Filed 9/25/24 P. v. Vasquez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TONY VASQUEZ,

Defendant and Appellant.

F086384

(Super. Ct. No. BF154379A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Elizabet 

Rodriguez, Judge.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, 

Christina Simpson, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and

Respondent.

-ooOoo-

* Before Detjen, Acting P. J., Peña, J. and Meehan, J.
2.

INTRODUCTION

Petitioner Tony Vasquez petitioned the superior court, pursuant to section 1172.6 

of the Penal Code,1for resentencing on his convictions for murder (§ 187, subd. (a)), and 

attempted murder (§§ 187, subd. (a), 664). The trial court denied the petition at the prima 

facie stage on the ground the jury’s verdict established petitioner was convicted as the 

direct perpetrator of the offenses. 

On appeal, petitioner contends the record does not establish his ineligibility for 

resentencing as a matter of law. We reject petitioner’s contentions and affirm.

PROCEDURAL HISTORY2

I. Conviction, Sentence, and Direct Appeal

“[Petitioner] was charged with one count of first[]degree murder (. . . §§ 187, 

subd. (a), 189 [count 1]); two counts of attempted murder (§§ 187, subd. (a), 664 [counts 

2 & 6]); three counts of shooting at an occupied motor vehicle (§ 246 [counts 3, 5, & 7]); 

two counts of illegal firearm possession (§ 29800, subd. (a)(1) [counts 4 & 8]); and one 

count of criminal threats (§ 422 [count 9]). In connection with count 1, the information 

alleged the special circumstances of discharging a firearm from a motor vehicle at a 

person outside said vehicle (§ 190.2, subd. (a)(21)) and carrying out the killing to further 

the activities of a criminal street gang (id., subd. (a)(22)). The information further 

alleged: (1) as to counts 1 through 3 and 5 through 7, [petitioner] committed the 

underlying offense for the benefit of, at the direction of, or in association with a criminal 

street gang (§ 186.22, subd. (b)(1)); (2) as to counts 1 through 3 and 5, [petitioner] 

personally and intentionally discharged a firearm and proximately caused great bodily 

injury or death (§ 12022.53, subd. (d)); (3) as to counts 2 and 6, [petitioner] personally 

1 Undesignated statutory references are to the Penal Code. 

2 We dispense with a statement of facts as the facts underlying petitioner’s 

convictions are not relevant to the issues raised on appeal.
3.

and intentionally discharged a firearm (id., subd. (c)); (4) as to counts 2, 4, and 8, 

[petitioner] personally used a firearm (§ 12022.5, subd. (a)); (5) as to count 2, [petitioner] 

personally inflicted great bodily injury (§ 12022.7, subd. (a)); and (6) as to all counts, 

[petitioner] was previously convicted of a ‘strike’ offense under the Three Strikes law 

(§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)), was previously convicted of a serious 

felony (§ 667, subd. (a)), and served six prior prison terms (§ 667.5, [former] subd. (b)). 

“The jury convicted [petitioner] on counts 1 through 5 and 9. In connection with 

these counts, it found true the motor vehicle special circumstance and the firearm and 

great bodily injury enhancement allegations and found not true the gang special 

circumstance and gang enhancement allegations. The jury acquitted [petitioner] on 

counts 6 through 8. In a bifurcated proceeding, the trial court found true [petitioner’s] 

prior strike conviction, his prior serious felony conviction, and three of his prior prison 

terms.[3] 

“[Petitioner] was sentenced to (1) life without the possibility of parole (LWOP), 

plus 25 years to life for firearm discharge proximately causing death, five years for the 

prior serious felony conviction, and two years for two prior prison terms,[4] on count 1; 

(2) a consecutive 14 years to life, plus 25 years to life for firearm discharge proximately 

causing great bodily injury, five years for the prior serious felony conviction, and two 

years for two prior prison terms [citation], on count 2[5]; and (3) a consecutive six years, 

plus five years for the prior serious felony conviction and two years for two prior prison 

terms [citation], on count 9. The court [imposed and] stayed execution of punishment on 

3 “At the prosecution’s request, the court dismissed the other prior prison term 

allegations.” 

4 “Because the prior serious felony enhancement and the third prior prison term 

enhancement were based on the same offense, the court did not impose the latter. (See 

People v. Perez (2011) 195 Cal.App.4th 801, 805.)” 

5 “Pursuant to California Rules of Court, rule 4.447, the court stayed execution of 

the remaining enhancements on count 2.” 
4.

counts 3 through 5 pursuant to section 654.” (People v. Vasquez (Feb. 6, 2018, F071302) 

[nonpub. opn.], fn. omitted (Vasquez).) 

