Filed 6 / 28 / 23 P. v. Pimentel CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. JORGE ALBERTO PIMENTEL, Defendant and Appellant. G061526 (Super. Ct. No. 01CF0502)

O P I N I O N

Appeal from a n order of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.

Steven A. Torres, under appointment by the Co urt of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Michael Dolida, Deputy Attorneys General, for Plaintiff and Resp ondent.

* * *2 “A person convicted of felony murder or murder under the natural and probable consequences doctrine

. . . , attempted murder under the natural and probable consequences doctrine , or manslaughter may file a petition with the court

. . . to have the petitioner ’ s murder, attempted murder, or manslaughter conviction vacated and

. . . be
resentenced . . . .” ( Pen. Code, § 1172.6 , subd. ( a ) , italics added .) 1

In 2022, d efendant Jorge Alberto Pimentel filed a section 1172.6 petition
with th e trial court seeking to have his 2002 a ttempted murder conviction vacated and to
be resentenced

. But Pimentel was not convicted of attempted murder under the nat ural and probable cons equences doctrine as required by the statute

. (See § 1172.6. subd. (a).)

T hus, w e affirm the trial court’s order denying Pimentel’s petition.

I
FACTS AND PROCEDURAL BACKGROUND In February 2001, Pimentel was the driver in a drive

- by shooting. ( People
v. Pimentel et al . (Sept. 12 , 20 03 , G0 30730 ) [nonpub. opn.].)

In April 2002, a jury found Pimentel guilty of willful and premeditated attempted murder, illegal possession of a firearm, and two counts of street terrorism. The jury fo und true related gang and firearm enhancements. The trial court imposed a total aggregate sentence of 2 5 years to life plus two years

.

In May 20 22 , Pimentel filed a section 1172.6 petition seeking to vacate his attempted murder conviction and to be resentenced.

In August 2022, the trial court conducted a prima facie hearing. The court
denied Pimentel’s petition after reviewing the record of con viction

.

1 Further undesignated statutory references are to the Penal Code. Section 1170.95 was renumbered section 1172.6 without substantive change, effective June 30, 2022

. (See People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.) For the sake of clarity, we wi ll refer to the statutory provision as section 117 2.6 exclusively

.3 II
DISCUSSION
Pimentel claims the trial court erred by den ying his section 117 2.6 petition at the prima facie stage without conducting an evidentiary hearing. Th is is a question of law, so our review is de novo. ( See People v. Watson ( 2021) 64 Cal.App.5th 474, 484.)

In this discussion , we shall: A) review general legal principles; B ) quote the relevant jury instructions ; and C) apply the facts to the law.

A. General Legal Principles

When interpreting a statute, a court’s role “is to determine the Legislature’s intent so as to effectuate the law’s purpose.” ( People v. Murphy (2001) 25 Cal.4th 136, 142.) “We begin as always with the statute’s actual words, the ‘most reliable indicator’ of legislative intent, ‘assigning them their usual and ordinary meanings, and construing
them in context. If the words themse lves are not ambiguous, we presume the Legislature meant what it said, and the statute’s plain meaning governs.’” ( Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837

- 838.)

“A person convicted of felony murde r or 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, attempted murder under the natural and probable consequences doctrine , or man slaughter may file a petition with the court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be resentenced . . . .” (§ 1172.6, subd. (a) italics
added .) A person may file a petit ion “when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder [ or ] murder under the natural and probable consequen ces doctrine

. . . [;] [¶] (2) The petitioner was convicted4

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 S ection 188 or 189 made effective January 1,
2019. ” (§ 117 2.6 subd s . (a)(1)

- (3) , (b)(1)(A).)

S ection 188, subdivision (a)(3), now provides : “ Except as stated in subdivision (e) of S ection 189, 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. ”

S ection 189, subdivision (e) (3) , now states the only exception to the malice requirement

— the felony

- murder rule

— which is now limited to circumstances that mirror the felony

- murder special

- circumstance enhancement . That i s, when a de fendant “ was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of S ection 190.2 .” (§ 189, subd. (e)(3).)

Under long

- standing law, “the felony

- murder rule has no application to a charge of attempted murder. An attempt murder requires the intent to take a human
life

— an element which cannot be supplied by the application of the felony

- murder rule. ” ( People v. Wein (1977) 69 Cal.App.3d 79, 92 .)

U nder section 1172.6 , the petitioner must first make a prima facie showing establishing he or she is entitled to relief. ( People v. Lewis (2021) 11 Cal.5th 952, 960 .) At the prima facie stage, the trial court may consider the record of conviction , including the jury instructions to “distinguish petitions with potential merit from those that are clearly meritless.” ( Id . at p. 971.) However , the court “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’” ( Id . at p. 972 .)

