Filed 10/18/21 P. v. Velasquez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

YOVANNI VELASQUEZ,

Defendant and Appellant.

 B309388

 (Los Angeles County

 Super. Ct. No. BA329116-06)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Larry P. Fidler, Judge. Affirmed. 

Kevin D. Sheehy, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, David E. Madeo and Theresa A. 

Patterson, Deputy Attorneys General, for Plaintiff and 

Respondent. 

________________________
2

Yovanni Velasquez, convicted of the first degree murder of 

a 23-day-old infant, conspiracy to commit murder, attempted

willful, deliberate and premeditated murder and two counts of 

assault with a semiautomatic firearm in a gang-related shooting 

on September 15, 2007, appeals the denial of his petition for 

resentencing pursuant to Penal Code section 1170.95.1 

Velasquez, who acted as the lookout during the shooting, 

contends the superior court, after appointing counsel and finding 

he had made a prima facie showing of entitlement to relief, 

applied the wrong standard of proof at the evidentiary hearing 

following issuance of an order to show cause. Because the record 

of conviction establishes that Velasquez is ineligible for 

resentencing as a matter of law, any error committed by the 

superior court was harmless. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Velasquez’s Trial for Murder

Velasquez was charged in a third amended information, 

along with Giovanni Macedo, Juan Pablo Murillo, Guadalupe 

Torres Rangel and two other men, with one count of murder 

(§ 187, subd. (a)), three counts of attempted willful, deliberate 

and premeditated murder (§§ 187, 664),2 one count of attempted 

extortion (§§ 520, 664), one count of conspiracy to commit 

extortion (§§ 182, 520) and one count of conspiracy to commit 

murder (§§ 182, 187). In connection with each count the People 

alleged a principal had used a firearm causing great bodily injury 

1 Statutory references are to this code.

2 At trial the court granted the People’s motion to reduce the 

charge of attempted murder as to two of the victims to assault 

with a semiautomatic firearm (§ 245, subd. (b)).
3

or death within the meaning of section 12022.53, subdivisions (d) 

and (e)(1). As to the murder count the People also alleged the 

defendants had intentionally killed the victim while they were 

active participants in a criminal street gang and the murder was 

carried out to further the activities of the gang. (§ 190.2, 

subd. (a)(22).) As to all counts the information alleged the crimes 

had been committed to benefit a criminal street gang (§ 186.22, 

subd. (b)).

Our opinion affirming Velasquez’s judgment of conviction 

describes the evidence presented at his joint trial with Murillo 

and Rangel. (People v. Murillo (Feb. 15, 2012, B226736) [nonpub. 

opn.].) 

Velasquez was a member of the Columbia Lil Cycos (CLC), 

a clique of the 18th Street criminal street gang that controlled an 

area of Los Angeles near MacArthur Park. CLC members 

managed narcotics traffic within their territory by selling or 

supplying drugs to secondary dealers. CLC members also taxed

unlicensed street vendors who sold their wares within the 

densely populated neighborhoods east of MacArthur Park.

Francisco Clemente, who sold electronic items on 6th Street 

near MacArthur Park, was approached multiple times in the 

months preceding the September 2007 shooting by CLC gang 

members or associates, including Rangel, who demanded money 

for the right to sell on the street. On one occasion six men 

approached Clemente and told him he had to pay to sell his 

merchandise or they would beat him. Clemente pulled out a 

knife; the men fled. On another occasion, a week or two before 

the shooting, a man Clemente identified as Sergio Pantoja, the 

leader of the CLC clique of the 18th Street gang, threatened he 
4

would “send [Clemente] to hell” if he did not leave the street. 

Clemente refused to leave.

On September 15, 2007 Clemente was selling his 

merchandise at 6th Street and South Burlington Avenue. He 

was accompanied by his girlfriend and another friend, whose 

infant son was in a stroller near her, behind Clemente. Around 

6:00 p.m. Rangel demanded $80 from Clemente, who refused to

pay. Around 9:00 p.m. a man holding a gun stepped out of a 

nearby video store, walked toward Clemente and shot at him 

from six or seven feet away. Several shots hit Clemente.

3 

Another shot struck the infant, seated in the stroller behind 

Clemente, killing him.

Based on information from a teenager who helped her 

parents sell goods in the neighborhood and had witnessed the 

shooting and could identify several of the participants, the police 

established a wiretap on Murillo’s phone and eventually arrested 

Murillo, Rangel, Velasquez, Macedo and several others. 

