People v. Lopez CA5

Opinion

Filed 9/18/26 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F085300 Plaintiff and Respondent, (Super. Ct. No. 1073884) v. ROBERT ANTHONY LOPEZ, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy A. Leo, Judge. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Chief Assistant Attorneys General, Michael P. Farrell and Kimberley A. Donohue, Assistant Attorneys General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- SEE CONCURRING OPINION In 2007, a jury convicted appellant Robert Anthony Lopez of murder in the shooting death of Daniel Morales, assault with a deadly weapon upon Gonzalo Villanueva, and active participation in a criminal street gang. He was tried with his codefendant, Manuel Domingo Hernandez. The same jury hung on the murder count as to Hernandez, convicting him only of the latter two charges. Lopez was sentenced to 40 years to life in prison. We affirmed Lopez’s judgment in a 2011 opinion. (People v. Lopez (June 28, 2011, F058857) [nonpub. opn.].) Lopez later petitioned for resentencing under Penal Code section 1172.6,1 which permits certain persons convicted of murder to seek vacatur of that conviction where they could no longer be convicted under the law as amended by Senate Bill No. 1437. The People conceded a prima facie showing, and the matter proceeded to an evidentiary hearing before the same judge who had presided over the trial. At that hearing, the prosecution advanced two independent and factually inconsistent theories of guilt: that Lopez was the actual killer, and, in the alternative, that he was liable as a direct aider and abettor who shared Hernandez’s intent to kill. The trial court denied the petition, finding Lopez “could be” or “would be” convicted under either theory, but it expressly declined defense counsel’s request to identify which theory the evidence supported and state the facts underlying its determination. Lopez’s opening brief advances two independent grounds for reversal. He first contends the trial court applied the wrong standard of proof at the evidentiary hearing on the petition. He also contends that, even if the trial court applied the correct standard, insufficient evidence supports a finding that he is guilty of murder under the current law of murder.

1 Undesignated statutory references are to the Penal Code.

2. In a prior opinion, we affirmed the denial of Lopez’s petition on a different ground, concluding he was ineligible for section 1172.6 relief as a matter of law as he could not meet the requirements of section 1172.6, subdivision (a)(3). (People v. Lopez (Oct. 4, 2024, F085300) [nonpub. opn.], at p. 1.) Our Supreme Court reversed and remanded for us to address the merits of Lopez’s appeal. (People v. Lopez (2026) 19 Cal.5th 639, 649.) We now agree with Lopez. Section 1172.6, subdivision (d)(3), required the trial court at the evidentiary hearing to determine beyond a reasonable doubt whether the prosecution proved Lopez guilty of murder under the law as amended by Senate Bill No. 1437—a determination that necessarily requires the court to weigh the evidence, resolve conflicts in the testimony, assess witness credibility, and decide which, if any, theory of liability the prosecution established. The trial court’s statement that Lopez “would be” convicted by a jury under one of two factually inconsistent theories, without specifying which even when pressed to do so by defense counsel, shows that the court failed to fulfill its role as an independent fact finder. We further conclude the error was prejudicial. There is a reasonable probability that had the trial court fulfilled its factfinding role, it would have found the prosecution had not met its burden of proving Lopez guilty of murder under the current law and granted Lopez’s petition. We accordingly reverse the order denying Lopez’s petition for resentencing and remand for a new evidentiary hearing. The trial court shall consider and weigh the evidence and determine whether, based on the facts, the prosecution has met its burden under section 1172.6, subdivision (d)(3). STATEMENT OF THE CASE In October 2004, the Stanislaus County District Attorney filed a three-count information against 16-year-old Lopez and 24-year-old Manuel Hernandez. The 3. information charged both defendants with murder (§ 187, count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and actively participating in a criminal street gang (§ 186.22, subd. (a); count 3). As to count 1, it was further alleged that a principal intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d) and (e)(1).) As to counts 1 and 2, it was further alleged the crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)). Lopez and Hernandez were tried together in 2007. The jury convicted Lopez on all counts and found true all enhancement allegations. As to Hernandez, the jury was hung on the murder count, but the jury convicted him on the assault and gang participation counts. The trial court sentenced Lopez to a total term of 40 years to life in prison. FACTUAL AND PROCEDURAL BACKGROUND I. Trial evidence Daniel Morales was shot to death at around 3:30 p.m. on April 6, 2004. He was 16 years old. Jesus Elizarraraz had known Morales for a year or two and they were close friends. On April 6, Elizarraraz, Morales, and Villanueva headed to a Modesto shopping mall around noon to “hang out and shop.” They did not have any alcohol, drugs, guns, billy clubs, or any other weapons with them. The three spent about an hour at the mall and then left and headed to a taco stand to get something to eat. It was about 3:00 p.m. After they pulled into the parking lot of the taco stand, Elizarraraz noticed a car pull up to the red light at the corner; the driver gave Elizarraraz a “mean look.” Elizarraraz identified Hernandez as the driver and said Hernandez yelled something, but there was too much traffic noise to make out the words. Hernandez was wearing a red San Francisco 49ers jersey.

