Filed 5/20/24 P. v. Morales CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CESAR MORALES,

Defendant and Appellant.

B325035

(Los Angeles County

Super. Ct. No. BA179633)

APPEAL from an order of the Superior Court of Los 

Angeles County, Michael E. Pastor, Judge. Affirmed.

Susan Morrow Maxwell, 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, Assistant 

Attorney General, Scott A. Taryle and David E. Madeo, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

In 2001, a jury convicted Cesar Morales of first degree 

murder and of attempted murder. Years later, he petitioned for 

resentencing under Penal Code1 section 1172.6, which limited 

accomplice liability for murder. After holding an evidentiary 

hearing under that section, the trial court found there was 

insufficient evidence Morales harbored express malice/intent to 

kill. It accordingly reduced the attempted murder conviction to 

assault with a firearm and resentenced Morales on that 

conviction. As to the first degree murder conviction, the trial 

court found that section 1172.6 did not permit it to reduce the 

conviction to second degree murder and to resentence him. 

Morales appeals, contending that the trial court misapplied the 

law concerning second degree implied malice murder, there was 

insufficient evidence he committed that crime, and section 1172.6 

does allow trial courts to reduce the degree of murder. We reject 

these contentions and affirm the order.

BACKGROUND

I. Evidence from Morales’s criminal trial

Morales, Ubaldo Cervantes, Jose Martinez, and Juan 

Naranjo were jointly tried for the murder of Joey Valentino and 

the attempted murder of Gustavo Alvarado.2 We take some of 

the background from the Court of Appeal opinion affirming the 

judgments of conviction against Morales and Cervantes, People v. 

Cervantes (2004) 118 Cal.App.4th 162.

1 All further undesignated statutory references are to the 

Penal Code.

2 The trial had two juries, one for Martinez and a second for 

Morales, Cervantes, and Naranjo.
3

“On January 2, 1999, at approximately 2:30 a.m., Schundra 

Estrada heard a car engine outside her residence on Loosmore 

Street in the Cypress Park area of Los Angeles. Estrada then 

heard footsteps of more than one person leaving the car, followed 

by approximately eight gunshots from around the corner on 

Pleasant View Avenue. Estrada next heard footsteps running to 

the car, car doors closing and more than one voice saying, ‘go, go, 

go, go.’ Estrada looked outside and saw a white Honda leave the 

scene. . . . 

“Police officers found Joey Valentino lying in a pool of blood 

on Pleasant View Avenue. Gustavo Alvarado was a few feet 

away. Both had been beaten about the face and shot in the head 

at a downward trajectory. Alvarado additionally had been shot in 

the back. One of Valentino’s teeth had been knocked from his 

mouth. Valentino died as a result of the gunshot wound to the 

head. Alvarado lost an eye and remains paralyzed below the 

chest.[

3] Valentino and Alvarado were students at the time of the 

shooting and did not belong to a gang or carry weapons, and 

Valentino was in the Army Reserve.

“Shortly after the shooting, Los Angeles police officers 

followed a white Honda that refused to yield. Two males ran 

from the passenger side of the Honda toward a California 

Department of Transportation (Caltrans) yard and evaded the 

officers. The driver, Juan Naranjo, remained seated in the 

Honda and was apprehended. Martinez fled from the driver’s 

side of the Honda. Shortly before the officers caught Martinez, he 

3 Alvarado testified at trial that he could not remember 

anything about the shooting.
4

discarded a nine-millimeter Glock handgun. Martinez wore dark 

blue knit gloves and had a 30-round magazine clip for the Glock.

“In a search of the Caltrans yard, officers found a TEC-9 

handgun, a loaded magazine for that weapon, a .357 magnum 

handgun and a latex glove. Two blue gloves were found at the 

entrance of the yard. A blue knit cap and another pair of dark 

gloves were found near the yard.

