Filed 10/2/24 P. v. Patino CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

BENITO PATINO, JR.,

 Defendant and Appellant.

 G063104

 (Super. Ct. No. 06CF2498)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, 

Jonathan S. Fish, Judge. Affirmed.

Rex Adam Williams, under appointment by the Court of Appeal, 

for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *
2

A jury convicted defendant Benito Patino, Jr., of murder. He filed 

a resentencing petition under Penal Code section 1172.6, which the trial 

court denied on its face.

1 On appeal, his appointed counsel filed a no-issue 

brief, requesting we exercise our discretion to independently review the 

record for error under People v. Delgadillo (2022) 14 Cal.5th 216 

(Delgadillo). We have found no arguable issues after reviewing the 

record. Thus, we affirm the court’s order.

FACTS AND PROCEDURAL HISTORY

In April 2009, a jury found Patino guilty of first degree murder

and participation in a criminal street gang. It also found he had committed 

the murder for the benefit of a criminal street gang and had intentionally 

discharged a firearm in the commission of the offense. Patino was sentenced 

to 50 years to life in prison. This division affirmed his conviction in People v. 

Patino (Nov. 24, 2010, G042255) [nonpub. opn.].

In July 2023, Patino filed a resentencing petition under section 

1172.6. A public defender was appointed to represent him, and a prima facie 

hearing was held in September 2023. After the hearing, the court concluded 

Patino was ineligible for relief because the jury was not instructed on the 

felony-murder doctrine or the natural and probable consequences theory of 

murder.

Patino filed a notice of appeal following the denial of his section 

1172.6 petition. His appointed counsel filed an opening brief that raised no 

arguable issues and asked this court to independently review the record 

under Delgadillo.

1 All further undesignated statutory references are to the Penal 

Code.
3

On January 24, 2024, this Court issued an order granting Patino

30 days to file a supplemental brief. We also stated his appeal could be 

dismissed if he failed to file such a brief. Patino filed a brief on February 26, 

2024. He argued, “on my felony complaint [it] says . . . I was convi[c]ted under 

the aforethought that I did unlawfully and with malice aforethought kill [the 

victim] a human being so for that I believe that I should get relief [under 

section 1172.6] . . . .” (Capitalization omitted.)

DISCUSSION

“Effective January 1, 2019, the Legislature passed Senate Bill 

[No.] 1437 ‘to amend the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, to ensure that murder liability 

is not imposed on a person who is not the actual killer, did not act with the 

intent to kill, or was not a major participant in the underlying felony who 

acted with reckless indifference to human life.’ [Citation.] In addition to 

substantively amending sections 188 and 189 of the Penal Code, Senate Bill 

[No.] 1437 added section 1170.95 [(now § 1172.6)], which provides a procedure 

for convicted murderers who could not be convicted under the law as 

amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 

959.)

The trial court reviews a section 1172.6 petition to determine 

whether the petitioner has made a prima facie case. “If the petition and 

record in the case establish conclusively that the defendant is ineligible for 

relief, the trial court may dismiss the petition.” (People v. Strong (2022) 13 

Cal.5th 698, 708.)

“On an appeal from the denial of a section 1172.6 petition, [if] . . . 

appointed counsel finds no arguable issues to be pursued on appeal:

(1) counsel should file a brief informing the court of that determination, 
4

including a concise recitation of the facts bearing on the denial of the petition; 

and (2) the court should send, with a copy of counsel’s brief, notice to the 

defendant, informing the defendant of the right to file a supplemental letter 

or brief and that if no letter or brief is filed within 30 days, the court may 

dismiss the matter.” (Delgadillo, supra, 14 Cal.5th at pp. 231–232.) “If the 

defendant subsequently files a supplemental brief or letter, the Court of 

Appeal is required to evaluate the specific arguments presented in that brief 

and to issue a written opinion.” (Id. at p. 232.) If no supplemental brief is 

filed, the appellate court has discretion to dismiss the appeal or conduct an 

independent review of the record. (Ibid.)

Based on our review of Patino’s brief and our own independent

review of the record, we agree with his counsel that there are no arguable 

issues. Patino could not have been convicted of murder under a felony murder 

or a natural and probable consequences theory. Thus, as explained below, his 

murder conviction is still valid under current law.

The jury was instructed on two different theories of murder:

(1) Patino was the actual killer, or (2) he aided and abetted in the killing. No 

felony-murder instruction was given. As to the first theory, Patino is not 

entitled to relief under section 1172.6 if he was convicted as the actual killer.

(People v. Bodely (2023) 95 Cal.App.5th 1193, 1199.) As to the second theory, 

Patino is not entitled to relief if he directly aided and abetted the murder 

“‘because a direct aider and abettor to murder must possess malice 

forethought.’” (People v. Williams (2022) 86 Cal.App.5th 1244, 1252.) “An 

accomplice who directly aids and abets the perpetrator in committing murder 

is liable for murder [following Senate Bill No. 1437] just as he or she was 

liable” prior to its enactment. (People v. Lopez (2024) 99 Cal.App.5th 1242, 

1248.)
5

In contrast to direct aider and abettor liability, Patino could 

potentially be eligible for relief under section 1172.6 if he was convicted of 

murder as an aider and abettor under the natural and probable consequences 

doctrine. (People v. Curiel (2023) 15 Cal.5th 433, 449–450.) “‘[U]nder the 

natural and probable consequences doctrine, an accomplice is guilty not only 

of the offense he or she directly aided or abetted (i.e., the target offense), but 

also of any other offense committed by the direct perpetrator that was the 

“natural and probable consequence” of the crime the accomplice aided and 

abetted (i.e., the nontarget offense) . . . .’ Thus, under prior law, a defendant 

who aided and abetted an intended assault could be liable for murder, if the 

murder was the natural and probable consequence of the intended assault.”

(Id. at p. 449.)

Here, to the extent any jury members found Patino guilty of 

murder under an aiding and abetting theory, it is clear they convicted him as 

a direct aider and abettor and not under a natural and probable consequences 

theory. Among other things, the prosecution’s theory during trial was that 

Patino was either the actual killer or was a direct aider and abettor of the 

murder. Likewise, the jury was not instructed on a natural and probable 

consequences theory of murder. Nor was the jury instructed on any other 

theory that would have allowed it to impute an intent to kill on Patino based 

on his participation in another offense. “[I]f the record shows that the jury

was not instructed on either the natural and probable consequences or felonymurder doctrines, then the petitioner is ineligible for relief [under section 

1172.6] as a matter of law.” (People v. Harden (2022) 81 Cal.App.5th 45, 52;

People v. Cortes (2022) 75 Cal.App.5th 198, 205 [defendant ineligible for 

1172.6 resentencing where “the jury was not instructed on any theory of 

liability for murder . . . that required that malice be imputed to him”].)
6

Since Patino could only be convicted of murder as the actual 

killer or as a direct aider and abettor, he is ineligible for relief under section 

1172.6 as a matter of law.

DISPOSITION

The trial court’s order is affirmed.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

SANCHEZ, J.