4. The three friends got their food and sat down at an outside table to eat. About five minutes later they saw Hernandez’s car, which was “full” of people, turn into the lot. Four men got out: Hernandez, who was driving, Lopez, and two other men whose identities were never established at trial. Hernandez was still wearing the red jersey. The four men began walking toward Elizarraraz, Morales, and Villanueva. When the four men approached, Elizarraraz and his friends began walking away because they felt “threatened.” Elizarraraz and his friends were backing away because “[w]e didn’t want to turn our backs towards them.” As the four men got closer, Villanueva began to run; Elizarraraz and Morales were face to face with the four men. Elizarraraz testified that two of the men with Hernandez took off after Villanueva. Villanueva testified that as he was running away, one of the assailants, who he did not identify, hit him in the back of the head with “some kind of hard thing.” After he was hit, Villanueva kept running. The blow to his head left him with a scar. Elizarraraz testified that Hernandez and Lopez faced Elizarraraz and Morales. Hernandez pointed a gun in Elizarraraz’s face and said, “You’re not so tough now, are you?” The gun was four or five inches from Elizarraraz’s face. Lopez asked, “Are you ready for this?”2 A fist fight then broke out between Morales and Lopez. Hernandez turned his attention to the fist fight and Elizarraraz turned and ran. Elizarraraz testified that “[m]aybe a couple seconds” after he began running, and when he got near the bathrooms to the taco shop, Elizarraraz heard three or four gunshots. He could not see who fired because he had his back to the fight as he ran away. After he heard the shots, 2 Elizarraraz testified he did not know to whom the statement was directed, agreeing it was “just as reasonable” to infer that it was addressed to Morales, the person about to be fought, rather than to Hernandez.

5. Elizarraraz climbed onto the roof of the bathrooms and heard Hernandez say, “We’ve got one of them, let’s get out of here.” Villanueva also heard the shots, but he did not see who fired them. In fact, he did not see a gun during the incident. Villanueva remembered Hernandez was wearing a red jersey. While on the roof of the bathrooms, Elizarraraz saw all four assailants run back to their car and climb in; he also saw Hernandez place something under the seat. Hernandez drove away with the other three passengers. Elizarraraz went to help Morales, who had been shot five times and was bleeding. Villanueva returned to help Morales, as did others at the scene. Someone called for the police and an ambulance, and both arrived shortly. Elizarraraz acknowledged “hanging around” Sureño gang members and that the Sureño color was blue. He denied knowing that Morales or Villanueva were gang members. Modesto is known as a Norteño town; the Norteño gang color is red; Morales was wearing blue the day of the shooting. Elizarraraz testified the encounter appeared to be “just a personal fight that was started by Mr. Hernandez” because of a “personal problem” Hernandez had. After the shooting, Elizarraraz moved out of state. The prosecution paid for his travel and lodging expenses so he could return and testify. Villanueva acknowledged he had served time in prison for two weapons offenses and that he was on parole at the time of trial for a gang-related gun possession offense. He stated he began carrying a gun after Morales was shot. Villanueva acknowledged that he and Morales were Sureño gang members. Modesto Police Officer David Watson stopped Hernandez’s car shortly after the shooting. Modesto Police Office Jason Stewart handcuffed Hernandez and noticed his hands were “really wet and cold,” “like if you’re rinsing your hands off and didn’t dry them.”

