Filed 10/31/22 P. v. Trejo CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN CARLOS TREJO,

Defendant and Appellant.

B315208

Los Angeles County

Super. Ct. No. PA020848

APPEAL from an order of the Superior Court of Los

Angeles County, Ronald S. Coen, Judge. Affirmed.

Jenny M. Brandt and Nancy Gaynor, under appointments

by the Court of Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Marc A. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

In 1996, a jury convicted appellant Juan Carlos Trejo of 

second degree murder and premeditated attempted murder on a 

direct aiding and abetting theory. The jury was not instructed on 

the natural and probable consequences doctrine or the felony 

murder rule. In 2021, Trejo filed a petition for resentencing under 

Penal Code1 section 1170.95 (now § 1172.6)2 in which he argued 

that the jury convicted him of murder and attempted murder 

under an invalid imputed malice theory of liability. The trial 

court summarily denied the petition without addressing Trejo’s 

attempted murder conviction.

Senate Bill No. 775 (2021–2022 Reg. Sess.) (SB 775), which

took effect after the trial court denied Trejo’s petition, amended 

section 1172.6 to permit individuals convicted of murder under a 

theory of imputed malice and of attempted murder under the 

natural and probable consequences doctrine to petition for 

resentencing. On appeal, Trejo contends that SB 775 applies 

retroactively and that the case should be remanded for a new 

hearing on whether a prima facie case for eligibility exists under 

section 1172.6. We agree that SB 775 applies to this appeal but 

conclude that the record of conviction conclusively negates the 

possibility that Trejo was convicted of second degree murder or

attempted murder under a theory of imputed malice. Remand for 

a prima facie hearing on Trejo’s attempted murder conviction 

would therefore be futile. Accordingly, we affirm.

1 All undesignated statutory references are to the Penal Code.

2 Effective June 30, 2022, section 1170.95 was renumbered section 

1172.6, with no change to the text (Stats. 2022, ch. 58, § 10).
3

FACTUAL BACKGROUND

Our summary of the underlying facts is taken from the 

unpublished opinion in People v. Rivera and Trejo (Sept. 24, 

1998, B108281) [nonpub. opn.] (Trejo I).3

Mainor Rivera and Trejo were members of the Mara 

Salvatrucha (M.S.) gang. M.S. and the Langdon Street gang were 

rivals. Both operated in the Sepulveda area of the City of Los 

Angeles near Langdon and Nordhoff. The gangs, which had a 

common “border,” were enemies.

At about 6:30 p.m. on June 25, 1994, Israel Pinedo and 

Albert Aceves, members of the rival Langdon Street gang, were 

with other members of their gang near the gangs’ common border 

on Langdon and Nordhoff. A white car with a black stripe and 

tinted windows slowly approached the group of Langdon Street 

gang members. Pinedo and his friends yelled “Langdon.” Rivera, 

who was a passenger in the car, stuck a gun out of the window 

and fired it three times in rapid succession. Pinedo was hit by one 

of the bullets, which passed completely through his left side.

Aceves was struck by a bullet, fatally shot in the torso. After the 

shots were fired, Pinedo heard Rivera call out “M.S.”

Anita Ruiz and her boyfriend Marcelino Garcia were 

driving westbound on Nordhoff, approaching Langdon when they 

heard gunshots. Garcia saw a passenger in a car pull a gun back 

into that vehicle and a group of males dropping to the ground. 

The gunman was holding the gun in his right hand. Garcia and 

Ruiz followed the white Toyota carrying the shooter onto the 

freeway, pulled up to the car and recorded its license plate 

3 Trejo’s petition for resentencing likewise takes its statement of facts

from Trejo I.
4

number. When the car left the freeway, Ruiz got a look at the 

driver. She described him as having short hair or a shaved head.

The passenger had “shaved hair” and a build similar to that of 

Rivera. Both were Hispanic. Pinedo positively identified Rivera 

as the person who had fired the gun. A photograph seized at 

Rivera’s residence showed him holding a weapon that could have 

fired the bullets that killed Aceves and wounded Pinedo. 

