Filed 8/21/23 P. v. Delaloza CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEJANDRO REY DELALOZA,

Defendant and Appellant.

 B318526

 (Los Angeles County

 Super. Ct. No.

 VA045286-02)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Roger Ito, Judge. Affirmed. 

Adrian K. Panton, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Zee Rodriguez, Supervising Deputy 

Attorney General, and Charles S. Lee, Deputy Attorney General, 

for Plaintiff and Respondent.

_________________________
2

A jury convicted Alejandro Rey Delaloza in December 1999 

of two counts of first degree murder with a multiple-murder 

special-circumstance finding, conspiracy to commit murder and 

several other serious felonies. Following an evidentiary hearing 

pursuant to Penal Code section 1172.6, subdivision (d)(3),1 the 

superior court denied Delaloza’s petition for resentencing, finding 

beyond a reasonable doubt that Delaloza was guilty of the 

first degree murder of the two victims under a currently valid 

theory of murder and was also guilty beyond a reasonable doubt 

of conspiracy to commit murder. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Delaloza’s Murder Convictions

Michael Murillo and Brian Molina were shot to death at 

close range in the early morning of October 24, 1997 as they slept 

on the back patio of a home in Whittier. The evidence at 

Delaloza’s trial established that the murders had been committed 

by Richard Penunuri, a member of the Eastside Whittier 

Cole Street criminal street gang, who mistook the victims for two 

other men, Carlos Arias and Luke Bissonnette.2 

Several hours before the murders (shortly before midnight 

on October 23, 1997) Delaloza, Penunuri and two or three other 

members of the Cole Street gang assaulted and robbed several 

1

Statutory references are to this code.

2 Although the People and Delaloza dispute what reasonable 

inferences may be drawn from the evidence presented at trial as 

they relate to Delaloza’s culpability, there is no significant 

disagreement about Delaloza’s participation with Penunuri in the 

events leading up to, and immediately after, the murders of 

Murillo and Molina.
3

men in a supermarket parking lot. One of their victims testified 

Penunuri brandished a gun, later shown to be consistent with the 

murder weapon. According to this witness, Delaloza, who had 

robbed another of the victims at knifepoint, was not with 

Penunuri when the firearm was displayed. 

Approximately two hours later, Bissonnette and Arias were 

sitting on the hood of a car in the driveway of the home of

Bissonnette’s maternal grandfather on Hornell Street when 

Delaloza and Penunuri drove up in Delaloza’s car and parked 

across the street. Penunuri got out of the car and stated his gang 

affiliation as he approached Bissonnette. Bissonnette feared for 

his life because he believed Penunuri thought Bissonnette had 

left the Cole Street gang and was associating with a different 

gang.3 When Penunuri told Bissonnette to come with him to 

Delaloza’s car, Bissonnette ran and hid. Similarly, Arias told the 

police that Penunuri said things as he approached Bissonnette in 

the driveway that Arias believed indicated Penunuri intended to 

harm both Bissonnette and Arias, causing both men to run. Just 

before he ran, Arias saw Penunuri pointing a gun at him. 

Penunuri chased him a short way but did not catch up to him. 

After Penunuri and Delaloza left about 15 minutes later, 

Bissonnette returned to his home, which was nearby on 

Goodhue Street.

Bissonnette’s mother, who was sleeping at the 

Hornell Street house with her grandchildren, testified she was 

3 Bissonnette explained, because he and Penunuri knew each 

other and he knew Penunuri was a member of Eastside Whittier 

Cole Street, he understood Penunuri’s identification of his gang 

affiliation to mean that Penunuri was accusing him of associating 

with a rival gang. 
4

awakened by a loud noise around 2:30 a.m., looked outside 

through a window and saw what appeared to be several men 

walking back and forth and also saw Delaloza’s car. Opening the 

front door, she initially saw Delaloza on the front walkway of the

house. Penunuri and a third individual came forward. When she 

asked what they were doing, Penunuri responded by asking her if 

she had seen Arias and told her he was looking for “them.” 

