Filed 11/17/23 P. v. Valle CA2/2

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS ALONZO VALLE et al.,

Defendants and Appellants.

B322059

(Los Angeles County

Super. Ct. No. BA040676)

APPEAL from postjudgment orders of the Superior Court of 

Los Angeles County. Stephen A. Marcus, Judge, and 

Eleanor J. Hunter, Judge. Affirmed.

Elizabeth K. Horowitz, under appointment by the Court of 

Appeal, for Defendant and Appellant Luis Alonzo Valle.

Adrian K. Panton, under appointment by the Court of 

Appeal, for Defendant and Appellant Raul Guzman.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Kenneth C. Byrne, Shezad H. 
2

Thakor, and Kristen J. Inberg, Deputy Attorneys General, for 

Plaintiff and Respondent.

____________________________________________

Luis Alonzo Valle and Raul Guzman appeal the denial of 

their petitions for resentencing under Penal Code1 section 1172.6 

(former § 1170.95)2 at the prima facie stage. Appellants contend

that because the instructions given permitted the jury to convict 

on a theory of imputed malice, the superior court erred in finding 

that appellants did not make a prima facie case for relief under 

section 1172.6. Appellant Guzman also contends that the 

superior court committed prejudicial error by conducting the 

prima facie hearing under section 1172.6, subdivision (c) in 

Guzman’s absence without a waiver of his right to personal 

presence at the hearing. We disagree and affirm.

FACTUAL BACKGROUND3

Shortly after midnight on June 19, 1991, codefendant 

Reyes Saul Aguilar approached Armando Lopez and Raul Ortega, 

while appellants Valle and Guzman were hidden nearby. 

Pointing a small gun at Ortega’s chest, Aguilar demanded to 

know where Ortega was from. Ortega responded, “I’m Nardo 

1 Undesignated statutory references are to the Penal Code.

2 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6, with no change in text. (Stats. 2022, 

ch. 58, § 10.)

3 The underlying facts are summarized for context from 

this court’s unpublished opinion in the defendants’ direct appeal. 

(People v. Valle et al. (Dec. 8, 1994, B073825 [nonpub. opn.].)
3

from Third Street.” Guzman then emerged also holding a gun, 

and asked Ortega, “What’s up Nardo?” Ortega responded, 

“What’s up, Ese?” The men began to argue and Valle emerged 

from hiding, holding a shotgun. As Valle approached Ortega, 

Ortega said, “If you are gonna do it, just do it.” Valle fired the 

shotgun at Ortega, striking him below the hip. Aguilar and 

Guzman then fired their guns at Ortega several times from a 

distance of two or three feet. Valle fired another round in 

Ortega’s direction, before he, Guzman and Aguilar ran away. 

(People v. Valle et al., supra, B073825.)

Valle, Guzman and Aguilar matched the descriptions of the 

assailants given by Ortega’s companion and were arrested 

shortly after the shooting. Police recovered a .32-caliber handgun 

they had seen Aguilar drop before his arrest. (People v. Valle et 

al., supra, B073825.)

Ortega died as a result of his wounds. A bullet recovered 

from his chest had been fired from the .32-caliber weapon 

dropped by Aguilar. Shotgun wadding recovered from Ortega’s 

clothing and the dispersal of the shotgun pellets indicated the 

shotgun had been fired from a distance of six to eight feet from 

the victim. Police recovered three .32-caliber casings, one spent 

shotgun shell, one live shotgun shell, and many bullet fragments 

from the scene of the shooting. (People v. Valle et al., supra,

B073825.)

PROCEDURAL BACKGROUND

In 1993, a jury convicted appellant Valle and codefendant 

Aguilar of first degree murder, and appellant Guzman of second 

degree murder. (§ 187, subd. (a).) As to each defendant, the jury 

found true the allegation that the defendant had personally used 

a firearm (§ 12022.5), and a principal in the offense was armed 
4

with a firearm (§ 12022, subd. (a)(1).) Valle was sentenced to 25 

years to life, plus five years for the personal firearm use 

enhancement, and Guzman was sentenced to 15 years to life, plus 

five years for the personal firearm use enhancement. This court 

affirmed the judgments against all three defendants in an 

unpublished opinion filed December 8, 1994.

On December 8, 2021, appellant Valle filed a section 1172.6

petition for resentencing, and appellant Guzman filed his petition 

in January 2022.4 After appointment of counsel, briefing and an 

opportunity for argument, the superior court denied Valle’s 

petition on June 16, 2022. After reviewing the jury instructions 

given at trial, the court determined that Valle’s murder 

conviction was not based on a felony-murder theory or the 

natural and probable consequences doctrine. Accordingly, Valle 

had failed to make a prima facie showing of eligibility for relief 

under section 1172.6.