The police tracked down and contacted the registered 

owner of the car used in the shootings, Mario Lopez. Lopez told 

them his wife’s cousin, Trejo, had borrowed the car on the date of 

the shootings and had not returned until after 8:00 p.m. Trejo 

admitted to the police that he had been driving his cousin’s car on 

the evening of the shootings. 

PROCEDURAL BACKGROUND

On September 17, 1996, the Los Angeles County District

Attorney filed an amended information charging Trejo and his 

codefendant Mainor Rivera with one count of murder (§ 187, 

subd. (a)), one count of premeditated attempted murder (§§ 

664/187, subd. (a)), and one count of assault with a firearm 

(§ 245, subd. (a)(2)). The prosecution also alleged an 

enhancement against Trejo for the use of a gun during the 

commission of the offenses, which attached to each charged 

crime.

The jury was not instructed on natural and probable 

consequences or felony murder, but on direct aiding and abetting.

The jury was instructed with CALJIC No. 3.00, which states:

“The persons concerned in the [commission] [or] [attempted 

commission] of a crime who are regarded by law as principals in 

the crime thus [committed] [or] [attempted] and equally guilty 

thereof include: [¶] 1. Those who directly and actively [commit] 
5

[or] [attempt to commit] the act constituting the crime, or [¶] 2. 

Those who aid and abet the [commission] [or] [attempted 

commission] of the crime.” The jury was also read CALJIC 

No. 3.01, which provides in relevant part: “A person aids and 

abets the [commission] [or] [attempted commission] of a crime 

when he or she, [¶] (1) with knowledge of the unlawful purpose of 

the perpetrator and [¶] (2) with the intent or purpose of 

committing, encouraging, or facilitating the commission of the 

crime, by act or advice, promotes, encourages or instigates the 

commission of the crime.”

The jury found Trejo guilty of second degree murder and 

premeditated attempted murder. The jury also found true the 

gun enhancement alleged against Trejo. Trejo was sentenced to 

16 years to life in state prison. This court affirmed the judgment 

in 1998 in Trejo I.

On December 30, 2019, Trejo filed a petition for 

resentencing of his murder conviction. On January 22, 2020, the 

trial court denied the petition. The court stated that the jury had 

not been instructed on murder based on either a felony murder or 

a natural and probable consequences theory of liability and that 

it was “clear” that the murder conviction was based on aiding and 

abetting. The trial court therefore concluded that Trejo had failed 

to establish a prima facie case that entitled him to relief and 

summarily denied his petition.

Trejo appealed from that denial and this court granted 

Trejo’s motion to stay the appeal and for a limited remand to 

allow him to seek relief under former section 1170.95 following 

changes to the law enacted by Senate Bill No. 1437 (2017–2018 
6

Reg. Sess.) (SB 1437).

4 In his second petition for resentencing,

filed March 12, 2021, Trejo sought resentencing of both his 

murder and attempted murder convictions. He acknowledged 

that the jury had not been instructed on natural and probable 

consequences as a theory of liability, but contended that he could 

have been convicted of murder and attempted murder on an 

imputed malice theory.

On September 13, 2021, the trial court summarily denied 

the petition. The trial court observed that Trejo was convicted of, 

among other crimes, second degree murder and that the jury had 

been instructed on direct aiding and abetting and express and 

implied malice, not as to the natural and probable consequences 

doctrine. Nor was the jury given felony murder instructions. The 

court concluded that direct aiding and abetting required the jury 

to find that Trejo shared the specific mental state (i.e., malice) as 

the actual killer, and that, “[b]ased on the record of conviction, 

including the jury instructions given (and instructions not given”,

it was “evident” that a finding of malice or implied malice was the 

basis of conviction. The court did not address Trejo’s attempted 

murder conviction.5

Trejo timely appealed.

4 We ultimately lifted the stay and considered the brief Trejo’s counsel 

originally filed, which asked this court to review the record 

independently under People v. Wende (1979) 25 Cal.3d 436. We 

concluded that no arguable issues existed and dismissed the appeal.