Penunuri then clarified he was looking for Bissonnette, not 

Bissonnette’s brother. Delaloza was standing only two or three 

feet from Penunuri, near enough to the conversation to hear what

was being said. 

When Bissonnette arrived home, Molina and Murillo were 

asleep on the back patio. The patio was dark. Molina had a 

sweatshirt covering his face. Bissonnette went inside and 

prepared to go to bed. Approximately 30 minutes later 

Bissonnette heard numerous, rapidly fired gunshots. After the 

shooting stopped, he looked out the bedroom window and saw 

Penunuri running down the street. Neighbors who heard the 

shots and looked out their windows testified they saw a car 

matching the description of Delaloza’s driving away very slowly 

(approximately five miles per hour). One witness testified she 

saw the car stop at the corner and someone get out of the 

passenger’s side of the car before it left the area. 

A sheriff’s department firearms examiner who responded to 

the Goodhue Street crime scene the morning of the murders 

recovered 11 expended nine-millimeter cartridge cases, seven 

expended nine-millimeter bullets or bullet fragments and one live 

nine-millimeter round from the backyard. He testified all the 

expended cartridge cases and bullets had been fired from the 

same gun. 
5

A witness to the robberies in the parking lot supplied police 

with the license plate number of the car used by the perpetrators, 

which led the police to Delaloza. After Delaloza was arrested, a 

search of his house uncovered a box of nine-millimeter 

ammunition in the bedroom. There were 41 rounds in the box, 

which held 50 rounds. The firearms examiner determined one of 

the bullets in the box had been loaded and then ejected from the 

same gun used in the murders. 

In a tape-recorded statement played to the jury, Delaloza 

initially denied any involvement in the parking lot robberies or

the murders of Molina and Murillo. He claimed he was at home 

asleep when those crimes were committed. Confronted with his 

father’s statement he did not return home until 3:45 a.m., 

Delaloza admitted driving Penunuri to Bissonnette’s 

Goodhue Street house between 3:00 and 4:00 a.m. According to 

Delaloza, Penunuri wanted to speak to a former girlfriend named 

Monique who lived there. Penunuri believed Monique might be 

up at that early hour since she had a baby. Delaloza parked just 

down the street from Bissonnette’s house (which he described as 

“right before the turn” in the street) and waited in the car while 

Penunuri went to talk to Monique. 

According to his statement, when Delaloza heard gunshots, 

he started to leave thinking someone was shooting at Penunuri. 

As Delaloza drove away, Penunuri ran to the car and jumped in 

saying, “Let’s go, man.” Penunuri did not tell Delaloza what had 

happened at Bissonnette’s house, and Delaloza did not ask as he 

drove Penunuri home. Delaloza insisted he did not see Penunuri 

with a gun at any time during the evening.

Gang experts testified for both the prosecution and 

Delaloza. Delaloza’s expert (the only witness called by the 
6

defense) testified, when a vehicle is used for a gang-related driveby-type shooting, the gang members would typically try to 

prevent the vehicle from being linked to one of them, both by 

concealing the license plate (or using a stolen one) and disposing 

of the vehicle after the shooting. He acknowledged a gang 

member might help another commit a crime if he knew it was 

happening and that the more “hard core” the individual was, the 

more likely he was to participate. He agreed Delaloza’s 

Cole Street tattoos indicated he had been “very, very loyal to the 

gang and it was important to him.” However, based on a 

hypothetical similar to the evidence in the case, the expert did 

not believe the driver of the car necessarily knew his passenger 

was going to shoot anyone at the Goodhue Street house. 