“A nine-millimeter Luger cartridge was found in the 

Honda. Cervantes’s fingerprints were on the inside of the front 

passenger window of the Honda, which was registered to 

Morales. A hair fragment found on one of the knit caps shared 10 

to 12 similarities, out of a possible 15, with Cervantes’s hair. A 

bloodstain on the razor wire on top of the fence around the 

Caltrans yard contained Morales’s DNA.

“Seven expended shell casings were found at the scene of 

the attack, and five additional casings were found across the 

street. A criminalist testified the Glock had fired 10 of the 12 

casings. The 11th casing could have been fired by the Glock but 

was not fired by the TEC-9. The 12th casing could have been 

fired from the TEC-9 but was not fired by the Glock.” (People v. 

Cervantes, supra, 118 Cal.App.4th at pp. 165–166, fn. omitted.) 

Statements Morales made to Dolores Ojeda4 were also 

introduced at his trial as follows:

“On January 2, 1999, at approximately 9:30 p.m., Dolores 

Ojeda, who worked as a surgical medical assistant, went across 

the street to the home of Morales. Ojeda had known Morales for 

approximately 12 years. Ojeda also knew Cervantes, Martinez 

4 The defense impeached Ojeda with evidence that she was a 

bigamist.
5

and Naranjo. Ojeda’s daughter dated Martinez for approximately 

18 months. Ojeda spoke to Morales on the front porch of the 

residence. Morales had slashes and cuts on his hands which were 

swollen.

“Morales told Ojeda he received the cuts ‘jumping fences.’

Morales said he had gone to a party the previous night in Cypress 

Park with Cervantes, Martinez and Naranjo to look for some 

males who had made advances toward Morales’s girlfriend. 

Naranjo drove and stopped when they saw two males. Morales, 

Martinez and Cervantes questioned the two males about where 

they were from and asked them about a ‘girlfriend.’ The two 

males were held at gunpoint on their knees and said they did not 

know what Morales was talking about. Morales struck one of the 

males with his handgun and told Martinez to search the males 

for weapons. Martinez did not find a weapon but Morales said 

one of the males had a weapon. Morales shot one male because 

his ‘friend was lying.’ When the second male ran, Morales and 

Cervantes shot him. Morales, Cervantes and Martinez returned 

to the Honda and told Naranjo nothing had happened. Morales 

ran from the car after they were followed by the police and 

jumped a fence near a freeway. Morales also told Ojeda he 

thought the two males were the ‘wrong guys.’ Morales expressed 

fear he might lose his job as a security guard.” (People v. 

Cervantes, supra, 118 Cal.App.4th at pp. 166–167.)5

5 Martinez gave a statement to law enforcement that was 

read only to his jury. Martinez’s statement essentially aligned 

with Ojeda’s, claiming he did not shoot either victim, Morales 

shot Valentino, and Morales and Cervantes shot Alvarado.
6

When he was arrested on January 4, 1999, Morales had 

two lacerations on the palm of his right hand and the knuckles of 

his left hand were swollen and bruised. Cervantes had a long cut 

across his chest and several small cuts on his arms.

In 1998, before the crimes at issue occurred, Morales had 

told a police officer that he used a nine millimeter Glock handgun 

in his work as a security guard.

Ana Barraza testified that at the time of the shooting, she 

was dating Morales and that her child’s father, a member of a 

Cypress Park gang, had threatened her.

A gang expert testified at trial that Martinez, Cervantes 

and Morales each had admitted membership in the same gang. 

The expert further testified that gang members earn respect 

within the gang by participating in certain criminal activities and 

that when gang members exit a car with loaded firearms in 

another gang’s territory, it is reasonably foreseeable that 

someone is going to be shot. Shootings committed in another 

gang’s territory would benefit Morales’s gang by earning it 

respect.

II. Jury’s verdict and sentence

Morales’s jury was instructed on the natural and probable 

consequences doctrine with CALJIC No. 3.02, with assault with 

force likely to cause great bodily injury or assault with a firearm 

as the target offenses. The jury found Morales guilty of first 

degree murder and premeditated, willful, and deliberate 

attempted murder. As to both counts, the jury found true 

principal gun use (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b), 

(c), (d) & (e)(1)) and gang (§ 186.22, subd. (b)(1)) allegations. The 

jury found not true allegations that Morales personally used a 
7

firearm and personally inflicted great bodily injury on the 

victims.