6. A search of Hernandez’s car revealed a bicycle security chain and lock. A search of Lopez’s bedroom revealed a BB gun, a .22-caliber revolver, and .22-caliber ammunition. The ammunition was found in two separate locations: 99 unspent rounds were found in a metal container, and 6 unspent rounds were loaded in the gun itself. No expended shell casings were found. It could not be determined conclusively if the .22- caliber bullets recovered from Morales’s body had been fired by the .22-caliber gun recovered from Lopez’s home. No fingerprints were recovered from the gun. Elizarraraz and Villanueva made in-field identifications of Hernandez. Elizarraraz identified Lopez at trial as the second man who stood beside Hernandez during the confrontation and fought Morales. Villanueva testified he could not identify or describe any of the three men who accompanied Hernandez. From an initial panel of six photographs, Villanueva was able to narrow his identification to “number[s] three and four,” one of whom was Lopez, but could not specifically identify Lopez. Ed Campbell, then a Stanislaus County sheriff’s detective, interviewed Lopez. Lopez denied being at the taco stand at the time of the shooting. He claimed to have been visiting with a friend, R.M., the whole afternoon. He and R.M. had attended a quinceanera practice and then went to a tuxedo shop. When Campbell confronted Lopez with the recovered revolver, Lopez said he had purchased it and accompanying ammunition from a person named “John” for $50 on the date of the shooting, after the shooting occurred. Lopez denied being near the scene of the shooting that day. Later in the interview, Lopez asked Campbell, hypothetically, what would happen “if [he] was there at the shooting and what if someone did get shot and [he] just picked the gun up and had it after.” R.M.’s mother testified that she saw R.M. and Lopez talking outside the gate to her yard the afternoon of the shooting. R.M. testified he and Lopez spent the afternoon 7. together. They talked after school for a while, but R.M. could not recall exactly how long, although he thought it may have been a few hours. A gang expert, Froilan Mariscal, testified that Norteños claim the color red and Sureños claim the color blue. Mariscal also testified these gangs were rivals and at “war” with each other, leading to killings. Morales was killed in an area of Modesto known as Norteño territory. Hernandez was wearing a belt buckle with the letter “N” at the time of his arrest. He also had many gang tattoos and had a red bandanna tied around the steering column of his car. Hernandez had admitted to California Youth Authority officials that he was a Norteño and Sureños were his rivals. Lopez’s gang affiliations included being suspended from school for flashing gang signs, engaging in fights with known Norteño gang members, and committing a theft with known Norteño gang members. Lopez had been arrested for theft, prowling, conspiracy, and obstructing an officer in connection with a theft committed with a Norteño gang member. Hernandez testified on his own behalf. He admitted gang membership. He testified he first chased Villanueva and struck him with a bicycle chain he was carrying. He then returned to where Elizarraraz stood, at which point Lopez was standing nearby while one of the other men who arrived with them was fistfighting Morales. Hernandez testified he was in a “standoff” with Elizarraraz, not watching Lopez, when the first shot was fired, and could not tell its direction. He took off running back toward his car. He then saw Lopez standing over Morales, with his arm outstretched, and then heard five or six more shots. Hernandez claimed Lopez was the shooter and that he, Hernandez, did not know Lopez had a gun with him. On cross-examination, when confronted with Elizarraraz’s account that he (Hernandez) alone held the gun and was the only person seen with it seconds before the 8. shots, Hernandez replied, “That’s what he said.” He testified he initially told police he had not been present at the scene. He also testified he did not tell police at that time that he had thrown a bicycle chain at Villanueva, disclosing it for the first time at trial. Lopez did not testify. II. Closing arguments, jury instructions, and verdict In closing arguments, before the court’s jury instructions, the prosecutor contended that Hernandez had the gun at first and brandished it in Elizarraraz’s face. Hernandez then gave the gun to Lopez who shot Morales. The prosecutor did not advance a theory of murder liability for either Lopez or Hernandez under the felony murder rule, the natural and probable consequences doctrine, or any other theory of imputed malice. In instructing the jury, the trial court administered pattern instructions on murder, including CALCRIM No. 520, which defined malice, both express and implied. CALCRIM No. 520 defined express malice as follows: “The defendant acted with express malice if he unlawfully intended to kill.” The instruction defined implied malice as follows: “The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life.” The trial court also instructed the jury on direct aider and abettor liability, including CALCRIM No. 400: “A person may be guilty of a crime in two ways. One, he may have directly committed the crime. Two, he may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the ‘perpetrator.’ A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific 9. 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.” The trial court also gave CALCRIM No. 401, the standard instruction on direct aiding and abetting liability, which stated in pertinent part that to prove a defendant guilty based on a theory of aiding and abetting, the People must prove: “[¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.” The jury was not instructed on the natural and probable consequences doctrine, the felony murder rule, or any other theory of imputed malice. As to the natural and probable consequences doctrine, the jury was not instructed with CALCRIM Nos. 402 or 403. As to the felony murder rule, the jury was not instructed with any CALCRIM instructions from the felony murder series. As mentioned, the jury convicted Lopez of murder but hung on the murder count as to Hernandez. The jury convicted both Lopez and Hernandez of assault with a deadly weapon and participating in a criminal street gang. As to Lopez’s murder conviction, the jury found true the firearm use enhancement allegation and the gang participation enhancement allegation. III. Section 1172.6 proceedings In January 2019, Lopez, representing himself, filed a section 1172.63 petition with the trial court. Lopez used a form to prepare his petition which required him to check 3 When Lopez filed his petition, the section was numbered 1170.95. But effective June 30, 2022, section 1170.95 was renumbered as section 1172.6. (Stats. 2022, ch. 58 (AB 200) § 10.)