The prosecution’s expert (testifying only in the People’s 

rebuttal case) testified a gang member in a car who was armed 

would usually pass the firearm around for discussion, 

particularly if it was intended that the gun would be used in a 

crime that was about to occur, explaining, “[T]hen they know 

exactly what’s going on, who is going to hold it, and, you know, all 

the—that’s going on with that crime.” Given a lengthy 

hypothetical based closely on the testimony, the expert opined 

that the individual waiting in the car would know “what was 

going to go down at the Goodhue address where [Bissonnette] 

lived.” Discussing in particular that the driver left the area very 

slowly after the shooting, the expert explained, “It seems pretty 

clear to me that it was set up in advance. I mean, if a car is 

parked down the street and then shots are fired and then he 

cruises down another area around a corner where he picks up 

another individual, how would that individual know he was going 

to get picked up there unless that was preplanned.” 
7

The jury convicted Delaloza of conspiracy to commit 

murder (§ 182, subd. (a)(1)) and on two counts of murder (§ 187, 

subd. (a)) with true findings on the multiple-murder specialcircumstance (§ 190.2, subd. (a)(3)) and principal-armed-with-a 

firearm allegations (§ 12022, subd. (a)(1)).4 The jury also found 

Delaloza guilty of robbery (§ 211) and aggravated assault (§ 245, 

subd. (a)(1)) in connection with the supermarket parking lot 

incident. The court sentenced Delaloza to an indeterminate state 

prison term of life without parole plus 29 years to life.

2. Delaloza’s Direct Appeal

We affirmed the judgment on appeal. (People v. Delaloza

(June 6, 2001, B140454) [nonpub. opn.] (Delaloza I).) In rejecting 

Delaloza’s contention the evidence was insufficient to support his 

convictions for murder and conspiracy to commit murder, we 

emphasized that, to convict Delaloza of murder as an aider and 

abettor, the People did not need to prove he knew Penunuri 

intended to kill Arias and Bissonnette: “Proof defendant knew 

Penunuri intended an assault with a deadly weapon would be 

sufficient under the natural and probable consequences doctrine.” 

Similarly, to convict Delaloza of conspiracy to commit murder, 

“the People had to prove beyond a reasonable doubt defendant 

entered into an agreement with Penunuri to commit that offense 

or another offense, such as assault, of which murder was a 

natural and reasonable consequence.” Although there was no 

4

The court had instructed the jury in part with CALJIC 

No. 3.01 defining aiding and abetting and gave CALJIC No. 3.02 

(6th ed. 1997) explaining liability for natural and probable 

consequences. For the special-circumstance allegations, the court 

used a redacted and, as a result, rather garbled version of 

CALJIC No. 8.80.1 (6th ed. 1997). 
8

direct evidence Delaloza knew Penunuri intended to assault or 

kill Arias and Bissonnette and conspired or aided and abetted 

Penunuri in the commission of either offense, we held the 

evidence was sufficient for the jury to find, “when defendant 

drove Penunuri to Bissonnette’s home that evening, he knew 

Penunuri intended to commit an assault on Bissonnette or Arias 

or both.” Accordingly, we affirmed his convictions for murder and 

conspiracy under the natural and probable consequences 

doctrine.

3. Delaloza’s Petition for Resentencing

Delaloza, represented by the alternate public defender, 

filed a petition for resentencing under section 1172.6 (former 

section 1170.95) in February 2019. After receiving memoranda 

from the district attorney and Delaloza’s counsel, the superior 

court denied the petition, finding Delaloza had failed to make a 

prima facie showing of eligibility for relief.

We reversed the order denying Delaloza’s petition, 

explaining the record of conviction failed to demonstrate, as a 

matter of law, the basis for the jury’s verdict—that is, that it 

indisputably established the jury found Delaloza guilty as a 

direct aider and abettor of Penunuri’s murder of Molina and 

Murillo—and thus that Delaloza was necessarily ineligible for 

resentencing relief. (People v. Delaloza (Aug. 12, 2021, B300210) 

[nonpub. opn.] (Delaloza II).) We remanded the matter with 

directions to the superior court to issue an order to show cause 

and to conduct further proceedings in accordance with former 

section 1170.95, subdivision (d). 