As for Guzman’s resentencing petition, following 

appointment of counsel, briefing and an opportunity for 

argument, the superior court denied Guzman’s section 1172.6 

petition on the ground that Guzman had not made a prima facie 

case demonstrating eligibility for relief.

4 Appellants had previously filed petitions for resentencing, 

which the superior court summarily denied without appointment 

of counsel. This court affirmed the denial of appellant Guzman’s 

petition. (People v. Guzman (Aug. 3, 2020, B297087 [nonpub. 

opn.].) Appellants’ renewed petitions were filed after the 

California Supreme Court held in People v. Lewis (2021) 11 

Cal.5th 952, 970 (Lewis) that a superior court must appoint 

counsel, if requested, for all facially sufficient petitions filed 

under section 1172.6.
5

DISCUSSION

I. Appellants Are Ineligible for Relief Under 

Section 1172.6 as a Matter of Law

Appellants contend the superior court denied their 

resentencing petitions at the prima facie stage in error. We 

disagree. Based on the jury instructions given at trial and the 

jury’s verdicts and findings, the superior court properly ruled 

that appellants were not convicted under any theory that would 

entitle them to relief under section 1172.6. Accordingly, the 

superior court properly denied the resentencing petitions at the 

prima facie stage.

A. Proceedings in the superior court5

1. The hearing on appellant Valle’s petition

At the outset of the hearing, the superior court observed 

the matter was at the “ ‘prima facie phase,’ ” and announced it 

had “read all the documents,” including the parties’ briefs. 

Counsel submitted on the briefing. The court ruled that Valle 

had failed to carry his burden to make a prima facie showing that 

he is entitled to relief under section 1172.6, explaining that in 

order to be eligible for relief, “petitioner must, at a minimum, 

show he’s been convicted under either a natural and probable 

consequence theory of murder or a felony murder theory.” But 

given the absence of jury instructions on the natural and 

probable consequence doctrine or a felony-murder theory, the 

court determined the prosecution did not pursue a murder 

5 Appellants’ petitions for resentencing under section 

1172.6 were heard separately by two different judges of the 

superior court. Judge Stephen A. Marcus heard and denied 

appellant Valle’s petition, and appellant Guzman’s petition was 

heard and denied by Judge Eleanor J. Hunter.
6

conviction under either theory, and Valle did not establish 

eligibility for relief under section 1172.6. The court rejected the 

argument that the trial court’s giving of CALJIC No. 3.006

established that the natural and probable consequences doctrine 

was presented to the jury as a theory of the murder.

The superior court cited two cases in support of its decision. 

(People v. Mancilla (2021) 67 Cal.App.5th 854, and People v. Soto

(2020) 51 Cal.App.5th 1043.) The court also cited the facts of the 

offense as supporting its ruling, and emphasized the jury’s 

finding that Valle had personally used a firearm, which indicated 

Valle had the intent to kill even though it was a bullet from 

another gun that killed the victim. The court stressed, however, 

that the “obvious reason” for its conclusion that Valle was 

ineligible for relief was “the lack of jury instructions” on felony 

murder and natural and probable consequences theories.

Suggesting the superior court had engaged in 

impermissible factfinding, defense counsel requested clarification 

about what the court was relying on in making its ruling. The 

court responded that it was relying on the absence of jury 

instructions on the only two theories relevant to a section 1172.6 

petition⎯felony murder and natural and probable consequences.

6 It appears the superior court misspoke when it referred to 

CALJIC No. 3.00. That instruction defines principals, and 

contains no reference to natural and probable consequences. Nor 

does CALJIC No. 3.01, which defines aiding and abetting. Only 

CALJIC No. 8.11, defining implied malice, contains a reference to 

the “natural consequences of [an] act” being dangerous to human 

life.
7

2. The hearing on appellant Guzman’s petition

Appellant Guzman was not present at the hearing on his 

petition, but appeared through counsel. The parties submitted on 

the briefing.

The superior court observed that the matter was “at the 

prima facie phase,” and stated it had reviewed the record of 

conviction, jury instructions, verdict, and “the appellate 

opinion.”7 Based on its review of the record, the court noted that 

“there was no felony murder instruction given, [and] there was no 

natural and probable consequence[s] instruction given.” The 

court stated that the jury found appellant Guzman guilty of 

second degree murder and also found true the allegation that 

Guzman had personally used a firearm.

In light of these facts, the superior court concluded that 

appellant Guzman was not convicted under either a felonymurder theory or the natural and probable consequences 

doctrine. Accordingly, the court declared Guzman to be “legally 

ineligible for relief under [section 1172.6]” and denied the petition 

for resentencing.

