People v. Gutierrez CA4/2

Opinion

Filed 8/19/26 P. v. Gutierrez CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E084266 v. (Super.Ct.No. INF1501680)

MARTIN GUTIERREZ JR., OPINION Defendant and Appellant.

APPEAL on remand from the Supreme Court. Joshlyn R. Pulliam, Judge.

Reversed and remanded.

Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, James M.

Toohey, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

1 In 2019 a jury convicted Martin Gutierrez, Jr. of second degree murder and attempted first degree murder. In 2024, Gutierrez brought a petition under what is now Penal Code section 1172.61 seeking to have his conviction vacated and be resentenced.

The court denied the petition at the prima facie stage because Gutierrez’s jury instructions established he was ineligible for relief. Gutierrez appealed, arguing these instructions were ambiguous in a way that allowed his jury to convicted him under an invalid theory of guilt. We initially affirmed the trial court’s order denying Gutierrez relief, but now reconsider that holding in light of the California Supreme Court’s decision in People v. Lopez (2026) 19 Cal.5th 639 (Lopez). Applying that case, we conclude that Gutierrez did make a prima facie showing of eligibility for relief, reverse, and remand to allow the trial court to hold an evidentiary hearing on his petition.

BACKGROUND

In 2016, Gutierrez was charged via information with murder (§ 187), two counts of unlawfully possessing a firearm (§ 29800) and attempted murder (§§ 187/664). The information also alleged Gutierrez was a principal in the murder, that a principal intentionally discharged a firearm proximately causing bodily injury or death in connection with the murder (§ 12022.53, subds. (d), (e)), and that he personally and intentionally discharged a firearm and proximately caused great bodily injury or death in connection with the attempted murder (§ 12022.53, subd. (d)). Finally, it alleged he committed all the charged crimes for the benefit of a gang (§ 186.22, subd. (b)(1)(C)) and 1 Unlabeled statutory citations refer to the Penal Code.

2 that he had a prior strike and prior serious felony conviction. (§ 667, subds. (a), (c), and (e)(1).)

Gutierrez proceeded to trial on these charges. His jury was not instructed on the natural and probable consequences doctrine or felony murder. However, it received CALCRIM Nos. 400 and 401. CALCRIM No. 400 states “[a] person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.”

CALCRIM No. 401 states that in order for a defendant to be guilty of a crime as the aider and abettor, the People must prove “that: 1. [t]he perpetrator committed the crime;

2. [t]he defendant knew that the perpetrator intended to commit the crime; 3. . . . the defendant intended to aid and abet the perpetrator in committing the crime,” and that the defendant “did in fact aid and abet the perpetrator’s commission of the crime.”

The jury found Gutierrez guilty of second degree murder and first degree attempted murder and found true the firearm use allegation associated with the attempted murder charge (but not the one associated with the murder charge). (People v. Alvarez et al. (January 13, 2022, E072886) [nonpub. opn.].)2 It also found the gang enhancement true, but this court struck those findings on appeal. (Alvarez, supra, E072886.)

In 2024 Gutierrez filed a petition under what is now section 1172.6 seeking to be resentenced on the basis that he could not now be convicted of murder and/or attempted 2 We rely on our prior opinion on direct appeal from Gutierrez’s conviction, as well as our prior decision in the current appeal, only to establish the procedural history of the case. (§ 1172.6, subd. (d)(3) [“The court may also consider the procedural history of the case recited in any prior appellate opinion.”]; People v. Flores (2022) 76 Cal.App.5th 974, 988, disapproved on other grounds in People v. Patton (2025) 17 Cal.5th 549.)

3 murder.3 The prosecution argued Gutierrez was statutorily ineligible because his jury was not instructed on any now-invalid theory. The trial court summarily denied the petition after taking judicial notice of the jury instructions on the basis that he was not eligible for relief as a matter of law and therefore the petition did not state a prima facie case for relief.

Gutierrez appealed. On appeal, he argued he was eligible for relief because the instructions his jury received may have allowed them to convict him under a theory of guilt which would make him eligible for relief under section 1172.6. In November 2025 we affirmed the trial court’s ruling, holding that Gutierrez was ineligible for relief because “his argument ‘amounts to “a routine claim of instructional error” that “could have been asserted on appeal from the judgment of conviction.” ’ [Citation.] A petition under section 1172.6 is not the proper vehicle to challenge such instructional error.”