(People v. Trejo (Dec. 7, 2021, B304686) [nonpub. opn.] (Trejo II).)

5 At the time, former section 1170.95 had not yet been amended to 

include attempted murder as a crime for which relief could be sought.

(See People v. Montes (2021) 71 Cal.App.5th 1001, 1006 (Montes).)
7

DISCUSSION

Trejo contends that the court erred in summarily denying 

his petition for resentencing because the instructions given to the 

jury could have permitted it to convict him of second degree 

murder and attempted murder based on a theory of imputed 

malice, and that he is therefore entitled to relief following the 

changes to section 1172.6 enacted by SB 775. The Attorney 

General does not dispute that the current version of section 

1172.6 should be applied, but contends that the absence of felony 

murder or natural and probable consequences instructions is 

determinative and that the trial court’s order should be affirmed 

on that basis alone. The Attorney General argues in the 

alternative that Trejo’s attempted murder conviction negates the 

possibility that implied malice was imputed to him with respect 

to his second degree murder conviction.

The trial court’s denial of Trejo’s petition without issuing 

an order to show cause is a purely legal conclusion, which we 

review de novo. (People v. Murillo (2020) 54 Cal.App.5th 160, 167, 

abrogated on other grounds by People v. Strong (2022) 13 Cal.5th 

698.) We affirm.

1. Changes to the Law of Murder and Attempted Murder 

and Section 1172.6

SB 1437 was enacted to “amend the felony murder rule and 

the natural and probable consequences doctrine, as it relates to 

murder, 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.) SB 775 modified the law to “expand the 
8

authorization to allow a person who was convicted of murder 

under any theory under which malice is imputed to a person 

based solely on that person’s participation in a crime . . . to apply 

to have their sentence vacated and be resentenced,” and to clarify 

“that persons who were convicted of attempted murder or 

manslaughter under a theory of felony murder and the natural 

probable consequences doctrine are permitted the same relief as 

those persons convicted of murder under the same theories.”

(Stats. 2021, ch. 551, § 1.)

Pursuant to section 1172.6, an offender must file a petition 

in the sentencing court averring that: “(1) A complaint, 

information, or indictment was filed against the petitioner that 

allowed the prosecution to proceed under a theory of felony 

murder, murder under the natural and probable consequences 

doctrine or other theory under which malice is imputed to a 

person based solely on that person’s participation in a crime, or 

attempted murder under the natural and probable consequences 

doctrine[;] [¶] (2) The petitioner was convicted of murder, 

attempted murder, or manslaughter following a trial or accepted 

a plea offer in lieu of a trial at which the petitioner could have 

been convicted of murder or attempted murder[;] [¶] [and] (3) 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.” (§ 1172.6, subd. (a)(1)–(3); see also id.,

subd. (b)(1)(A).) Additionally, the petition shall state “[w]hether 

the petitioner requests the appointment of counsel.” (Id., subd. 

(b)(1)(C).)

“Upon receiving a petition in which the information 

required by this subdivision is set forth or a petition where any 

missing information can readily be ascertained by the court, if 
9

the petitioner has requested counsel, the court shall appoint 

counsel to represent the petitioner.” (§ 1172.6, subd. (b)(3).) The 

prosecutor shall file a response within 60 days of the service of 

the petition, and the petitioner may file a reply within 30 days of 

the response. (Id., subd. (c).) When briefing has been completed, 

“the court shall hold a hearing to determine whether the 

petitioner has made a prima facie case for relief.” (Ibid.) “If the 

petitioner makes a prima facie showing that the petitioner is 

entitled to relief, the court shall issue an order to show cause.”

(Ibid.)