B. Applicable legal principles

The Legislature enacted Senate Bill No. 1437 (2017–2018 

Reg. Sess.) in 2018, effectively abolishing the natural and 

probable consequences doctrine in cases of murder and limiting 

the application of the felony-murder doctrine. (Stats. 2018, 

ch. 1015, § 1, subd. (f); Lewis, supra, 11 Cal.5th at p. 957.) With 

one narrow exception (§ 189, subd. (f)), Senate Bill No. 1437 

7 The superior court did not specify which appellate opinion 

it had reviewed⎯People v. Valle et al., supra, B073825, or People 

v. Guzman, supra, B297087.
8

effectively eliminated murder convictions premised on any theory 

of imputed malice—that is, any theory by which a person can be 

convicted of murder for a killing committed by someone else, such 

as felony murder or the natural and probable consequences 

doctrine—unless the People also prove that the nonkiller 

defendant personally acted with the intent to kill or was a major 

participant who acted with reckless disregard to human life. 

(§§ 188, subd. (a)(3) & 189, subd. (e).) Specifically, the 

Legislature amended section 188 to require that, when the 

felony-murder rule does not apply, a principal in the crime of 

murder “shall act with malice aforethought” and “[m]alice shall 

not be imputed to a person based solely on his or her 

participation in a crime.” (§ 188, subd. (a)(3); People v. Gentile

(2020) 10 Cal.5th 830, 842–843 (Gentile).)

Senate Bill No. 1437 also enacted former section 1170.95 

(now § 1172.6), which established a procedure for vacating the 

murder convictions of defendants who could no longer be 

convicted of murder because of the amendments to sections 188 

and 189. (Stats. 2018, ch. 1015, § 4; Lewis, supra, 11 Cal.5th at 

pp. 957, 959, 971; Gentile, supra, 10 Cal.5th at p. 843.) Section 

1172.6, subdivision (c) requires the court to appoint counsel when 

requested upon the filing of a properly pleaded petition for 

resentencing. (Lewis, at pp. 963, 966.) The court must then 

conduct a prima facie analysis with briefing to determine the 

petitioner’s eligibility for relief, and, if the requisite prima facie 

showing is made, issue an order to show cause. (§ 1172.6, 

subd. (c); Lewis, at p. 971; People v. Nieber (2022) 82 Cal.App.5th 

458, 469–470.)

Effective January 1, 2022, Senate Bill No. 775 amended 

section 1172.6 to expand its coverage to murder convictions 
9

“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.” (§ 1172.6, subd. (a), as 

amended by Stats. 2021, ch. 551, § 2, new text italicized; People v. 

Langi (2022) 73 Cal.App.5th 972, 978 (Langi).) A petitioner is 

ineligible for section 1172.6 relief as a matter of law if, for 

example, the jury instructions show that jurors were not 

instructed on any theory of liability for murder that allowed 

malice to be imputed to the defendant. (People v. Cortes (2022) 

75 Cal.App.5th 198, 205 (Cortes).) A petitioner is also ineligible 

for relief if the record of conviction shows that his or her

conviction was based on a theory of liability that remains valid 

under Senate Bill 1437. (Gentile, supra, 10 Cal.5th at p. 850 

[“notwithstanding Senate Bill 1437’s elimination of natural and 

probable consequences,” implied malice remains a valid theory of 

second degree murder]; Cortes, at p. 205 [same]; see also People v. 

Medrano (2021) 68 Cal.App.5th 177, 182–183 [a defendant 

convicted of conspiracy to murder ineligible for § 1172.6 relief].)

We review de novo the superior court’s prima facie 

determination that a petitioner is ineligible for section 1172.6 

relief as a matter of law. (People v. Coley (2022) 77 Cal.App.5th 

539, 545; People v. Williams (2022) 86 Cal.App.5th 1244, 1251

(Williams).)

C. The superior court properly denied appellants’ 

petitions at the prima facie stage because appellants are 

ineligible for relief under section 1172.6 as a matter of law

Appellants contend that the jury could have convicted them 

of murder on a theory of imputed malice. But the jury in this 

case was not instructed on any theory of liability for murder that 

allowed malice to be imputed to appellants Valle or Guzman. 
10

(See Cortes, supra, 75 Cal.App.5th at p. 205.) Nevertheless, 

appellants focus on isolated phrases in the jury instructions to 

argue that the instructions given in this case permitted the jury 

to impute malice to them. Reading the instructions as a whole, 

as we must (People v. Burton (2018) 29 Cal.App.5th 917, 925), we 

conclude the only theory on which appellants’ jury was instructed 

was direct aiding and abetting, which does not qualify for section 

1172.6 relief.