6

In 2001, the trial court sentenced Morales to 25 years to life

plus 20 years for the murder count and to life with a 15-year 

minimum parole eligibility plus 20 years for the attempted 

murder. 

III. The petition for resentencing and evidentiary hearing

In 2019, Morales petitioned for resentencing under section 

1172.6. The trial court found that Morales had stated a prima 

facie case for relief, appointed counsel to represent Morales, 

issued an order to show cause, and held an evidentiary hearing in 

June 2022.

7

At the evidentiary hearing, the parties did not introduce 

new or additional evidence. The trial court instead reviewed the 

reporter’s transcript from Morales’s criminal trial and heard 

argument. It then found, as to both the murder and attempted 

murder counts, that there was insufficient evidence Morales 

acted with express malice. However, as to count 1 for murder, 

the trial court found beyond a reasonable doubt that he would be 

convicted of second degree murder under current law. The trial 

court based its finding on the “use of a family vehicle, . . . , the 

awareness of weapons, the motive, a dual motive of significance 

because of jealousy and also his gang associations[,] [h]is ordering 

that the vehicle be driven. His being involved, . . . , with the 

6 As to both counts, Martinez’s jury found that he personally 

discharged a firearm (§ 12022.53, subd. (c)). 

7 The evidentiary hearing also considered a petition for 

resentencing filed by Cervantes. 
8

planning and preparation.” Further, Morales wore gloves and 

fled with the other defendants. Thus, Morales’s actions 

“demonstrate his subjective awareness of the dangers of his 

actions and the very real awareness of the risk to human 

life . . . in terms of his mens rea.” Finding that section 1172.6 did 

not allow it to reduce the degree of murder, the trial court did not 

resentence Morales on his first degree murder conviction.

But the trial court reduced the attempted murder count to 

assault with a semiautomatic firearm and resentenced Morales to 

eight years in prison. The trial court also struck the gang 

enhancement as to that count. 

DISCUSSION

I. Overview of Senate Bill No. 1437

To the end of ensuring a person’s sentence is commensurate 

with the person’s individual criminal culpability, Senate Bill 

No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) limited 

accomplice liability under the felony-murder rule, eliminated the 

natural and probable consequences doctrine as it relates to 

murder, and eliminated convictions for murder based on a theory 

under which malice is imputed to a person based solely on that 

person’s participation in a crime. (See generally People v. Reyes 

(2023) 14 Cal.5th 981, 986 (Reyes); People v. Lewis (2021) 11 

Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 

842–843, superseded by statute on other grounds as stated in 

People v. Birdsall (2022) 77 Cal.App.5th 859, 866, fn. 19.) Senate 

Bill 1437 added section 189, subdivision (e) (limiting application 

of the felony-murder rule) and section 188, subdivision (a)(3) 

(stating that “to be convicted of murder, a principal in a crime 

shall act with malice aforethought” and malice “shall not be 
9

imputed to a person based solely on his or her participation in a 

crime”). As amended by Senate Bill No. 775, effective January 1, 

2022, these ameliorative changes to the law now expressly apply 

to attempted murder and voluntary manslaughter.

Senate Bill 1437 also created a procedure, codified in 

section 1172.6, for a person convicted of murder, attempted 

murder, or voluntary manslaughter under the former law to be 

resentenced if the person could no longer be convicted of those 

crimes under current law. (People v. Lewis, supra, 11 Cal.5th at 

p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A 

defendant commences that procedure by filing a petition 

containing a declaration that, among other things, the defendant 

could not presently be convicted of murder, attempted murder, or 

voluntary manslaughter under current law. (People v. Strong

(2022) 13 Cal.5th 698, 708.) If a petition establishes a prima 

facie case for relief, the trial court must appoint counsel if 

requested, issue an order to show cause, and hold an evidentiary 

hearing at which the prosecution bears the burden of proving 

beyond a reasonable doubt that the petitioner is guilty of murder 

under the law as amended by Senate Bill 1437. (§ 1172.6, 

subds. (b)(3), (c), & (d)(1).) At the section 1172.6, subdivision 

(d)(3) evidentiary hearing, the parties may offer new or 

additional evidence. The trial court sits as an independent 

factfinder to determine beyond a reasonable doubt whether the 

defendant is guilty of murder under a valid theory. (People v. 