In determining whether a petitioner has made a prima 

facie showing of entitlement to relief, the trial court’s inquiry will 

necessarily be informed by the record of conviction, which will 

facilitate the court in distinguishing “petitions with potential 

merit from those that are clearly meritless.” (People v. Lewis

(2021) 11 Cal.5th 952, 971.) This includes the jury instructions, 

which are part of the record of conviction, because the 

instructions “given at a petitioner’s trial may provide ‘readily 

ascertainable facts from the record’ that refute the petitioner’s 

showing, and reliance on them to make the eligibility or 

entitlement determinations may not amount to ‘factfinding 

involving the weighing of evidence or the exercise of discretion,’ ” 

which must wait to occur until after an order to show cause

issues. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, 

disapproved on another ground in Lewis.) The court is prohibited 

from engaging in “ ‘factfinding involving the weighing of the 

evidence or the exercise of discretion.’ ” (Lewis, at p. 972.) Rather, 

the court must “ ‘ “take[ ] [the] petitioner’s factual allegations as 

true” ’ ” and make a “ ‘ “preliminary assessment regarding 

whether the petitioner would be entitled to relief if his or her 
10

factual allegations were proved.” ’ ” (Id. at p. 971) Only where the 

record of conviction contains facts conclusively refuting the 

allegations in the petition may the court make credibility 

determinations adverse to the petitioner. (Ibid.)

2. SB 775 applies to this appeal.

SB 775 did not take effect until after the trial court denied 

Trejo’s petition for resentencing. (See Montes, supra, 71

Cal.App.5th at p. 1006.) Trejo argues that SB 775 applies 

retroactively to cases that were not final when SB 775 took effect.

(See People v. Langi (2022) 73 Cal.App.5th 972, 978, fn. 3 (Langi)

[no dispute that SB 775 applied where the appeal of defendant’s 

petition for resentencing was pending when amendments took 

effect]; People v. Porter (2022) 73 Cal.App.5th 644, 652 [parties 

agreed that SB 775 applied because the order denying the 

petition for resentencing was not final when SB 775 took effect].)

The Attorney General argues that it is unnecessary to decide this 

question, as Trejo could simply file a new petition if the denial of 

his old petition were affirmed under the old law. Thus, for 

reasons of judicial economy, the Attorney General contends that 

we should apply the current version of section 1172.6.

A criminal judgment is not final until the time for 

petitioning for a writ of certiorari in the United States Supreme 

Court has passed. (See People v. Porter, supra, 73 Cal.App.5th at 

p. 652, citing People v. Vieira (2005) 35 Cal.4th 264, 305–306 and 

People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.) Because the

order denying the petition for resentencing was not final when 

SB 775 took effect, we will apply section 1172.6 as amended by 

SB 775 in this appeal. (See Porter, at p. 652; accord, People v. 

Basler (2022) 80 Cal.App.5th 46, 56.)
11

3. The absence of felony murder or natural and probable 

consequences instructions is not determinative.

The Attorney General asserts that if the record of 

conviction indicates that a jury was not instructed on either the 

natural and probable consequences doctrine or on the felony 

murder doctrine, a petition must be denied without issuance of 

an order to show cause, citing People v. Daniel (2020) 57 

Cal.App.5th 666, 677. However, Daniel was decided before the 

enactment of SB 775 and relied on the language of former section 

1170.95, which provided relief only to those convicted of felony 

murder or murder under a natural and probable consequences 

theory. (Daniel, at p. 677.) Section 1172.6 now provides relief to 

those prosecuted for murder under “other theor[ies] under which 

malice is imputed to a person based solely on that person’s 

participation in a crime,” as well as those prosecuted under the 

felony murder doctrine and natural and probable consequences 

doctrine. (§ 1172.6, subd. (a)(1).)

Trejo cites Langi, supra, 73 Cal.App.5th 972, for the 

proposition that a defendant is entitled to relief under section 

1172.6 where instructions provided to the jury permitted it to 

convict the defendant under a theory of imputed malice. Langi 

was part of a group of four who punched, kicked and robbed the 

victim. During the attack, the victim fell, striking his head, which 

led to his death. (Langi, at p. 975.) The jury was instructed using 

the standard CALJIC instructions on first degree felony murder, 

implied malice, and direct aiding and abetting, but not on the 

natural and probable consequences theory. (Id. at p. 981.) The 

jury acquitted Langi of first degree felony murder but convicted 

him of second degree murder, robbery and battery. (Id. at p. 977.)

