Filed 5/25/21 P. v. Rangel CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MYRA RANGEL

Defendant and Appellant.

 B302169

 (Los Angeles County

 Super. Ct. No. PA070627)

APPEAL from an order of the Superior Court of 

Los Angeles County, Hilleri G. Merritt, Judge. Affirmed.

John Steinberg, 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, Charles S. Lee, Deputy Attorney General, for 

Plaintiff and Respondent.
2

Appellant Myra Rangel was convicted of attempted murder 

and conspiracy to commit murder in 2013. Effective January 1, 

2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) 

amended the felony murder rule; eliminated the natural and 

probable consequences doctrine as it relates to murder; and 

enacted Penal Code section 1170.95,1 under which a person

convicted of murder under the felony murder rule or natural and 

probable consequences doctrine may petition the sentencing court 

to vacate the conviction and resentence on any remaining counts. 

Appellant filed a petition for resentencing under section 1170.95

in March 2019. After appointing counsel for appellant, receiving 

briefing, and hearing argument, the trial court denied the 

petition on the ground that appellant’s convictions were outside 

the scope of section 1170.95. 

Appellant contends that her convictions are within the 

scope of section 1170.95 because SB 1437 abrogated the natural 

and probable consequences doctrine as it applies to attempted 

murder and conspiracy to commit murder, and her convictions 

may have been based on that now-invalid doctrine. We disagree 

and affirm. 

1All further statutory references are to the Penal Code 

unless otherwise indicated.
3

BACKGROUND

I. Underlying Convictions2

Appellant and three codefendants, Horacio Gonzalez, 

Cristian A. Adame, and Samantha Rodriguez, were charged in a 

17-count information with conspiracy to commit murder (§§ 182, 

subd. (a)(1) & 187, subd. (a)), two counts of attempted 

premeditated murder (§§ 187, subd. (a) & 664), and shooting at 

an occupied vehicle (§ 246). (People v. Gonzalez, supra, 2015 Cal. 

App. Unpub. LEXIS at p. *3.) The information alleged that these

offenses, all of which occurred on or between March 15 and 16, 

2010, were committed for the benefit of or in association with a 

criminal street gang (§ 186, subds. (b)(1)(C) & (b)(4)), and that a 

principal personally and intentionally discharged a firearm and 

caused great bodily injury during their commission (§ 12022.53, 

subds. (d) & (e)(1)).3 (Ibid.) 

All four codefendants were tried jointly by a single jury. 

(People v. Gonzalez, supra, 2015 Cal. App. Unpub. LEXIS at p. 

2We granted appellant’s request to take judicial notice of 

the case file in her direct appeal, People v. Gonzalez, No. 

B249598, which includes our prior opinion, People v. Gonzalez

(Oct. 26, 2015, B249598) 2015 Cal. App. Unpub. LEXIS 7643

[nonpub. opn.]. The facts and procedural background, which are 

not disputed, are largely drawn from the prior opinion.

3The remaining 13 counts of the information charged 

Gonzalez and Adame with murder (§ 187, subd. (a)), attempted 

premeditated murder (§§ 187, subd. (a) & 664), assault with a 

semiautomatic firearm (§ 245, subd. (b)), and street terrorism 

(§ 186.22, subd. (a)), along with similar gang and firearm 

enhancements. (§§ 186.22, subds. (b)(1)(C) & (b)(4), 12022.5, 

12022.53, subd. (d), 12022.7, subd. (a)). (Id. at p. *4.) The two 

incidents giving rise to these charges occurred on or about March 

23 and 24, 2010. (Ibid.) 
4

*4.) As relevant here, the jury heard evidence that Gonzalez and 

Adame belonged to and appellant and Rodriguez associated with 

street gangs in Pacoima. On the night of March 15, 2010, victim 

Sergio Abrego, who belonged to a rival gang and had insulted 

appellant in the past, called appellant’s roommate’s cellphone. 

Another female gang associate, Alexis Garcia, answered the 

phone and arranged to meet Abrego at a nearby intersection. 

Appellant, codefendants, and Garcia then drove to the 

intersection in two separate vehicles; Gonzalez and Adame were 

in one car, and appellant and the others were in the second.

During the drive, Garcia heard appellant using a cellphone and

asking questions such as, “Are you coming?” Appellant also 

directed Rodriguez to make calls on the cellphone; Rodriguez, too, 

made statements like, “they were on their way.” (See id. at pp. 6-

9.) 

When the group was near the appointed intersection, 

appellant directed Rodriguez and Garcia to get out of the car. 

Rodriguez still had the cell phone, and Garcia heard her asking, 

“Are you here yet?” A van with two people inside drove by, and 

Garcia heard Rodriguez say, “That’s them.” Garcia and victim 

Abrego, who was the passenger in the van, testified that they saw 

codefendant Adame’s car drive by and fire numerous shots at the 

van. Abrego was shot in both legs but survived the attack; the 

driver of the van was not hit. After the shooting, the second car 

returned to the area and picked up Garcia and Rodriguez. 

