Filed 10/28/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CYNTHIA M. VARGAS,

Defendant and Appellant.

B313853

(Los Angeles County

Super. Ct. No. VA071988)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County. Lee W. Tsao, Judge. Affirmed.

David L. Polsky, 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, Daniel Chang and David A. Voet, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

Cynthia M. Vargas appeals the denial of her petition for 

resentencing under Penal Code1 section 1172.6 (former 

§ 1170.95).

2

FACTS AND PROCEDURAL BACKGROUND3

On July 12, 2002, James Barbosa (James) walked to Rivera 

Park to meet his brother, John Barbosa (John), and Pedro 

Brache. None was a member of any gang. The park, however, 

was in territory claimed by the Rivera gang, of which Vargas was 

an associate or a full member, and her codefendant, Cesar 

Alcantar, and 15-year-old Daniel Luna were members. As James 

walked over to join John and Brache, Alcantar blocked his path 

and repeatedly asked him where he was from. James understood 

Alcantar was asking whether he was from another gang, and 

James responded he was not from anywhere, meaning he was not 

a gang member. But Alcantar accused James of lying and 

punched him in the jaw. James turned and walked away to avoid 

any further trouble, and Alcantar, Vargas and Luna went to the 

back of the park where they spray painted Rivera gang graffiti on 

a wall.

1 Undesignated statutory references are to the Penal Code.

2 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6, with no change in text. (Stats. 2022, 

ch. 58, § 10.)

3 We have granted the parties’ requests to take judicial 

notice of the record in the appeal from Vargas’s conviction in case 

No. B175349. Included in that record is this court’s prior opinion 

in that case, from which much of our factual summary is drawn. 

(People v. Alcantar et al. (Apr. 20, 2005, B175349) [nonpub. opn.]; 

People v. Cruz (2017) 15 Cal.App.5th 1105, 1110 [appellate 

opinion is part of the record of conviction].)
3

A few minutes later, Alcantar, Vargas and Luna again 

approached James as he was talking with John and Brache. 

Alcantar persisted in asking James where he was from and what 

he was called. James reiterated that he was not a gang member. 

Vargas, who was standing next to Alcantar, threw a tall beer can 

at James and said, “Damn,” when it only skimmed the side of his 

head. Alcantar struck James again, and a fight ensued.

James, who was larger and stronger than Alcantar, pushed 

Alcantar to the ground and got on top of him. James felt two 

people hitting and kicking him while he was on top of Alcantar. 

John attempted to separate James and Alcantar, and pulled

Vargas and Luna away as they struck and kicked James.

James continued to dominate the fight, and Vargas yelled 

to Luna, “Shoot. Shoot the motherfucker.” A few seconds later 

Alcantar yelled, “Hurry up. Shoot this motherfucker.” Luna 

pulled out a handgun, and John stepped between Luna and 

James. As John yelled, “Stop. Stop. No. No,” Luna fired the 

weapon twice. One bullet struck John in the back. Luna then 

walked up to John and fatally shot him in the back of the head.

The three assailants ran away with James in pursuit. 

Vargas and Alcantar got into one vehicle, Luna another, and they 

all drove away. An eyewitness testified that if John had not 

stepped between Luna and James, Luna would have shot James 

in the back while James was on top of Alcantar.

Following a jury trial, Vargas and Alcantar were convicted 

of first degree murder (§ 187, subd. (a)) with findings as to each 

defendant that a principal used a firearm (§ 12022.53, subds. (d), 

(e)(1)) and that the offense was committed for the benefit of a 

criminal street gang (§ 186.22, subd. (b)(1)). The trial court 

sentenced each defendant to 60 years to life, consisting of 25 
4

years to life for the first degree murder plus consecutive terms of 

25 years to life for the firearm enhancement and 10 years to life 

for the gang enhancement.

On appeal from the judgment, this court ordered the 10-

year gang enhancement stricken4 but otherwise affirmed 

defendants’ convictions. On remand the superior court modified 

Vargas’s sentence to a term of 50 years to life.

