Filed 12/29/20 P. v. Gonzales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

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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.

ROBERT GONZALES,

Defendant and Appellant.

 B301485

 (Los Angeles County

 Super. Ct. No. PA042487)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David W. Stuart, Judge. Affirmed.

Edward J. Haggerty, 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 and Charles J. Sarosy, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Appellant Robert Gonzales challenges the denial of his 

petition for resentencing under Penal Code section 1170.951 after 

briefing and a hearing at which he was represented by counsel. 

He contends the trial court erred by relying on the appellate 

opinion from his direct appeal. He further contends the record 

before the trial court contained insufficient evidence to sustain its 

findings that appellant was a direct aider and abettor who acted 

with intent to kill or that he was a major participant who acted 

with reckless indifference to human life. We affirm. The trial 

court appropriately relied on our prior opinion, which expressly 

held there was sufficient evidence to support appellant’s murder 

conviction as an aider and abettor.

FACTUAL BACKGROUND2

On September 29, 2002, appellant attended a party in the 

backyard of a house in Pacoima. Joe Gonzalez (Gonzalez), Victor 

Zapata, and brothers Jamul Thomas and Teevaughn Thomas 

were also in attendance.3

Around midnight, Zapata and Jamul went to the side yard, 

where two groups of men were arguing. Appellant was there, and 

1All further statutory references are to the Penal Code 

unless otherwise indicated. 

2Our factual narrative is drawn from our opinion in the 

prior appeal in this matter, People v. Gonzales (Feb. 27, 2007, 

B188161) [nonpub. opn.]. We note that appellant relied on the 

same opinion in his opening brief, although he stated that he did 

so “without conceding that it is necessarily complete” or 

“agree[ing] that the following facts are the only facts that might 

have been relevant to whether he is entitled to relief under 

section 1170.95.” 

3We refer to the Thomas brothers by their first names to 

avoid confusion. 
3

Zapata saw him pull out a shotgun and cock it. Zapata and 

Jamul ran from the party, but returned to find Teevaughn. 

Zapata and Jamul waited for Teevaughn in the street in 

front of the house. While they were waiting, an SUV pulled up. 

Zapata and Jamul talked with the occupants of the SUV. Zapata 

then heard arguing behind him. He turned and saw Jamul 

arguing with Gonzalez; the men were cursing at each other. 

Zapata saw appellant standing 10 to 12 feet behind Gonzalez at 

an angle, with his shotgun out. After he saw appellant, Zapata 

pulled Jamul toward the middle of the street. 

As Zapata pulled Jamul away, Gonzalez drew a handgun 

and repeatedly pointed it at Jamul’s head. Jamul batted the gun 

away several times and told Gonzalez to put the gun down and 

fight like a man. Gonzalez asked Jamul if he was afraid to die 

and demanded the chain Jamul wore around his neck. Jamul 

removed the chain and held it out. Gonzalez grabbed the chain. 

He then shot Jamul in the chest. 

Zapata reached toward Jamul, and Gonzalez pointed the 

gun at him and demanded his chain as well. As Zapata was 

taking off his chain, Gonzalez shot at him and missed. Appellant 

remained in the same general area throughout the entirety of the 

incident, angled behind Gonzalez, with his shotgun out. 

When Zapata realized he had not been hit, he ran down the 

sidewalk. Gonzalez fired at him several more times. A group of 

men standing behind appellant yelled “Astoria, Astoria” as 

Zapata ran away.4 Zapata also heard bullets flying past his head 

as he ran. Teevaughn, who was running behind him, shouted 

4A gang expert testified that Astoria Gardens Locos was a 

gang, and that appellant had tattoos demonstrating allegiance 

with the Astoria Gardens Locos. 
4

that he too had been hit. Both Zapata and Teevaughn made it to 

the car. Jamul died of a single gunshot wound. 

Police recovered three .22 caliber casings and one shotgun 

shell from the area of the shooting. The shotgun shell had been 

fired from a shotgun later recovered from appellant’s apartment. 

PROCEDURAL HISTORY

I. Trial 

Appellant and Gonzalez were jointly charged with murder 

in the commission of a robbery (§§ 187, subd. (a), 190.2, subd. 

