THE PEOPLE, Plaintiff and Respondent, v. ELIAS ORTEGA DELGADO, Defendant and Appellant.
G063049 (Super. Ct. No. 09NF2376)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 6/12/25
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
Elias Ortega Delgado appeals from a postjudgment order denying his petition for resentencing under
BACKGROUND
In 2011, the prosecution filed an information against Delgado, charging him and two codefendants with murder (
In 2013, Delgado proceeded to jury trial on the above information. After closing arguments, the trial court instructed the jury on the general principles of aiding and abetting as follows: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.” (CALCRIM No. 400.)
The trial court instructed the jury on the natural and probable consequences doctrine, as it was understood at the time, by a modified instruction that provided in pertinent part as follows: “Before you may decide whether the defendant is guilty of murder, you must decide whether he is guilty of challenging someone to fight. [¶] To prove that the defendant is guilty of murder, the People must prove that: [¶] 1. The defendant is guilty of challenging someone to fight; [¶] 2. During the commission of the challenge to fight[,] a coparticipant in that challenge to fight committed the crime of murder; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant‘s position would have known that the commission of the murder was a natural and probable consequence of the commission of the challenge to fight. [¶] A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual
The trial court gave the jury modified instructions on disturbing the peace (fighting or challenging someone to fight) (CALCRIM No. 2688), first degree murder (premeditated murder) (CALCRIM No. 521), and first or second degree murder with malice aforethought (CALCRIM No. 520).
For the gang-murder special circumstance, the trial court modified CALCRIM No. 736 as follows: “The defendant is charged with the special circumstance of committing murder while an active participant in a criminal street gang in violation of
The jury convicted Delgado of first degree murder, found true the allegations as to the murder, and convicted him of active participation in a criminal street gang. The trial court sentenced him to life without the possibility of parole, consecutive to a term of 25 years to life. It struck the
In 2014, a panel of this appellate court affirmed the judgment. (People v. Delgado (Nov. 10, 2014, G048668) [nonpub. opn.].)
In 2023, Delgado filed a petition for resentencing under
The prosecution opposed Delgado‘s petition, arguing he failed to make a prima facie showing of eligibility for relief. The prosecution asserted the record of conviction showed the jury had to find Delgado possessed an intent to kill when it convicted him of first degree murder, “regardless of whether he was the actual perpetrator or an aider and abettor of the murder.” The prosecution also contended, given the jury found true the gang-murder special-circumstance allegation, the jury had to find Delgado killed Gaitan or, with an intent to kill, aided and abetted the killing.
After a hearing (
“To find [Delgado] guilty of first[ ]degree murder, the jury had to conclude that [Delgado] had the intent to kill. The instructions provided to the jury clearly specified this requirement.
“Additionally, the jury was instructed on aiding and abetting the murder, which required the jury to find that [Delgado] personally intended to kill. The jury was required to find that [Delgado] personally intended to kill, regardless of whether he was the actual perpetrator or an aider and abettor of murder.
“Finally, in finding the gang special circumstance allegation true, the jury necessarily found that [Delgado] acted with the intent to kill. To find that the gang special circumstance to be true, the jury either found that [Delgado] actually killed Gaitan, or that [Delgado], with an intent to kill, aided and abetted the killing of Gaitan. Under either theory, [Delgado] would be guilty of murder under current law.”
After the denial of the petition, the California Supreme Court decided People v. Curiel (2023) 15 Cal.5th 433 (Curiel). Delgado timely appealed.