On appeal, this court affirmed. (Vasquez, supra, F071302.) 

II. Section 1172.6 Petition

On December 9, 2022, petitioner filed a petition for resentencing pursuant to 

section 1172.6.6 Counsel was appointed to represent him. 

The People opposed the petition on the ground the record established petitioner 

was ineligible for resentencing as a matter of law. Regarding the murder, the People 

argued the record, including the jury instructions, established petitioner was the actual

killer who acted with express or implied malice. Regarding the attempted murder, the 

People argued the record, including the jury instructions, established petitioner was the 

actual perpetrator of the attempted murder and acted with express malice. The People 

asked the court to take judicial notice of this court’s opinion in petitioner’s direct appeal, 

as well as the court files, records, jury instructions, and transcripts in the underlying 

criminal case. 

The matter was heard on June 2, 2023. As to the murder, the court determined that 

the record established petitioner was not convicted under a natural and probable 

consequences or felony-murder theory, but as the actual killer who acted with the specific 

intent to kill. The court also determined the record established petitioner was the direct 

perpetrator of the attempted murder. On that basis, the court determined petitioner failed 

to state a prima facie case and the petition was dismissed. 

6 Petitioner additionally sought resentencing under other statutes, but those 

requests are not at issue in this appeal. 
5.

DISCUSSION

I. Section 1172.6 Procedure

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate 

Bill No. 1437) “altered the substantive law of murder in two areas.” (People v. Curiel 

(2023) 15 Cal.5th 433, 448 (Curiel).) First, the bill narrowed the scope of the felonymurder rule “so that a ‘participant in the perpetration or attempted perpetration of a 

[specified felony] in which a death occurs’ can be liable for murder only if ‘[t]he person 

was the actual killer’; ‘[t]he person was not the actual killer, but, 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 ‘[t]he person was a major 

participant in the underlying felony and acted with reckless indifference to human life.’ ” 

(People v. Arellano (2024) 16 Cal.5th 457, 467–468, quoting § 189, subd. (e)(1)–(3).) 

Second, the bill “eliminate[d] liability for murder as an aider and abettor under the 

natural and probable consequences doctrine” by requiring that, “except in cases of felony 

murder, ‘a principal in a crime shall act with malice aforethought’ to be convicted of 

murder.” (Curiel, at p. 449, quoting § 188, subd. (a)(3).) Now, “ ‘[m]alice shall not be 

imputed to a person based solely on his or her participation in a crime.’ ” (Curiel, at 

p. 449.) 

Additionally, Senate Bill No. 1437 added former section 1170.95, now section

1172.6, to provide a procedure for those convicted of a qualifying offense “ ‘to seek 

relief’ where the two substantive changes described above affect a defendant’s 

conviction.” (Curiel, supra, 15 Cal.5th at p. 449.) Subsequently, Senate Bill No. 775 

(2021–2022 Reg. Sess.) expanded the scope of these ameliorative provisions to “clarif[y] 

that persons who were convicted of attempted murder or manslaughter” are permitted the 

same relief as those convicted of murder. (Stats. 2021, ch. 551, § 1; accord, People v. 

Arellano, supra, 16 Cal.5th at p. 468, fn. 3.)
6.

Under section 1172.6, an offender seeking resentencing must first file a petition in 

the sentencing court, and the sentencing court must determine whether the petitioner has 

made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)–(c); 

accord, People v. Strong (2022) 13 Cal.5th 698, 708.) If the sentencing court determines 

the petitioner has made a prima facie showing, the court must issue an order to show 

cause and hold a hearing to determine whether to vacate the petitioner’s murder, 

attempted murder, or manslaughter conviction. (§ 1172.6, subds. (c), (d)(1).) However, 

“ ‘[i]f the petition and record in the case establish conclusively that the [petitioner] is 

ineligible for relief, the trial court may dismiss the petition.’ ” (Curiel, supra, 15 Cal.5th 

at p. 450.) 

II. Nature of the Prima Facie Inquiry

Our Supreme Court has emphasized that “the prima facie inquiry . . . is limited.” 

(People v. Lewis (2021) 11 Cal.5th 952, 971.) “[T]he ‘prima facie bar was intentionally 

and correctly set very low.’ ” (Id. at p. 972.) The court may not engage in “ ‘factfinding 

involving the weighing of evidence or the exercise of discretion’ ” at the prima facie 

stage. (Ibid.) “Like the analogous prima facie inquiry in habeas corpus proceedings, 

‘ “the court takes petitioner’s factual allegations as true and makes a preliminary 

assessment regarding whether the petitioner would be entitled to relief if his or her factual 

allegations were proved. If so, the court must issue an order to show cause.” ’ [Citation.] 