10. boxes to assert his basis for relief. Based on the boxes he checked, he alleged that he was convicted of second degree murder under the natural and probable consequences doctrine or under the second degree murder felony murder doctrine and that he could not now be convicted of murder because of changes to section 188. The trial court appointed counsel for Lopez. The People’s initial response to Lopez’s petition was a brief primarily arguing that section 1172.6 was unconstitutional. But eventually the People conceded that Lopez had “stated a prima facie case, so the matter … needs to proceed to an evidentiary hearing.” In light of the concession, the trial court, the same judge who presided over the original trial, ordered an evidentiary hearing on the petition. At the evidentiary hearing in November 2022, the People relied on the trial record and did not introduce any additional evidence. The People argued that the evidence proved two theories of murder liability beyond a reasonable doubt. The People first argued that the evidence proved beyond a reasonable doubt that Lopez was the actual killer. In the alternative, they argued the evidence proved Lopez was guilty of murder as a direct aider and abettor of Hernandez. After hearing the parties’ arguments, the trial court denied relief, concluding that “Lopez could be again tried under both theories that he was the actual killer based on the testimony at trial or that he was a direct aider and abettor who shared the intent to kill based on the evidence exhibited before, during, and after the incident itself.” Defense counsel asked the trial court to “please pick a theory” and “state the facts” which support that theory. The prosecutor responded that the trial court needed to decide whether Lopez “would” be convicted rather than “could” be convicted but disagreed that the court had to “decide one theory or the other.” The trial court admitted it misspoke by saying “could” instead of “would,” but still refused to pick a theory of liability. The court said that “it would get to the jury to decide 11. whether [Lopez] was the direct killer or whether he was a direct aider and abettor who shared the intent to kill.” Defense counsel asked, “Is the Court declining to state the facts upon which it is making its determination?” The trial court said yes and reiterated its belief that “it’s not up to me to decide what I would do but what a jury would do if the People were to proceed again.” Defense counsel reminded the court of its obligation to “act as a factfinder” and “find facts so that they can be reviewed by the Court of Appeal[.]” Again, the trial court declined to state which theory the People had proven beyond a reasonable doubt. Lopez appealed. In an unpublished opinion filed October 4, 2024, this court affirmed the denial on a different ground, concluding Lopez was ineligible for relief as a matter of law as he could not meet section 1172.6, subdivision (a)(3). (People v. Lopez (Oct. 4, 2024, F085300) [nonpub. opn], at p. 1.) That subdivision requires Lopez to establish that he “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019” by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3), italics added.) We reasoned that the instructional error underlying Lopez’s petition—that the jury instructions at his 2007 trial had allowed the jury to convict him of murder on an imputed malice theory based on his participation in the fistfight that preceded the shooting—predated, and was not created by, Senate Bill No. 1437. (People v. Lopez (Oct. 4, 2024, F085300) [nonpub. opn], at p. 11.) Our Supreme Court reversed, holding that section 1172.6, subdivision (a)(3), does not categorically bar relief on that basis, and it remanded for this court to address the merits of Lopez’s appeal. (People v. Lopez, supra, 19 Cal.5th at p. 649.) DISCUSSION Lopez contends the trial court violated section 1172.6 when it refused to decide which of two inconsistent theories of murder liability had been proven beyond a 12. reasonable doubt and instead merely found sufficient evidence for both theories to be presented to a jury. He also alternatively contends that neither theory of murder liability was supported by sufficient evidence. The People insist that the trial court applied the correct standard, and that sufficient evidence supported both their express malice theory and their aiding and abetting theories of murder culpability. We conclude the trial court erred by failing to fulfill its duty to act as an independent factfinder under