Filed 10/6/23 P. v. Ruiz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOJO RUIZ,

Defendant and Appellant.

F084931

(Super. Ct. No. BF166327A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. 

Twisselman II, Judge.

William Paul Melcher, under appointment by the Court of Appeal, for Defendant

and Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Erin R. Doering and 

Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Peña, Acting P. J., Meehan, J. and Snauffer, J.
2.

In 2021, appellant and defendant Jojo Ruiz filed a petition to have his 2017 

attempted murder convictions vacated and to be resentenced under Penal Code 

section 1172.6, subdivision (a).1 The trial court found him ineligible for relief as a matter 

of law at the prima facie stage of review and denied his petition. (§ 1172.6, subd. (c).) 

Defendant appealed, and we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND2

In November 2016, in the early morning hours, defendant poured gasoline inside 

the bedroom he shared with his longtime girlfriend and ignited it. Defendant’s girlfriend 

and their three children, who had been asleep in a bedroom that shared a wall and 

doorway with the main bedroom, escaped through the front of the house without injury. 

Defendant was arrested several hours later when he returned to the scene of the fire.

On January 3, 2017, an information was filed in the Kern Superior Court charging 

defendant with the following 10 crimes: four counts of attempted murder (§§ 187/664), 

arson of an inhabited dwelling (§ 451, subd. (b)), three counts of child abuse (§ 273a, 

subd. (a)), felony resisting a peace officer by means of threat or violence (§ 69, subd. (a)), 

and misdemeanor battery against a cohabitant (§ 243, subd. (e)(1)). The information 

alleged that the four attempted murders were premediated, willful and deliberate (§ 189), 

1 All further statutory references are to the Penal Code unless otherwise stated.

2 We take judicial notice of the record from defendant’s prior appeal and our nonpublished

decision in People v. Ruiz (Nov. 25, 2019, F076231) (Ruiz I). (Evid. Code, §§ 452, subd. (d), 

459, subd. (a).) In reviewing a section 1172.6 petition, the court may rely on “the procedural 

history of the case recited in any prior appellate opinion.” (Id., subd. (d)(3); accord, People v. 

Clements (2022) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 400, 

fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on 

factual summaries contained in prior appellate decisions or engage in factfinding at the prima 

facie stage. (People v. Clements, supra, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972 

(Lewis).) We include a limited summary of the crime committed in this case for context and do

not rely on the factual statement from our prior opinion to resolve defendant’s appeal from the 

trial court’s order denying his petition at the prima facie stage. (Lewis, supra, at p. 972 [“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.’”].)
3.

and that defendant committed the arson “by use of a device designed to accelerate the 

fire” (§ 451.1, subd. (a)(5)).

On July 6, 2017, jury trial began.

On July 21, 2017, the jury returned verdicts convicting defendant on all counts and 

finding the premeditation allegations and allegation of arson by use of accelerant device 

true.

On August 18, 2017, the trial court sentenced defendant to two consecutive and 

two concurrent terms of life in prison with the possibility of parole for attempted murder, 

and to three years for resisting a peace officer. Pursuant to section 654, the court

imposed and stayed a term of 13 years for arson with an accelerant device enhancement, 

three 6-year terms for child abuse, and a one-year jail term for battery.

On direct appeal in Ruiz I, defendant claimed that his convictions for attempted 

premeditated murder were unsupported by substantial evidence of intent to kill, and that 

the trial court erred in instructing the jury on the kill zone theory. (Ruiz I, supra, 

F076231.) Citing Evidence Code section 1043 and Pitchess v. Superior Court (1974) 11 

Cal.3d 531 (Pitchess), he also requested that this court conduct an independent review of 

the proceedings related to his motion for discovery from a deputy’s personnel file and the 

trial court’s ruling that only two items were subject to disclosure.

We found that defendant’s convictions for attempted premeditated murder were 

supported by substantial evidence. (Ruiz I, supra, F076231.) Pursuant to People v. 

Canizales (2019) 7 Cal.5th 591 (Canizales), we found that the jury instruction on the kill 

zone theory was supported by substantial evidence and that, assuming error in light of 

Canizales, any ambiguity in the instruction was harmless. (Ruiz, supra, F076231.) 