Following the California Supreme Court’s decision in 

People v. Chiu (2014) 59 Cal.4th 155, Vargas filed a petition for 

writ of habeas corpus in the superior court on the ground that she 

could not be convicted of murder in the first degree under the 

natural and probable consequences doctrine. Rather than retry 

the case, the People agreed to accept resentencing for second 

degree murder. The superior court vacated Vargas’s first degree 

murder sentence and imposed a term of 40 years to life, 

consisting of 15 years to life for second degree murder plus 25 

years to life for the firearm enhancement.

4 The parties agreed that because Vargas and Alcantar

were convicted of first degree murder and sentenced to 25 years 

to life in prison, a determinate enhancement under section 

186.22, subdivision (b) could not be applied, and because a section 

12022.53, subdivision (d) enhancement was imposed pursuant to

section 12022.53, subdivision (e), although neither appellant 

personally used or discharged a firearm in the commission of the 

murder, no section 186.22, subdivision (b) enhancement could be 

imposed.
5

Shortly after Senate Bill No. 1437 became effective, Vargas 

filed her petition for resentencing pursuant to section 1172.6.

5 

The superior court summarily denied the petition without 

appointing counsel. We reversed and remanded the matter to the 

superior court for further proceedings, including the appointment 

of counsel for Vargas and briefing by the parties in accordance 

with section 1172.6, subdivision (c). (People v. Vargas (July 13, 

2020, B297115) [nonpub. opn.].)

On remand, the trial court issued an order to show cause 

and held an evidentiary hearing. The People offered no 

argument in opposition to the petition, and neither party 

presented new evidence, submitting instead on the record of 

conviction. Defense counsel argued that the prosecution’s case 

was built entirely on a natural and probable consequences theory 

supported by unreliable eyewitness statements identifying

Vargas as one of the participants who called for the shooting.

After reviewing the trial transcripts and hearing argument 

by defense counsel, the trial court denied the petition, finding 

that “the People have met their burden of proving beyond a 

reasonable doubt that Ms. Vargas aided and abetted the first 

5 In the same petition, Vargas also asked the court to strike 

the related firearm enhancement under section 1385 based on 

section 12022.53, subdivision (h) as amended by Senate Bill 

No. 620. On remand, however, Vargas did not renew her request, 

the superior court did not address it below, and Vargas’s 

appellate briefs contain no reference it. We therefore deem the 

issue abandoned. (See People v. Ramirez (2006) 39 Cal.4th 398, 

450 [failure to press lower court for a ruling deprives that court of 

opportunity to correct potential error and forfeits the issue for 

appeal]; Taylor v. Nabors Drilling USA, LP (2014) 222 

Cal.App.4th 1228, 1247–1248.)
6

degree premeditated murder of John Barbosa.” The court 

explained, “While there were some issues of identification with 

respect to each witness, altogether, they leave no reasonable 

doubt that it was Ms. Vargas who said, ‘Shoot him.’ Those words, 

together with Mr. Alcantar’s plea of ‘shoot him,’ led Daniel Luna 

to pull out his gun and fatally shoot John Barbosa.”

DISCUSSION

The Trial Court’s Conclusion that Appellant Is Ineligible 

for Relief Under Section 1172.6 Is Supported by 

Substantial Evidence

A. Applicable legal principles

The Legislature enacted 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) 

To accomplish this objective, Senate Bill No. 1437 amended 

section 188, defining malice, and section 189, which classifies 

murder into two degrees and lists the predicate felonies for the 

crime of first degree felony murder. (Stats. 2018, ch. 1015, §§ 2, 

3; People v. Martinez (2019) 31 Cal.App.5th 719, 723.)

Senate Bill No. 1437 and its amendment to section 188 

eliminated potential aider and abettor liability for first or second 

degree murder under the natural and probable consequences 

doctrine by requiring that a principal “act with malice 

aforethought” in order to be convicted of murder; there is no 

exception for accomplices. (§ 188, subd. (a)(3); People v. Gentile

(2020) 10 Cal.5th 830, 846 (Gentile).) “By its terms, section 188[, 
7

subdivision (a)(3)] permits a second degree murder conviction 

only if the prosecution can prove the defendant acted with the 

accompanying mental state of mind of malice aforethought. The 

prosecution cannot ‘impute[] [malice] to a person based solely on 

his or her participation in a crime.’ ” (Gentile, at p. 846, quoting 

§ 188, subd. (a)(3).)

