Filed 8/3/23 P. v. Higuera CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, 

v.

MICHAEL HIGUERA et al.,

Defendants and Appellants.

 B325372

 (Los Angeles County

 Super. Ct. No. 

TA073018)

APPEALS from orders of the Superior Court of Los Angeles 

County, Allen J. Webster, Jr., Judge. Dismissed and Affirmed.

James M. Crawford, under appointment by the Court of 

Appeal, for Defendant and Appellant Michael Higuera.

Marta I. Stanton, under appointment by the Court of 

Appeal, for Defendant and Appellant Hector Huerta.

No appearance by Plaintiff and Respondent.
2

At a jury trial in 2004, defendants Michael Higuera 

(Defendant Higuera) and Hector Huerta (Defendant Huerta) 

were each convicted of two counts of attempted willful, deliberate, 

and premeditated murder. As to each count, the jury found true 

allegations that both defendants personally and intentionally 

discharged a firearm within the meaning of Penal Code section 

12022.53(c).1 Each defendant received a sentence of life in prison,

plus a 20-year determinate term.

Many years later, defendants petitioned for resentencing 

under section 1172.6 (former section 1170.95). After appointing 

counsel and receiving briefs from the People and defendants, the 

trial court held a hearing for each defendant and denied the

petitions based on their failure to make a prima facie case for 

relief. At the hearing on Defendant Higuera’s petition, the trial 

court reasoned he “was the actual shooter, and he was not 

convicted under a natural and probable consequences theory. So 

due to the fact that he was the shooter in that particular case, 

he . . . cannot make a prima facie showing[ and] his petition for 

resentencing will be denied forthwith.” At the hearing on 

Defendant Huerta’s petition, the trial court emphasized “there 

was no jury instruction[ ] ever given that allowed the jury to 

impute malice because defendant, again, was the perpetrator.”2

1 Defendants were also convicted of additional offenses not 

relevant to this appeal: Defendant Higuera was convicted of 

carrying a loaded, unregistered firearm and Defendant Huerta 

was convicted of being a felon in possession of a firearm.

2 As discussed in this Court’s opinion on direct appeal, there 

was evidence both defendants fired multiple shots at a car with 
3

Defendants appealed, and this court appointed counsel to 

represent them. After examining the record, both defendants’ 

attorneys filed opening briefs raising no issues and asking us to

exercise our discretion to independently review the record for 

error pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. We 

invited defendants to submit supplemental briefs. Only 

Defendant Higuera opted to do so, arguing (1) “this whole case 

was based on theories of what took place”; (2) “the jury was given 

an invalid instruction[ ] on the kill zone”; and (3) sufficient

evidence to support his convictions was lacking. Attached to 

Defendant Higuera’s supplemental brief are letters, affidavits, 

and other documents.

Although we have discretion to undertake an independent 

review of the entire record, we decline and instead limit our 

discussion to the issues raised in Defendant Higuera’s

supplemental brief. (Delgadillo, 14 Cal.5th at 232 [where the 

defendant’s attorney finds no arguable issues in an appeal from 

the denial of a section 1172.6 petition and the defendant files a 

supplemental brief, “the Court of Appeal is required to evaluate 

the specific arguments presented in that brief and to issue a 

written opinion,” but it is “wholly within the court’s discretion” 

whether to conduct an independent review of the entire record].)

None of the arguments raised in Defendant Higuera’s 

supplemental brief addresses his eligibility for resentencing 

under section 1172.6. Higuera’s observation that the word 

“theory” was used at trial does not mean that he was convicted on 

a theory under which malice was imputed to him, which would 

two people inside. (People v. Higuera (Nov. 17, 2005, 

No. B176767) [nonpub. opn.].)
4

permit relief under section 1172.6. (People v. Harden (2022) 81 

Cal.App.5th 45, 52 [“if the record shows that the jury was not 

instructed on either the natural and probable consequences or 

felony-murder doctrines, then the petitioner is ineligible for relief 

as a matter of law”].) Additionally, the asserted kill zone 

instructional error and the arguments regarding the sufficiency 

of the evidence have no bearing on Defendant Higuera’s 

eligibility for section 1172.6 relief. (People v. Coley (2022) 77 

Cal.App.5th 539, 549 [a section 1172.6 petition “is not a means by 

which a defendant can relitigate issues already decided”]; People 

v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6 “does 

not permit a petitioner to establish eligibility on the basis of 

alleged trial error”].)
5

DISPOSITION

Defendant Huerta’s appeal is dismissed as abandoned. The 

order denying Defendant Higuera’s section 1172.6 petition is

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.