‘[A] court should not reject the petitioner’s factual allegations on credibility grounds 

without first conducting an evidentiary hearing.’ [Citation.] ‘However, if the record, 

including the court’s own documents, “contain[s] facts refuting the allegations made in 

the petition,” then “the court is justified in making a credibility determination adverse to 

the petitioner.” ’ ” (Id. at p. 971.) 

We review the court’s prima facie inquiry de novo. (People v. Williams (2022) 86 

Cal.App.5th 1244, 1251.)
7.

III. Analysis

Petitioner contends the court erred in denying his petition at the prima facie stage 

because the record does not establish his ineligibility for resentencing as a matter of law. 

We conclude the verdict and jury instructions establish that the jury found petitioner 

guilty of first degree murder and attempted murder as the actual perpetrator of those 

offenses who acted with specific intent to kill. Accordingly, the record establishes 

petitioner was convicted under a theory that remains valid after the effective date of 

Senate Bill No. 1437. He therefore is ineligible for resentencing as a matter of law and 

the petition was properly denied.

A. Conviction of First Degree Murder

Petitioner was convicted of the first degree murder of Armando Ortiz. (Vasquez,

supra, F071302.) To find petitioner guilty of murder, the jury was required to find:

“1. [Petitioner] committed an act that caused the death of another person; [¶] [AND] [¶]

2. When [petitioner] acted, he had a state of mind called malice aforethought.” The jury 

was instructed on both express and implied malice. However, in order to find petitioner 

guilty of first degree murder, the jury was required to find either that the murder was 

willful, deliberate and premeditated, or that the murder was committed by shooting from 

a motor vehicle. The instructions on premeditated murder required that any jury finding 

of willfulness, deliberation, and premeditation be based on petitioner’s own mental state. 

The jury instruction on murder by shooting a firearm from a motor vehicle required a jury 

finding that petitioner intentionally shot a person outside his vehicle and intended to kill 

that person. The jury also was instructed on the doctrine of transferred intent.7 

These instructions did not leave open the possibility of convicting petitioner under 

an imputed malice theory eliminated by Senate Bill No. 1437. To the contrary, the 

7 Transferred intent is a theory of express malice that remains valid after the 

effective date of Senate Bill No. 1437. (People v. Lopez (2024) 99 Cal.App.5th 1242, 

1249–1251.)
8.

instructions required the jury to find every element of murder under a valid theory, i.e., 

that petitioner committed the act that caused death, and that he did so with malice 

aforethought. (See Curiel, supra, 15 Cal.5th at p. 463 [a petitioner’s allegations of 

resentencing eligibility are not “refuted by the record unless the record conclusively 

establishes every element of the offense”].) Significantly, petitioner’s jury was not 

instructed on felony murder, natural and probable consequences, or other imputed malice 

theories eliminated by Senate Bill No. 1437. Additionally, the jury was not instructed on 

aiding and abetting theories that would have permitted the jury to convict petitioner 

except as the actual killer. 

Nonetheless, petitioner contends the verdict form suggests he may have been 

convicted under a felony-murder theory eliminated by Senate Bill No. 1437.8 The verdict 

included a jury finding pursuant to section 189, which was read as follows:

“We, the jury, . . . find it to be true as to [petitioner] that the crime 

was done by one of the following means which is within the meaning of 

Penal Code Section 189:

“(A) Destructive device or explosive;

“(B) Weapon of mass destruction;

“(C) Armor-penetrating ammunition;

“(D) Poison;

“(E) Lying in wait;

“(F) Torture;

“(G) Willful, deliberate, and premeditated killing;

“(H) Discharge of a firearm from a motor vehicle intentionally at another 

person outside the vehicle with the intent to inflict death;

8 The verdict forms are not contained in the record on appeal. Petitioner’s 

argument relies on the reporter’s transcript that includes reading of the jury’s verdict. 
9.

“(I) Perpetration of or attempt to perpetrate arson, rape, carjacking, 

robbery, burglary, mayhem or kidnapping as alleged in the Information.” 

(Italics added.) 