(People v. Gutierrez (Nov. 20, 2025, E084266) 2025 WL 3250637 [nonpub. opn.].) In June 2026, the California Supreme Court remanded this case for reconsideration in light of its decision in Lopez, supra, 19 Cal.5th 639.

DISCUSSION

In 2018, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.)

(Stats. 2018, ch. 1015), effective January 1, 2019, which among other things amended the definition of felony murder in section 189. This amended felony-murder rule restricted culpability for murder to actual killers, aiders and abettors, and anyone who was “a major 3 Gutierrez does not argue that his petition should have been granted as to his attempted murder conviction.

4 participant in the underlying felony and acted with reckless indifference to human life”

unless the victim was a peace officer. (§ 189, subds. (e)(1)-(3), (f).) Senate Bill No. 1437 also added section 1170.95, later renumbered to section 1172.6, which allows “[a] person convicted of felony murder or murder under the natural and probable consequences doctrine,” to “file a petition with the court that sentenced the petitioner to have the petitioner’s murder . . . conviction vacated and to be resentenced on any remaining counts,” if, among other things, “[t]he petitioner could not presently be convicted of murder” (§ 1172.6, subd. (a)) because of the changes to the law wrought by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3).) Senate Bill No. 775 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 551) amended section 1172.6 further to “expand eligibility for resentencing to persons convicted of murder pursuant to a ‘theory under which malice is imputed to a person based solely on that person’s participation in a crime.’ ” (People v. Antonelli (2025) 17 Cal.5th 719, 724 (Antonelli).)

We review the trial court’s decision at the prima facie stage de novo. (People v. Bodely (2023) 95 Cal.App.5th 1193, 1200 (Bodely).)

The parties do not dispute that Gutierrez’s jury instruction was erroneous, in that it permitted the jury to impute malice to him as an accomplice rather than finding he independently shared the principal’s intent and therefore independently harbored implied malice. Nor can they; as stated in People v. Powell (2021) 63 Cal.App.5th 689, 714 and reaffirmed in Lopez the instruction Gutierrez received “couches direct aiding and abetting liability in terms of the aider and abettor knowing the perpetrator intended to commit the 5 crime,” but “the aider and abettor of implied malice murder need not intend the commission of the crime of murder. Rather . . . he or she 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.” Our Supreme Court has also held that such an ambiguity may entitle a defendant to relief under section 1172.6 even if the instructional ambiguity arguably could have been raised on direct appeal and even if such a theory of guilt would have been invalid before the passage of Senate Bill No. 1437—disagreeing with our original decision in Gutierrez’s appeal. (See Lopez, supra, 19 Cal.5th at p. 658- 668.)

Nevertheless, on remand for reconsideration in light of Lopez, the People argue Gutierrez is ineligible for relief because it is not reasonably likely that his jury applied the erroneous instruction in an improper way. That is, the People assert that we should apply the standard articulated in Boyde v. California (1990) 494 U.S. 370 (Boyde), rather than the current standard for evaluating prima facie claims.4 The People do not develop that argument in their brief, but instead correctly point out that the Supreme Court in Lopez did not reject their position, holding that “[t]he question of whether satisfaction of the Boyde standard is necessary to establish prima facie eligibility under section 1172.6 is outside the scope of the question presented,” and declining to address it. (Lopez, supra, 4 The People also request we take judicial notice of the closing argument transcript from Gutierrez’s trial via the record in his direct appeal. We deferred a decision on that request, and now grant it.

6 19 Cal.5th at p. 670.) The People urge us to do what the Supreme Court did not: reach this question, and decide it in their favor. Yet they do not substantively explain why we should do so, other than citing Boyde standard.

Boyde generally applies where “[t]he claim is that the instruction is ambiguous and therefore subject to an erroneous interpretation,” and holds that “the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction,” in an improper manner. (Id. at p. 380.) By contrast, a court reviewing a trial court decision at the § 1172.6 prima facie stage “ ‘ “ ‘takes [the]

petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.’ ” ’ ” (People v. Eynon (2021) 68 Cal.App.5th 967, 975.) “If the record of conviction does not conclusively demonstrate that the defendant ‘engaged in the requisite acts and had the requisite intent’ to be convicted on a theory of murder that remains valid, denying relief at the prima facie stage is improper.” (People v. Barboza (2021)

68 Cal.App.5th 955, 965-966.) In other words, “[a]t this preliminary stage, denial of a section 1172.6 petition is proper only ‘[i]f the petition and record in the case establish conclusively that the defendant is ineligible for relief.’ ” (Lopez, supra, 19 Cal.5th at p. 658.)

