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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 TOLEDO,

Defendant and Appellant.

 B299379

 (Los Angeles County

 Super. Ct. No. BA332015)

APPEAL from an order of the Superior Court of Los 

Angeles County, Jared D. Moses, Judge. Affirmed.

Myra Sun, under appointment by the Court of Appeal, 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)) and 

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 an aggregate sentence of 50 years to life on the 

murder count and stayed an identical sentence on the conspiracy 

count. 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 ineligible for relief because the jury that convicted 

her was not instructed on the felony murder or natural and 

probable consequences doctrines. The 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 statutory 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 perpetrator’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 counsel, 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 acknowledges the jury was 

never actually instructed on natural and probable consequences

liability, defendant suggests discussion of the doctrine during 

voir dire plus a question the jury asked during deliberations 

shows the jury was confused about the proper legal basis 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 defendant 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 not 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: “Count 
4

1 requires a specific intent to commit murder. Natural and 

probable consequences 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 

predicated 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 

1170.95 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.