Langi filed a petition for resentencing, which was summarily 
12

denied. (Ibid.) During the pendency of the appeal, SB 775 was 

passed.

The Langi court reversed and ordered an evidentiary 

hearing on the merits of the section 1172.6 petition. (Langi, 

supra, 73 Cal.App.5th at p. 976.) Even without explicit 

instruction on the natural and probable consequences theory, the 

court found that the record of conviction did not conclusively 

exclude the possibility that Langi was convicted under SB 775’s 

newly added imputed malice theory. (Langi, at p. 976.) The court 

recognized the CALJIC instructions for aiding and abetting an

implied malice murder did not adequately explain the mens rea 

required for implied malice murder liability. “Although the 

definition of second degree murder in CALJIC No. 8.31 states 

that the perpetrator must have acted with conscious disregard for 

human life, the definition of an aider and abettor in CALJIC No. 

3.01 does not include the same requirement.”6 (Id. at p. 983.)

The court in Langi concluded that this instructional 

imprecision allowed the jury to find Langi “guilty of aiding and 

abetting second degree murder” by imputing malice based solely 

on Langi’s participation in a crime, “without finding that he 

personally acted with malice.” (Langi, supra, 73 Cal.App.5th at p.

982.) The court explained that “[t]he aiding-and-abetting 

instruction stated that a person aids and abets a crime if he or 

6 CALJIC No. 8.31 states that a killing is a second degree murder if: “1. 

The killing resulted from an intentional act, [¶] 2. The natural 

consequences of the act are dangerous to human life, and [¶] 3. The act 

was deliberately performed with knowledge of the danger to, and with 

conscious disregard for, human life. [¶] When the killing is the direct 

result of such an act, it is not necessary to prove that the defendant 

intended that the act would result in the death of a human being.” 
13

she acts ‘with knowledge of the unlawful purpose of the 

perpetrator, and . . . with the intent or purpose of committing or 

encouraging or facilitating the commission of the crime.’

[Citation.] However, . . . the second-degree-murder instruction 

specified that the direct perpetrator of that crime need not act 

with the unlawful intent of causing death. Thus, while the 

perpetrator must have deliberately performed the fatal act ‘with 

knowledge of the danger to, and with conscious disregard for, 

human life’ [citation], his purpose may have been only to strike or 

to injure, or conceivably only to embarrass, the victim. Since the 

perpetrator’s purpose need not have been to kill the victim, the 

aider and abettor’s knowledge of that purpose similarly need not 

have been knowledge that the perpetrator aimed to kill. If the 

perpetrator need not have had ‘murderous intent,’ certainly the 

aider and abettor need not have had such an intent.” (Id. at 

pp. 982–983.)

The court in Langi concluded that such a record of 

conviction does not support summarily denying a section 1172.6 

petition at the prima facie stage. “Because the record of 

conviction does not conclusively negate the possibility that the 

jury found appellant guilty of second degree murder by imputing 

to him the implied malice of the actual killer, without finding 

that he personally acted” with implied malice, that is “ ‘with 

knowledge of the danger to, and with conscious disregard for, 

human life’ [citation], an evidentiary hearing [was] required.” 

(Langi, supra, 73 Cal.App.5th at p. 984.)

In light of Langi, we will consider whether the record of 

conviction conclusively negates the possibility that the jury found 

Trejo guilty of second degree murder by imputing to him the 

malice of his codefendant, rather than affirm on the ground that 
14

the jury was not instructed on felony murder or the natural and 

probable consequences doctrines.

4. Trejo failed as a matter of law to establish a prima 

facie case for resentencing with respect to his second 

degree murder conviction.