Section 1172.6 provides a mechanism by which a person 

convicted of murder under a natural and probable consequences 

theory may be resentenced if they could no longer be convicted of 

murder because of the changes to section 188. (People v. Strong

(2022) 13 Cal.5th 698, 708; § 1172.6, subd. (a)(3).) Once a 

petitioner establishes a prima facie case for relief and the 

superior court issues an order to show cause, the matter proceeds 

to an evidentiary hearing at which it is the prosecution’s burden 

to prove beyond a reasonable doubt that the petitioner is 

ineligible for resentencing. (Strong, at pp. 708–709; § 1172.6, 

subd. (d)(3).) If the superior court finds beyond a reasonable 

doubt that the petitioner is guilty of murder notwithstanding the 

amendments to sections 188 and 189, the petitioner is ineligible 

for relief under section 1172.6. (Strong, at pp. 708–709; § 1172.6, 

subds. (a)(3) & (d)(3).)

While the superior court acts as an independent fact finder 

in determining whether the People have met their burden, on 

appeal, the reviewing court applies the substantial evidence 

standard to the superior court’s findings. (People v. Garrison

(2021) 73 Cal.App.5th 735, 745, 747 (Garrison).) Under this 

familiar standard, “ ‘we review the entire record in the light most 

favorable to the judgment to determine whether it contains 

substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact 
8

could find the defendant guilty beyond a reasonable doubt.’ 

[Citation.] We determine ‘whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond 

a reasonable doubt.’ [Citation.] In so doing, a reviewing court 

‘presumes in support of the judgment the existence of every fact 

the trier could reasonably deduce from the evidence.’ ” (People v. 

Edwards (2013) 57 Cal.4th 658, 715; People v. Nieber (2022) 82 

Cal.App.5th 458, 476.) Substantial evidence also “ ‘includes 

circumstantial evidence and any reasonable inferences drawn 

from that evidence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 57; 

Nieber, at p. 476.)

B. Substantial evidence supports the trial court’s 

finding that appellant is guilty of murder under a theory 

that remains valid after the amendments to California’s

murder laws.

The trial court denied the petition for resentencing because 

it found appellant aided and abetted a first degree premeditated 

murder. The court explained that the evidence presented at trial 

left no reasonable doubt that appellant’s command to “Shoot. 

Shoot the motherfucker,” and Alcantar yelling, “Hurry up. Shoot 

this motherfucker,” directly led “Luna to pull out his gun and 

fatally shoot John Barbosa.”

Both parties read the court’s ruling to mean that the trial 

court held appellant ineligible for relief under section 1172.6 

because it found her guilty of first degree premeditated murder. 

Appellant does not dispute that Luna’s killing of John constituted 

a willful, deliberate and premeditated murder, but argues that 

substantial evidence does not support a finding that she had the 

requisite intent to kill John. Respondent counters that 
9

substantial evidence supports the finding that appellant directly 

aided and abetted the murder with the intent to kill.

Both parties misconstrue the basis for the trial court’s 

ruling: To find appellant ineligible for relief under section 

1172.6, the court needed only find appellant acted with implied 

malice in directly aiding and abetting the killing. Contrary to the 

parties’ arguments, the trial court did not find appellant guilty of 

first degree premeditated or express malice murder, but denied 

relief because she directly aided and abetted one.

At an evidentiary hearing under section 1172.6, subdivision 

(d)(3), the trial judge is charged with determining, beyond a 

reasonable doubt, if the petitioner is guilty of murder under a 

theory that remains valid after the amendments to the 

substantive definition of murder. (Garrison, supra, 73 

Cal.App.5th at p. 745; People v. Ramirez (2021) 71 Cal.App.5th 

970, 984; People v. Clements (2022) 75 Cal.App.5th 276, 298.) 