Finally, we found no error with either the Pitchess proceedings or the partial denial of 

defendant’s discovery motion. (Ruiz, supra, F076231.) Therefore, we affirmed the 

judgment. (Ibid.)
4.

DEFENDANT’S SECTION 1172.6 PETITION

On January 6, 2021, defendant, proceeding in pro. per., filed a petition under 

section 1172.6, subdivision (a), formerly section 1170.95,3requesting resentencing of his 

convictions for attempted murder and the appointment of counsel. Defendant attached a 

supporting declaration that consisted of a preprinted form where he checked box (2), that

he was convicted of murder, attempted murder, or manslaughter following a trial, or 

accepted a plea offer in lieu of a trial in which he could have been convicted of murder or 

manslaughter; and box (3), that he could not presently be convicted of murder or 

attempted murder because of changes made to sections 188 and 189, effective January 1, 

2019. He did not check box (1), that he was eligible for resentencing because a 

complaint, information, or indictment was filed that allowed the prosecution to proceed 

under a theory of felony murder, murder 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, or attempted murder under the natural and probable 

consequences doctrine. He also attached a statement setting forth his accomplishments 

supporting recall and resentencing in the interest of justice under former section 1170, 

subdivision (d)(1),

4 and requesting a commutation under section 4801.

On January 20, 2022, the trial court appointed counsel and on March 16, 2022, the 

court set a briefing schedule.

On September 8, 2022, the trial court held a hearing on defendant’s section 1172.6 

petition. The court notified the parties of its tentative ruling to deny the petition based on

defendant’s ineligibility as a matter of law. Defendant’s counsel submitted without 

3 Effective June 30, 2022, former section 1170.95 was renumbered to section 1172.6.

(Assem. Bill No. 200 (2021–2022 Reg. Sess.) (Assembly Bill 200).) We refer to the statute 

herein by its present section number.

4 The provision cited was moved to newly added section 1170.03, effective January 1, 

2022, and then renumbered to section 1172.1, effective June 30, 2022. (Assem. Bill No. 1540 

(2021–2022 Reg. Sess.); Assem. Bill 200.)
5.

argument. Before also submitting, the prosecutor noted there was no jury instruction on 

the natural and probable consequences doctrine and the jury found premeditated 

attempted murder. The court then ruled defendant was ineligible for relief as a matter of 

law and denied his petition.

On September 12, 2022, defendant filed a timely notice of appeal.

Citing Langi, defendant claims that the absence of a jury instruction on the natural 

and probable consequences doctrine is not conclusively determinative of whether the jury 

convicted him based on an imputed malice theory. (People v. Langi (2022) 73 

Cal.App.5th 972, 984 (Langi).) Although defendant acted alone, he argues that because 

the record suggests he was convicted under a kill zone theory, “without further 

factfinding in this case, the record is insufficient to conclusively establish that [he] 

intended to kill everyone in the kill zone.”

The People do not dispute the first point raised, in the abstract. However, with 

respect to the second point, they contend that defendant may not pursue a claim of trial 

error in this proceeding and that the kill zone instruction did not permit him to be 

convicted based on imputed malice.

We affirm the trial court for the reasons that follow.

DISCUSSION

I. Senate Bill No. 1437 and Senate Bill No. 7755

Effective January 1, 2019, Senate Bill 1437 “‘amend[ed] 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.’ (Stats. 2018, ch. 1015, § l, subd. (f).) [¶] To further 

5 Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437); Senate Bill No. 775 

(2021–2022 Reg. Sess.) (Senate Bill 775).
6.

that purpose, Senate Bill 1437 added three separate provisions to the Penal Code. First, 

to amend the felony-murder rule, Senate Bill 1437 added section 189, subdivision (e): ‘A 

participant in the perpetration or attempted perpetration of [qualifying felonies] in which 

a death occurs is liable for murder only if one of the following is proven: [¶] (1) The 

person was the actual killer. [¶] (2) The person was not the actual killer, but, with the 

intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or 

assisted the actual killer in the commission of murder in the first degree. [¶] (3) The 

person was a major participant in the underlying felony and acted with reckless

indifference to human life, as described in subdivision (d) of Section 190.2.’ ... 