B. Relevant Jury Instructions

The trial court instructed the jury as to attempted murder as follows:5 “Every person who attempts to murder another human being is guilty of a violation of Penal Code sections 664 and 187. [¶] Murder is the unlawful killing of a human being with malice aforethought. [¶] In order to prove attempted murder, each of the following elements must be proved: [¶] 1. A direct but ineffectual act was done by one person towards killing another human being; and [¶] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.” (CALJIC No. 8.66.)

The trial court instructed the jury on aiding and abetting as follows: “ A person aids and abets the [co mmission] [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 or encouraging or facilitating the commission of
the [ crime ] , and [¶] 3. By act or advice aids, promotes, encourages or instigates the
commission of the . . . [ crime ]

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

C. Analy sis and Application

“A person convicted of felony murder or murder under the natural and probable consequences doctrine . . . , attempted murder under the natural and probable consequences doctrine , or manslaughter may file a petition with the court . . . to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and be resentenced . . . .” (§ 1172.6, subd. (a), italics added.)

“Section [1172.6] applies by its terms only to attempted murders based on the natural and probable co nsequences doctrine. ” ( People v. Coley (2022) 77
C al.App.5th 539, 548 ( Coley ) .) Under th e former natural and probable consequences doctrine, a criminal defendant was not only directly liable for any crime s he intend ed to commit ( target offense s ) , but he was also vicariously liable for other crimes committed by an accomplice that were a natural and probable consequence of the target offense. ( People v. Olguin (1994) 31 Cal.App.4th 1355 .)6 Here, Pimentel was convicted of attempted murder . T he tri al court did not
instruct the jury on the natural and probable consequence s doctrine (or any other theory
of vicarious liability)

. (See People v. Wein , supra , 69 Cal.App.3d at p. 92 [ “the felony

murder rule has no application to a charge of attempted murder ”]

. )

Without a jury instruction from the trial court explaining the natural and probable consequences doctrine, the jury could not have convicted Pimentel under that legal theory . Thus, the court properly denied Pimentel’s petition at the prima facie stage
because he is ineligible for relief as a matter of law

.

Pimentel cites In re Loza (2018) 27 Cal.App.5th 797 , for the proposition : “It cannot be said that the mere fact that the jurors found the premeditation allegation true means they found appellant harbored malice.” But In re Loza is readily distinguishable because it involved a habeas corpus petition from a defendant’s murder conviction, not a n appeal from a denial of a section 1172.6 petition regarding an attempted murder
conviction

. ( In re Loza , at p. 7 82.)

Pimentel also cites People v. Langi (2022) 73 Cal.App.5th 972 ( Langi ) , for the proposition : “The record of conviction does not conclusively establish that appella nt harbored express or implied malice for attempted murder.” But Langi is also readily distinguishable

. W hile Langi does involve an appeal from a denial of a section 1172.6 petition, the defendant was convicted of second degree murder , not attempted murder

. ( Langi , a t p. 977

. ) Thus, Langi does not establish that Pimentel

— who was convicted of attempted murder

— is eligible for relief under section 1172.6

. Langi is also distinguishable because t he jury in that case had been instructed on impl ied malice murder (an act in conscious disregard for human life) , along
with an aiding and abetting instruction

. ( Langi , supra , 73 Cal.App.5th at p. 981.) The appellate court held under th o se circumstances, the jury could have found the defendant guilty of murder while intending to aid in the perpetrator’s act s , without necessarily finding the defendant himself personally acted in conscious dis regard for the danger to7

human life (implied malice)

. ( Id . at p. 983.) Thus, the appellate cou rt held the defendant was entitled to an evidentiary hearing under section 1172.6

. ( Langi , at p. 984.)

In this case, u nlike Langi , t he jury was not instructed on an implied malice

mu rder theory

. Indeed, t he jury was instructed that Pimentel as an aider and abettor had to act: “With the intent or purpose of committing or encouraging or facilitating the commission of the crime . . . .” (CALJIC No. 3.01.)

G iven the instructions on the crime of attempted murder and aiding and abetting , the jury nece ssarily found Pimentel shared the perpetrator ’ s intent to kill ; therefore , the possibility of imputing malice

— as identified in Langi

— is not present here

. (See Coley , supra , 77 Cal.App.5th at pp. 547

- 548 [ Langi inapplicable where attempted
murder convictio n requir ed intent to kill] ; People v. Covarrubias (2016) 1 Cal.5th 838, 890 [“‘Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing’”] .)

III
DISPOSITION The trial court’s order den ying Pimentel’s section 1172. 6 petition is
affirmed

.

MOORE, ACTING P. J.

WE CONCUR:

MOTOIKE, J.

DELANEY, J.