Unreported / Non-Citable
Background
Herson Gaytan was convicted by a jury in April 2010 of first degree murder, with gang and firearm enhancements found true. The trial court instructed on direct aiding and abetting under CALJIC No. 3.01 and on two theories of first degree murder: willful, deliberate, and premeditated murder under CALJIC No. 8.20 and drive-by murder under CALJIC No. 8.25.1. Each theory included as an element the intent to kill a human being. After the Legislature passed Senate Bill No. 1437, creating a resentencing mechanism for defendants who could not be convicted under amended Penal Code sections 188 and 189, Gaytan filed a petition under section 1172.6. The trial court denied the petition after a hearing.
Gaytan appealed, arguing the instructions allowed a guilty aiding-and-abetting verdict without a finding that he personally harbored malice. In a November 19, 2024 opinion in the same case, the Court of Appeal rejected that argument, reasoning that Gaytan could have raised it earlier and that the instructions required intent to kill. The California Supreme Court granted review and stayed action, then after deciding People v. Lopez (2026) 19 Cal.5th 639 transferred the case back with instructions to vacate and reconsider in light of Lopez. The Court of Appeal filed its September 30, 2026 opinion following that transfer and affirmed. Gaytan then filed a second petition for rehearing, producing the October 12, 2026 order.
The Court’s Holding
In the October 12, 2026 order, the Court of Appeal modified the September 30, 2026 opinion in four respects, denied Gaytan's second petition for rehearing, and stated that there is no change in the judgment. The first modification replaces the discussion of People v. Sedillo (2015) 235 Cal.App.4th 1037 to state that Sedillo involved a getaway driver, that there was skimpy evidence she knew of the plan beforehand, and that any instructional error was harmless because of the present-tense aiding-and-abetting instruction. The second replaces a sentence about the evidence before the shooting with the conclusion that the jury would not read the instructions as allowing Gaytan to form intent to aid and abet killing after the murder already occurred.
The third modification adds that, as Lopez instructs, courts consider attorneys' arguments in determining how the jury interpreted instructions. The fourth replaces a sentence with the statement that no attorney advanced the theories Gaytan raises. The underlying September 30 opinion explains that Gaytan's theory—that he could have formed intent only after the killing by helping dispose of guns—is illogical as a murder theory and would at most suggest covering up or escaping justice, theories no attorney advanced. The court therefore affirmed and declined to adopt the reasonable-likelihood standard because it was impossible the jury interpreted the instructions as Gaytan proposed.
Key Takeaways
- The October 12, 2026 order modified the September 30, 2026 opinion to clarify the Sedillo discussion, the role of closing arguments under Lopez, and the absence of any trial theory supporting post-murder intent, but the modifications did not change the result.
- The court denied Gaytan's second petition for rehearing and expressly stated there is no change in the judgment, leaving intact the affirmance of the denial of his section 1172.6 resentencing petition.
- The court rejected the claim that the aiding-and-abetting instruction permitted conviction based on intent formed after the murder, calling that theory illogical and noting no attorney advanced it at trial.
- The court declined to decide whether to adopt a reasonable-likelihood standard at the prima facie stage of section 1172.6 review, leaving that question open because it found it impossible the jury interpreted the instructions as Gaytan proposed.
Why It Matters
The order shows the practical effect of the Supreme Court's transfer procedure after Lopez: the Court of Appeal vacated and reconsidered its earlier decision, refined its reasoning about instructional ambiguity and closing argument, and still affirmed. It also illustrates that a rehearing petition can produce textual modifications without disturbing the judgment.
Substantively, the decision applies Lopez to section 1172.6 instructional-ambiguity claims by considering the trial record and the theories actually advanced, while expressly leaving open the broader standard for prima facie review in future cases.