“Second, to amend the natural and probable consequences doctrine, Senate 

Bill 1437 added section 188, subdivision (a)(3) (section 188(a)(3)): ‘Except [for felonymurder liability] as stated in subdivision (e) of Section 189, in order to be convicted of 

murder, a principal in a crime shall act with malice aforethought. Malice shall not be 

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

“Third, Senate Bill 1437 added [former] section 1170.95 to provide a procedure 

for those convicted of felony murder or murder under the natural and probable 

consequences doctrine to seek relief under the two ameliorative provisions above.” 

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

Two years later, the Legislature enacted Senate Bill 775, which, effective 

January 1, 2022, and relevant to this appeal, amended former section 1170.95 to extend 

the petition process to those convicted of attempted murder or manslaughter, and 

reaffirmed the applicable burden of proof at a resentencing hearing. (Legis. Counsel’s 

Dig., Sen. Bill 775, Stats. 2021, ch. 551, § l, subds. (a), (c).) Assembly Bill 200 

subsequently renumbered section 1170.95 to section 1172.6, effective June 30, 2022.
7.

II. Section 1172.6

Section 1172.6, subdivision (a), provides:

“(a) A person convicted of felony murder or murder 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, attempted murder under the natural and probable consequences 

doctrine, or manslaughter may file a petition with the court that sentenced 

the petitioner to have the petitioner's murder, attempted murder, or 

manslaughter conviction vacated and to be resentenced on any remaining 

counts when all of the following conditions apply:

“(1) A complaint, information, or indictment was filed against the 

petitioner that allowed the prosecution to proceed under a theory of felony 

murder, murder 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, or attempted murder under the natural and 

probable consequences doctrine.

“(2) The petitioner was convicted of murder, attempted murder, or 

manslaughter following a trial or accepted a plea offer in lieu of a trial at 

which the petitioner could have been convicted of murder or attempted 

murder.

“(3) The petitioner could not presently be convicted of murder or 

attempted murder because of changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (a), italics added.)6

The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).) 

After service of the petition, the prosecutor shall file and serve a response. The petitioner 

may file and serve a reply after the response is served. (Id., subd. (c).)

“After the parties have had an opportunity to submit briefings, the court shall hold 

a hearing to determine whether the petitioner has made a prima facie case for relief. If 

the petitioner makes a prima facie showing that the petitioner is entitled to relief, the 

court shall issue an order to show cause. If the court declines to make an order to show 

6 While not applicable herein, section 189 was amended to allow for felony-murder 

liability where the victim is a peace officer. (Id., subd. (f).)
8.

cause, it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6, 

subd. (c).)

If an order to show cause is issued, “the court shall hold a hearing to determine 

whether to vacate the murder, attempted murder, or manslaughter conviction and to recall 

the sentence and resentence the petitioner on any remaining counts in the same manner as 

if the petitioner had not previously been sentenced, provided that the new sentence, if 

any, is not greater than the initial sentence....” (§ 1172.6, subd. (d)(1).)

“At the hearing to determine whether the petitioner is entitled to relief, the burden 

of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the 

petitioner 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. The admission of 

evidence in the hearing shall be governed by the Evidence Code, except that the court 

may consider evidence previously admitted at any prior hearing or trial that is admissible 

under current law, including witness testimony, stipulated evidence, and matters 

judicially noticed. The court may also consider the procedural history of the case recited 

in any prior appellate opinion. However, hearsay evidence that was admitted in a 

preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the 

hearing as hearsay, unless the evidence is admissible pursuant to another exception to the 

hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence 

to meet their respective burdens....” (§ 1172.6, subd. (d)(3).)

III. Analysis 

A. Legal Principles

As stated, the trial court complied with section 1172.6 by appointing counsel, 

setting a briefing schedule, conducting a hearing, making a finding defendant failed to 

make a prima facie case for relief, and providing a statement of its reasons for declining 

to issue an order to show cause. (Id., subds. (b)(3), (c).) Defendant does not contend 

otherwise.
9.