The superior court on remand issued an order to show 

cause on October 26, 2021 and set the matter for an evidentiary 

hearing. At the hearing on February 17, 2022 the court stated it 
9

had read and considered the entire trial transcript and confirmed 

that neither Delaloza nor the district attorney had any additional 

evidence to introduce. 

After hearing argument of counsel and reviewing the 

evidence at trial, the court denied the petition. Concluding the 

only reasonable interpretation of the circumstantial evidence was 

that Delaloza knew what Penunuri was going to do when he went 

into the house, the court found “beyond a reasonable doubt that

Mr. Delaloza was in fact guilty of the crime of first degree murder 

as to both the victims in this case, Brian Molina and Mike 

Murillo.” 

Delaloza filed a timely notice of appeal. 

DISCUSSION

1. Accomplice Liability for Murder and Section 1172.6

Under the ameliorative changes to the law relating to 

accomplice liability for murder effected by Senate Bill No. 1437 

(Stats. 2018, ch. 1015), malice must be proved to convict a 

principal of murder except under the narrowed felony-murder 

rule set forth in section 189, subdivision (e), and may not be 

imputed based solely on an individual’s participation in a crime 

(§ 188, subd. (a)(3)), thereby eliminating the natural and probable 

consequences doctrine as a basis for finding a defendant guilty of 

murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843; see 

People v. Reyes (2023) 14 Cal.5th 981, 984). The amended felonymurder provision requires the People to prove specific facts 

relating to the defendant’s individual culpability: The defendant 

was the actual killer (§ 189, subd. (e)(1)); although not the actual 

killer, the defendant, with the intent to kill, assisted in the 

commission of murder in the first degree (§ 189, subd. (e)(2)); or 

the defendant was a major participant in an underlying felony 
10

listed in section 189, subdivision (a), and acted with reckless 

indifference to human life, “as described in subdivision (d) of 

Section 190.2,” the felony-murder special-circumstance provision 

(§ 189, subd. (e)(3)). (See People v. Strong (2022) 13 Cal.5th 

698, 708.)

Section 1172.6 authorizes an individual convicted of felony 

murder or murder based on the natural and probable 

consequences doctrine or any other theory under which malice is 

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

petition the sentencing court to vacate the conviction and be 

resentenced on any remaining counts if he or she could not now 

be convicted of murder because of these changes to the law 

relating to accomplice liability for murder. As amended by 

Senate Bill No. 775 (Stats. 2021, ch. 551, § 2), effective 

January 1, 2022, Senate Bill No. 1437’s ameliorative changes to 

the law of murder and section 1172.6’s provisions for 

resentencing relief now expressly apply to individuals convicted 

of attempted murder and voluntary manslaughter.

If, as here, the petitioner makes the requisite prima facie 

showing he or she falls within the provisions of section 1172.6 

and is entitled to relief, the court must issue an order to show 

cause and hold an evidentiary hearing to determine whether to 

vacate the murder, attempted murder or voluntary manslaughter

conviction and resentence the petitioner on any remaining 

counts. (§ 1172.6, subd. (d)(1).) 

At the evidentiary hearing to determine whether the 

petitioner is entitled to relief, “the burden of proof shall be on the 

prosecution to prove, beyond a reasonable doubt, that the 

petitioner is guilty of murder or attempted murder under 

California law as amended by the changes to Section 188 or 189
11

made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) The 

court may consider evidence “previously admitted at any prior 

hearing or trial that is admissible under current law,” including 

witness testimony. The petitioner and the prosecutor may also 

offer new or additional evidence. (Ibid.) The superior court’s 

decision to deny the petition after an evidentiary hearing, if the 

court correctly understood the elements of the offense and the 

proper standard and burden of proof were applied, is reviewed for 

substantial evidence. (People v. Reyes, supra, 14 Cal.5th at 

p. 988; People v. Vargas (2022) 84 Cal.App.5th 943, 951; People v. 