Specifically, the trial court instructed with CALJIC 

No. 8.10 that murder requires malice aforethought. The court 

explained via CALJIC No. 8.11 that malice may be express or 

implied: express “when there is manifested an intention 

unlawfully to kill a human being”; and implied when “1. The 

killing resulted from an intentional act, [¶] 2. The natural 

consequences of the act are dangerous to human life, and [¶] 

3. The act was deliberately performed with knowledge of the 

danger to, and with conscious disregard for human life.”

The trial court instructed the jury that all principals in a 

crime are “equally guilty” of that crime. (CALJIC No. 3.00.) 

CALJIC No. 3.00 defined principals as “[t]hose who directly and 

actively commit the act constituting the crime,” as well as 

“[t]hose who aid and abet the commission of the crime.” Reading 

CALJIC No. 3.01, the court further instructed that “[a] person 

aids and abets the commission 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, encouraging, or facilitating the commission of the 

crime, by act or advice aids, promotes, encourages or instigates 

the commission of the crime.” (CALJIC No. 3.01.)
11

The trial court also instructed that “[t]he word ‘defendant’ 

applies equally to each defendant.” (CALJIC No. 1.11.) Finally, 

two other instructions ensured that in order to convict any 

defendant as an aider and abettor of the murder, the jury had to 

consider each defendant’s guilt separately from the others’

(CALJIC No. 17.00 [“You must decide separately whether each of 

the defendants is guilty or not guilty”], and also find that each 

defendant himself harbored the requisite intent to kill (CALJIC 

No. 3.31 [“Unless such specific intent exists the crime to which it 

relates is not committed”]).

In order to convict, these instructions required the jury to 

find that each defendant separately committed murder⎯whether 

as the actual killer or as a direct aider and abettor⎯with express 

or implied malice. “ ‘[T]o be liable for an implied malice murder, 

the direct aider and abettor must, by words or conduct, aid the 

commission of the life-endangering act, not the result of that act. 

The mens rea, which must be personally harbored by the direct 

aider and abettor, is 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 

acting in conscious disregard for human life.’ ” (People v. Reyes

(2023) 14 Cal.5th 981, 991, quoting People v. Powell (2021) 63 

Cal.App.5th 689, 713 (Powell).) Thus, aiding and abetting 

implied malice murder is a theory of murder based on the aider 

and abettor’s own mental state; it does not rely on imputed 

malice. (People v. Silva (2023) 87 Cal.App.5th 632, 639; People v. 

Schell (2022) 84 Cal.App.5th 437, 443–444; People v. Vizcarra

(2022) 84 Cal.App.5th 377, 390–391; People v. Vargas (2022) 84 

Cal.App.5th 943, 955.)
12

Appellants contend that the “equally guilty” language in 

CALJIC No. 3.00 allowed the jury to convict them of murder

“without ever determining that [they] personally acted with 

malice, or that [Valle] personally premeditated anything.” We 

disagree.

Our Supreme Court has declared that “ ‘ “A defendant 

challenging an instruction as being subject to erroneous 

interpretation by the jury must demonstrate a reasonable 

likelihood that the jury understood the instruction in the way 

asserted by the defendant. [Citations.]” [Citation.] “ ‘[T]he 

correctness of jury instructions is to be determined from the 

entire charge of the court, not from a consideration of parts of an 

instruction or from a particular instruction.’ ” ’ ” (People v. 

Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433 (Bryant 

et al.).)

Since appellants’ 1993 trial, courts have recognized that 

the “equally guilty” language in former CALJIC No. 3.00 “could 

be misleading if the principals in a particular case might be 

guilty of different crimes and the jury interprets the instruction 

to preclude such a finding.” (Bryant et al., supra, 60 Cal.4th at 

p. 433; People v. Amezcua and Flores (2019) 6 Cal.5th 886, 918 

(Amezcua and Flores).) The instruction was subsequently revised 

“to address the circumstance that aiders and abettors are not 

always guilty of the same crime as the actual perpetrators.” 

(Bryant et al., at p. 433.) However, as applied in most cases, the 

court “recognized that the standard instruction ‘generally stated 

a correct rule of law,’ in that ‘[a]ll principals, including aiders and 

abettors, are “equally guilty” in the sense that they are all 

criminally liable.’ ” ([Bryant et al.] at p. 433.) (Amezcua and 

Flores, at p. 918.)
13

Here, in order for the jury to impute malice to appellants 

Valle and Guzman and convict them as aiders and abettors based 

on the “equally guilty” language in CALJIC No. 3.00, jurors 

would have had to misinterpret or completely ignore several 

other instructions. Those instructions required that the jury 

consider each defendant’s guilt separately (CALJIC No. 17.00),

find an intent to kill on the part of each defendant individually 

(CALJIC No. 3.31), and find that each defendant who 

participated in the murder as an aider and abettor did so with 

knowledge of the perpetrator’s unlawful purpose and acted with 

his own intent to commit the crime. (CALJIC No. 3.01.)