We decline to apply the Boyde standard here. In Lopez, the Supreme Court approved of and relied on cases applying the “establish conclusively” standard throughout the opinion. For instance, as cited above, the court agreed that “[a]t this 7 preliminary stage, denial of a section 1172.6 petition is proper only ‘[i]f the petition and record in the case establish conclusively that the defendant is ineligible for relief.’ ”

(Lopez, supra, 19 Cal.5th at p. 658.) It also cited People v. Curiel (2023) 15 Cal.5th 433 saying that in that case it “reasoned that an allegation under section 1172.6, subdivision (a)(3) is not ‘refuted by the record unless the record conclusively establishes every element of the offense.’ ” (Id. at p. 659.) It stated that if the appellant in Lopez was right and “the record of conviction, . . . did not ‘conclusively refute [his] allegation that he . . . could not be convicted of murder under current law[,]’ dismissal at the prima facie stage is improper.” (Id. at p. 664.) These statements are in addition to approving citations to People v. Strong (2022) 13 Cal.5th 698, 708 (which held “[i]f the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition) and Antonelli, supra, 17 Cal.5th at p. 724 (citing and approving of Strong’s holding that the record of conviction must conclusively establish ineligibility for relief before a court may dismiss the petition). Given the Supreme Court’s application and apparent approval of that standard in general, we have no basis to depart from it as the People request.

To be clear, we do not here hold that there can be no argument that the Boyde standard is applicable in the section 1172.6 context. As we have acknowledged, the Supreme Court left open the possibility that it may have some place in this analysis.

However, as we have explained, the general standard that our Supreme Court has applied is not Boyde’s federal standard for whether ambiguous instructions violate the 8 Constitution, but whether the petition in the record conclusively establishes the defendant is ineligible for section 1172.6 relief. That then allows the defendant an evidentiary hearing after which the court determines if he could be convicted of murder today. The applicable standards here do not flow automatically from Boyde: we are addressing what claims establish a prima facie case under resentencing procedures crafted in section 1172.6 for a specific purpose, not what claims establish jury instructions are unconstitutional. For the People to make a meaningful argument why the Boyde standard should be applied here instead of the conclusively established standard, they must explain why they believe the defendant’s claim about the jury instructions here should be distinguished from the situations in the Supreme Court cases. Then, they must explain how that standard applies to the instructions here. They have not done so.

In all relevant respects, Gutierrez’s circumstances are identical to Lopez’s: both appellants argued that their juries were given former versions of CALCRIM Nos. 400 and 401 which were ambiguous and may have allowed their juries to impute malice to them, and that it was therefore possible they were convicted under a now invalid theory. (See Lopez, supra, 19 Cal.5th at pp. 653-655 [explaining the issues with the former versions of CALCRIM Nos. 400 and 401.].) Because we cannot distinguish Lopez from this case, and because the Supreme Court has approved of the conclusively establish standard for assessing a prima facie claim for relief under section 1172.6 in cases like Lopez, we decline to adopt or apply the Boyde standard here.

9 Thus we do not assess whether it is reasonably likely the jury actually construed the instructions in a way that imputes malice under current law. Instead, we need only ask whether it is possible that they did—and therefore whether it is impossible to conclusively negate Gutierrez’s eligibility for relief. Here, it is undisputed that the instruction permitted the jury to convict Gutierrez under a now invalid theory of imputed malice. Both parties concede—and Lopez confirms—the existence of an ambiguity that, as a formal matter, made it possible for the jury to impute malice to Gutierrez. That does not establish conclusively that the jury did not do so, so an evidentiary hearing is warranted.

Accordingly, we reverse the trial court’s order denying Gutierrez’s petition for resentencing under section 1172.6 and remand with instructions to issue an order to show cause under section 1172.6, subdivision (c), and hold an evidentiary according to section 1172.6, subdivision (d).

10 DISPOSITION

We reverse and remand. On remand the trial court shall issue an order to show cause pursuant to section 1172.6, subdivision (c), and hold further proceedings consistent with the statutory scheme.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J. We concur:

McKINSTER Acting P. J.

MILLER J.