Macedo entered a plea agreement and testified for the 

People at Murillo, Rangel and Velasquez’s trial. Macedo, who 

was 18 years old at the time of the shooting, identified Velasquez 

and Rangel as participants in the shooting and said Murillo, who 

was second in command of the CLC clique after Pantoja, 

organized the attack at Pantoja’s direction. A week or so before 

the shooting Murillo and Macedo had discussed the possibility of 

beating Clemente to force him to pay the gang’s taxes, but 

Clemente was not on the street that day. On the day of the 

shooting Murillo and Macedo met Velasquez, Rangel and Juvenal 

3 Clemente was shot in the right face and neck area, upper 

right chest and right abdomen. He suffered life-threatening 

wounds to his chest and head and spent 15 days in the hospital.
5

Mejia, another gang member, at a donut shop near MacArthur 

Park where they planned the attack on Clemente. Murillo then 

assigned roles, designating Macedo as the shooter, Velasquez and 

Murillo as lookouts, and Mejia to identify Clemente for Macedo. 

According to Murillo, it was Pantoja’s idea to shoot Clemente 

rather than beat him. 

After receiving their assignments, the members of the 

group headed to their positions. Mejia walked Macedo past 

Clemente several times to make sure Macedo understood which 

vendor was the target. Mejia and Macedo then walked into a 

video store, where Macedo considered whether he would actually

shoot the vendor. Because Pantoja had on several occasions 

expressed displeasure with Macedo for not doing enough work for 

the gang and questioned Macedo’s loyalty, Macedo decided to 

shoot Clemente as directed. According to Macedo, he stepped out 

of the video store and walked a few steps toward Clemente, 

raised the gun with both hands, fired four shots at Clemente’s 

head and then ran. At that time Macedo assumed he had killed 

Clemente and did not know he had shot and killed the infant. 

Another participant in the shooting incident, David 

Gonzalez, also entered a plea agreement and testified for the 

People. Gonzalez was at the pre-shooting meeting at the donut 

shop. After the group left the shop, Murillo gave Macedo a gun. 

Macedo told Gonzalez to wait for him and to take the gun after 

the shooting. Gonzalez did as instructed and then gave the gun 

to Velasquez.

2. Jury Instructions

With respect to the charge of murder, the trial court 

instructed the jury, in part, with CALCRIM Nos. 500 (Homicide: 

General Principles), 520 (First or Second Degree Murder with 
6

Malice Aforethought), 521 (First Degree Murder), 562 

(Transferred Intent) and 563 (Conspiracy To Commit Murder). 

In particular, CALCRIM No. 520 defined express malice and 

implied malice; and CALCRIM No. 521 explained, “The 

defendant is guilty of first degree murder if the People have 

proved that he acted willfully, deliberately, and with 

premeditation. The defendant acted willfully if he intended to 

kill. The defendant acted deliberately if he carefully weighed the 

considerations for and against his choice and, knowing the 

consequences, decided to kill. The defendant acted with 

premeditation if he decided to kill before committing the act that 

caused death.” CALCRIM No. 521 also instructed, if the jury 

decided the defendant had committed murder but the People had 

not met their burden to prove beyond a reasonable doubt the 

killing was first degree murder, the murder was of the second 

degree.

CALCRIM No. 563 instructed, “The defendants are charged 

in Count 7 with Conspiracy to commit Murder in violation of 

Penal Code section 182. [¶] To prove that a defendant is guilty of 

this crime, the People must prove that: [¶] 1. The defendant 

intended to agree and did agree with one or more of the other 

defendants or co-participants to intentionally and unlawfully kill; 

[¶] 2. At the time of the agreement, the defendant and one or 

more of the other alleged members of the conspiracy intended 

that one or more of them would intentionally and unlawfully kill; 

[¶] 3. One of the defendants or co-participants committed at least

one of the following overt acts alleged to accomplish the 

killing . . . .” 

The court’s instructions on the special circumstance 

allegation included CALCRIM Nos. 705 (Special Circumstances: 
7

Circumstantial Evidence—Intent or Mental State) and 736 

(Special Circumstances: Killing by Street Gang Members). This 

latter instruction provided, “The defendant is charged with the 

special circumstance of committing murder while an active 

participant in a criminal street gang in violation of Penal Code 

section 190.2(a)(22). [¶] To prove that this special circumstance 

is true, the People must prove that: [¶] l. The defendant 

intentionally killed [the infant]. [¶] 2. At the time of the killing, 

the defendant was an active participant in a criminal street gang; 

[¶] 3. The defendant knew that members of the gang engage in or 

have engaged in a pattern of criminal gang activity; [¶] AND [¶] 

4. The murder was carried out to further the activities of the 

criminal street gang.”