Given that the jury convicted all three defendants of 

murder and found all three had personally used a firearm in the 

commission of that murder, there appears no reasonable 

likelihood that the jury understood the instructions to permit a 

murder conviction on any theory of imputed malice in this case. 

(See Amezcua and Flores, supra, 6 Cal.5th at p. 918 [“Because the 

circumstances of this case reflected defendants’ joint 

participation in the offenses at issue with the required intent to 

kill, the trial court did not err in giving the jury the unmodified 

CALJIC No. 3.00”].) Not only do “ ‘we presume jurors understand

and correlate all of the instructions’ [citation],” but the jury is 

also “ ‘presumed to have followed the court’s instructions’ (People 

v. Sanchez (2001) 26 Cal.4th 834, 852).” (Williams, supra, 86 

Cal.App.5th at p. 1256, italics added; Bryant et al., supra, 60 

Cal.4th at p. 433 [“ ‘It is fundamental that jurors are presumed to 

be intelligent and capable of understanding and applying the 

court’s instructions’ ”]; People v. McKinnon (2011) 52 Cal.4th 610, 

670 [“We ‘credit jurors with intelligence and common sense’
14

[citation] and presume they generally understand and follow

instructions”].)

Because neither Senate Bill No. 1437 nor 775 eliminated 

direct aiding and abetting liability for murder under an implied 

malice theory, the instructions given at appellants’ trial 

demonstrate appellants are ineligible for relief under section 

1172.6 as a matter of law. (Gentile, supra, 10 Cal.5th at p. 850;

Cortes, supra, 75 Cal.App.5th at p. 205.)

D. The Powell, Langi, and Loza8 decisions are 

inapposite

Appellants rely on Powell, supra, 63 Cal.App.5th 689, 

Langi, supra, 73 Cal.App.5th 972, and Loza, supra, 27 

Cal.App.5th 797, to argue that where, as here, the aiding and 

abetting and implied malice instructions fail to distinguish the 

perpetrator(s) from the aider and abettor(s), resulting 

ambiguities in the instructions permit a jury to convict an aider 

and abettor of implied malice murder by imputing malice to the 

aider and abettor. These cases do not support appellants’ 

argument.

1. Powell

In Powell, defendants Powell and Langlois appealed their 

convictions for second degree murder (§§ 187, subd. (a), 189) and 

first degree residential burglary (§§ 459, 460). After forcibly 

entering the victim’s home, defendants and two others beat the 

victim and fled. The victim died from a stab wound to the heart 

inflicted by Powell. The jury found Powell had personally used a 

deadly weapon during the commission of the crime (§ 12022, 

subd. (b)(1)). (Powell, supra, 63 Cal.App.5th at p. 692.) The trial 

8 In re Loza (2018) 27 Cal.App.5th 797 (Loza).
15

court instructed the jury with CALCRIM No. 401, aiding and 

abetting, CALCRIM No. 403, natural and probable consequences, 

and CALCRIM No. 520, malice. (Powell, at pp. 706–708.) The 

prosecutor argued the jury could convict Langlois of murder on 

two theories: that he directly aided and abetted an express 

malice murder, or that he aided and abetted an assault, the 

natural and probable consequence of which was death. Although 

the prosecutor did not specifically advance a murder theory based 

on implied malice as to Langlois, he did explain implied malice

murder with respect to “the person who committed the stabbing.” 

(Id. at p. 708.)

Langlois contended the court instructed the jury in a 

manner which permitted the jury to convict him on an invalid 

theory of murder; that is, as a direct aider and abettor of an 

implied malice murder independent of the natural and probable 

consequences doctrine. (Powell, supra, 63 Cal.App.5th at p. 709.) 

The court “reject[ed] Langlois’s contention that direct aiding and 

abetting implied malice murder is an invalid legal theory” in all 

cases, but nevertheless found the aiding and abetting 

instructions given in that case were erroneous because they “were 

not tailored for implied malice murder.” (Id. at p. 714.)

Powell explained that the standard aiding and abetting 

instruction given (CALCRIM No. 401) described the aider and 

abettor’s intent in terms of aiding and abetting the crime of 

murder rather than “intend[ing] the commission of the 

perpetrator’s act, the natural and probable consequences of which 

are dangerous to human life, intentionally aid[ing] in the 

commission of that act and do[ing] so with conscious disregard for 

human life.” (Powell, supra, 63 Cal.App.5th at p. 714, italics 

added.) The instruction was “not tailored for” aiding and 
16

abetting an implied malice murder, and was thus erroneous as 

applied to Langlois because it did not require “proof of the aider 

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

perpetrator’s life endangering act” as opposed to the result of 

that act, that is, murder. (Reyes, supra, 14 Cal.5th at p. 991, 

boldface added, citing Powell, supra, at pp. 712–713.)