Petitioner contends that this reflects the jury could have convicted him of murder 

as an aider and abettor to arson, rape, carjacking, robbery, burglary, mayhem, or 

kidnapping without finding he had the mens rea necessary to support such conviction 

under current law. This argument fails. The jury was not instructed that it could find 

petitioner guilty of first degree murder based on his participation in arson, rape, 

carjacking, robbery, burglary, mayhem, or kidnapping. Rather, the jury was instructed it 

could only find defendant guilty of first degree murder based on willfulness, deliberation 

and premeditation, or as the perpetrator of murder committed by shooting from a motor 

vehicle. We presume the jury followed the court’s instructions. (People v. Chhoun 

(2021) 11 Cal.5th 1, 30.) In any event, as stated, the instructions required the jury to find 

that petitioner committed the act that caused death. Section 189, as amended by Senate 

Bill No. 1437, continues to permit felony-murder liability for a death that occurs during 

arson, rape, carjacking, robbery, burglary, mayhem, or kidnapping if, among other things, 

the defendant is the actual killer. (§ 189, subd. (e)(1).) Thus, even if the jury somehow 

convicted petitioner under a theory on which it received no instruction, it could only have 

done so under an actual killer theory that remains valid following the effective date of 

Senate Bill No. 1437. 

Accordingly, the record establishes petitioner was convicted of murder under a 

still-valid theory. He is ineligible for resentencing on this conviction as a matter of law. 

B. Conviction of Attempted Murder

Petitioner was convicted of the attempted murder of Aaron R.9 (Vasquez, supra, 

F071302.)

9 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by 

their first names. No disrespect is intended.
10.

To find petitioner guilty of attempted murder, the jury was required to find: 

“1. [Petitioner] took at least one direct but ineffective step toward killing another person; 

[¶] AND [¶] 2. [Petitioner] intended to kill (that/a) (person/ . . . .” The jury also was 

instructed on the kill zone theory of attempted murder as follows: “A person may intend 

to kill a specific victim or victims and at the same time intend to kill everyone in a 

particular zone of harm or ‘kill zone.’ In order to convict the [petitioner] of the attempted 

murder of Aaron [R.], the People must prove that [petitioner] not only intended to kill 

Armando Ortiz but also either intended to kill Aaron [R.], or intended to kill everyone 

within the kill zone. If you have a reasonable doubt whether [petitioner] intended to kill 

Aaron [R.] or intended to kill Armando Ortiz by killing everyone in the kill zone, then 

you must find [petitioner] not guilty of the attempted murder of Aaron [R.].”10 Finally, 

the jury was instructed on deliberation and premeditation as applicable to attempted 

murder. As with the murder instruction regarding deliberation and premeditation, the 

attempted murder instruction required that any jury finding of willfulness, deliberation, 

and premeditation be based on petitioner’s own mental state. 

Based on the foregoing, the attempted murder instructions did not leave open the 

possibility of convicting petitioner under a natural and probable consequences theory of 

attempted murder.11 To the contrary, the instructions required the jury to find every 

element of attempted murder under a valid theory, i.e., that petitioner took at least one 

10 The kill zone theory of attempted murder is a “theory for establishing the 

specific intent to kill required for conviction of attempted murder.” (People v. Canizales

(2019) 7 Cal.5th 591, 607.) As such, it is a theory of express malice unaffected by Senate 

Bill No. 1437.

11 Section 1172.6 permits petitions from persons convicted of “attempted murder 

under the natural and probable consequences doctrine.” (§ 1172.6, subd. (a).) Therefore, 

felony murder and other imputed malice theories are not relevant to petitioner’s 

attempted murder conviction. Regardless, the instructions did not leave open the 

possibility of convicting petitioner of attempted murder under a felony murder or other 

imputed malice theory.
11.

direct step toward killing another person, and that he did so with intent to kill. (See 

Curiel, supra, 15 Cal.5th at p. 463.) Petitioner’s jury was not instructed on the natural 

and probable consequences doctrine or any aiding and abetting theories that would have 

permitted the jury to convict petitioner except as the actual perpetrator of the attempted 

killing who acted with express malice. 

Nonetheless, as with his challenge to the murder conviction, petitioner relies on 

the jury’s verdict to argue he may have been convicted of attempted murder under a 

felony-murder theory eliminated by Senate Bill No. 1437. However, section 1172.6 

permits relief only for attempted murder convictions obtained under a natural and 

probable consequences theory. (§ 1172.6, subd. (a).) Furthermore, the jury was not 

instructed that it could enter a finding pursuant to section 189, as it related to the 

attempted murder, based on petitioner’s participation in arson, rape, carjacking, robbery, 

burglary, mayhem, or kidnapping. Rather, the only basis in the instructions for a jury 

finding pursuant to section 189 was willfulness, deliberation, and premeditation. We 

again presume the jury followed the court’s instructions and found petitioner guilty of 

attempted murder based on his having taken at least one step toward killing another 

person, and that he did so with intent to kill, and with willfulness, deliberation, and 

premeditation. 

As such, petitioner is ineligible for resentencing on his conviction for attempted 

murder. 

DISPOSITION

The order denying the petition for resentencing is affirmed.