Garrison (2021) 73 Cal.App.5th 735, 745.)

On appeal, we review the trial court’s findings for 

substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 

276, 298; accord, People v. Mitchell (2022) 81 Cal.App.5th 575, 

591.) Under that standard of review, we “ ‘ “examine the entire 
10

record in the light most favorable to the judgment to determine 

whether it contains substantial evidence—that is, evidence that 

is reasonable, credible, and of solid value that would support a 

rational trier of fact in finding [the defendant guilty] beyond a 

reasonable doubt.” ’ ” (Clements, at p. 298.) We presume in 

support of the judgment the existence of every fact that can be 

reasonably deduced from the evidence. (People v. Owens (2022) 

78 Cal.App.5th 1015, 1022.) We do not resolve credibility issues 

or evidentiary conflicts. (Ibid.) Substantial evidence includes 

circumstantial evidence and any reasonable inferences drawn 

from that evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57.) 

Before we may set aside a trial court’s order, it must be clear that 

“ ‘ “upon no hypothesis whatever is there sufficient substantial 

evidence to support [it].” ’ ” (People v. Zamudio (2008) 43 Cal.4th 

327, 357.)

II. Second degree implied malice murder 

Morales raises two contentions about the trial court’s 

finding he was guilty of second degree implied malice murder. 

First, the trial court applied an incorrect legal standard to find 

him guilty of that crime. Second, there was insufficient evidence 

to support second degree implied malice murder. We reject these 

contentions.

Murder is the unlawful killing of a human being with 

malice aforethought. (§ 187, subd. (a).) Malice may be express or 

implied. (§ 188, subd. (a).) The primary difference between 

express malice and implied malice is the former requires an 

intent to kill but the latter does not. (People v. Soto (2018) 

4 Cal.5th 968, 976.) Implied malice murder instead requires the 

killing be proximately caused by an act, “ ‘ “ ‘the natural 

consequences of which are dangerous to life, which act was 
11

deliberately performed by a person who knows that his conduct 

endangers the life of another and who acts with conscious 

disregard for life.’ ” ’ ” (Reyes, supra, 14 Cal.5th at p. 988.) 

Proximate causation requires the act to have been a substantial 

factor contributing to the death. (Ibid.) And conscious disregard 

for human life refers to a state of mind in which the person 

knows the conduct is dangerous to others but does not care if 

someone is hurt or killed. (People v. Murphy (2022) 80 

Cal.App.5th 713, 726.)

The guilt of an aider and abettor to a crime, including 

murder, is “based on a combination of the direct perpetrator’s 

acts and the aider and abettor’s own acts and own mental state.” 

(People v. McCoy (2001) 25 Cal.4th 1111, 1117.) “A person aids 

and abets the commission of a crime when [the person], (i) with 

knowledge of the unlawful purpose of the perpetrator, (ii) and 

with the intent or purpose of committing, facilitating or 

encouraging commission of the crime, (iii) by act or advice, aids, 

promotes, encourages or instigates the commission of the crime.” 

(People v. Cooper (1991) 53 Cal.3d 1158, 1164.) 