As for aiding and abetting, the court instructed with 

CALCRIM No. 400 (Aiding and Abetting: General Principles),

defining a “perpetrator” and explaining, “A person is equally 

guilty of the crime whether he or she committed it personally or 

aided and abetted the perpetrator who committed it. [¶] Under 

some specific circumstances, if the evidence establishes aiding 

and abetting of one crime, a person may also be guilty of other 

crimes that occurred during the commission of the first crime.” 

The court also instructed with CALCRIM No. 401 (Aiding and 

Abetting: Intended Crimes), defining the elements of aiding and 

abetting, including that the defendant knew the perpetrator 

intended to commit the crime and specifically intended to 

facilitate the commission of that crime. The court followed those 

two instructions with CALJIC No. 3.02 (rather than CALCRIM 

No. 402), explaining the natural and probable consequences 

doctrine.
8

As given, CALJIC No. 3.02 provided, “One who aids and

abets another in the commission of a [crime] or [crimes] is not 

only guilty of [that] [those] crimes, but is also guilty of any other 

crime committed by a principal which is a natural and probable 

consequence of the crimes originally aided and abetted. [¶] In 

order to find the defendant guilty of the crimes of Murder as 

charged in Count 1, Attempted Murder as charged in Count 2, 

and Assault with a Semi-Automatic Firearm as charged in counts

3 and 4, you must be satisfied beyond a reasonable doubt that: [¶] 

1. The crimes of [Simple Assault], [Assault with a Firearm], 

and/or [Murder] were committed; [¶] 2. That the defendant aided 

and abetted that/those crimes; [¶] 3. That a co-participant in that 

crime committed the crimes of [Simple Assault], [Assault with a 

Firearm], and/or [Murder]; and [¶] 4. The crimes of Murder,

Attempted Murder, and/or Assault with a Semi-Automatic

Firearm were a natural and probable consequence of the 

commission of the crimes of [Simple Assault], [Assault with a 

Firearm], and/or [Murder]. [¶] In determining whether a 

consequence is ‘natural and probable,’ you must apply an 

objective test . . . . [¶] You are not required to unanimously 

agree as to which originally contemplated crime the defendant 

aided and abetted, so long as you are satisfied beyond a 

reasonable doubt and unanimously agree that the defendant 

aided and abetted the commission of an identified and defined 

target crime and that the crime of Murder, Attempted Murder, 

and/or Assault with a Semi-automatic Firearm was a natural and 

probable consequence of the commission of that target crime.”

With respect to conspiracy the court instructed in the 

language of CALCRIM No. 417 (Liability for Coconspirators’ 

Acts): “A member of a conspiracy is criminally responsible for the
9

crimes that he or she conspires to commit, no matter which 

member of the conspiracy commits the crime. [¶] A member of a 

conspiracy is also criminally responsible for any act of any 

member of the conspiracy if that act is done to further the 

conspiracy and that act is a natural and probable consequence of 

the common plan or design of the conspiracy. This rule applies 

even if the act was not intended as part of the original plan. . . .” 

3. Verdict, Sentence and Appeal

The jury convicted Velasquez of first degree premeditated 

murder, conspiracy to commit murder and two counts of assault 

with a semiautomatic firearm with true findings on the firearmuse and gang enhancement allegations, as well as the gangmurder special circumstance pursuant to section 190.2, 

subdivision (a)(22). He was found not guilty of attempted 

extortion and conspiracy to commit extortion. 

The court sentenced Velasquez to an indeterminate state 

prison term of life without parole plus 25 years to life for murder 

in the first degree with the special circumstance and the related 

gun-use enhancement, plus two consecutive indeterminate terms 

of 25 years to life for conspiracy to commit murder with the 

firearm-use enhancement, plus a determinate sentence of 

17 years eight months for the aggravated assault counts and 

associated gang enhancements. 

In Velasquez’s direct appeal with his codefendants Murillo 

and Rangel, we rejected the argument there was insufficient 

evidence to support the gang-murder special circumstance or the 

finding the infant’s murder was committed for the benefit of a 

criminal street gang within the meaning of section 186.22, 

subdivision (b)(1), as well as various other claims of evidentiary, 

instructional and sentencing error with one correction in 
10

Murillo’s sentence for conspiracy to commit extortion. 