Although the parties may offer new or additional evidence to 

meet their respective burdens, section 1172.6, subdivision (d)(3) 

does not contemplate a whole new trial on all the elements of 

murder. (Clements, at p. 298.) Rather, “[t]he retroactive relief 

provided by [former] section 1170.95 is a legislative ‘act of lenity’

intended to give defendants serving otherwise final sentences the 

benefit of ameliorative changes to applicable criminal laws and 

does not result in a new trial or increased punishment.” (People 

v. Hernandez (2021) 60 Cal.App.5th 94, 111; see People v. Perez

(2018) 4 Cal.5th 1055, 1064 [“a factual finding that results in 

resentencing ineligibility does not increase the petitioner’s 

sentence; it simply leaves the original sentence intact”].) Thus, 

the focus at the evidentiary hearing phase of an 1172.6 petition is 

“on evidence made relevant by the amendments to the 
10

substantive definition of murder,” which, in the context of section 

188, requires “the prosecution to prove that all principals to a 

murder acted with malice aforethought.” (Clements, at p. 298; 

§ 188, subd. (a)(3).)

In conducting our substantial evidence review, we begin 

with the presumption that the evidence was sufficient to support 

the trial court’s ruling. “Before setting aside the judgment of the 

trial court for insufficiency of the evidence, it must clearly appear 

that there was no hypothesis whatever upon which there was 

substantial evidence to support the verdict.” (People v. Fleming

(2018) 25 Cal.App.5th 783, 789; People v. Bolin (1998) 18 Cal.4th 

297, 331.)

Murder is the unlawful killing of a human being with 

malice aforethought. (§ 187, subd. (a).) “Second degree murder is 

the unlawful killing of a human being with malice aforethought 

but without the additional elements, such as willfulness, 

premeditation, and deliberation, that would support a conviction 

of first degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 

151.) Malice may be express or implied. (§ 188, subd. (a).) It is 

express when there is manifested an intent to kill. (§ 188, subd. 

(a)(1); People v. Gonzalez (2012) 54 Cal.4th 643, 653.) “Malice is 

implied when a person willfully does an act, the natural and 

probable consequences of which are dangerous to human life, and 

the person knowingly acts with conscious disregard for the 

danger to life that the act poses.” (Gonzalez, at p. 653.) “The 

primary difference between express malice and implied malice is 

that the former requires an intent to kill but the latter does not.” 

(People v. Soto (2018) 4 Cal.5th 968, 976.)

Before the Legislature amended section 188, the natural 

and probable consequences doctrine constituted an exception to 
11

the requirement of either express or implied malice for a murder 

conviction. (People v. Rivera (2021) 62 Cal.App.5th 217, 231 

(Rivera).) Now, since the amendment, the natural and probable 

consequences doctrine can no longer support a murder conviction, 

but the change did not “alter the law regarding the criminal 

liability of direct aiders and abettors of murder . . . . One who 

directly aids and abets another who commits murder is thus 

liable for murder under the new law just as he or she was liable 

under the old law.”6 (People v. Offley (2020) 48 Cal.App.5th 588, 

595–596; People v. Jenkins (2021) 70 Cal.App.5th 924, 932 [“The 

direct aider and abettor of murder, like the direct perpetrator, 

must act with malice”].)

“[P]roof of aider and abettor liability requires proof in three 

distinct areas: (a) the direct perpetrator’s actus reus—a crime

6 Although implied malice also incorporates the idea of 

“natural and probable consequences,” the two concepts are 

distinct. Under the natural and probable consequences doctrine, 

an aider and abettor’s intent with regard to the nontarget offense 

is irrelevant: Liability results entirely from the direct 

perpetrator’s acts and intent in committing the nontarget 

crime⎯including an unintended murder⎯as long as the 

accomplice intended to commit the target offense and the 

nontarget offense was reasonably foreseeable. (People v. Smith

(2014) 60 Cal.4th 603, 611 [“ ‘liability “ ‘is measured by whether a 

reasonable person in the defendant’s position would have or 

should have known that the charged offense was a reasonably 

foreseeable consequence of the act aided and abetted’ ” ’ ”]; 

Rivera, supra, 62 Cal.App.5th at pp. 231–232.) Implied malice, 

on the other hand, is based upon the natural and probable 

consequences of a defendant’s own act committed with knowledge 

of and disregard for the risk of death the act carries. (People v. 

Knoller, supra, 41 Cal.4th at pp. 151–152; Rivera, at p. 231.)
12

committed by the direct perpetrator, (b) the aider and abettor’s 

mens rea—knowledge of the direct perpetrator’s unlawful intent 

and an intent to assist in achieving those unlawful ends, and 

(c) the aider and abettor’s actus reus—conduct by the aider and 

abettor that in fact assists the achievement of the crime.” (People 

v. Perez (2005) 35 Cal.4th 1219, 1225.)