Accordingly, a direct aider and abettor of implied malice 

murder must, by words or conduct, aid the perpetrator’s 

commission of a life-endangering act with the “knowledge that 

the perpetrator intended to commit the act, intent to aid the 

perpetrator in the commission of the act, knowledge that the act 

is dangerous to human life,” and act “in conscious disregard for 

human life.” (People v. Powell (2021) 63 Cal.App.5th 689, 713, 

italics omitted, cited with approval by Reyes, supra, 14 Cal.5th at 

p. 991 [implied malice murder requires proof of aider and 

abettor’s “knowledge and intent with regard to the direct 

perpetrator’s life endangering act”].) In other words, under 
12

current law, “a direct aider and abettor of the killing who knew 

that his (or her) conduct endangered the life of another and acted 

with conscious disregard for life, may be guilty of second degree 

murder.” (People v. Langi (2022) 73 Cal.App.5th 972, 979.)

In Reyes, our California Supreme Court clarified the type of 

act committed by an aider and abettor that is dangerous to 

human life for the purposes of implied malice murder. An act 

that merely creates a dangerous situation in which death is 

possible, depending on how circumstances unfolded, standing 

alone will not satisfy the proximate causation requirement of 

implied malice murder. (Reyes, supra, 14 Cal.5th at p. 989.) 

Rather, implied malice murder requires a high probability that 

death will result; the danger to life cannot be merely vague or 

speculative. (Ibid.; People v. Cravens (2012) 53 Cal.4th 500, 513 

[probability of death cannot be remote or merely possible].)

In Reyes, supra, 14 Cal.5th at page 985, for example, the 

defendant Reyes was at a park with fellow gang members, one of 

whom openly displayed a gun. After someone in Reyes’s group 

called out to a passing car, the group chased the car, and 

someone (not Reyes) shot at the car, killing its driver. (Ibid.) 

The court found that Reyes’s act of traveling with an armed 

fellow gang member into rival gang territory could result in a 

gang confrontation during which it was possible someone could 

get hurt or killed, but the act did not by itself “give rise to a high 

degree of probability” death would result. (Id. at p. 989.) 

Further, there was no evidence Reyes’s “acts precipitated or 

provoked the shooting.” (Ibid.) And if the act of shooting was the 

dangerous act, there had to be evidence Reyes knew the shooter 

intended to shoot, intended to aid him in shooting, knew shooting 
13

was dangerous to life, and acted in conscious disregard of life. 

(Id. at pp. 991–992.)

Here, Morales makes the interconnected claims that first,

the trial court “failed to focus on” his “mental state as it related 

to the ‘life-endangering act committed by the direct perpetrator,’ ” 

Martinez, and second, there was insufficient evidence Morales 

committed second degree implied malice murder. 

First, nothing in the record suggests that the trial court 

misunderstood or misapplied the law. Rather, the trial court 

detailed the reasons for concluding, beyond a reasonable doubt,

that Morales would be convicted of second degree implied malice 

murder under current law.8 The trial court cited Morales’s use of 

his own car, use of guns, motive, and planning activity as 

evidence of his mens rea. Otherwise, nothing the trial court said 

suggests it misunderstood that Morales had to know that 

Martinez intended to commit a life endangering act, intentionally

aided and abetted that act with conscious disregard to human 

life, knowing the act was dangerous to human life.

Moreover, we do not agree with Morales’s assertion that 

the trial court could not consider any part of Ojeda’s testimony 

because the jury found he did not personally use a gun or inflict 

great bodily injury. This finding certainly suggests that the jury

did not credit Ojeda’s testimony that Morales told her he shot 

Valentino and Alvarado. While the trial court at the section 

1172.6 evidentiary hearing had to accept those findings, it 

8 Implied malice remains a valid theory of second degree 

murder liability for an aider and abettor after Senate Bill 1437’s 

enactment. (Reyes, supra, 14 Cal.5th at p. 991; People v. Gentile, 

supra, 10 Cal.5th at p. 850.)
14

nonetheless could still consider Ojeda’s testimony. That is, a 

trier of fact may accept part of a witness’s testimony and reject 

another part, weaving a cloth of truth from the evidence. 

(Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67.) Thus, the 

trial court could consider Ojeda’s testimony in determining 

whether beyond a reasonable doubt Morales aided and abetted 

second degree implied malice murder, even while respecting the 

verdict on the firearm enhancements. 