(a)(17)) and attempted murder with premeditation and 

deliberation (§§ 664, 187, subd. (a)). The information also 

included firearm (§ 12022.53, subds. (b)-(e)) and gang (§ 186.22,

subd. (b)(1)) allegations, and a felon in possession charge against 

appellant (former § 12021, subd. (a)(1)). 

Appellant and Gonzalez were tried jointly. The jury found 

Gonzalez guilty of second degree murder and attempted murder, 

but rejected the gang and firearm allegations. The jury found 

appellant guilty of the felon in possession charge. It was unable 

to reach a verdict on the murder and attempted murder charges 

and related allegations. 

The prosecution subsequently filed an amended 

information against appellant, adding an additional count of 

robbery (§ 211) to the counts and allegations mistried during the 

first trial. A second jury found appellant guilty of first degree 

murder with a robbery special circumstance, attempted murder, 

and robbery. It also found true the firearm and gang 

enhancements. The trial court sentenced appellant to life 

without the possibility of parole for the special circumstances 

murder conviction, plus 25 years to life for the firearm 

enhancement on that count. Appellant also received a life term 
5

for the attempted murder. The court imposed concurrent 

sentences for the robbery and felon in possession convictions, and 

stayed the gang enhancement. 

II. Direct Appeal 

On direct appeal, appellant challenged his convictions on 

numerous grounds. Most relevant here, he argued the murder 

conviction should be reversed because there was insufficient 

evidence to support liability under an aiding and abetting theory. 

We summarized the relevant procedural history and argument as 

follows: “The prosecution case rested on aiding and abetting and 

felony-murder theories. The jury was instructed on general 

aiding and abetting principles, but a proposed instruction on the 

natural and probable consequences doctrine was withdrawn by 

the prosecutor, and the instruction was not given. Thus, 

appellant argues, the jury had to find that appellant shared 

Gonzalez’s intent to commit murder or robbery, which is 

necessary for aiding and abetting liability. He claims such 

evidence is lacking.” 

We rejected appellant’s argument. After reiterating the 

facts summarized above, we added: “Throughout this altercation, 

Zapata glanced over at appellant many times. He felt appellant 

‘was almost as much of a threat as the person with the gun 

[Gonzalez].’ Zapata yelled ‘stop’ many times, but did not 

physically try to intervene. He felt ‘it was bad enough that 

[Jamul] was in the middle of an argument with a guy with a gun 

at his head. I didn’t want to bring any more physicality, to stir up 

the incident any more.’ He felt that ‘if a second party outside of 

[Jamul] and the shooter was involved, that would bring in more 

people from their group to be involved. And they had guns. We 

didn’t.’ Zapata was referring specifically to appellant, who was 
6

holding the shotgun.” We then concluded: “Evidence that 

appellant stood watch with his shotgun while Gonzalez 

repeatedly pointed a gun at Jamul’s head and demanded Jamul’s 

chain supports the finding that appellant intended to facilitate 

the robbery and murder by precluding anyone from attempting to 

physically intervene on Jamul’s behalf. There is sufficient 

evidence to support appellant’s conviction as an aider and abettor 

of murder and robbery.” We affirmed both the robbery and 

murder convictions.5

Appellant petitioned the Supreme Court for review of his 

case. (S151594). The petition was denied. 

III. Section 1170.95 Petition 

On March 11, 2019, appellant filed a petition for 

resentencing under section 1170.95. On the form petition, he 

checked a box asserting that he was convicted of first or second 

degree murder under the felony murder rule or natural and 

probable consequences doctrine. Appellant also checked boxes 

stating that he could not now be convicted of first degree felony 

murder because he was not the actual killer; he “did not, with the 

intent to kill, aid, abet, counsel, command, induce, solicit, 

request, or assist the actual killer in the commission of murder in 

the first degree”; he “was not a major participant in the felony or

[he] did not act with reckless indifference to human life during 

the course of the felony”; and the murder victim was not a peace 

officer. Appellant checked the box requesting appointment of 

counsel. 