DISCUSSION
I. SECTION 1172.6
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) narrowed the scope of the felony-murder rule, with certain exceptions, and “eliminated liability for murder as an aider and abettor under the natural and probable consequences doctrine.” (People v. Arellano (2024) 16 Cal.5th 457, 468.) It did this by amending
The procedure begins when a defendant previously convicted of a qualifying offense files a petition for relief in the trial court. (
“At the prima facie stage, a court must accept as true a petitioner‘s allegation that he or she could not currently be convicted of a homicide offense because of changes to
“The record of conviction will necessarily inform the trial court‘s prima facie inquiry under section 117[2.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.) “It is only where the record of conviction
However, if the petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause. (
A reviewing court conducts a de novo review of a trial court‘s denial of a
Delgado contends the trial court erred by denying his
Curiel addressed “the effect of the jury‘s true finding on the gang-murder special circumstance, specifically its finding that [the petitioner] intended to kill, on his ability to state a prima facie case for relief under Senate Bill 1437.” (Curiel, supra, 15 Cal.5th at pp. 440–441.) In Curiel, the trial court instructed the jury on direct aiding and abetting as well as the natural and probable consequences doctrine (with disturbing the peace and carrying a concealed firearm by a gang member as the target offenses). (Id. at p. 446.) It also gave the jury the following gang-murder special-circumstance instruction: “‘To prove that this special circumstance is true, the People must prove that: [(1)] the defendant intended to kill; [(2)] at the time of the killing the defendant was a member in a criminal street gang; and [(3)] the murder was carried out to further the activities of the criminal street gang.‘” (Id. at p. 447.) “[T]he jury convicted [the petitioner] of first degree murder and found true the gang-murder special-circumstance allegation and the criminal street gang sentencing enhancement.” (Id. at p. 447.) The petitioner filed a resentencing petition, alleging the jury convicted him of first degree murder under the natural and probable consequences doctrine and he could not be
The California Supreme Court held the trial court erred by denying the petition because, based on the jury instructions, “the findings the jury must have made are insufficient to conclusively establish that [the petitioner] is liable for murder under current law.” (Curiel, supra, 15 Cal.5th at p. 471section 1172.6, such a finding does not necessarily render a petitioner ineligible for relief. (Curiel, supra, at pp. 460–461.) The intent to kill is only one element; it does not by itself “cover all of the required elements” and demonstrate a petitioner “is liable for murder under any valid theory.” (Id. at p. 463) “For example, ‘under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another [e.g., murder] if the accomplice aids the commission of that offense with “knowledge of the direct perpetrator‘s unlawful intent and [with] an intent to assist in achieving those unlawful ends.“‘” (Ibid.)
Our high court continued: “While a finding of intent to kill does not, itself, suffice to refute a petitioner‘s allegation under
Additionally, the jury did not necessarily find the requisite mens rea for direct aiding and abetting liability. (Curiel, supra, 15 Cal.5th at p. 468.) That is, the jury was not required to find certain elements of aiding and abetting, such as: (1) the aider and abettor had “‘knowledge of the unlawful purpose of the perpetrator’ and ‘the intent or purpose of committing, encouraging, or facilitating’ the commission of the offense“; or (2) alternatively, the aider and abettor, in the context of implied malice murder, knew “the perpetrator intend[ed] to commit a life-endangering act, intend[ed] to aid the perpetrator in the commission of that act, [knew] the act [was] dangerous to human life, and act[ed] in conscious disregard for human life.” (Ibid.) “[T]he aider and abettor [must] actually foresee the homicidal or life-endangering consequences of the perpetrator‘s actions in this context. [Citation.] An aider and abettor who knows and intends to aid the direct perpetrator in certain conduct, but does not subjectively appreciate that the conduct is dangerous to human life, is not liable for the murder that results because the aider and abettor has not sufficiently concerned himself with that murder. This conclusion holds even if the aider and abettor separately intends to kill. Intent to kill itself does not establish a sufficient mens rea regarding a murder or life-endangering conduct that the aider and abettor has no intent to aid or encourage—and that the aider and abettor does not even subjectively know will occur. Indeed, a defendant could act with intent to kill but at the same time believe the actual perpetrator could never risk harm to another human being—and be genuinely surprised when the actual perpetrator commits a life-endangering act.” (Id. at p. 470)
Lopez concerned the impact of a gang-murder special-circumstance finding in a harmless error analysis in the context of a writ of habeas corpus petition.1 (Lopez, supra, 14 Cal.5th at pp. 567, 568.) In Lopez, the jury received instructions on valid (premeditated murder and aiding and abetting premeditated murder) and invalid (natural and probable consequences) theories. (Id. at pp. 576, 579) The trial court instructed the jury on the gang-murder special circumstance in relevant part as follows: “‘If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree. [¶] You must decide separately as to each of the
After the defendant was convicted of first degree murder and the jury found true the gang-murder special circumstance, he filed a petition for writ of habeas corpus, alleging the jury was instructed on an invalid theory, the natural and probable consequences doctrine of aiding and abetting first degree murder. (Lopez, supra, 14 Cal.5th at p. 578.) The prosecution argued any error was harmless because the jury did not rely on that invalid theory. (Ibid.) It noted the jury‘s gang-murder special-circumstance finding showed the jury found the defendant intended to kill. (Ibid.)