2. Langi

Langi applied the Powell court’s reasoning to its review of 

the superior court’s denial of a section 1172.6 petition for 

resentencing. (Langi, supra, 73 Cal.App.5th at p. 982 [where a 

trial court applies the standard aiding and abetting instruction to

the crime of second degree murder “without tailoring it to the 

specifics of that crime, the instruction creates an ambiguity 

under which the jury may find the defendant guilty of aiding and 

abetting second degree murder without finding that the 

defendant personally acted with malice”].)

In Langi, the defendant was convicted of second degree 

murder as an aider and abettor based on his participation in a 

fistfight among several people, in which the victim died as a 

result of falling and hitting the back of his head on the pavement 

after being punched in the face. (Langi, supra, 73 Cal.App.5th at 

pp. 975, 976–977.) On appeal from the summary denial of 

defendant’s section 1172.6 petition, the appellate court 

determined that the instruction on aiding and abetting (CALJIC 

No. 3.01) creates an ambiguity in the context of second degree 

implied malice murder, which may allow the jury to “find the 

defendant guilty of aiding and abetting second degree murder 

without finding that he personally acted with malice.” (Langi, 

supra, 73 Cal.App.5th at p. 982.)
17

The court explained, “The aiding-and-abetting instruction 

stated that a person aids and abets a crime if he or she acts ‘with 

knowledge of the unlawful purpose of the perpetrator, and . . . 

with the intent or purpose of committing or encouraging or 

facilitating the commission of the crime.’ (CALJIC No. 3.01, 

italics added.) However, . . . the second degree murder 

instruction specified that the direct perpetrator of that crime 

need not act with the unlawful intent of causing death. . . . If the 

perpetrator need not have had ‘murderous intent,’ certainly the 

aider and abettor need not have had such an intent. Although 

the definition of second degree murder in CALJIC No. 8.31 states 

that the perpetrator must have acted with conscious disregard for 

human life, the definition of an aider and abettor in CALJIC 

No. 3.01 does not include the same requirement.” (Langi, 

supra,73 Cal.App.5th at pp. 982–983.) In this situation, the 

ambiguity in the instructions allows an aider and abettor to be 

found guilty simply for intending to aid the perpetrator’s act, 

without personally and consciously disregarding the danger to 

human life. (Id. at p. 983.)

To avoid this ambiguity, Langi declared that “[t]he 

instructions should have explained that, to be guilty as a direct

aider and abettor of second degree murder, an accomplice must 

have acted with the mental state of implied malice.” (Langi, 

supra, 73 Cal.App.5th at p. 983, citing Powell, supra, 63 

Cal.App.5th at pp. 713–714.) In the absence of such clarification,

the theory presented to the jury thus fell within section 1172.6’s 

prohibition on theories of imputed malice, and the defendant was 

not necessarily ineligible for relief as a matter of law. (Id. at 

p. 984.)
18

Here, the jury was instructed on, and convicted appellant 

Valle of first degree murder. Therefore, the jury necessarily 

found Valle committed a “willful, deliberate and premeditated 

killing with express malice aforethought.” (CALJIC No. 8.20, 

italics added.) Because the verdict establishes appellant Valle

was not convicted under any theory of imputed malice, Langi is 

inapplicable, and Valle is ineligible for section 1172.6 relief as a 

matter of law. (See Coley, supra, 77 Cal.App.5th at p. 547 

[distinguishing Langi on the ground that instructions required a 

finding of express rather than implied malice].)

Langi is also distinguishable as applied to appellant 

Guzman. In Langi, no weapons were used. The victim died 

because he fell and struck his head after someone in the group 

that included the defendant punched him. (Langi, supra, 73 

Cal.App.5th at p. 976.) In that context, the Langi court found 

CALJIC No. 3.01 to be ambiguous because the instruction did 

“not state that the aider and abettor must himself have known 

that the act he aided was life-threatening, or that he must 

himself have acted with indifference to human life.” (Langi, at 

p. 982.)

In contrast to Langi, all three defendants in this case—

including Guzman—fired guns in Ortega’s murder. The jury 

found that each defendant—including Guzman—personally used 

a firearm in the commission of the offense. Although the same 

aiding and abetting instruction (CALJIC No. 3.01) given in Langi

was given here, and both juries received instructions on implied 
19

malice murder,9 the ambiguity present in the Langi instructions

did not arise in this case because Guzman personally used a 

firearm in the offense, an intentional act which itself 

demonstrates a conscious disregard for human life.