Relying on Langi, supra, 73 Cal.App.5th 972, Trejo

contends that the record does not conclusively establish that he 

personally acted with implied or express malice, as required to 

convict him of second degree murder. As in Langi, the jury here 

was instructed on the definition of principals and of aiding and 

abetting with CALJIC Nos. 3.00 and 3.01, respectively. (Langi, at 

p. 981 & fn. 8.) Although the jury in Trejo’s case was instructed 

on second degree murder with CALJIC Nos. 8.11 and 8.30, as 

opposed to CALJIC No. 8.31 (Langi, at p. 981), Trejo argues that 

the result is the same. CALJIC No. 8.11 states the definitions of 

express and implied malice and does not require that the jury 

find that all defendants harbored malice,7 and CALJIC No. 8.30 

requires a finding that the perpetrator harbored malice.8 Trejo 

7 CALJIC No. 8.11 states, in relevant part:“ ‘Malice’ may be either 

express or implied. [¶] [Malice is express when there is manifested an 

intention unlawfully to kill a human being.] [¶] [Malice is implied 

when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The 

natural consequences of the act are dangerous to human life, and [¶] 3. 

The act was deliberately performed with knowledge of the danger to, 

and with conscious disregard for, human life.”

8 CALJIC No. 8.30 states: “Murder of the second degree is the unlawful 

killing of a human being with malice aforethought when there is 

manifested an intention unlawfully to kill a human being but the 

evidence is insufficient to establish deliberation and premeditation or 

drive-by murder.”
15

therefore contends that the jury could have convicted him if his 

codefendant harbored malice, so long as jurors believed there was 

sufficient proof that Trejo aided and abetted the codefendant’s 

act. The Attorney General does not appear to dispute that, as in

Langi, the instructions provided to the jury could have allowed 

the jury to convict Trejo of second degree murder without making 

an express finding that he personally acted with implied malice.

However, the Attorney General argues that the jury was required 

to determine that Trejo personally acted with express malice to 

convict him of attempted murder. Because the same conduct 

resulted in both the attempted murder and second degree murder 

convictions, the Attorney General contends that the jury 

necessarily determined that Trejo committed second degree 

murder with express rather than implied malice.

People v. Coley (2022) 77 Cal.App.5th 539 (Coley) supports

the Attorney General’s position. The defendant in Coley, like 

Trejo, was convicted of second degree murder and attempted 

murder and appealed the denial of his petition for resentencing 

under section 1172.6. (Coley, at pp. 541–542.) The trial court 

concluded that the record of conviction showed the jury had found 

express malice, i.e., a specific intent to unlawfully kill, when it 

convicted appellant of attempted murder, and therefore denied 

the petition. (Id. at p. 545.) The Court of Appeal affirmed, 

concluding that the “appellant’s conviction for attempted murder 

demonstrates that he was convicted of second-degree murder 

with express rather than implied malice” and that “Langi does 

not apply because that case involves implied malice.” (Id. at p. 

547.) The court explained that “appellant was convicted of 

murder based on his aiding and abetting of the same shooting 

that gave rise to the attempted murder conviction” and that 
16

“[t]he jury was instructed by CALCRIM No. 600 that attempted 

murder requires a determination that ‘the defendants intended to 

kill that person.’ ” (Ibid.) “[B]y finding appellant guilty of 

attempted murder, the jury necessarily found he had personally 

harbored intent to kill or express malice when he aided and 

abetted the second-degree murder.” (Ibid.)

The statement of facts in Trejo’s petition provides that his 

codefendant stuck a gun out of the window of the car and “fired 

three times in rapid succession,” injuring Pinedo and killing 

Aceves. We are required to take these factual allegations as true.

(Lewis, supra, 11 Cal.5th at p. 971.) Thus, as in Coley, supra, 77 

Cal.App.5th 539, the record establishes that Trejo’s second degree 

murder and attempted murder convictions arose out of the same 

shooting. We agree with the court in Coley that a conviction for 

attempted murder demonstrates that a second degree murder 

conviction arising out of the same conduct is based on express 

rather than implied malice, so long as jury instructions required 

a determination that each defendant personally harbored express 

malice.