Ramirez (2021) 71 Cal.App.5th 970, 985; People v. Hernandez

(2021) 60 Cal.App.5th 94, 113.) 

2. Substantial Evidence Supports the Finding That 

Delaloza Acted with Express Malice When Aiding the 

Murders of Molina and Murillo

“An aider and abettor’s guilt is based on a combination of

the direct perpetrator’s acts and the aider and abettor’s own acts

and own mental state. Once it is proved that the principal has

caused an actus reus, the liability of each of the secondary parties

should be assessed according to his own mens rea. Thus, proof of

aider and abettor liability requires proof in three distinct areas:

(a) the direct perpetrator’s actus reus—a crime committed by the

direct perpetrator, (b) the aider and abettor’s mens rea—

knowledge of the direct perpetrator’s unlawful intent and an

intent to assist in achieving those unlawful ends, and (c) the

aider and abettor’s actus reus—conduct by the aider and abettor

that in fact assists the achievement of the crime.” (People v.

Perez (2005) 35 Cal.4th 1219, 1225 [cleaned up]; accord, People v.

Gentile, supra, 10 Cal.5th at p. 843 [“under direct aiding and

abetting principles, an accomplice is guilty of an offense
12

perpetrated by another if the accomplice aids the commission of

that offense with ‘knowledge of the direct perpetrator’s unlawful

intent and [with] an intent to assist in achieving those unlawful

ends’”].)

On appeal Delaloza emphasizes, although the superior 

court found, based on circumstantial evidence, that Delaloza 

knew Penunuri’s intent—what Penunuri was going to do when he 

went into the back of Bissonnette’s Goodhue Street home—there 

was no express finding that Delaloza acted with the intent to 

assist Penunuri in committing those crimes and no specific 

finding of “express malice.” Absent those findings, Delaloza 

argues, the evidence did not establish he was guilty of murder 

under section 188 as amended by Senate Bill No. 1437. And in a 

single sentence without further elaboration, Delaloza also 

contends it would not be reasonable to infer he acted with the

specific intent to kill based solely on his knowledge that Penunuri 

was armed and that he intended to kill Bissonnette and Arias.5 

Neither argument has merit. Section 1172.6, 

subdivision (d)(3), only requires the superior court to determine 

whether the prosecutor has proved beyond a reasonable doubt 

5 Delaloza does not suggest the fact that Penunuri 

mistakenly killed Molina and Murillo, rather than Bissonnette 

and Arias, has any bearing on his culpability as a direct aider 

and abettor of the murders. (Cf. People v. Bland (2002) 

28 Cal.4th 313, 332 [CALJIC No. 8.65 correctly instructs, when a 

defendant attempted to kill a certain person but by mistake or 

inadvertence killed a different person, the crime committed, if 

any, is the same as though the person originally intended to be 

killed had been killed]; see also CALCRIM No. 562 [containing 

substantially the same language as CALJIC No. 8.65].)
13

that the petitioner is guilty of murder (or, when applicable, 

attempted murder) under sections 188 and 189 as amended 

effective January 1, 2019. The court has no obligation to make 

specific findings as to any of the elements of murder. The 

superior court here fully complied with this limited duty, clearly 

finding both orally at the conclusion of the evidentiary hearing 

and in its written minute order Delaloza was guilty beyond a 

reasonable doubt of the first degree murders of Molina and 

Murillo under a currently valid theory of accomplice liability for 

murder. (Cf. People v. Camacho (2022) 14 Cal.5th 77, 123 [“we 

review the trial court’s ruling, ‘not the court’s reasoning and, if 

the ruling was correct on any ground, we affirm’”]; People v.

Zapien (1993) 4 Cal.4th 929, 976 [a decision correct in law will 

not be disturbed on appeal because given for a wrong reason].)