Langi is thus inapposite: Even if the jury convicted 

Guzman as an aider and abettor of implied malice murder, in 

light of the jury’s verdicts and considering the instructions as a 

whole, we find no reasonable likelihood that the jury convicted 

appellants Valle or Guzman of murder on any theory of imputed 

malice.

3. Loza

Appellants’ reliance on Loza is similarly misplaced.

In Loza, gang members Loza, Loza’s brother Luis, Rizo, 

Andrade, and Flores attacked members of a rival gang. Loza had 

a knife, Rizo had a baseball bat, and Flores had a .38-caliber 

semiautomatic handgun. During the fight, Flores passed his gun 

to Loza, but it did not work when Loza tried to fire it. Loza 

passed the gun to Andrade who shot the victim in the chest and 

killed him. The jury convicted Loza and the other defendants of 

9 Here, the trial court instructed with CALJIC No. 8.11,

defining implied malice. In Langi, the trial court used CALJIC 

No. 8.31 to instruct the jury “that a killing is a second degree 

murder if ‘1. The killing resulted from an intentional act, [¶] 

2. The natural consequences of the act are dangerous to human 

life, and [¶] 3. The act was deliberately performed with 

knowledge of the danger to, and with conscious disregard for, 

human life. [¶] When the killing is the direct result of such an 

act, it is not necessary to prove that the defendant intended that

the act would result in the death of a human being.’ ” (Langi, 

supra, 73 Cal.App.5th at p. 981.)
20

first degree premeditated murder. (Loza, supra, 27 Cal.App.5th 

at p. 800.)

The trial court instructed on direct aiding and abetting 

(CALJIC No. 3.01) as well as a natural and probable 

consequences theory of aiding and abetting (CALJIC No. 3.02). 

On first degree murder, the court instructed: “ ‘If you find that 

the killing was preceded and accompanied by a clear, deliberate 

intent on the part of the defendant to kill, which was the result of 

deliberation and premeditation, so that it must have been formed 

upon pre-existing reflection and not under a sudden heat of 

passion . . . it is murder of the first degree.’ (CALJIC No. 8.20, 

italics added.) The instruction also stated: ‘To constitute a 

deliberate and premeditated killing, the slayer must weigh and 

consider the question of killing and the reasons for and against 

such a choice and, having in mind the consequences, decides to 

and does kill.’ (CALJIC No. 8.20, italics added.)” (Loza, supra,

27 Cal.App.5th at pp. 802–803.)

Loza challenged his first degree murder conviction in a 

habeas corpus proceeding under People v. Chiu (2014) 59 Cal.4th 

155 (Chiu). (Loza, supra, 27 Cal.App.5th at p. 799.) The Loza

court found that the trial court’s instructions included one legally 

valid theory of first degree murder—direct aider and abettor 

liability, and one legally invalid theory—the natural and 

probable consequences doctrine. The court explained, “ ‘ “When 

a trial court instructs a jury on two theories of guilt, one of which 

was legally correct and one legally incorrect, reversal is required 

unless there is a basis in the record to find that the verdict was 

actually based on a valid ground.” ’ ” (Loza, at p. 803, quoting 

Chiu, at p. 176.)
21

The Loza court found no reason to conclude the verdict 

against Loza was based on the legally valid theory. “[T]he court’s 

instructions here allowed the jurors to find defendant (Loza) 

guilty of first degree murder if they found that one of the other 

three defendants—the ‘slayer’ Andrade—deliberated and 

premeditated. This is precisely the type of instructional error 

that our Supreme Court identified and found unacceptable in 

Chiu, supra, 59 Cal.4th 155.” (Loza, supra, 27 Cal.App.5th at 

p. 805.) The court determined the error was not harmless beyond 

a reasonable doubt (see Chapman v. California (1967) 386 U.S. 

18, 24), and vacated Loza’s conviction for first degree murder.

(Loza, at pp. 803, 808.)

Loza has no application to the instant case. Unlike Loza, 

the jury here was not instructed on a natural and probable 

consequences theory of liability or any other legally invalid 

theory. Appellants’ assertion that this distinction is of no 

consequence is simply wrong. The sole focus of Loza’s analysis 

was whether the record could support a determination that the 

jury relied on the legally valid theory rather than the invalid one

to convict. As the court explained, “the analysis is on all fours 

with Chiu. In this habeas corpus review, we find no basis in the 

record to conclude beyond a reasonable doubt that the jury relied 

on the legally valid (direct aider and abettor) liability theory.