Trejo contends that Coley, supra, 77 Cal.App.5th 539 

“hinged entirely on the fact that his jury was instructed with 

CALCRIM No. 600,” which required a determination that all

defendants acted with express malice. Here, the attempted 

murder instruction, CALJIC No. 8.66, required that the jury find 

that a “direct but ineffectual act was done by one person towards 

killing another human being” and that “[t]he person committing 

the act harbored express malice aforethought, namely, a specific 

intent to kill unlawfully another human being.” The 

premeditated attempted murder instruction required that the 

jury find “that the attempt to commit murder was preceded and 
17

accompanied by a clear, deliberate intent to kill, which was the 

result of deliberation and premeditation.” Trejo therefore argues 

that CALJIC Nos. 8.66 and 8.67, together with CALJIC No. 3.00, 

could have led a juror to conclude: (1) Trejo’s codefendant 

“harbored express malice aforethought, namely, a specific intent 

to kill unlawfully another human being”; (2) the codefendant 

premeditated the shooting; and (3) Trejo is “equally guilty” of any 

crimes committed by his codefendant.

We disagree. Although CALJIC No. 3.00’s use of “equally 

guilty” has the potential to be misleading,9 the jury in this case 

was instructed to “[c]onsider the instructions as a whole and each 

in light of all the others.” The possibility that the jury may have 

imputed express malice to Trejo based on the “equally guilty” 

language is foreclosed by CALJIC No. 3.01, which required the 

jury to conclude that Trejo acted “with knowledge of the unlawful 

purpose of the perpetrator, and . . . with the intent or purpose of 

committing, encouraging, or facilitating the commission of the 

crime.” (CALJIC No. 3.01, italics added.) Because CALJIC No. 

8.66 required a determination that the perpetrator acted with 

express malice, or an intent to kill, Trejo’s conviction of 

attempted murder as a direct aider and abettor demonstrates 

that the jury concluded that Trejo had knowledge of the direct 

perpetrator’s intent to kill and that Trejo aided in the commission 

9 See People v. Nero (2010) 181 Cal.App.4th 504, 516 [the “equally 

guilty” language in CALJIC No. 3.00 is inconsistent with “the notion 

that an aider and abettor’s mens rea ‘floats free’ ” and thus “can be 

misleading”]; accord, People v. Amezcua and Flores (2019) 6 Cal.5th 

886, 918 [“former CALJIC No. 3.00 ‘could be misleading if the 

principals in a particular case might be guilty of different crimes and 

the jury interprets the instruction to preclude such a finding’ ”].
18

of the crime with the purpose of killing. In other words, the jury 

necessarily determined that Trejo himself harbored express 

malice.10 The circumstances here are therefore distinguishable 

from those present in Langi, where the only conviction at issue 

was second degree murder, which does not require an intent to 

kill by the direct perpetrator and thus does not require that the 

aider and abettor knew of or shared any intent to kill. (Langi, 

supra, 73 Cal.App.5th at p. 982.)

Our conclusion is also supported by our high court’s 

decision in People v. Johnson (2016) 62 Cal.4th 600. Although 

Johnson did not concern a petition for resentencing, the 

defendant in the case was convicted of first degree murder and 

argued that “instructing with former CALCRIM No. 400 violated 

his right to due process because the instruction misdescribed the 

prosecution’s burden of proving his liability as an aider and 

abettor and permitted the jury to convict him of first degree 

murder based on the culpability of the perpetrator . . . without 

considering his own mental state.” (Id. at p. 638.) Similar to 

10 Trejo argues that the Attorney General’s concession that the 

premeditation allegation did not require the jury to find that appellant 

personally premeditated the crime “establishes that the jury 

understood that they could impute a mental state from the actual 

killer to appellant, regardless of appellant’s actual intent.” We 

disagree. Whether a crime was committed with express malice is a 

separate consideration from whether it was premeditated. (See People 

v. Smith (2005) 37 Cal.4th 733, 739–740 [attempted murder requires 

specific intent to kill, and the prosecution may seek an additional

finding of premeditation “for purposes of sentence enhancement”].)