Second, there was sufficient evidence that Morales directly 

aided and abetted the life-endangering acts of shooting Valentino 

and Alvarado with conscious disregard to human life. Morales 

had a motive for the shootings: Morales was upset that men had 

made advances to his girlfriend. Ojeda testified that Morales told 

her some men had made advances to his girlfriend, and that he 

and the others had searched for them. Ana Barraza corroborated 

Ojeda’s testimony by herself testifying that she was dating 

Morales at the time of the shootings and that her child’s father 

had threatened her. This motive is probative of Morales’s 

conscious disregard to human life. (See generally People v. Smith 

(2005) 37 Cal.4th 733, 741 [motive for crime may be probative of 

intent to kill].) 

Planning activity further showed that Morales intended to 

aid and abet the shootings. (See generally People v. Glukhoy

(2022) 77 Cal.App.5th 576, 599 [conduct before and after offense

relevant to determine whether defendant aided and abetted a 

crime]; People v. Thomas (2011) 52 Cal.4th 336, 355 [defendant’s 

actions leading to crime may be relevant to mens rea and intent 

at time of crime].) Morales gathered fellow gang members in the 

early morning hours, and they drove around in his car, looking 

for the men who made the advances to Morales’s girlfriend. That 
15

the men were in Morales’s car further supported an inference he 

was the plan’s mastermind. Morales and his companions had 

three guns and ammunition with them. And the evidence showed 

that Morales knew about the guns and was himself armed with 

one: he told Ojeda he had a gun, and two guns were found in the 

Caltrans yard, where Morales fled after the shooting, further 

corroborating this part of Ojeda’s testimony. Also, Martinez was 

wearing gloves when he was apprehended, and a latex glove and 

another set of gloves were found in the Caltrans yard. That all 

three men had guns and gloves further evidenced a plan to shoot 

the victims and to wear gloves to avoid identification. 

Finally, evidence showed that Valentino and Alvarado were 

beaten, made to kneel, and shot in their heads at a downward

trajectory. Alvarado was also shot in the back.9 Shooting victims 

in the head area from within a few feet is a sufficiently particular 

and exacting method of killing to permit an inference the 

defendant was acting according to a preconceived design. (People 

v. Halvorsen (2007) 42 Cal.4th 379, 422; accord, People v. Gomez

(2018) 6 Cal.5th 243, 283 [shooting victims at close range in head 

or neck shows premeditation and deliberation]; People v. 

Gonzales and Soliz (2011) 52 Cal.4th 254, 295 [close-range 

9 Ojeda testified that Morales told her he and Cervantes shot 

at Alvarado as he tried to escape. Other evidence corroborated 

this portion of her testimony: law enforcement found Alvarado a 

few feet from Valentino’s body, and Alvarado had been shot in the 

back, as well as in the head.
16

shooting without provocation or evidence of struggle supports 

inference of premeditation and deliberation].)10

The evidence established that Morales knew the victims 

were going to be shot and that he aided that goal by arming 

himself, trying to disguise his identity, pursuing the victims with 

armed companions, and preventing their escape. The evidence 

further established that he knew the victims were going to be 

shot, because they were forced to kneel, inferentially at gunpoint, 

at which point the shooter’s murderous intent was unmistakable.

Thus, unlike the defendant in Reyes, there was evidence Morales

knew the shooter intended to shoot, intentionally aided the 

shooting, knew that the shooting was dangerous to human life, 

and acted with conscious disregard to human life. 

We therefore conclude that sufficient evidence supports the 

trial court’s finding Morales guilty of second degree implied 

malice murder. 

II. Reduction to second degree murder

Morales’s final contention is the trial court erred by 

refusing to reduce his first degree murder conviction to second 

degree murder. Several courts have recently rejected a similar 

contention, finding that the face of section 1172.6 does not permit 

reducing the degree of murder.