section 1172.6 and determine whether Lopez is guilty of murder beyond a reasonable doubt under current law. We also conclude the error was not harmless. I. Overview of Senate Bill No. 1437 To the end of ensuring a person’s sentence is commensurate with the person’s individual criminal culpability, SB 1437 limited accomplice liability under the felony- murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person’s participation in a crime. (See generally People v. Reyes (2023) 14 Cal.5th 981, 986 (Reyes); People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).) SB 1437 added section 189, subdivision (e) (limiting application of the felony-murder rule) and section 188, subdivision (a)(3) (stating that “to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.”). As amended by Senate Bill No. 775, effective January 1, 2022, these ameliorative changes to the law expressly apply to attempted murder and voluntary manslaughter. SB 1437 also created a procedure, codified at section 1172.6, for a person convicted of murder, attempted murder, or voluntary manslaughter under the former law to be resentenced if the person could no longer be convicted of those crimes under the 13. current law. (Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences that procedure by filing a petition containing a declaration that, among other things, “ ‘[t]he petitioner could not presently be convicted of murder or attempted murder because of the changes to Section 188 or 189 made effective January 1, 2019,’ the effective date of [SB] 1437.” (People v. Strong (2022) 13 Cal.5th 698, 708; § 1172.6, subd. (a)(3).) At the prima facie stage, the trial court takes as true the petitioner’s factual allegations and assesses whether the petitioner would be entitled to relief if those allegations were proved. (Lewis, supra, 11 Cal.5th at p. 971.) In determining whether the petitioner has made a prima facie case for relief, the trial court may look at the record of conviction, including jury instructions, verdicts and closing argument, to determine readily ascertainable facts such as the crime of conviction. (People v. Duchine (2021) 60 Cal.App.5th 798, 815; see, e.g., People v. Harden (2022) 81 Cal.App.5th 45, 56.) At the prima facie stage, the trial court does not engage in factfinding that involves the weighing of evidence or exercise of discretion. (Lewis, at p. 972.) If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing. (§ 1172.6, subds. (b)(3), (c), & (d)(1).) At the evidentiary hearing, each party may present new evidence, and the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under current law. (§ 1172.6, subd. (d)(3).) If the prosecution fails to meet its burden, the prior conviction and any allegations and enhancements attached to that conviction must be vacated and the petitioner must be resentenced on the remaining charges. (Ibid.) The statute provides that “[a] finding that there is substantial evidence to support a conviction for murder … is insufficient to 14. prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Ibid.) II. Relevant law of murder Murder is the unlawful killing of a human with malice aforethought. (§ 187, subd. (a).) Malice is express “when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.” (§ 188, subd. (a)(1).) Malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188, subd. (a)(2).) A defendant is liable as a direct aider and abettor of express malice murder if the defendant aided or encouraged the murder with knowledge of the perpetrator’s unlawful purpose and with the intent or purpose of committing, encouraging, or facilitating the murder’s commission. (In re Lopez (2023) 14 Cal.5th 562, 579 (Lopez); People v. McCoy (2001) 25 Cal.4th 1111, 1122 [direct aiding and abetting is based on participants’ combined actus reus and aider and abettor’s own mens rea].) In contrast, a defendant is liable as a direct aider and abettor of implied malice murder if the defendant, by words or conduct, aids the commission of a life-endangering act, not the act’s result. (Reyes, supra, 14 Cal.5th at p. 991.) The direct aider and abettor must know that the perpetrator intended to commit the act, intend to aid the perpetrator in committing the act, know that the act is dangerous to human life, and act in conscious disregard to human life. (Ibid.) In accordance with these principles, the trial court here instructed Lopez’s jury on murder with CALCRIM No. 520 and on aiding and abetting with CALCRIM No. 401. III. The Trial Court Erred As previously explained, section 