Ample circumstantial evidence, much of which the superior 

court summarized as it explained its reasons for denying

Delaloza’s petition, supported the court’s express and implied 

findings that Delaloza was a direct aider and abettor of the 

murders, acting with knowledge of Penunuri’s unlawful intent

and with an intent to assist Penunuri in accomplishing his goal. 

Initially, as the court detailed, Delaloza and Penunuri (with two

or three confederates) acted in concert during the parking lot

assault and robberies and left together in Delaloza’s car, lending

credence to the prosecutor’s theory the two good friends and

fellow gang members were also actively working together during

the early morning hours when Penunuri, after arriving at the

Hornell Street house with Delaloza in Delaloza’s car, confronted

Bissonnette and Arias and then continued searching for them at

Bissonnette’s Goodhue Street home.
14

In addition, Penunuri brandished his gun during the

robberies and then again several hours later at the Hornell Street

house. Although, as the superior court acknowledged, there was

no direct evidence Delaloza saw Penunuri display the firearm on

either occasion, it was reasonable for the court to infer Delaloza

knew Penunuri was armed based on his proximity to Penunuri

during those encounters, as well as the forensic evidence that

strongly suggested Delaloza had given Penunuri the ammunition

that was used to kill Molina and Murillo.

The trial evidence, viewed in the light most favorable to the

order denying Delaloza’s petition (see, e.g., People v. Navarro

(2021) 12 Cal.5th 285, 303), also established that Bissonnette

thought his life was in danger because of Penunuri’s apparent

belief that Bissonnette had left Cole Street and was associating

with a rival gang (as Bissonnette testified). After driving

Penunuri to the Hornell Street house, where Penunuri confronted

Bissonnette and Arias, Delaloza heard Penunuri tell

Bissonnette’s mother that Penunuri was looking for the two men

(and not Bissonnette’s brother). Delaloza then drove Penunuri to

Bissonnette’s home on Goodhue Street, where he parked so his

car was not readily visible, rather than directly in front of the

house.

Finally, as the superior court discussed, Delaloza waited in

his parked car while Penunuri went to the house through the

backyard. Delaloza then heard gunshots. Although claiming to

sheriff’s investigators that he thought someone had been shooting

at Penunuri, when Penunuri came back to the car, Delaloza drove

away very slowly.

This evidence, considered in its entirety, rationally

supported a finding not only that Delaloza knew Penunuri
15

intended to find and kill Bissonnette and Arias but also that

Delaloza actively assisted Penunuri in carrying out that intent by

driving him to the Goodhue Street house after the initial

confrontation at the Hornell Street house and then waiting to act

as the get-away driver after Penunuri mistakenly shot Molina

and Murillo. (See People v. Clements (2022) 75 Cal.App.5th 276,

298 [“[w]hile the trial judge must review all the relevant 

evidence, evaluate and resolve contradictions, and make 

determinations as to credibility, all under the reasonable doubt 

standard, our job is to determine whether there is any 

substantial evidence, contradicted or uncontradicted, to support a 

rational fact finder’s findings beyond a reasonable doubt”].)

3. Our Prior Opinions Do Not Preclude a Finding of Malice

Delaloza also contends our decisions in Delaloza I affirming 

his convictions for murder and conspiracy to commit murder

under the natural and probable consequences doctrine and 

Delaloza II finding he had made a prima facie showing of 

eligibility for resentencing relief under section 1172.6 established 

that the evidence at trial—and, therefore, the evidence before the 

superior court at the section 1172.6, subdivision (d)(3), 

evidentiary hearing—was insufficient to support convictions for 

murder that require a finding Delaloza acted with express 

malice. Accordingly, he argues, the superior court’s contrary 

(implicit) finding was barred by law of the case and collateral 

estoppel (issue preclusion). 