Appellant laughed and asked Rodriguez “if they got him.” (See 

People v. Gonzalez, supra, 2015 Cal. App. Unpub. LEXIS at pp. 

*9-*11.) 

The jury found appellant and codefendants guilty of the 

charged crimes and found the gang and firearm enhancements 
5

true. (People v. Gonzalez, supra, 2015 Cal. App. Unpub. LEXIS 

at p. *5.) The court sentenced appellant to 25 years to life on the 

conspiracy to commit murder count, plus a consecutive term of 25 

years to life for the firearm enhancement; and a consecutive life 

term on one of the attempted murder counts, plus a consecutive 

term of 25 years to life for the firearm enhancement. (Id. at pp. 

*169-*170.) The court imposed and stayed sentences on the other 

counts pursuant to section 654. (Ibid.) 

On direct appeal, appellant argued that her convictions 

should be reversed because her counsel rendered ineffective 

assistance by failing to seek severance of her case and because 

the trial court failed to instruct on the defense of duress. (People 

v. Gonzalez, supra, 2015 Cal. App. Unpub. LEXIS at pp. *150-

*157 [duress instruction], *158-*169 [ineffective assistance].) She 

also contended that her overall sentence constituted cruel and 

unusual punishment, and that the firearm enhancements in 

particular violated her equal protection and due process rights. 

(Id. at pp. *169-*175 [cruel and unusual punishment], *176-*179 

[enhancements].) We rejected her arguments and affirmed her 

convictions and sentence. (Id. at p. *2.) 

Appellant filed a petition for review in the California 

Supreme Court. The Court denied the petition on February 17, 

2016. 

II. Section 1170.95 Petition 

Appellant filed a petition for resentencing pursuant to

section 1170.95 on March 12, 2019. She asserted that she had 

been convicted of first or second degree murder pursuant to the 

felony murder rule or natural and probable consequences 

doctrine, and that she could not now be convicted of first or 

second degree murder because of the changes SB 1437 made to
6

sections 188 and 189 of the Penal Code. Appellant requested the 

appointment of counsel. 

Appellant attached to her petition a declaration from the 

attorney who represented her on direct appeal, who is also her 

counsel in the instant appeal. Counsel asserted that appellant 

was eligible for relief because the prosecution relied on the 

natural and probable consequences doctrine to convict appellant 

of attempted murder and conspiracy to commit murder. 

The court appointed a different attorney to represent 

appellant in the section 1170.95 proceedings. The prosecution 

subsequently filed a written opposition to appellant’s petition. 

The prosecution argued that appellant was ineligible for relief 

under section 1170.95 because she was not convicted of murder. 

It further argued that her convictions required the jury to find 

that she acted with the specific intent to kill and were not based 

on either the felony murder theory or natural and probable 

consequences doctrine.

4 Appellant did not file a reply in support 

of her petition. 

The court called the matter for hearing on September 20, 

2019. Both sides submitted on the written record. The court 

denied the petition, finding that appellant “does not fall within 

the parameters of 1437.” 

Appellant timely appealed. 

DISCUSSION 

Appellant contends that SB 1437 eliminated the natural 

and probable consequences doctrine for murder, and therefore 

“logically” did so for attempted murder as well. She further 

4The prosecution also argued that SB 1437 and section 

1170.95 were unconstitutional. The Attorney General now 

concedes that SB 1437 and section 1170.95 are constitutional. 
7

contends that SB 1437 requires vacation of her conviction for 

conspiracy to commit murder, because the jury could have 

applied the natural and probable consequences doctrine and was 

not required to find she acted with the intent to kill. We review 

de novo the trial court’s interpretation and application of the 

statutes enacted pursuant to SB 1437. (People v. Duchine (2021) 

60 Cal.App.5th 798, 811.)

The Legislature enacted SB 1437 “to amend the felonymurder 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, subd. (f), emphasis added.) SB 

1437 amended section 188 to require a principal in a crime to act 

with malice aforethought to be convicted of murder, and to 

prohibit the imputation of malice to a person based solely on his 

or her participation in a crime. (§ 188, subd. (a)(3), emphasis 

added.) It similarly amended section 189 to provide that a 

participant “in the perpetration or attempted perpetration of a 

felony listed in subdivision (a) in which a death occurs is liable

for murder only if” he or she “was the actual killer”; “with the 

intent to kill, aided, abetted, counseled, commanded, induced, 

solicited, requested, or assisted the actual killer in murder of the 

first degree”: or “was a major participant in the underlying felony 

and acted with reckless indifference to human life.” (§ 189, subd. 

(e), emphasis added.) All of these statutory changes refer 

explicitly and exclusively to murder.

SB 1437 also added section 1170.95, which allows persons 

“convicted of felony murder or murder under a natural and 
8

probable consequences theory” to petition the sentencing court to 

vacate their “murder conviction” under certain conditions. (Id., 

subd. (a).) It likewise provides that, if certain criteria are met, 

“the court shall hold a hearing to determine whether to vacate 

the murder conviction,” and that the parties may waive such a 

hearing by stipulating that the petitioner “is eligible to have his 

or her murder conviction vacated and for resentencing.” (Id., 

subds. (d)(1), (d)(2).) By its plain language, our starting point for 

statutory interpretation, section 1170.95 applies only to murder 

convictions and provides no relief from convictions for other 

offenses. (See People v. Gonzales (2018) 6 Cal.5th 44, 50.) 