“In the context of implied malice, the actus reus required of 

the perpetrator is the commission of a life-endangering act. For 

the direct aider and abettor, the actus reus includes whatever 

acts constitute aiding the commission of the life endangering act. 

Thus, to be liable for an implied malice murder, the direct aider 

and abettor must, by words or conduct, aid the commission of the 

life-endangering act, not the result of that act.” (People v. Powell

(2021) 63 Cal.App.5th 689, 713, fn. omitted (Powell).)

As for the requisite intent, our Supreme Court has 

explained that “an aider and abettor who does not expressly 

intend to aid a killing can still be convicted of second degree 

murder if the person knows that his or her conduct endangers the 

life of another and acts with conscious disregard for life.” 

(Gentile, supra, 10 Cal.5th at p. 850.) The aider and abettor 

“need only intend the commission of the perpetrator’s act, the 

natural and probable consequences of which are dangerous to 

human life, intentionally aid in the commission of that act and do 

so with conscious disregard for human life.” (Powell, supra, 63 

Cal.App.5th at p. 714.)

Here, substantial evidence supports the trial court’s finding 

that appellant acted with implied malice to directly aid and abet 

the murder. The evidence presented at trial established that 

from the beginning, Vargas was inextricably involved in the 

events that led to the murder and she was directly responsible for 
13

prompting Luna to shoot and kill John. Alcantar and Luna were 

both members of the Rivera criminal street gang, and appellant

was at least an associate of that gang. The murder occurred at a 

park in territory claimed by the Rivera gang, and Vargas, 

Alcantar and Luna were there together drinking beer and spray 

painting gang graffiti on a wall. Vargas stood next to Alcantar as 

he challenged James and punched him in the face. When the 

three approached James again, it was Vargas who initiated a 

physical confrontation by throwing a beer can at James’s head. 

Once the fight between Alcantar and James escalated, Vargas 

joined in kicking and punching James when he got on top of 

Alcantar. Vargas was certainly aware of John’s proximity to and 

participation in the fight when he attempted to pull Vargas and 

Luna away from James. Moreover, Vargas obviously knew Luna 

was armed with a loaded gun when she ordered Luna to “Shoot. 

Shoot the motherfucker.” Luna did as he was directed and shot 

into the brawl, striking John in the back and incapacitating him. 

While John attempted to stand up, Vargas stood by and watched 

Luna walk over to shoot John in the back of the head. Only then 

did Vargas and her cohort run away.

Even if these circumstances did not establish express 

malice on appellant’s part, they certainly constitute sufficient 

evidence upon which the trial court could find, beyond a 

reasonable doubt, that appellant acted with implied malice in 

aiding and abetting the murder. (See People v. Garcia (2008) 168 

Cal.App.4th 261, 273 [“Factors to be considered by the trier of 

fact in determining ‘whether one is an aider and abettor include 

presence at the scene of the crime, failure to take steps to 

attempt to prevent the commission of the crime, companionship, 

flight, and conduct before and after the crime’ ”].)
14

As set forth above, the essence of aiding and abetting a 

murder under an implied malice theory is the accomplice’s act of 

aiding, by words or conduct, the commission of a life-endangering 

act with knowledge of the danger to life that the act poses. 

(Powell, supra, 63 Cal.App.5th at p. 714.) Such an aider and 

abettor need not intend to aid a killing to be held criminally 

liable for the result of the perpetrator’s act. (Gentile, supra, 10 

Cal.5th at p. 850; Powell, at p. 713.) Appellant knew that firing a 

gun into a brawl could ultimately result in someone’s death, but 

she directed Luna to do it anyway. She did not object when Luna 

walked over to John and finished what she had started, nor did 

she try to stop him. Substantial evidence supports the trial 

court’s finding that appellant is guilty of murder under a stillvalid theory following the Legislature’s amendments to section 

188.
15

DISPOSITION

The trial court’s order denying Vargas’s petition for 

resentencing under Penal Code section 1172.6 is affirmed.

CERTIFIED FOR PUBLICATION.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.