People v. Stopani CA2/4

Opinion

Filed 9/24/26 P. v. Stopani CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B347904

Plaintiff and Respondent, (Los Angeles County Super. Ct. Nos. XSEVA124204, v. VA124204)

DANIEL CESAR STOPANI

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Efrain M. Aceves, Judge. Affirmed. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION In 2014, a jury convicted defendant Daniel Cesar Stopani of second degree murder and found true firearm and criminal street gang enhancements. A decade later, defendant filed a petition for resentencing under Penal Code section 1172.6.1 The court summarily denied the petition at the prima facie stage. We affirm.

BACKGROUND2

I. The Offense Conduct On March 16, 2012, Michael Soto was selling marijuana in the parking lot of a strip mall. Around noon, defendant and Eddie Lopez approached Soto from different directions. Defendant approached Soto from the front, said “Whittier Trece,” and punched him in the face. Almost immediately, Lopez, who had approached Soto from the back, pulled a silver revolver from his waistband and shot him in the head, then shot him twice more in the back as Soto fell down. After the shooting, Lopez ran away.3 1 All further statutory references are to the Penal Code unless otherwise stated.

2 We grant the Attorney General’s request for judicial notice of the record in defendant’s direct appeal. (People v. Lopez (Dec. 4, 2015, B259051) [nonpub opn.].) 3 As the truth of the facts of the crime recited in the opinion are not necessary for our resolution of this appeal, we summarize them only for the basis of defendant’s conviction. (See People v. Woodell (1998) 17 Cal.4th 448, 459–460.)

2 II. Jury Instructions, Conviction, and Sentencing Defendant and Lopez were charged with murder. The information further alleged firearm sentencing enhancements and gang enhancements. Defendant and Lopez were tried together. During trial, the jury was not instructed on the felony murder rule or the natural and probable consequences doctrine. The jury was instructed on malice murder and aiding and abetting, which are central to defendant’s argument in this appeal. As to aiding and abetting generally, the court instructed the jury with CALCRIM No. 400, which stated, “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.” The court also instructed the jury with CALCRIM No. 401, which described the elements required to find a defendant aided and abetted an intended crime. The relevant portion of the instruction provided: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: “[¶] 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. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” On the issue of malice aforethought, the court instructed the jury with CALCRIM No. 520 as follows: “The defendant[] [is] charged with murder in violation of Penal Code section 187. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought. [¶]

3 There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural 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 court further instructed the jury with CALJIC No. 8.30 as follows: “Murder of the second degree is also the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.” After deliberating, the jury found defendant guilty of second degree murder and Lopez guilty of first degree murder. The jury also found the firearm and gang allegations to be true as to defendant and Lopez. The trial court sentenced defendant to 40 years to life in state prison. On direct appeal in 2015, a different panel of this court ordered defendant’s judgment modified4 but otherwise affirmed his murder conviction.

III. Petitions for Resentencing In 2019, defendant filed a petition for resentencing under section 1172.6, which was summarily denied by the trial court. Defendant appealed. His appointed counsel filed an opening brief raising no issues and asking this court independently to review the record under People v. Wende (1979) 25 Cal.3d 436. Defendant failed to file a supplemental brief and this court dismissed the appeal. (People v. Stopani (Oct. 20, 2020, B302980) [nonpub. Opn.].) In 2024, defendant filed a second petition for resentencing following amendments to section 1172.6. The trial court denied the petition, finding defendant did not establish a prima face showing that the “jury instructions [] permitted a conviction on the theory of imputed malice.”

4 The trial court was directed to reverse a gang enhancement imposed under former section 186.22, subdivision (b)(1)(C). 4 Defendant timely appealed.

DISCUSSION

I. Legal Principles and Standard of Review Senate Bill 1437 took effect on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) It limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder to ensure a person’s sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842– 843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).) The Legislature then passed Senate Bill 775. Among other changes to the law, the bill 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. Senate Bill 775 took effect on January 1, 2022. (See Stats. 2021, ch. 551, § 2.) As relevant here, individuals convicted of murder under a now-invalid theory may petition to vacate their convictions and be resentenced. (§ 1172.6, subd. (a).) If the petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing. At the hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of murder under the amended law. (§ 1172.6, subds. (c), (d)(3).) “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.) The jury instructions are part of the record of conviction, because the instructions “given at a petitioner’s trial may provide ‘readily ascertainable facts from the record’ that refute the petitioner’s showing, and reliance on them to make the eligibility or entitlement determinations may not amount to ‘factfinding involving the weighing of evidence or the exercise of discretion,’ ” which may not take place until after an order to show cause issues. (People v. Soto (2020) 51 Cal.App.5th 1043, 5 1055, abrogated on other grounds in Lewis, supra, 11 Cal.5th 952; see People v. Estrada (2022) 77 Cal.App.5th 941, 943–944, 946 [jury instructions showed trial court never instructed the jury on the natural and probable consequences doctrine; summary denial of petition affirmed].) “We independently review a trial court’s determination on whether a petitioner has made a prima facie showing.” (People v. Harden (2022) 81 Cal.App.5th 45, 52.)