The premise for Delaloza’s argument is incorrect. In 

Delaloza I the People had argued the jury could infer Penunuri 

intended to assault or kill Arias and Bissonnette and conspired or 

aided and abetted Penunuri in the commission of those crimes 

from circumstantial evidence in the trial record including the 
16

group character of gangs, as explained by the prosecution’s gang 

expert. Our opinion questioned whether it was reasonable to 

infer how a member of a group acted on a particular occasion 

based on expert testimony, even if accurate, about the tendencies 

of members of the group to act in certain ways.6 Nonetheless, we 

did not address what weight (if any) to give that evidence in 

Delaloza’s case—an issue not presented by Delaloza on appeal—

because, we held, even without the expert testimony, there was 

sufficient evidence to uphold the convictions for murder and 

conspiracy to commit murder under the natural and probable 

consequences doctrine with an assault on Bissonnette or Arias or 

both as the target offense. The opinion did not suggest, let alone 

hold, that the evidence—with or without the gang testimony—

was insufficient to support a finding of express malice: It was 

simply unnecessary to reach that point given the applicability of 

the natural and probable consequences doctrine.7

6

Several years before the decision in Delaloza I the Supreme 

Court in People v. Gardeley (1996) 14 Cal.4th 605, 617 had 

upheld the use of expert opinion testimony concerning the culture 

and habits of criminal street gangs. And 10 years after 

Delaloza I the Supreme Court in People v. Vang (2011) 52 Cal.4th 

1038, 1047, explaining that “‘there is a difference between 

testifying about specific persons and about hypothetical persons,’” 

held answers to hypothetical questions based on other evidence 

in the case—as the People’s gang expert gave at Delaloza’s trial—

were “‘probative, not inadmissible.’” (Accord, People v. Gonzalez

(2006) 38 Cal.4th 932, 946, fn. 3.) 

7 Contrary to Delaloza’s argument, we did not hold the 

evidence in the record considered as a whole was insufficient to 

establish Penunuri and Delaloza planned the murders together, 
17

The opinion in Delaloza II was even more explicit. 

Defending the superior court’s ruling that the record of conviction 

established Delaloza’s ineligibility for resentencing relief as a 

matter of law, the Attorney General argued the true finding on 

the multiple-murder special-circumstance allegation necessarily 

meant the jury found Delaloza, although not the actual killer, 

had aided or assisted in the commission of first degree murder 

with the intent to kill.8 Our opinion agreed the Attorney General

would be correct if Delaloza’s jury had been properly instructed; 

but, we explained, the modified instruction given by the trial 

court was “essentially nonsensical.” “Perhaps,” we suggested, 

“the jury was sufficiently insightful to decode the correct import 

of CALJIC No. 8.80.1, notwithstanding the trial court’s multiple 

errors when using it.” But, we concluded, we were not prepared 

to attribute any meaning as a matter of law to the jury’s true 

finding. Stated slightly differently, we held the jury might well 

have found Delaloza guilty as a direct aider and abettor of 

Penunuri’s murder of Murillo and Molina—a conclusion neither

mandated nor precluded by our opinion in Delaloza I—but that 

was not indisputably established by the record of conviction.

Instead, we held, whether the evidence proved beyond a 

reasonable doubt Delaloza was a direct aider and abettor of the 

murders had to be determined (as it subsequently was) at an 

evidentiary hearing under section 1172.6, subdivision (d)(3). 

only that it was not reasonable to infer that they did so based 

solely on the expert’s testimony of gang tendencies.

8 Delaloza in his direct appeal did not challenge the 

sufficiency of the evidence to support the special-circumstance 

finding. That issue was not addressed in Delaloza I.
18

In sum, whatever significance the doctrines of law of the 

case and issue preclusion may have in determining eligibility for 

resentencing relief under section 1172.6, they are irrelevant to 

the superior court’s decision in Delaloza’s case. 

DISPOSITION

The postjudgment order denying Delaloza’s petition for 

resentencing is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J. 

FEUER, J.