The Supreme Court held the gang-murder special-circumstance instruction “does not in and of itself show the jury made the necessary findings for a valid theory.” (Lopez, supra, 14 Cal.5th at p. 588.) It explained, “Under the trial court‘s jury instructions (see CALJIC No. 8.80.1), this true finding shows that the jury determined beyond a reasonable doubt that Lopez either (1) ‘intentionally killed the victim’ or (2) ‘with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree.‘” (Id. at p. 586) “Even assuming the jury found the gang-murder special circumstance true
The high court continued: “If the jury did not find that [the defendant] was an actual killer, it must instead have determined that [the defendant] ‘with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree.’ (See CALJIC No. 8.80.1.) The Court of Appeal described the true finding as proof that ‘[the defendant] acted with an intent to kill, as opposed to the intent to commit one of the target crimes’ and was therefore persuaded that the jury made the findings necessary to support the valid theory of direct aiding and abetting. But intent to kill is only one of the elements required to prove direct aiding and abetting. It does not, itself, show the jury necessarily found [the defendant] guilty on a proper theory.” (Lopez, supra, 14 Cal.5th at pp. 586–587)
Here, similar to Curiel and Lopez, the jury received instructions on murder, direct aiding and abetting, and the natural and probable consequences doctrine. In closing argument, the prosecution emphasized the jury could convict Delgado for murder because he was the perpetrator. But the prosecution still argued the jury could convict him for murder as an aider and abettor, under either a direct aiding and abetting theory or the natural and probable consequences doctrine. When the jury convicted Delgado of first
As in Curiel and Lopez, we hold the intent to kill finding standing alone is insufficient to cover all the requisite elements to establish first degree murder under a current valid theory. Here, the gang-murder special-circumstance instruction resembles the instruction in Lopez. Both instructions require the prosecution to prove the defendant intentionally killed the victim or had the intent to kill as an aider and abettor. (See Lopez, supra, 14 Cal.5th at pp. 577, 586) Even if the jury found the gang-murder special circumstance true because Delgado intentionally killed the victim, “the special circumstance does not itself establish the elements of first degree premeditated murder under either a direct perpetrator or an aiding and abetting theory. Based on the special circumstance instructions alone, if the jury found” Delgado “was an actual killer, it is reasonably possible the jury could have believed he did not personally premeditate and was liable only for second degree murder.” (Id. at p. 586)
If the jury did not determine Delgado was the perpetrator, it must have instead found he had the intent to kill the victim as an aider and abettor and he aided and abetted the killing of the victim. But these are only some of the elements to prove direct aiding and abetting. The gang-murder special-circumstance instruction does not include other elements of aiding and abetting first degree murder, such as the aider and abettor‘s knowledge of the perpetrator‘s intent: “for a defendant to be liable for first degree murder as a direct aider and abettor, ‘the prosecution must show that the
The Attorney General argues the trial court‘s modifications to the gang-murder special-circumstance instruction required the jury to find Delgado satisfied the actus reus elements of a valid murder theory, distinguishing the gang-murder special-circumstance instruction in Lopez from the instant case. The Attorney General asserts the instruction here, in contrast to the instruction in Lopez, required the jury find Delgado had the intent to kill and either intentionally killed or aided and abetted the killing of the victim. The Attorney General‘s arguments, which cite People v. Morris (2024) 100 Cal.App.5th 1016, 1025–1026, review granted July 17, 2024, S284751, concern the actus reus for murder. We conclude the intent to kill finding was insufficient to cover other requisite elements besides the actus reus and therefore do not reach the Attorney General‘s arguments the actus reus element was satisfied.
While the intent to kill finding standing alone is insufficient to establish first degree murder under any valid theory, we consider the jury‘s other findings that may be pertinent “to the remaining elements of the relevant homicide offense and conclusively refute a petitioner‘s allegation that he or she could not be convicted of murder under current law.” (Curiel, supra, 15 Cal.5th at p. 463) We conclude the jury did not necessarily find the required mens rea for direct aiding and abetting liability. “The aider and abettor must know the direct perpetrator intends to commit the murder or
Because the court instructed the jury on the natural and probable consequences doctrine, the jury was required to find only Delgado knew the perpetrator intended to commit the target offense—challenging someone to fight—and Delgado intended to aid the perpetrator “in that offense, not murder.” (Curiel, supra, 15 Cal.5th at p. 468) And the jury was not “required to find that the underlying target” offense itself was “dangerous to human life.” (Ibid.) Thus, even though the jury separately found Delgado had the intent to kill under the gang-murder special circumstance, such an intent by itself is inadequate to establish the required mens rea for aiding and abetting murder. (Ibid.)
In sum, we hold the record of conviction does not conclusively establish Delgado is liable for first degree murder under current law. The jury could have convicted Delgado of murder under the natural and probable consequences doctrine. “[T]he findings required under that theory—even when combined with the finding of intent to kill required by the gang-murder special circumstance—do not encompass all of the elements of any” first
DISPOSITION
The postjudgment order denying Delgado‘s
MOTOIKE, J.
WE CONCUR:
SANCHEZ, ACTING P. J.
DELANEY, J.