1172.6, subdivision (d)(3), required the trial court to act as an independent factfinder––resolving the disputed facts and determining for itself, beyond a reasonable doubt, whether Lopez was guilty of murder under current 15. law—not to ask whether a jury could or would convict him if the matter were retried. The trial court’s statements show it did not perform that role here. The court first stated at the evidentiary hearing that it denied the petition on the ground that “Mr. Lopez could be again tried under both theories that he was the actual killer based on the testimony at trial or that he was a direct aider and abettor who shared the intent to kill[.]” When defense counsel asked the court to “please pick a theory” and “state the facts” supporting it, the court did not do so. Instead, it explained: “it would get to the jury to decide whether he was the direct killer or whether he was a direct aider and abettor who shared the intent to kill.” Defense counsel pressed further, asking, “Is the Court declining to state the facts upon which it is making its determination?” The court answered, “Yes,” and explained that “it’s not up to me to decide what I would do but what a jury would do if the People were to proceed again.” When defense counsel reminded the court of its obligation to “act as a factfinder” and “find facts,” the court reiterated: “I don’t have to decide on the theory itself who would or could be prosecuted under either theory.” These statements describe the court evaluating whether the evidence would permit a jury to convict, not resolving for itself which of two mutually exclusive versions of events occurred. We need not decide here whether section 1172.6, subdivision (d)(3), would be satisfied by the court finding Lopez guilty while declining to specify which of two factually inconsistent theories it relied upon because that is not this case. The defect here is not merely the absence of a stated theory. Rather, it is that the court affirmatively showed that it did not apply the standard that section 1172.6, subdivision (d)(3), requires. That is, by stating that it was deciding what “would get to the jury” or what “a jury would do,” the court showed it was determining whether the evidence was legally sufficient to submit to a factfinder, not whether the People had proven Lopez guilty beyond a reasonable doubt. (See § 1172.6, subdivision (d)(3) [“A finding that there is substantial 16. evidence to support a conviction … is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”].) The court’s statements cannot be dismissed as merely inartful. The People’s own proposed formulation, that the court should state it “would” rather than “could” convict Lopez, was put to the court directly and the court adopted the correction in name only. That is, the court agreed it had “[misspoke] by saying ‘could’ instead of ‘would,’ ” but in the same breath repeated that “it would get to the jury to decide” under which theory Lopez was guilty. Thus, that single word substitution offered and accepted did nothing to change the substance of what the court said. The People argue the court’s refusal to expressly pick a theory is irrelevant because no statute or other legal provision requires the court to do so. They also cite the principle that jurors need not unanimously agree on a particular theory of murder liability to convict to contend that the judge presiding over a section 1172.6 evidentiary likewise need not adopt a particular theory to find the petitioner guilty. (People v. Sattiewhite (2014) 59 Cal.4th 446, 479 (Sattiewhite).) Setting aside whether the court was required to expressly articulate which theory it relied upon, the court was at minimum required to determine, to its own satisfaction beyond a reasonable doubt, that Lopez was guilty of murder. Where the prosecution advances two factually inconsistent theories, as it did here, that determination cannot be reached without the court first resolving, internally, which of the two occurred. One theory here requires the court to believe Lopez fired the gun while Hernandez did not, and the other requires the court to believe that Hernandez alone possessed and fired the gun while Lopez, unarmed, only fought with his fists. Both cannot be true. A court cannot be certain beyond a reasonable doubt that Lopez is guilty while remaining agnostic as to which of two contradictory sets of facts establishes that guilt; the certainty as to guilt is meaningless in these circumstances unless it rests on a resolved set of facts.