(See In re Martinez (2017) 3 Cal.5th 1216, 1218 [‘on a petition for 

writ of habeas corpus, as on direct appeal, Chiu error requires 

reversal unless the reviewing court concludes beyond a 

reasonable doubt that the jury actually relied on a legally valid 

theory in convicting the defendant of first degree murder’].)” 

(Loza, supra, 27 Cal.App.5th at p. 803.)
22

E. The superior court neither engaged in factfinding nor 

improperly relied on this court’s opinion in the direct 

appeal in denying the petitions at the prima facie stage

Appellants contend the superior court improperly referred

to the prior appellate opinion and engaged in factfinding in ruling 

on their section 1172.6 petitions. We disagree.

In Lewis, the California Supreme Court declared, “there is 

no categorical bar to consulting the record of conviction at the 

prima facie stage [of a section 1172.6 petition].” (Lewis, supra, 11 

Cal.5th at p. 972, fn. 6.) However, the court cautioned that the 

permissible scope of the superior court’s review of the record of 

conviction—including the appellate opinion from a direct 

appeal—is limited. (Id., at pp. 971–972.) While appellate 

opinions “are generally considered to be part of the record of 

conviction,” their probative value “is case specific, and ‘it is 

certainly correct that an appellate opinion might not supply all 

answers.’ [Citation.] In reviewing any part of the record of 

conviction at this preliminary juncture, a trial court should not 

engage in ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’ ” (Id. at p. 972.)

Consistent with Lewis, then, the superior court properly 

reviewed the appellate opinion in considering appellant 

Guzman’s petition. Assuming the superior court that adjudicated 

appellant Valle’s petition also reviewed the prior opinion, that 

review was proper under Lewis.

There is also no merit to appellants’ argument that the 

superior court engaged in factfinding by referring to the prior 

appellate opinion, or, in appellant Valle’s case, referring to the 

basic facts of the case. Both courts stated clearly and 

unequivocally on the record that appellants were ineligible for 
23

relief under section 1172.6 as a matter of law because the jury in 

appellants’ case was not instructed on the theories of felony 

murder or natural and probable consequences.

Finally, even if the courts did engage in factfinding, the 

denials of both appellants’ petitions at the prima facie stage were 

correct as discussed above. As our Supreme Court has 

recognized, “a ruling will not be disturbed on appeal merely 

because it was given for a wrong reason, if the ruling would 

otherwise be correct ‘ “ ‘upon any theory of the law applicable to 

the case,’ ” ’ and ‘ “ ‘regardless of the considerations which may 

have moved the trial court to its conclusion. ’ ” ’ ” (People v. 

Hopson (2017) 3 Cal.5th 424, 459.)

II. Appellant Guzman Had No Constitutional Right 

to be Present at the Section 1172.6 Eligibility 

Hearing

Appellant Guzman contends his constitutional right to be 

present at the prima facie hearing on his petition was violated by 

the failure to obtain a waiver of his personal presence. The claim 

lacks merit.

Although “[a] criminal defendant has the right under the 

state and federal Constitutions to be personally present and 

represented by counsel at all critical stages of the trial” (Bryant 

et al., supra, 60 Cal.4th at p. 465), that right is subject to certain 

recognized limitations. (People v. Simms (2018) 23 Cal.App.5th 

987, 996.) For example, “it is well established that a represented 

defendant has no constitutional or statutory right to be present to 

address purely legal questions or where his or her ‘presence 

would not contribute to the fairness of the proceeding.’ ” (People 

v. Fedalizo (2016) 246 Cal.App.4th 98, 109; People v. Perry (2006) 

38 Cal.4th 302, 312 [“a defendant’s right to be present depends on 
24

two conditions: (1) the proceeding is critical to the outcome of the 

case, and (2) the defendant’s presence would contribute to the 

fairness of the proceeding. [Citations.] Thus a defendant may 

ordinarily be excluded from conferences on questions of law, even 

if those questions are critical to the outcome of the case, because 

the defendant’s presence would not contribute to the fairness of 

the proceeding”].)

In the context of a prima facie hearing on a petition for 

resentencing under section 1172.6, the superior court is 

prohibited from engaging in factfinding or exercising discretion 

on any matter. (Lewis, supra, 11 Cal.5th at pp. 972, 974 [“at the

prima facie stage, a petitioner’s allegations should be accepted as 

true, and the court should not make credibility determinations or 

engage in ‘factfinding involving the weighing of evidence or the 

exercise of discretion’ ”].) Thus, because the only issue at stake in 

the prima facie hearing on a section 1172.6 petition is whether 

the petitioner may be eligible for relief as a matter of law, 

Guzman had no constitutional right to be personally present at 

the hearing in this case.
25

DISPOSITION

The orders denying appellant Valle’s and appellant 

Guzman’s petitions for resentencing under Penal Code section 

1172.6 are affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.