With respect to the merits of the court’s finding, “[t]he record of conviction will 

necessarily inform the trial court’s prima facie inquiry under section [1172.6], allowing 

the court to distinguish petitions with potential merit from those that are clearly 

meritless” (Lewis, supra, 11 Cal.5th at p. 971), “consistent with the statute’s overall 

purpose: to ensure that ... culpability is commensurate with a person’s actions, while 

also ensuring that clearly meritless petitions can be efficiently addressed as part of a 

single-step prima facie review process” (ibid.). “Appellate opinions ... are generally 

considered to be part of the record of conviction. [Citation.] However, ... the probative 

value of an appellate opinion 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.) “[T]he 

‘prima facie bar was intentionally and correctly set very low.’” (Ibid.)

In this case, the trial court relied on the jury instructions, which are part of the 

record of conviction and may be reviewed to make the prima facie determination, 

because the instructions “given at a petitioner’s trial may provide ‘readily ascertainable 

facts from the record’ that refute the petitioner’s showing, and reliance on them to make 

the eligibility or entitlement determinations may not amount to ‘factfinding involving the 

weighing of evidence or the exercise of discretion,’” which must wait to occur until after 

an order to show cause issues. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, 

overruled to the extent that it is not inconsistent with Lewis, supra, 11 Cal.5th 952; 

accord, People v. Williams (2022) 86 Cal.App.5th 1244, 1251–1252; People v. Offley

(2020) 48 Cal.App.5th 588, 599. ) “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.)
10.

B. Defendant’s Attempted Murder Convictions

1. Attempted Murder Requires Specific Intent to Kill

Defendant was convicted of the willful, deliberate and premeditated attempted 

murders of his girlfriend and their three children. “An attempt to commit a crime consists 

of two elements: a specific intent to commit the crime, and a direct but ineffectual act 

done toward its commission.” (§ 21a.) While murder is an unlawful killing with express 

or implied malice aforethought (§§ 187, subd. (a), 188; accord, People v. Rangel (2016) 

62 Cal.4th 1192, 1220), attempted murder requires specific intent to kill, or express 

malice, “‘and the commission of a direct but ineffectual act toward accomplishing the 

intended killing’” (People v. Smith (2005) 37 Cal.4th 733, 739; accord, People v. Mumin

(Aug. 17, 2023, S271049) 15 Cal.5th 176, 190 [2023 Cal. Lexis 4519, *7] (Mumin);

Canizales, supra, 7 Cal.5th at p. 602; People v. Gonzalez (2012) 54 Cal.4th 643, 653–

654). Express malice is shown when the defendant “‘either desires the victim’s death, or 

knows to a substantial certainty that the victim’s death will occur.’” (People v. Houston

(2012) 54 Cal.4th 1186, 1217; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 890.) 

“Direct evidence of intent to kill is rare, and ordinarily the intent to kill must be inferred 

from the statements and actions of the defendant and the circumstances surrounding the 

crime.” (Canizales, supra, at p. 602.)

Relying on Langi, defendant argues, one, that the absence of an instruction on the 

natural and probable consequences theory is not dispositive of the matter, and, two, that 

given the “legally inadequate kill zone instruction in this case, the record does not 

conclusively establish that the only reasonable inference from the evidence was that [he]

intended to kill everyone in the kill zone.” As explained next, Langi does not involve 

analogous facts and does not otherwise aid defendant in this appeal. Further, we disagree 

that the record in this case supports defendant’s position that the kill zone theory created 

an ambiguity with respect to intent to kill, entitling him remand for an evidentiary 

hearing.
11.

2. Langi

In Langi, the defendant was one of four men who robbed and beat another group, 

leading to the death of one victim, who fell and hit his head after being punched. (Langi, 

supra, 73 Cal.App.5th at p. 975.) The defendant was convicted of second degree murder, 

and the appellate court reversed the summary denial of his section 1172.6 petition and 

remanded for an evidentiary hearing. (Langi, supra, at p. 976.) The court explained, 

“The jury was not required to find, and did not necessarily find, that it was [the] appellant 

who threw that punch. Read with the caution dictated by Lewis, the prior opinion does 

not conclusively establish that [the] appellant was convicted as the actual killer. [¶] 

Assuming the jury found [the] appellant guilty of murder as an aider and abettor, the 

question becomes whether it could have done so ‘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.’” (Id. at p. 980, fn. omitted, citing former 

§ 1170.95, subd. (a).)

