75 Cal.App.5th 198
Cal. Ct. App.2022Background
- In 2007 Benito Cortes was convicted of first‑degree murder and premeditated attempted murder for a 2005 gang‑related shooting; a witness could not identify the shooter, and evidence showed Cortes was in a car with other participants.
- The jury was instructed it could convict Cortes as a direct perpetrator or as a direct aider and abettor; the court did not instruct on felony murder or the natural and probable consequences (NPC) doctrine.
- Prosecutor’s closing referred to aiding and abetting generally and made a passing statement about NPC, but no charge or theory was pursued at trial that a separate underlying felony (e.g., assault) led to vicarious liability for murder.
- Cortes filed a section 1170.95 petition (Senate Bill 1437 relief) in 2020, arguing he might have been convicted under NPC and therefore was eligible for resentencing; he also relied on later amendments (Senate Bill 775) expanding relief to attempted murder.
- The trial court denied the petition for lack of a prima facie showing; the Court of Appeal affirmed, holding the record shows convictions as perpetrator or direct aider/abettor, not under NPC or any theory imputing malice solely from participation.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Cortes) | Held |
|---|---|---|---|
| Whether Cortes made a prima facie showing under §1170.95 that he was convicted under the natural and probable consequences or other vicarious‑liability theory | Cortes is ineligible because jury was not instructed on felony murder or NPC; record shows direct perpetrator or direct aider/abettor liability | Cortes argued prosecutor’s closing invoked NPC and jury could have relied on NPC to impute malice, making him eligible | Held: Cortes failed to make a prima facie showing; record demonstrates conviction as perpetrator or direct aider/abettor, not on NPC or vicarious‑imputation theory |
| Whether a prosecutor’s isolated closing remark referencing NPC suffices to show conviction under that theory absent instruction or charged underlying felony | The People argued that an uncharged theory mentioned in argument cannot convert the legal theory of conviction when jury instructions limited liability to perpetrator or direct aider/abettor | Cortes argued the prosecutor’s remarks could have led the jury to convict under NPC despite lack of instruction | Held: Mere prosecutorial comment does not overcome presumption that jury followed instructions; no evidence jury convicted on an uncharged NPC theory |
| Whether amendments (SB 775) expanding §1170.95 relief to attempted murder affect eligibility here | People maintained ineligibility because the record shows direct liability, not NPC‑based attempted murder | Cortes invoked SB 775 to argue attempted murder is covered if NPC theory applied | Held: Court did not need to resolve SB 775’s scope because Cortes failed prima facie showing of liability under NPC or vicarious theories for either murder or attempted murder |
Key Cases Cited
- People v. Lewis, 11 Cal.5th 952 (2021) (prima facie §1170.95 inquiry is informed by the record of conviction)
- People v. Turner, 10 Cal.5th 786 (2020) (appellate courts may affirm on any correct legal ground)
- People v. Gentile, 10 Cal.5th 830 (2020) (aider‑and‑abettor can be convicted of second‑degree murder under implied malice if acting with conscious disregard for life)
- People v. Rivera, 62 Cal.App.5th 217 (2021) (implied malice remains a valid theory after SB 1437)
- People v. Cortez, 63 Cal.4th 101 (2016) (jurors presumed to follow court’s instructions; counsel’s argument is not evidence)
- People v. Williams, 61 Cal.4th 1244 (2015) (speculation insufficient to overcome presumption that jury followed instructions)
- People v. Johnson, 61 Cal.4th 734 (2015) (where record shows no reason jury disobeyed instructions, presumption that jury followed them stands)