We review the interpretation of a statute de novo. (People 

v. Gonzalez (2023) 87 Cal.App.5th 869, 880.) We first examine

the statute’s words, giving them a plain and commonsense 

10 Neither Valentino nor Alvarado had injuries to their hands, 

suggesting they had no opportunity to defend themselves. 
17

meaning. (Ibid.) If the plain language is clear and unambiguous, 

our inquiry ends and the plain meaning governs. (Ibid.) 

Section 1172.6, subdivision (d)(3), governs evidentiary 

hearings, which occur if the defendant has made a prima facie 

case for relief. At an evidentiary hearing, the prosecution has the 

burden of proving beyond a reasonable doubt that the defendant 

“is guilty of murder or attempted murder under California law as 

amended by the changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (d)(3).) If the prosecution 

meets its burden, then the defendant is not entitled to relief, and 

the court denies the petition for resentencing. (Ibid.) But if “the 

prosecution fails to sustain its burden of proof, the prior 

conviction, and any allegations and enhancements attached to 

the conviction, shall be vacated and the petitioner shall be 

resentenced on the remaining charges.” (Ibid., italics added.) In 

that instance, the conviction “shall be redesignated as the target 

offense or underlying felony for resentencing purposes” if 

“murder or attempted murder was charged generically, and the 

target offense was not charged.” (Id. at subd. (e).)

At least two Courts of Appeal have found that, on its face, 

section 1172.6 “does not contain a mechanism for a trial court to 

reduce a first degree murder conviction to second degree murder.”

(People v. Gonzalez (2023) 87 Cal.App.5th 869, 880; accord, People 

v. Didyavong (2023) 90 Cal.App.5th 85, review granted June 28, 

2023, S280047, review dism. October 18, 2023.) Instead, section 

1172.6 treats all murder as a single, generic crime and requires 

resentencing only when a defendant could not now be convicted of 

murder generically, without reference to the degree of murder. 

(Didyavong, at p. 96.) Section 1172.6 thus permits only two 

options in adjudicating a resentencing petition: (1) deny the 
18

petition, leaving in place the murder conviction, or (2) grant the 

petition, vacating the murder conviction and resentencing the 

defendant on the remaining charges, target offense, or underlying 

felony. (Gonzalez, at p. 881.) 

Given section 1172.6’s use of the word “vacate,” we agree 

that the statute permits a murder conviction only to be set aside 

and does not permit reduction of the degree of murder.

Nonetheless, we are cognizant of the seemingly 

incongruous position this leaves Morales in: a trial court has 

found he is guilty of only second degree murder, yet, he stands 

convicted of and sentenced on first degree murder, with no 

remedy apparent, at least under section 1172.6. However, the 

Legislature may properly enact reform one step at a time, 

limiting the ameliorative effects of legislation to the class or 

classes of person it thinks need it most. (Kasler v. Lockyer (2000) 

23 Cal.4th 472, 488.) While section 1172.6 aims to ensure a 

person’s sentence is commensurate with the person’s individual 

criminal culpability, the Legislature chose to achieve that aim by 

giving specified relief to a class of people who could not be 

convicted of murder generically because of revisions to laws 

regarding felony murder and the natural and probable 

consequences doctrine. (See People v. Coley (2022) 77 

Cal.App.5th 539, 549 [§ 1172.6 “is not a means by which a 

defendant can relitigate issues already decided”]; People v. 

Farfan (2021) 71 Cal.App.5th 942, 947 [“mere filing” of § 1172.6 

petition does not afford petitioner new opportunity to raise trial 

error claims or attack sufficiency of evidence to support jury’s 

findings]; People v. DeHuff (2021) 63 Cal.App.5th 428, 438 

[§ 1172.6 is not a direct appeal].) We are not free to substitute 

our judgment for the Legislature’s about what might be a better 
19

policy. (City and County of San Francisco v. Sweet (1995) 12 

Cal.4th 105, 121.) 

DISPOSITION

 The order denying Cesar Morales’s Penal Code section 

1172.6 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

ADAMS, J.