“[T]he standard aiding-and-abetting instructions are ill suited to the crime of 

second degree murder. If, as here, a trial court uses such an instruction 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 he personally acted with malice.” (Langi, supra, 73 Cal.App.5th at p. 982, 

fn. omitted, citing People v. Powell (2021) 63 Cal.App.5th 689, 712–714.) “Thus, under 

the instructions that were given, the jury was entitled to conclude that, to be guilty as an 

aider and abettor of second degree murder, [the] appellant need only have intended to 

encourage the perpetrator’s intentional act—in this case, punching [the victim]—whether 

or not [the] appellant intended to aid or encourage [the victim’s] killing, and whether or 

not he personally knew of and disregarded the risk of such a killing.” (Langi, supra, at 

p. 983, fn. omitted.) “Because the record of conviction does not conclusively negate the 

possibility that the jury found [the] appellant guilty of second degree murder by imputing 
12.

to him the implied malice of the actual killer, without finding that he personally acted 

‘with knowledge of the danger to, and with conscious disregard for, human life’ (CALJIC 

No. 8.31), an evidentiary hearing is required.” (Id. at p. 984.)

Langi is inapposite. Here, defendant was not tried under an aiding and abetting 

theory, as he acted alone, and the jury was not instructed on a natural and probable 

consequences theory or any other theory under which malice might be imputed.

3. Kill Zone Instruction

Turning to defendant’s kill zone instruction challenge, “[w]hen[, as in this case,] a 

single act is charged as an attempt on the lives of two or more persons, the intent to kill 

element must be examined independently as to each alleged attempted murder victim; an 

intent to kill cannot be ‘transferred’ from one attempted murder victim to another under 

the transferred intent doctrine.” (Canizales, supra, 7 Cal.5th at p. 602, citing & quoting 

People v. Bland (2002) 28 Cal.4th 313, 327–328.) The kill zone theory is a “separate and 

particularly narrow” concurrent intent theory. (Mumin, supra, 15 Cal.5th at p. 193 [2023 

Cal. Lexis 4519, *12], citing Canizales, supra, at p. 607.) As Canizales explained, 

“[T]he kill zone theory for establishing the specific intent to kill required for conviction 

of attempted murder may properly be applied only when a jury concludes: (1) the 

circumstances of the defendant’s attack on a primary target, including the type and extent 

of force the defendant used, are such that the only reasonable inference is that the 

defendant intended to create a zone of fatal harm—that is, an area in which the defendant 

intended to kill everyone present to ensure the primary target’s death—around the 

primary target and (2) the alleged attempted murder victim who was not the primary 

target was located within that zone of harm. Taken together, such evidence will support a 

finding that the defendant harbored the requisite specific intent to kill both the primary 

target and everyone within the zone of fatal harm.” (Canizales, supra, at p. 607; accord,

Mumin, supra, at p. 193 [2023 Cal. Lexis 4519, *12–13].)
13.

On direct review, we rejected defendant’s challenge to the kill zone instruction. 

(Ruiz I, supra, F076231.) Post-Canizales, we found that substantial evidence supported 

the instruction and that the ambiguity identified in Canizales was harmless on the facts of 

this case, which involved the ignition of gasoline inside the house in the middle of the 

night. (Ruiz I, supra, F076231.) In the present appeal, defendant asserts that “this court 

held the instructional error to be harmless after determining ‘it is reasonably probable 

[the jury] would have concluded that while defendant had the specific intent to kill [his 

girlfriend] in the fire, he acted with only conscious disregard of the risk that [the children] 

may be seriously injured or killed.’” This mischaracterizes the record.

