Unreported / Non-Citable
Background
Jasiel Cortes was convicted by a jury in 2006 of the second degree murder of Enrique Rivera, with a true finding that he personally used a bat as a deadly and dangerous weapon. He received a sentence of 15 years to life. The prosecution’s evidence included testimony that Cortes struck Rivera during an attempted taking of his bag and that another assailant subsequently struck Rivera with a golf club. The medical evidence attributed the death to blunt-force trauma, while a defense pathologist distinguished nonfatal back injuries from the fatal head injuries. The jury received instructions on premeditated first degree murder, first degree felony murder, second degree murder, and voluntary manslaughter, but not on the natural and probable consequences doctrine.
Cortes petitioned in 2022 for resentencing under former section 1170.95, now section 1172.6. After appointing counsel, receiving briefing, and holding a hearing, the superior court denied the petition at the prima facie stage. It reasoned that the second degree murder verdict rested on actual malice and direct aiding-and-abetting liability rather than an imputed-malice theory. The Court of Appeal initially affirmed on the different ground that Cortes could have raised his instructional claim on direct appeal. The California Supreme Court then granted review and transferred the matter with directions to vacate that decision and reconsider it under People v. Lopez, which rejected categorical ineligibility merely because an analogous instructional claim could have been raised earlier.
The Court’s Holding
On reconsideration, the court addressed the merits and independently reviewed the prima facie denial. It explained that Senate Bill 1437 bars murder liability based solely on participation in a crime without the required personal culpability, and that section 1172.6 supplies a resentencing procedure for people who could not be convicted under the amended law. At the preliminary stage, the court accepts the petition’s factual allegations and may consult the record of conviction, but cannot weigh evidence or make discretionary factual findings. Summary denial remains proper when the petition and record conclusively establish ineligibility.
The court concluded that this record did so. Cortes was charged only with murder, and the sole murder theory presented without a malice requirement was first degree felony murder, which the jury rejected. The parties agreed that second degree murder could rest only on Cortes being the actual killer or a direct aider and abettor. CALJIC No. 3.01 required knowledge of the perpetrator’s unlawful purpose, intent to commit, encourage, or facilitate the crime, and an act or advice aiding its commission. Read with the murder and malice instructions, the verdict therefore required a finding that Cortes personally harbored malice aforethought, making section 1172.6 relief unavailable.
The court rejected Cortes’s argument that former CALJIC No. 3.00’s statement that principals are “equally guilty” allowed jurors to impute another assailant’s malice to him when he intended only robbery or assault. If the jury had accepted an unlawful killing during a robbery he committed or aided, the instructions would have led to felony murder, not the second degree murder verdict it returned. If he intended to aid only robbery or assault and not murder, CALJIC No. 3.01 would not permit an aiding-and-abetting murder conviction. Considering the instructions together, as CALJIC No. 1.01 directed, the court found his interpretation untenable and affirmed the order denying resentencing.
Key Takeaways
- A prior failure to raise an analogous instructional claim on direct appeal did not categorically defeat Cortes’s section 1172.6 petition after People v. Lopez.
- The petition nevertheless failed because the record of conviction conclusively established that the second degree murder verdict required Cortes’s personal malice aforethought.
- The rejected first degree felony-murder theory and the absence of a natural-and-probable-consequences instruction were central to the court’s eligibility analysis.
- Former CALJIC No. 3.00’s “equally guilty” language could not be isolated from CALJIC No. 3.01 and the other instructions to construct an imputed-malice route to the verdict.
- The Court of Appeal affirmed the superior court’s order denying resentencing at the prima facie stage.
Why It Matters
The decision illustrates how a section 1172.6 court can use jury instructions and verdicts at the prima facie stage without reweighing the trial evidence. The dispositive question was not whether Cortes personally inflicted the fatal blows, but whether any instruction permitted the actual second degree murder verdict without a finding of his own malice. The court found no such route.
The opinion also separates the procedural error in the court’s earlier direct-appeal-forfeiture rationale from the ultimate eligibility question. Although the Supreme Court’s transfer required reconsideration under Lopez, that reconsideration did not change the result because the record conclusively established a valid malice-based theory of murder liability.