5We reversed appellant’s attempted murder conviction on 

other grounds. 
7

On May 10, 2019, the prosecution filed an opposition to the 

petition.6 It argued that the petition should be denied because 

appellant was a major participant who acted with reckless 

indifference to human life. The prosecution attached our prior 

appellate opinion to the opposition, and pointed out that we had 

also held there was sufficient evidence to support appellant’s 

conviction on an aiding and abetting theory. 

The court appointed counsel for appellant and continued 

the matter for hearing on July 25, 2019. It is unclear from the 

record whether the July 25, 2019 hearing occurred.

On August 27, 2019, appellant filed a reply to the 

prosecution’s opposition. Appellant relied on the facts recited in 

our appellate opinion without qualification. He contended that, 

“[o]n this record, there is insufficient evidence that [he] was a 

‘major participant’ who harbored the required ‘reckless 

indifference to human life’ required for the imposition of a special 

circumstance LWOP sentence” under the recent Supreme Court 

cases People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. 

Clark (2016) 63 Cal.4th 532 (Clark). 

The prosecution filed a response, arguing that appellant 

was ineligible for relief as a matter of law due to our previous 

holding that sufficient evidence supported his conviction under a 

direct aiding and abetting theory. It further argued that 

appellant was a major participant who acted with reckless 

indifference to human life. 

6The prosecution actually filed two oppositions: one arguing 

that section 1170.95 and its enabling legislation were

unconstitutional, and another opposing appellant’s petition on 

substantive grounds. Only the latter opposition is relevant here; 

the trial court did not reach the constitutional issue. 
8

The court held a hearing on the petition on September 26, 

2019. At the hearing, appellant’s counsel argued that the court 

could not rely on the jury’s findings that appellant was a major 

participant who acted with reckless indifference in light of Banks

and Clark. The prosecutor responded that the jury also found, 

and we affirmed, that appellant was a direct aider and abettor, 

such that “there’s no theory upon which the court would [sic] 

grant defense motion.” Appellant’s counsel declined the court’s 

invitation to respond to that argument. 

The court concluded that appellant was not eligible for 

resentencing under section 1170.95. The court stated, “Evidence 

is clearly overwhelming that he was a direct aider and abetter 

[sic] and that he was a major participant with reckless 

indifference. He stood guard with a shotgun, and while the 

robbery and murder took place right in front of him, backing up 

the actual shooter. It’s just - - it’s not really even a close call. So 

this is not appropriate for resentencing under SB[ ] 1437 

Appellant timely appealed. 

DISCUSSION

I. Governing Law

In 2018, the Legislature enacted Senate Bill No. 1437 (SB 

1437), the primary purpose of which is to align a person’s 

culpability for murder with his or her own actions and subjective 

mens rea. (See Stats. 2018, ch. 1015, § 1, subd. (g).) To 

effectuate that purpose, SB 1437 amended sections 188 and 189. 

As amended, section 188, subdivision (a)(3) now provides that “in

order to be convicted of murder, a principal in a crime shall act 

with malice aforethought. Malice shall not be imputed to a person 

based solely on his or her participation in a crime.” (§ 188, subd. 

(a)(3).) Section 189 now provides that a participant in qualifying 
9

felonies during which a death occurs generally will not be liable 

for murder unless (1) he or she was “the actual killer,” (2) he or 

she, “with the intent to kill, aided, abetted, counseled, 

commanded, induced, solicited, requested, or assisted the actual 

killer in the commission of murder in the first degree,” or (3) he 

or she “was a major participant in the underlying felony [who] 

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

(e)(1)-(3).) The effect of these changes was to restrict the 

application of the felony murder rule and the natural and 

probable consequences doctrine as applied to murder. (People v. 

Lamoureux (2019) 42 Cal.App.5th 241, 248.) “Felony murder and 

aiding and abetting a murder remain crimes, but to be convicted 

of murder it isn’t enough to participate in a felony that results in 

a death. Now, a person so accused must have killed the victim, 

aided the person who did kill the victim with the intent to kill 

them, or acted as a major participant in the felony with reckless 

indifference to human life.” (People v. Johns (2020) 50 

Cal.App.5th 46, 54.) 