17. This is not in tension with the rule that individual jurors need not unanimously agree on which theory of liability applies. (See Sattiewhite, supra, 59 Cal.4th at p. 479.) That rule rests on the fact that a jury verdict aggregates twelve independently reasoned conclusions. A single judge sitting as sole factfinder under section 1172.6 has no comparable multiplicity to aggregate; whatever the judge believes happened is the only finding there is. Whether or not the court was obligated to state its chosen theory on the record, it was obligated to reach that resolution itself, and the record affirmatively shows the court did not do so. As we have explained, the court did not simply omit an explanation of which theory it found true. Instead, it described an analytical process that has nothing to do with resolving disputed facts. That is not the silence to which the presumption that the trial court properly understood and applied the law applies. (Peake v. Underwood (2014) 227 Cal.App.4th 428, 447 [presumption is that court understood and followed the law, absent evidence to the contrary]; Evid. Code, § 664.) IV. The Error Was Prejudicial The trial court’s failure to perform the factfinding section 1172.6, subdivision (d)(3), requires is subject to harmless error review. (People v. Vance (2023) 94 Cal.App.5th 706, 715–716; People v. Watson (1956) 46 Cal.2d 818, 836.) Reversal is required if it is reasonably probable Lopez would have obtained a more favorable result in the absence of the error. (Vance, at p. 716.) The universe of theories at issue is narrow. No predicate felony was ever alleged that could support felony-murder liability, and the jury was not instructed on felony murder or the natural and probable consequences doctrine. At the section 1172.6 hearing itself, the prosecution advanced only two theories: that Lopez was the actual killer, or that he directly aided and abetted Hernandez with the intent to kill. Because the trial court’s own statements leave it unresolved whether the court would have found guilt under the actual-killer theory, the aiding and abetting theory, or neither, Lopez need not 18. show prejudice as to some single theory the court is presumed to have silently adopted. In these circumstances, reversal is required if there is a reasonable probability that a properly functioning factfinder could reasonably have rejected both theories advanced by the prosecution. A. Actual Killer Theory The only evidence in the record identifying Lopez, rather than Hernandez, as the person who fired the gun is Hernandez’s own testimony. And Hernandez’s account is directly contradicted by Elizarraraz, who testified that Hernandez alone displayed a gun and held it inches from his (Elizarraraz’s) face. Elizarraraz further testified that Hernandez held the gun on him (Elizarraraz), not on Morales, when Hernandez’s attention shifted to the fistfight seconds before the shots were fired. Hernandez, by contrast, denied ever possessing a gun at all and testified that Lopez was the shooter. The two accounts cannot both be true. A reasonable factfinder weighing that conflict in the evidence could credit Elizarraraz over Hernandez. Hernandez was not a disinterested witness. He was Lopez’s co-defendant, tried for the same murder, with an obvious motive to place the gun in someone else’s hand. By contrast, nothing in the record shows Elizarraraz, who was a stranger to both defendants, had any incentive to falsely implicate Hernandez over Lopez. On this record, there is a reasonable probability a factfinder could conclude the People failed to prove beyond a reasonable doubt that Lopez was the actual killer. B. Aiding and Abetting Theory The alternative theory fares no better. If Elizarraraz’s account is credited—and a reasonable factfinder could credit it––Hernandez was the shooter and Lopez’s liability could rest only on aiding and abetting Hernandez’s murder of Morales. This requires proof either that Lopez shared Hernandez’s intent to kill, or, for implied malice, proof that Lopez knew Hernandez intended to commit the life-endangering act (shooting 19. Morales), intended to aid Hernandez in committing that specific act, knew the act was dangerous to human life, and acted with conscious disregard for human life. (Lopez, supra, 14 Cal.5th at p. 579; Reyes, supra, 14 Cal.5th at p. 991.) A factfinder weighing the evidence could reasonably conclude the People did prove beyond a reasonable doubt that Lopez aided and abetted Hernandez’s shooting of Morales. The People cite Lopez’s statement, “Are you ready for this?” as evidence he was signaling readiness for the shooting that followed. But a factfinder could reasonably construe that statement instead as an ordinary challenge before a fistfight, not as proof that Lopez anticipated a shooting. The People also note that Lopez rode in Hernandez’s car before the confrontation, that he was standing near Hernandez when Hernandez displayed the gun to Elizarraraz, and that Hernandez later said, “We’ve got one of them[.] ” The People assert this evidence shows knowledge and intent, but this inference is not compelled. Riding over with Hernandez to the confrontation is evidence that Lopez was expecting violence of some level, but not necessarily that he was expecting deadly violence. And to be sure, Lopez’s standing next to Hernandez while Hernandez pointed the gun in Elizarraraz’s face is evidence that Lopez knew Hernandez might be ready to shoot someone. But no evidence shows Lopez intended to aid Hernandez in shooting anyone. Specifically, no evidence shows Lopez fought Morales in an effort to help Hernandez shoot Morales, nor does any evidence show Lopez requested that Hernandez shoot Morales. Finally, while Hernandez’s statement after Morales had been shot that “we’ve got one of them” is consistent with Hernadez and Lopez having had a preconceived plan to shoot at least one of the men in the rival group, this inference is not compelled. In sum, the evidence of Lopez’s aiding and abetting Hernandez’s shooting of Morales is such that there is a reasonable probability a factfinder could have found the prosecution had not sustained their burden under that theory.

