Filed 11/16/20 P. v. Toledo CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE

,
Plaintiff and Respondent

,

v.

SARAH TO LEDO

,
Defendant and Appellant. B299379

(Los Angeles County Super. Ct. No. BA332015 )

APPEAL from a n order of the Superior Court of Los Angeles County, Jared D. Moses , Judge. Affirmed

. Myra Sun , under appointment by the Court of A ppeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.2 In May 2009, Sarah Toledo (defendant) and two men , Gabriel Guerrero (Gabriel) and Daniel Guerrero (Daniel)

, were indicted by a grand jury for murder (Pen. Code, 1 § 187(a)) an d conspiracy to commit murder (§ 182(a)(1)). In brief, the indictment alleged the charged offenses resulted from defendant’s scheming with Gabriel and Daniel to retaliate for the beating of Gabriel and Daniel’s brother. The indictment further alleged, as to both counts, that the crimes were committed : (1) for the benefit of, at the direction of, and in association with criminal conduct by gang members (§ 186.22(b)(1)(C)) and (2) a principal discharged a firearm causing the victim’s death (§ 12022.53(d), ( e)(1)). A trial jury convicted defendant on both charged offenses and found the firearm and gang enhancements true. The trial court imposed a n aggregate sentence of 50 years to life on the
murder count and stayed an identical sentence on the conspiracy

c ount. This court affirmed the judgment in 2013. 2 ( People v.
Toledo (Oct. 16, 2013, B238488 ) [nonpub. opn.].)
Years later , defendant filed a section 1170.95 petition for resentencing. The trial court denied the petition , concluding
defendant was ineli gible for relief because the jury that convicted
her was not instructed on the felony murder or natural and probable consequence s doctrine s

. T he jury was instructed on direct aiding and abetting, however, and the trial court accordingly reasoned the jury must have concluded defendant
aided and abetted the murder and shared the perpetrator’s intent

1 Undesignated statu tory references that follow are to the Penal Code.

2 This court agreed to judicially notice portions of the reporter’s transcript from defendant’s trial and our 2013 opinion.3

to kill the victim . The trial court further emphasized our prior opinion held there was substantial evidence that defendant was
aware of and shared in the perpe trator’s intent to kill. After examining the record, defendant’s attorney filed an opening brief raising no issues. On March 3, 2020, we invited defendant to personally submit a supplemental brief. Defendant ultimately submitted , through appointed cou nsel, a three

- page supplemental brief that argues she is not ineligible for section 1170.95 relief as a matter of law because the prosecution discussed the natural and probable consequences doctrine during jury selection. Although defendant acknowledge s t he jury was

never actually instructed on natural and probable consequence s liability , defendant suggest s discussion of the doctrine during
voir dire plus a question the jury asked during deliberations
show s the jury was confused about the proper legal basi s for murder (and conspiracy to commit murder) liability.
As read into the record by the trial court, the jury’s question during deliberations was as follows: “Concerning Count 1, conspiracy to commit murder, we want to clarify whether, one,
the defendan t had to have a specific intent to commit murder or, two, whether she only had to have a specific intent to assault someone from [a specific tagging crew], yet it turned out to be murder? How does natural and probable cause [sic] relate to this
law?” In response, the prosecution asked the court to permit supplemental argument to allow the prosecution to argue guilt on a natural and probable consequences theory. The trial court denied the prosecution’s request because the prosecution “specifically chose n ot to proceed on that” theory after discussing natural and probable consequences during voir dire. The trial court accordingly answered the jury’s question as follows: “Count4

1 requires a specific intent to commit murder. Natural and probable consequenc es does not apply to Count 1, conspiracy to
commit murder.” The trial court’s response to the jury’s question , plus the absence of felony murder and natural and probable consequences instructions, leave no doubt that defendant’s convictions were not predi cated on a natural and probable consequences theory. The jury’s verdict under these circumstances indicates it must have
found defendant shared the mental state of the perpetrator of the
malice murder

. Defendant is therefore ineligible for section

1170.9 5 relief, as the trial court correctly found.5 DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR

, J.

KIM , J.