SB 1437 also added section 1170.95 to the Penal Code. 

Section 1170.95 permits a person convicted of murder on a 

charging document that allowed the prosecution to argue felony 

murder or the natural and probable consequences doctrine to 

petition the sentencing court to vacate the conviction and 

resentence on any remaining counts if the person could not be 

convicted of murder under sections 188 and 189 as amended by

SB 1437. (§ 1170.95, subd. (a).) A petition for relief under 

section 1170.95 must include: “(A) A declaration by the petitioner 

that he or she is eligible for relief under this section, based on all 

the requirements of subdivision (a). [¶] (B) The superior court 
10

case number and year of the petitioner's conviction. [¶] (C) 

Whether the petitioner requests the appointment of counsel.” 

(§ 1170.95, subd. (b)(1).) If any of this information is missing 

“and cannot be readily ascertained by the court,” the court may 

deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)

If the petition contains the required information, section 

1170.95, subdivision (c) provides that “[t]he court shall review the 

petition and determine if the petitioner has made a prima facie 

showing that the petitioner falls within the provisions of this 

section. If the petitioner has requested counsel, the court shall 

appoint counsel to represent the petitioner. The prosecutor shall 

file and serve a response within 60 days of service of the petition 

and the petitioner may file and serve a reply within 30 days after 

the prosecutor response is served. These deadlines shall be 

extended for good cause. If the petitioner makes a prima facie 

showing that he or she is entitled to relief, the court shall issue 

an order to show cause.” (§ 1170.95, subd. (c).) 

Soon after section 1170.95 took effect, considerable debate 

arose as to how trial courts should operate in accordance with 

section 1170.95, subdivision (c). We follow the approach taken in 

People v. Verdugo (2020) 44 Cal.App.5th 320, review granted 

March 18, 2020, S260493 (Verdugo), and People v. Lewis (2020) 

43 Cal.App.5th 1128, 1137-1140, review granted March 18, 2020, 

S260598 (Lewis). (See Cal. Rules of Court, rule 8.1115(e)(1).)

These cases, along with People v. Torres (2020) 46 Cal.App.5th 

1168, 1177, review granted June 24, 2020, S262011, hold that 

subdivision (c) prescribes “a two-step process” for the court to 

determine if it should issue an order to show cause. (Verdugo, 

supra, 44 Cal.App.5th at p. 327.) First, the court must “review 

the petition and determine if the petitioner has made a prima 
11

facie showing that the petitioner falls within the provisions of 

this section.” (§ 1170.95, subd. (c).) If the petitioner has made 

this initial prima facie showing, he or she is entitled to appointed 

counsel, if requested. (Ibid.; Verdugo, supra, at p. 328; see also 

Lewis, supra, at p. 1140.) The prosecutor must file a response, 

and the petitioner may file a reply. (§ 1170.95, subd. (c).) The 

court then reviews the petition a second time. If, in light of the 

parties’ briefing, it concludes the petitioner has made a prima 

facie showing that he or she is entitled to relief, it must issue an 

order to show cause. (Ibid.; Verdugo, supra, at p. 328; Lewis,

supra, at p. 1140.)

In determining whether the petitioner has made a prima 

facie showing that he or she is entitled to relief under section 

1170.95, subdivision (c), “[t]he trial court should not evaluate the 

credibility of the petition’s assertions, but it need not credit 

factual assertions that are untrue as a matter of law—for 

example, a petitioner’s assertion that a particular conviction is 

eligible for relief where the crime is not listed in subdivision (a) of 

section 1170.95 as eligible for resentencing. . . . [I]f the record 

‘contain[s] facts refuting the allegations made in the petition . . . 

the court is justified in making a credibility determination 

adverse to the petitioner.’ [Citation.] However, this authority to 

make determinations without conducting an evidentiary hearing 

... is limited to readily ascertainable facts from the record (such 

as the crime of conviction), rather than factfinding involving the 

weighing of evidence or the exercise of discretion (such as 

determining whether the petitioner showed reckless indifference 

to human life in the commission of the crime.” (People v. Drayton

(2020) 47 Cal.App.5th 965, 980 (Drayton)).
12

Whether a petitioner has made the requisite prima facie

showing is a predominantly legal question. We thus review the 

trial court’s ruling de novo. (See Drayton, supra, 47 Cal.App.5th 

at p. 981; see also Smiley v. Citibank, N.A. (1995) 11 Cal.4th 138, 

146 [“Independent review is called for when the underlying 

determination involves a purely legal question or a 

predominantly legal mixed question.”].) 