Velasquez’s judgment of conviction was affirmed. (People v. 

Murillo, supra, B226736.)

5. Velasquez’s Section 1170.95 Petition for Resentencing

On January 29, 2019 Velasquez, representing himself, filed 

a petition for resentencing under section 1170.95 and requested 

the court appoint counsel to represent him in the resentencing 

proceedings. The superior court appointed counsel, and the 

prosecutor thereafter filed an opposition memorandum 

challenging the constitutionality of section 1170.95. Velasquez’s 

counsel filed a reply memorandum in support of the petition, 

arguing the evidence was not sufficient to show that Velasquez 

was a major participant in the crime who had acted with reckless 

indifference to human life. The prosecutor responded with a 

second opposition memorandum arguing Velasquez was ineligible 

for resentencing because he had acted with an intent to kill and 

directly aided and abetted the murder. Our opinion affirming 

Velasquez’s convictions and the instructions from his trial were 

attached as exhibits to the memorandum.

On August 4, 2020 the superior court found a prima facie 

case had been established and issued an order to show cause why 

resentencing relief should not be granted. (The court again 

directed an order to show cause be issued on October 3, 2020.) 

The hearing on the order to show cause was held on October 9, 

2020.

No new evidence was presented by the prosecutor or 

Velasquez at the hearing. After brief argument from counsel, the 

court stated, “I’ll tell you where my thinking is going. . . . The 

question is whether he can be tried under the present law at the 

present time. He’s, to me, a clear aider and abettor. This is pre-
11

planned. Everybody was together. He had a specific role of being 

the lookout. And everybody had to participate in order to make it 

come off. And that’s sort of where I’m headed at the present 

time.”

In a written ruling filed November 5, 2020 the court denied 

the petition. The court reasoned, “The jury convicted the 

petitioner of premeditated murder in the first degree with the 

special circumstance of murder while an active participant in a 

street gang. He was also convicted of conspiracy to commit the 

murder of the vendor.” The court quoted portions of the jury 

instructions requiring a finding the petitioner had acted with the 

intent to kill and wrote, “The closing argument reiterated that 

defendant Velasquez acted with an intent to kill and directly 

aided and abetted the murder, and not some lesser target crime 

which led to the murder. . . . [¶] Additionally, the closing 

arguments show that finding the premeditation and deliberation 

enhancement true required finding the intent to kill. . . . [¶] 

Further, the closing arguments show that finding the special 

circumstance of murder while an active participant in a gang 

required finding an intent to kill.”

The court’s ruling continued, “The testimony at trial 

showed that: . . . Defendant Velasquez was present at the donut 

shop for the plan to shoot and kill victim Clemente. Defendant 

Velazquez was present as the gun was given to co-defendant 

Macedo to use to kill victim Clemente. Velasquez was aware of 

the dangers to life and knew that a gun would be used to shoot 

and kill the street vendor in a crowded sidewalk. Defendant 

Velasquez acted as a lookout while a fellow 18th Street gang 

member attempted to shoot and kill victim Clemente on a 

crowded sidewalk. [¶] After the shooting, defendant Velasquez’s 
12

actions are also consistent with directly aiding and abetting the

murder pursuant to the plan to kill the vendor. Defendant 

Gonzalez received the gun from the shooter and immediately 

gave it to defendant Velasquez to conceal it. [¶] Petitioner could 

be found liable under the changes to P.C. 189, pursuant to 

P.C. 189(E)(2). [¶] The person was not the actual killer, but, 

with the intent to kill, aided, abetted, counsel, commanded, 

induced, solicited, requested, or assisted the actual killer in the 

commission of murder in the first degree.” 

Velasquez filed a timely notice of appeal. 

DISCUSSION

1. Senate Bill No. 1437 and the Section 1170.95 Petition 

Procedure

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, 

ch. 1015) substantially modified the law relating to accomplice 

liability for murder, eliminating the natural and probable 

consequences doctrine as it applies to aiding and abetting and 

significantly narrowing the felony-murder exception to the malice 

requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e)(3); 

People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); see People v. 

Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) It also 

authorized, through new section 1170.95, an individual convicted 

of felony murder or murder based on the natural and probable 

consequences doctrine to petition the sentencing court to vacate 

the conviction and be resentenced on any remaining counts if he 

or she could not have been convicted of murder because of Senate 

Bill 1437’s changes to the definition of the crime. (See Lewis, at 

p. 957; Gentile, at p. 843.) 

