provided relevant files to 

the court, which it reviewed. The court ruled that no documents were responsive to 

appellant’s Pitchess motion, and it declined to provide them to the defense. 

In 2018, this court ordered the trial court to provide a settled record regarding the 

files it had reviewed during the in camera hearing. That same year, the lower court filed 

with us confidential electronic copies of the documents it had reviewed. 

“ ‘A criminal defendant has a limited right to discovery of a peace officer’s 

personnel records. [Citation.] Peace officer personnel records are confidential and can 

only be discovered pursuant to Evidence Code sections 1043 and 1045.’ [Citation.]” 

(People v. Yearwood (2013) 213 Cal.App.4th 161, 180.) “A defendant is entitled to 

discovery of relevant information from the confidential records upon a showing of good 

cause, which exists ‘when the defendant shows both “ ‘materiality’ to the subject matter 
9.

of the pending litigation and a ‘reasonable belief’ that the agency has the type of 

information sought.” [Citation.]’ [Citation.]” (Id. at p. 180.)

When a trial court grants a Pitchess motion for discovery of relevant evidence 

contained in a law enforcement officer’s personnel files, “the custodian of the records is 

obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial 

court to examine them for itself. [Citation.]” (People v. Mooc (2001) 26 Cal.4th 1216, 

1228–1229.) “A court reporter should be present to document the custodian’s statements, 

as well as any questions the trial court may wish to ask the custodian regarding the 

completeness of the record.” (Id. at p. 1229.) “A trial court’s ruling on a motion for 

access to law enforcement personnel records is subject to review for abuse of discretion.” 

(People v. Hughes (2002) 27 Cal.4th 287, 330.)

We have reviewed the Pitchess proceeding and the sealed records which the trial 

court examined. A court reporter was present, and the custodian was sworn prior to 

testifying. Thus, the court complied with the procedural requirements. (See People v. 

Yearwood, supra, 213 Cal.App.4th at p. 180.) Similar to the lower court, we did not find 

any documents that should have been disclosed to the defense. None of the information 

contained in these confidential files was relevant to the subject matter involved in this 

pending litigation. (See Evid. Code, § 1045, subd. (a).) Therefore, the superior court did 

not abuse its discretion and no further action is required regarding this issue.
10.

DISPOSITION

The murder conviction in count 1 is reversed and the jury’s true finding regarding 

the gang enhancement is vacated. The judgment is reversed in its entirety. This matter is 

remanded for further proceedings consistent with this opinion including, if necessary, a 

new trial.

LEVY, Acting P. J.

WE CONCUR:

POOCHIGIAN, J.

DETJEN, J.