In Canizales, as a result of the absence of substantial evidence in the record to 

support a kill zone theory instruction, the jury was instructed on a legally erroneous 

alternate theory of liability. (Canizales, supra, 7 Cal.5th at p. 614.) In this case, the kill

zone theory was supported by substantial evidence. Canizales stated that “when a kill 

zone instruction is legally warranted and in fact provided, the standard instruction should 

be revised to better describe the contours and limits of the kill zone theory ....” (Id. at 

p. 609.) Therefore, we presumed error and concluded “that the kill zone instruction given 

in this case, although not elaborative, did not result in prejudice to defendant.” (Ruiz I, 

supra, F076231 [2019 Cal.App. Unpub. Lexis 7904, *32].)

Pertinent to defendant’s mischaracterization of the record, we stated, “Given the 

flammability of gasoline, the confined area in which it was poured and the fact that 

[defendant’s girlfriend] and the children were physically together in a group, and the 

clarifying effect of the further closing arguments, we are not persuaded that had the jury 

been given a more specific kill zone instruction, it is reasonably probable it would have 

concluded that while defendant had the specific intent to kill [his girlfriend] in the fire, he 

acted ‘with only conscious disregard of the risk that [the children] may be seriously 

injured or killed.’” (Ruiz I, supra, F076231 [2019 Cal.App. Unpub. Lexis 7904, *41–42], 

quoting Canizales, supra, 7 Cal.5th at p. 597.) In other words, in assuming error in the 
14.

form of an ambiguity for the purpose of assessing prejudice, we found it was not

reasonably probable that the jury found intent to kill as to the primary target but “acted 

‘with only conscious disregard of the risk that [the children] may be seriously injured or 

killed.’” (Ruiz I, supra, F076231 [2019 Cal.App. Unpub. Lexis 7904, *41–42].)

Having clarified that matter, we turn to whether the trial court erred when it denied 

defendant’s petition. “Section 1172.6 offers resentencing for petitioners who have not 

been determined beyond a reasonable doubt to have the degree of culpability now 

required for a murder, attempted murder, or manslaughter conviction.” (People v. 

Strong, supra, 13 Cal.5th at p. 720.) Relief under section 1172.6 is available to 

defendants convicted under the natural and probable consequences doctrine or another 

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

participation in a crime. (Id., subd. (a).) Consequently, when the jury instructions or the 

jury’s verdict reflect that defendant was not convicted under such a theory, the petition is 

to be denied as a matter of law. (See People v. Daniel (2020) 57 Cal.App.5th 666, 677 

[instructions]; People v. Mancilla (2021) 67 Cal.App.5th 854, 864, 866–867 [verdict].)

In this case, defendant acted alone (People v. Hurtado (2023) 89 Cal.App.5th 887, 

893), and the jury was not instructed on the natural and probable consequences doctrine 

(§ 1172.6, subd. (a)). Rather, the record reflects the jury was specifically instructed that, 

as to each count of attempted murder, it had to find defendant intended to kill. With 

respect to conviction based on the kill zone theory, the jury was instructed that the 

prosecutor had to prove, beyond a reasonable doubt, that defendant not only intended to 

kill his girlfriend, who was the primary target under the theory, but also intended to kill 

each of the children in the zone. Assuming the jury relied on the kill zone theory to 

convict defendant, defendant has not identified any ambiguity in the jury instructions that 

may have been misled by the jury to convict him based on imputed malice.7 (§ 1172.6, 

7 Defendant points out that the jury had questions about the kill zone theory and the trial 

court allowed additional closing argument. The record, however, reflects that during additional 
15.

subd. (a); Lewis, supra, 11 Cal.5th at p. 971; Langi, supra, 73 Cal.App.5th at p. 982.) 

Accordingly, we affirm the trial court’s order finding him ineligible for relief as a matter 

of law and denying his petition.

DISPOSITION

The court’s order of September 8, 2022, denying defendant’s section 1172.6 

petition is affirmed.

argument, both the prosecutor and defense counsel stated, unequivocally, that under the kill zone 

theory, the jury must find defendant had the specific intent to kill his girlfriend, as the primary 

target, and the specific intent to kill each of the children.