II. Analysis Defendant contends he made a prima facie showing because the record of conviction does not conclusively rule out the possibility the jury convicted him under a theory that is no longer valid. Specifically, defendant argues the instructions allowed the jury to convict him of aiding and abetting under an imputed malice theory identified in People v. Powell (2021) 63 Cal.App.5th 689 (Powell), People v. Langi (2022) 73 Cal.App.5th 972 (Langi) and People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado). We disagree. In Powell, supra, 63 Cal.App.5th 689, a jury convicted the defendant of second degree murder based on evidence showing he was a member of a group that beat and stabbed the victim to death. (Id. at p. 692.) On appeal, the defendant argued the standard CALCRIM instructions allowed the jury to convict him of aiding and abetting implied malice murder, which he asserted is an invalid theory. (Id. at p. 709.) The court rejected the argument that aiding and abetting implied malice murder is an invalid theory. However, it noted the jury instructions had not been tailored to that theory of murder. (Id. at p. 714.) The court explained “the aider and abettor of implied malice murder need not intend the commission of the crime of murder,” as CALCRIM No. 401 requires. (Powell, supra, at p. 714.) “Rather, relative to the aider and abettor’s intent, 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.”5 (Ibid.) Our 5 The Powell court ultimately concluded the error was harmless because the prosecutor did not pursue an aiding and abetting implied malice theory, 6 Supreme Court adopted Powell’s summary of the elements of aiding and abetting an implied malice murder in People v. Reyes (2023) 14 Cal.5th 981 (Reyes).6 Langi applied Powell’s reasoning to a section 1172.6 resentencing petition. The defendant was a member of a group that beat and robbed the victim, who ultimately fell, hit his head, and died. (Langi, supra, 73 Cal.App.5th at p. 975.) The defendant argued at trial that he did not throw the fatal punch. (Id. at p. 977.) The jury was instructed on aiding and abetting second degree murder and convicted the defendant of robbery, battery, and second degree murder. (Ibid.) The Court of Appeal assumed the murder conviction was based on an aiding and abetting theory and concluded that an ambiguity in the instructions permitted the jury to impute malice to the defendant based solely on his participation in a crime. (Id. at pp. 980- 981.) The court explained that “under the instructions that were given, the jury was entitled to conclude that, to be guilty as an aider and abettor of second degree murder, [the defendant] need only have intended to encourage the perpetrator’s intentional act – in this case, punching [the victim] – whether or not [the defendant] intended to aid or encourage [the victim’s] killing, and whether or not he personally knew of and disregarded the risk of such a killing. [¶] The instructions should have explained that, to be guilty as a direct aider and abettor or second degree murder, an accomplice must have acted with the mental state of implied malice.” (Id. at p. 983.) Langi was soon followed by Maldonado, supra, 87 Cal.App.5th 1257. In that case, the defendant was convicted of first degree lying-in-wait murder and the jury was not instructed on the natural and probable consequences or felony murder doctrines. (Id. at p. 1259.) The defendant filed a section there was “compelling evidence” supporting the theories the prosecutor did pursue, and the instructional error was “ ‘unimportant in relation to everything else the jury considered.’ ” (Powell, supra, 63 Cal.App.5th at pp. 716–718.)

6 In 2023, the Judicial Council added an instruction on aiding and abetting implied malice murder, CALCRIM No. 526. The instruction closely tracks the language in Reyes, supra, 14 Cal.5th 981.

7 1172.6 resentencing petition, arguing that he could have been convicted under a theory that malice was imputed to him based solely on his participation in the crime. (Ibid.) The Court of Appeal found the first degree lying-in-wait murder instructions required only that the perpetrator intended to make a surprise attack with a purpose of injuring or intimidating the victim. (Id. at p. 1266; see id. at p. 1267, fn. 6 [jury instructions “set forth no such” requirement that perpetrator intended to inflict injury likely causing death].) Given the instructional ambiguity, the court stated that the defendant’s murder liability could have been due to intending to “ ‘encourage the perpetrator’s intentional act,” in this case, a surprise attack on the victim, without personally and knowingly disregarding the risk of a killing. (Id. at p. 1266.) The concern identified in Powell, Langi, and Maldonado is not at issue here. In those cases, the juries were instructed on underlying target offenses not requiring malice aforethought or a theory of murder not requiring it. Here, the only offense charged was murder, which required finding the perpetrator harbored express or implied malice. There is no doubt that the jury found defendant aided and abetted a life endangering act as opposed to some lesser act. Because the trial court did not instruct the jury on any other invalid theories of murder (felony murder or the natural and probable consequences doctrine), defendant did not make a prima facie showing under section 1172.6. Accordingly, the trial court properly denied his petition at the prima facie stage.

8 DISPOSITION

The order denying defendant’s section 1172.6 petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN, P. J.

We concur:

MORI, J.

TAMZARIAN, J.