Section 1172.6 provides relief only where a defendant has been 

convicted under a theory of imputed malice, not imputed 

premeditation. (§ 1172.6, subd. (a).)
19

CALJIC No. 3.00, former CALCRIM No. 400 stated that “ ‘[a]

person is equally guilty of the crime whether he committed it 

personally or aided and abetted the perpetrator who committed 

it.’ ” (Johnson, at p. 638, italics added.) The jury in Johnson was 

also instructed with CALCRIM No. 401 which, like CALJIC No. 

3.01, stated “that for [the jury] to find defendant guilty of murder 

as an aider and abettor the prosecution must prove that 

defendant knew [his codefendant] intended to kill [the victim], 

that he intended to aid and abet [his codefendant] in committing 

the killing, and that he did in fact aid him in that killing . . . .’ ”

(Johnson, at p. 641.) The Supreme Court concluded that

CALCRIM No. 401 “would have cleared up any ambiguity 

arguably presented by former CALCRIM No. 400’s reference to 

principals being ‘equally guilty’ ” and thus “there was no 

reasonable likelihood the jurors would have understood the 

‘equally guilty’ language . . . to allow them to base defendant’s 

liability for first degree murder from the mental state of the 

actual shooter, rather than on defendant’s own mental state in 

aiding and abetting the killing.” (Johnson, at p. 641.)11

The trial court’s denial of Trejo’s section 1172.6 petition for 

resentencing without issuing an order to show cause was 

therefore appropriate.

11 Trejo contends that the prosecutor misleadingly emphasized CALJIC 

No. 3.00 by arguing that the “aider and abettor . . . is just as liable as 

the person who actually pulled the trigger.” However, as the Attorney 

General points out, this argument was made with respect to the gun 

enhancement. With respect to malice, the prosecutor argued that the 

evidence demonstrated that Trejo personally acted with an intent to 

kill.
20

5. Remand for a prima facie hearing on the attempted 

murder conviction would be futile.

Section 1172.6, subdivision (a) provides that persons

“convicted of . . . attempted murder under the natural and 

probable consequences doctrine” may petition for resentencing.

Because the statute only references the natural and probable 

consequences doctrine, the Attorney General contends that an 

individual convicted of attempted murder under other theories of 

imputed malice is not entitled to relief under section 1172.6 and 

that Trejo’s appeal as to his attempted murder conviction is 

therefore meritless. In contrast, Trejo argues that the Legislature 

intended SB 775 to remedy “an absurd and unfair situation 

where people are eligible for resentencing if the victim died, but 

are ineligible if the victim did not die” (Assem. Com. on Public 

Safety, Rep. on Sen. Bill No. 775 (2021–2022 Reg. Sess.) July 13, 

2021, p. 3) by extending to persons convicted of attempted 

murder “the same relief as those persons convicted of murder 

under the same theories.” (Sen. Rules Com., Off. of Sen. Floor 

Analyses, Unfinished Business Analysis of Sen. Bill No. 775

(2021–2022 Reg. Sess.) Sept. 10, 2021, p. 1.) He asserts that it 

would be both illogical and a violation of the Equal Protection 

Clause if the Legislature addressed an unfair disparity between 

those convicted of murder and attempted murder by introducing 

a new disparity permitting only those convicted of murder under 

other theories of imputed malice to obtain relief.

We decline to address Trejo’s contentions, as he would not 

be entitled to relief under section 1172.6 even if they had any 

merit. The jury in this case was not instructed on the natural and 

probable consequences doctrine and the record of conviction 

negates the possibility that he was convicted of attempted 
21

murder based on a theory of imputed malice. Put differently, 

because the crime of attempted murder requires a specific intent 

to kill and the jury was so instructed, the jury necessarily found 

that Trejo himself harbored express malice. (See People v.

Guerra (1985) 40 Cal.3d 377, 386 [the crime of attempted murder 

requires a specific intent to kill, a mental state coincident with 

express malice].) Although Trejo urges us to remand for a new 

prima facie hearing because the trial court did not address 

attempted murder in its original order, remand would be futile

here.
22

DISPOSITION

The order is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.