If a petition for resentencing contains all the information 

required by section 1170.95, subdivision (b)(1)(A)), the court must 
13

appoint counsel to represent the petitioner, if requested; direct 

the prosecutor to file a response to the petition; permit the 

petitioner to file a reply; and determine if the petitioner has made 

a prima facie showing he or she is entitled to relief. (§ 1170.95, 

subd. (c); see Lewis, supra, 11 Cal.5th at pp. 962-963.) In 

determining whether the petitioner has carried this burden, the 

superior court properly examines the record of conviction, 

“allowing the court to distinguish petitions with potential merit 

from those that are clearly meritless.” (Lewis, at p. 971.) 

Appellate opinions “are generally considered to be part of the 

record of conviction” (id. at p. 972), as are the jury instructions

given at trial (see, e.g., People v. Soto (2020) 51 Cal.App.5th 1043, 

1055, review granted Sept. 23, 2020, S263939).

The prima facie inquiry under section 1170.95, 

subdivision (c), “is limited. Like the analogous prima facie 

inquiry in habeas corpus proceedings, the court takes petitioner’s 

factual allegations as true and makes a preliminary assessment 

regarding whether the petitioner would be entitled to relief if his 

or her factual allegations were proved. If so, the court must issue 

an order to show cause. . . . However, if the record, including the 

court’s own documents, contain[s] facts refuting the allegations 

made in the petition, then the court is justified in making a 

credibility determination adverse to the petitioner.” (Lewis, 

supra, 11 Cal.5th at p. 971, internal quotation marks omitted]; 

see People v. Daniel (2020) 57 Cal.App.5th 666, 675, review 

granted Feb. 24, 2021, S266336 [any error in denying petition at 

prima facie stage without appointing counsel is harmless if the 

record of conviction “conclusively demonstrates” petitioner is 

ineligible for relief].) 
14

If the section 1170.95, subdivision (c), prima facie showing 

has been made, the court must issue an order to show cause and 

hold an evidentiary hearing to determine whether to vacate the 

murder conviction and resentence the petitioner on any 

remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the 

prosecution has the burden of proving beyond a reasonable doubt 

that the petitioner is ineligible for resentencing. (§ 1170.95, 

subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230, 

review granted Mar. 10, 2021, S266652; People v. Lopez (2020) 

56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, S265974; 

but see People v. Duke (2020) 55 Cal.App.5th 113, 123, review 

granted Jan. 13, 2021, S265309.) The prosecutor and petitioner 

may rely on the record of conviction or offer new or additional 

evidence to meet their respective burdens. (See Gentile, supra, 

10 Cal.5th at pp. 853-854.)

2. The Record of Conviction Establishes Velasquez Is 

Ineligible for Resentencing as a Matter of Law

As discussed, in addition to instructions regarding 

Velasquez’s liability for murder if the jury found he was a direct 

aider and abettor of Macedo, the actual killer, the trial court 

instructed with CALJIC No. 3.02, permitting Velasquez to be 

convicted of murder under the natural and probable 

consequences doctrine if he knowingly and intentionally aided 

and abetted Macedo or another of his confederates in committing 

an assault or aggravated assault on Clemente and a reasonable 

person would know murder was the likely result of that crime. 

Similarly, pursuant to CALCRIM No. 417 Velasquez could have 

been convicted of conspiracy to commit murder if he conspired 

with his confederates to commit an assault or aggravated assault 

and the murder of the infant was a natural and probable 
15

consequence of the common plan or design of the crime Velasquez

conspired to commit. Those instructions on this now-invalid 

alternative theory of accomplice liability were likely the basis for 

the superior court’s finding that Velasquez had made a 

prima facie showing of his entitlement to resentencing relief 

under section 1170.95.

However, Velasquez’s jury found him guilty of first degree 

murder after being instructed pursuant to CALCRIM No. 521 

that this finding required the People to prove he had acted 

willfully, deliberately and with premeditation, that is, with an 

intent to kill (express malice). The verdict form specifically 

stated that Velasquez “did unlawfully and with malice 

aforethought murder [the infant].” The jury also found true the 

gang-murder special circumstance, which required the People to 

prove, among other elements under CALCRIM No. 736, that 

Velasquez intentionally killed the infant (or, combined with 

CALCRIM No. 401, as an aider and abettor he specifically 

intended to assist the perpetrator in committing a gang-related 

murder).4 The verdict form for the special-circumstance finding 

recited that Velasquez “intentionally killed the victim while the 

defendant was an active participant in a criminal street gang.” 