As appellant recognizes, many courts have come to this 

conclusion with respect to attempted murder. (See, e.g., People v. 

Lopez (2019) 38 Cal.App.5th 1087, 1103-1110, review granted 

Nov. 13, 2019, S258175; People v. Munoz (2019) 39 Cal.App.5th 

738, 753-760, review granted Nov. 26, 2019, S258234; People v. 

Love (2020) 55 Cal.App.5th 273, 279, review granted Dec. 16, 

2020, S265445.) We agree with the analyses of these wellreasoned cases.

Appellant urges us to follow three cases holding that SB 

1437’s amendments to section 188 necessarily abrogated the 

natural and probable consequences doctrine as it applies to 

attempted murder, People v. Larios (2019) 42 Cal.App.5th 956, 

review granted Feb. 26, 2020, S259983 (Larios), People v. 

Medrano (2019) 42 Cal.App.5th 1001, review granted Mar. 11, 

2020, S259948 (Medrano), and People v. Sanchez (2020) 46 

Cal.App.5th 637, review granted June 10, 2020, S261768 

(Sanchez). Yet even these cases are of no aid to appellant. 

Larios, supra, 42 Cal.App.4th at pp. 969-970 holds that although 

SB 1437 bars the use of the natural and probable consequences 
9

doctrine to obtain an attempted murder conviction going forward, 

“the relief provided in section 1170.95 is limited to certain 

murder convictions and excludes all other convictions, including a 

conviction for attempted murder.” Medrano, supra, 42 

Cal.App.5th at pp. 1017-1018, reaches the identical conclusion. It 

further holds that defendants whose convictions “were not yet 

final when these amendatory statutes lessening punishment took 

effect” may obtain relief on direct appeal. (Id. at p. 1019.) 

Sanchez, supra, 46 Cal.App.5th at pp. 642-644 similarly holds 

that “SB 1437 abrogates the natural and probable consequences 

doctrine in attempted murder prosecutions. This conclusion 

applies retroactively on direct appeal.” Appellant’s direct appeal 

concluded years ago; despite her assertion to the contrary, her 

convictions have long been final. (See People v. Vieira (2005) 35 

Cal.4th 264, 306 [judgment is final when the time for petitioning 

for a writ of certiorari in the United States Supreme Court has 

passed]; Rules of the United States Supreme Court, Rule 13(1) 

[“A petition for a writ of certiorari seeking review of a judgment 

of a lower state court of last resort is timely when it is filed with 

the Clerk within 90 days after entry of the order denying 

discretionary review.”].) Her attempted murder conviction 

cannot be vacated under section 1170.95.

Nor can her conviction for conspiracy to commit murder. 

The parties agree that a conviction for conspiracy to commit 

murder requires proof that the defendant had the intent to kill 

and cannot be based on a theory of implied malice. (People v. 

Swain (1996) 12 Cal.4th 593, 607.) Indeed, we held in appellant’s 

direct appeal—in response to an argument made by codefendant 

Rodriguez, not appellant—that the trial court had erred by 

including “conspiracy to commit murder within the ambit of the 
10

natural and probable consequences doctrine.” (People v. 

Gonzalez, supra, 2015 Cal. App. Unpub. LEXIS 7643, at p. *149.) 

We also held, however, that the error “was cured by court’s 

proper instruction that the conspiracy count required the People 

to prove defendants agreed and intended to ‘intentionally and 

unlawfully kill’ and ‘had an agreement and intent to commit 

murder.’ Additionally, the People repeatedly invited the jury to 

acquit Rodriguez and Rangel on the conspiracy count if it applied 

the natural and probable consequences doctrine. The jury’s 

guilty verdict on the conspiracy count—and its findings that the 

attempted murders were willful and premeditated and not simply 

an escalated consequence of a target offense—indicates that it 

rejected the natural and probable consequences theory in favor of 

the People’s lead theory of aiding and abetting.” (Ibid., emphasis 

added.) We thus expressly held that appellant’s conviction for 

conspiracy to commit murder rested upon an aiding and abetting 

theory, not the impermissible natural and probable consequences 

theory. 

Even if the statutory changes effected by SB 1437 applied 

to offenses other than murder, our prior holding that appellant 

was convicted as a direct aider and abettor forecloses relief under 

section 1170.95. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 

1138-1139, review granted Mar. 18, 2020, S260598.) Our 

determination that appellant was convicted under an aiding and 

abetting theory refutes her conclusory assertions that the 

prosecutor argued, and the jury may have relied upon, the 

natural and probable consequences doctrine to convict her of 

conspiracy to commit murder. While the trial court must assume 

all facts in a section 1170.95 petition are true and should not 

evaluate their credibility, “it need not credit factual assertions 
11

that are untrue as a matter of law.” (People v. Drayton (2020), 47 

Cal.App.5th 965, 980.)

DISPOSITION

The order is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.