II. Analysis

Appellant contends the trial court “short-circuited the 

statutory procedure” set forth in section 1170.95 “by relying on 

this court’s opinion on direct appeal.” He first argues this was 

error because “the court went beyond the allegations in the 

petition and sought out information that might contradict 

appellant’s assertion that he could not now be convicted of first or 

second degree murder under sections 188 and 189.” 

This argument is not persuasive. “A court of appeal 

opinion, whether or not published, is part of the appellant’s 

record of conviction.” (Verdugo, supra, 44 Cal.App.5th at p. 333.) 

As a general rule, the trial court may consider the entire record of 

conviction, including the appellate opinion, when ruling on a 

petition for resentencing. (People v. Cruz (2017) 15 Cal.App.5th 

1105, 1110.) Indeed, analogous petitioning procedures for 

resentencing under sections 1170.18 and 1170.126 contemplate a 

gatekeeping function in which trial courts review the record of a 

petitioner’s conviction to determine if the allegations set forth by 

the petitioner are untrue as a matter of law. (See People v. 

Washington (2018) 23 Cal.App.5th 948, 955 [§ 1170.18]; People v. 

Oehmigen (2014) 232 Cal.App.4th 1, 6-7 [§ 1170.126].) Petitions 

brought under section 1170.95 are no exception.
13

The statutory language of section 1170.95 expressly 

contemplates consideration of the record of conviction at the first 

stage of prima facie review, in which the court must determine 

whether a petitioner “falls within the provisions of this section” 

based on “all the requirements of subdivision (a).” (§ 1170.95, 

subds. (b)(1), (c).) “If any of the information required” in the 

petition is missing, the trial court may deny the petition unless 

the missing information can be “readily ascertained by the court.” 

(§ 1170.95, subd. (b)(2).) To “readily ascertain[ ]” missing 

information, the court must be permitted to consider documents 

outside the petition, including the record of conviction; otherwise, 

the statutory language would be rendered meaningless. (See 

Cooley v. Superior Court (2002) 29 Cal.4th 228, 249.)7

Appellant next argues the trial court erred “by engaging in 

an analysis of the evidence as outlined in the Court of Appeal 

opinion and making credibility determinations without any 

analysis of the underlying trial record.” 

When considering any part of the record of conviction, 

including a prior appellate opinion, during the first stage of its

prima facie review, the trial court must limit its review to 

determining whether the petitioner is ineligible for relief as a 

matter of law. (Verdugo, supra, 44 Cal.App.5th at pp. 328-330; 

Drayton, supra, 47 Cal.App.5th at p. 980.) A trial court may 

“look to a court ruling, including an appellate opinion, for the 

7The statute also contemplates use of the record of 

conviction at the evidentiary hearing conducted after the trial 

court has issued an order to show cause. Subdivision (d)(3) states 

that both the “prosecutor and the petitioner may rely on the 

record of conviction . . . to meet their respective burdens.” 

(§ 1170.95, subd. (d)(3).) 
14

nonhearsay purpose of determining the basis of the conviction.” 

(People v. Woodell (1998) 17 Cal.4th 448, 459; see also People v. 

Trujillo (2006) 40 Cal.4th 165, 180 [“an appellate court decision . 

. . can be relied upon to determine the nature of a prior conviction 

because it may disclose the facts upon which the conviction was 

based”].) It may not make factual findings involving the 

weighing of evidence or the exercise of discretion, “such as 

determining whether the petitioner showed reckless indifference 

to human life in the commission of the crime.” (Drayton, supra, 

47 Cal.App.5th at p. 980.) 

Here, the trial court recited the evidence as recounted in 

our appellate opinion and found it “clearly overwhelming that 

[appellant] was a direct aider and abetter [sic] and that he was a 

major participant with reckless indifference.” Even if we were to 

assume this was an improper use of our prior opinion, we find no 

error in the trial court’s ultimate ruling. 