20. The error was prejudicial. DISPOSITION The trial court’s November 9, 2022, order denying Lopez’s Penal Code section 1172.6 petition is reversed and the matter is remanded for a new evidentiary hearing under section 1172.6, subdivision (d).

SNAUFFER, J. I CONCUR:

GUERRA, J.

21. Meehan, Acting P. J., Concurring. I agree with the majority that the trial court abdicated its role as an independent factfinder pursuant to section 1172.6, subdivision (d)(3).1 The trial court expressly refused to “interject[] what I feel about the facts of the case other than [defendant] could be/would be prosecuted under either theory.” I also agree that the trial court’s failure to properly perform its role of independently considering and weighing the evidence was prejudicial. (See People v. Vance (2023) 94 Cal.App.5th 706, 717 [failure of trial court to apply the correct standard of proof at § 1172.6 evidentiary hearing subject to state law harmless error standard].) I write separately to express my view that a trial court is not obligated to elect between an actual killer theory or an aider and abettor theory to find defendant guilty of murder beyond a reasonable doubt. Where multiple murder theories are presented in a jury trial, “individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. Sometimes, … the jury simply cannot decide beyond a reasonable doubt exactly who did what. There may be reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other.” (People v. Santamaria (1994) 8 Cal.4th 903, 919.) As observed by the California Supreme Court in McCoy, “the dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor…. The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who [was] the direct perpetrator or to what extent each played which role.” (People v. McCoy (2001) 25 Cal.4th 1111, 1120.)

1 Further statutory references are to the Penal Code. Like an individual juror, the trial court, acting as an independent factfinder under section 1172.6, subdivision (d)(3), could find defendant guilty of murder “‘unspecifically’”: even if defendant’s precise role could not be determined beyond a doubt, the trial court could find defendant was either the direct and active perpetrator or an aider and abettor beyond a reasonable doubt. (People v. Santamaria, supra, 8 Cal.4th at pp. 932–933 (conc. & dis. opn. of Mosk, J.).) I also write separately to address defendant’s argument that there is no substantial evidence to support a finding that defendant was the actual killer or an aider and abettor. The majority’s disposition—remanding for a new evidentiary hearing—is an implicit conclusion there is substantial evidence for a reasonable factfinder to conclude that defendant is guilty of murder under either theory. I would clarify this point expressly. Among other evidence, Hernandez testified that defendant was the shooter, and that he saw defendant, with his arm extended, standing over Morales; Hernandez heard five or six additional gunshots after he ran away. This testimony constitutes substantial evidence from which a reasonable factfinder could conclude defendant was the actual killer. (See People v. Steskal (2021) 11 Cal.5th 332, 346 [testimony of a single witness, even that of a defendant, may constitute substantial evidence].) A reasonable factfinder could also conclude that if defendant was not the shooter, he aided and abetted Hernandez with the intent to kill. Evidence that defendant accompanied Hernandez to confront rival gang members, and continued to stand with Hernandez while the gun was pointed at Elizarraraz’s face, permits an inference defendant knew Hernandez had the gun, was unsurprised by his actions, and was present to encourage the shooting. Hernandez’s comment after the shooting that “‘We’ve got one of them’” is evidence from which a reasonable factfinder could conclude there was a preconceived plan to shoot at least one of the men Hernandez and defendant confronted, and that defendant shared Hernandez’s intent. (See People v. Nguyen (2015) 61 Cal.4th 1015,1054 [person aids and abets commission of crime when he or she has knowledge of 2. the unlawful purpose of the perpetrator, the intent or purpose of committing, encouraging, or facilitating the commission of the offense, and, by act or advice, aids, promotes, encourages or instigates the commission of the crime]; accord, People v. Curiel (2023) 15 Cal.5th 433, 466.)

MEEHAN, Acting P. J.

3.