Based on its verdict and these findings the jury necessarily 

found Velasquez had acted with a specific intent to kill, express 

malice, as a direct aider and abettor—a valid theory of accomplice 

liability for murder under amended sections 188 and 189—

4 In connection with the gang-related special-circumstance 

allegation, the trial court had also instructed with CALCRIM 

No. 705, which advised the jury a true finding required the 

People to prove Velasquez had acted with the mental state 

described in CALCRIM No. 736. 
16

notwithstanding the instructions on the natural and probable 

consequences doctrine. As such, Velasquez is ineligible for 

resentencing under section 1170.95 as a matter of law. (See 

People v. Soto, supra, 51 Cal.App.5th at p. 1055, review granted 

[where jury instructions required a finding of malice, defendant 

was ineligible for relief as a matter of law]; see also People v. 

Verdugo (2020) 44 Cal.App.5th 320, 326-327, review granted 

Mar. 18, 2020, S260493 [the record of conviction might include 

information “that establishes the petitioner is ineligible for relief 

as a matter of law because he or she was convicted on a ground 

that remains valid notwithstanding Senate Bill 1437’s 

amendments to sections 188 and 189”].) Any error in the 

superior court’s application of the proper standard of proof at the 

evidentiary hearing was harmless:

5 There is no reasonable 

probability a more favorable result would have been obtained if 

the correct standard of proof had been used. (See Lewis, supra, 

11 Cal.5th at pp. 973-974 [applying People v. Watson (1956) 

46 Cal.2d 818 state law standard of prejudice to procedural errors 

in assessing whether petitioner had made a prima facie showing 

of eligibility for resentencing relief].)

5 We agree with Velasquez the superior court’s ruling he 

“could be found liable under the changes to P.C. 189” and the 

absence of any reference to proof beyond a reasonable doubt 

suggest the superior court did not understand its responsibility to

act as an independent factfinder and evaluate the evidence of his 

continued liability for murder under that standard, as held in 

People v. Rodriguez, supra, 58 Cal.App.5th at page 230, review 

granted, and People v. Lopez, supra, 56 Cal.App.5th at page 949, 

review granted. The Attorney General essentially concedes this 

point, although arguing any error was harmless.
17

Velasquez disputes this analysis, noting that prior to 

People v. Chiu (2014) 59 Cal.4th 155 a defendant could be 

convicted of first degree premeditated murder under the natural 

and probable consequences doctrine. Thus, Velasquez argues, the 

first degree murder verdict in his case does not necessarily mean 

the jury found he had acted with express malice.6 However, as 

the Attorney General explains, in Chiu the jury was instructed, 

to find the defendant guilty of first degree murder under the 

natural and probable consequences doctrine, it only had to find 

the perpetrator acted willfully and with premeditation in 

committing the nontarget offense of murder. (Id. at p. 161.) 

Here, CALCRIM No. 521, as given, instructed the jury that, if it 

found any of the defendants guilty of murder (under any of the 

theories presented), to then find the defendant guilty of first 

degree, rather than second degree, murder, the jury had to find 

the defendant—not simply the shooter—acted willfully and with 

premeditation.7 (Cf. People v. Stevenson (2018) 25 Cal.App.5th 

6 Although not outcome determinative, Velasquez has not 

obtained (and apparently has not sought) habeas relief on the 

basis of Chiu error. (Cf. 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”].)

7 In contrast to the first degree murder instruction, which 

required a finding that each defendant had acted willfully and 

with premeditation, the attempted murder instruction permitted 

the jury to find a defendant guilty of attempted willful, deliberate 

and premeditated murder if “the defendant and/or Giovanni 

Macedo” acted with the requisite intent.
18

974, 984 [no Chiu error because modified CALCRIM No. 521 as 

given required the jury to base its finding of first degree murder 

on defendant’s deliberation and premeditation, not 

perpetrator’s].) 

Velasquez also fails in his attempt to negate the express 

malice finding included in the gang-murder special circumstance. 

Velasquez argues there was no evidence at trial he intended to 

kill the infant victim, as required by the special circumstance 

instructions. But the jury was properly instructed on transferred 

intent, and the Supreme Court in People v. Shabazz (2006) 

38 Cal.4th 55, 64-66, held the transferred intent doctrine applies 

to the gang-murder special circumstance.

DISPOSITION

The postjudgment order denying Velasquez’s motion for 

resentencing under section 1170.95 is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.