A petitioner under section 1170.95 must make a prima 

facie showing that he or she “could not be convicted of first or 

second degree murder because of changes to Section 188 or 189” 

made pursuant to S.B. 1437. (§ 1170.95, subd. (a)(3), emphasis 

added.) Here, our prior opinion recounts, and appellant does not 

dispute, that the case against him “rested on aiding and abetting 

and felony-murder theories.” S.B. 1437 amended the felony 

murder rule, but it did not “alter the law regarding the criminal 

liability of direct aiders and abettors of murder because such 

persons necessarily ‘know and share the murderous intent of the 

actual perpetrator.’ [Citations.] One who directly aids and abets 

another who commits murder is thus liable for murder under the 

new law just as he or she was liable under the old law.” (People 

v. Offley (2020) 48 Cal.App.5th 588, 595-596.)
15

Appellant acknowledged on direct appeal that “the jury had 

to find that appellant shared Gonzalez’s intent to commit murder 

or robbery, which is necessary for aiding and abetting liability.” 

He argued then that the record did not contain substantial 

evidence to support such findings. We disagreed, and held, as a 

matter of law, that the evidence was sufficient to support a 

finding that he aided and abetted the murder and the robbery. 

Appellant therefore cannot demonstrate that he could not be 

convicted as a direct aider and abettor of the murder, despite his 

assertions that “the facts of the case simply do not support any 

conduct demonstrating encouragement, assistance or facilitation 

of the act of murder as opposed to robbery.” We already found 

that he could be convicted of murder under an aiding and 

abetting theory, and we do not disturb that finding here. (See 

Lewis, supra, 43 Cal.App.5th at pp. 1138-1139; People v. Garcia

(2020) 57Cal.App.5th 100, 108 .)

Appellant contends that the record of conviction established 

only that he was an aider and abettor of the robbery, because “no 

express finding was made regarding intent to kill.” He asserts 

that we “conflated aiding and abetting of the robbery and the 

murder and reached a general conclusion that there was 

‘sufficient evidence to support appellant’s conviction as an aider 

and abettor of murder and robbery.’” We disagree. We explicitly 

found that the evidence “supports the finding that appellant 

intended to facilitate the robbery and the murder by precluding 

anyone from attempting to intervene on Jamul’s behalf.” 

Appellant finally argues that the law of the case doctrine 

does not control here. The law of the case doctrine precludes 

multiple appellate review of the same issue in a single case where 

“the point of law involved was necessary to the prior decision and 
16

was ‘“actually presented and determined by the court.”’ 

[Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 196-197.) 

Appellant contends that “the issue resolved in appellant’s direct 

appeal was not the same as the narrower issue raised by his 

current petition for resentencing.” As we explained above, 

however, this is not an accurate reading of our previous opinion. 

Appellant further argues, in the alternative, that the law of the 

case doctrine should not apply because it would “result in an 

unjust decision given the underlying facts of this case.” As both 

cases he cites for that principle point out, however, “[t]he unjust 

decision exception” to the law of the case doctrine “does not apply 

when there is a mere disagreement with the prior appellate 

determination.” (People v. Stanley (1995) 10 Cal.4th 764, 787; see 

also People v. Shuey (1975) 13 Cal.3d 835, 842, overruled on 

another point as recognized by People v. Bennett (1998) 17 

Cal.4th 373, 389 fn. 4.) Our determination that the evidence was 

sufficient to support appellant’s conviction on an aiding and 

abetting theory is the law of the case. 

Our previous conclusion that substantial evidence 

supported appellant’s conviction for murder under a direct aiding 

and abetting theory compelled a finding that he was ineligible for 

relief under section 1170.95 as a matter of law. The trial court 

accordingly did not err in denying appellant’s petition. We need 

not consider appellant’s alternative arguments regarding 

whether he was a major participant who acted with reckless 

indifference to human life and the effect of Banks and Clark on 

the jury’s special circumstance finding. 
17

DISPOSITION

Affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.