P. v. Gonzales

Filed 12/29/20 P. v. Gonzales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,
v.
ROBERT GONZALES,
Defendant and Appellant.
B301485
(Los Angeles County
Super. Ct. No. PA042487)
APPEAL from a judgment of the Superior Court of
Los Angeles County, David W. Stuart, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Charles J. Sarosy, Deputy
Attorneys General, for Plaintiff and Respondent.

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Appellant Robert Gonzales challenges the denial of his
petition for resentencing under Penal Code section 1170.951 after
briefing and a hearing at which he was represented by counsel.
He contends the trial court erred by relying on the appellate
opinion from his direct appeal. He further contends the record
before the trial court contained insufficient evidence to sustain its
findings that appellant was a direct aider and abettor who acted
with intent to kill or that he was a major participant who acted
with reckless indifference to human life. We affirm. The trial
court appropriately relied on our prior opinion, which expressly
held there was sufficient evidence to support appellant’s murder
conviction as an aider and abettor.
FACTUAL BACKGROUND2
On September 29, 2002, appellant attended a party in the
backyard of a house in Pacoima. Joe Gonzalez (Gonzalez), Victor
Zapata, and brothers Jamul Thomas and Teevaughn Thomas
were also in attendance.3
Around midnight, Zapata and Jamul went to the side yard,
where two groups of men were arguing. Appellant was there, and
1All further statutory references are to the Penal Code
unless otherwise indicated.
2Our factual narrative is drawn from our opinion in the
prior appeal in this matter, People v. Gonzales (Feb. 27, 2007,
B188161) [nonpub. opn.]. We note that appellant relied on the
same opinion in his opening brief, although he stated that he did
so “without conceding that it is necessarily complete” or
“agree[ing] that the following facts are the only facts that might
have been relevant to whether he is entitled to relief under
section 1170.95.”
3We refer to the Thomas brothers by their first names to
avoid confusion.

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Zapata saw him pull out a shotgun and cock it. Zapata and
Jamul ran from the party, but returned to find Teevaughn.
Zapata and Jamul waited for Teevaughn in the street in
front of the house. While they were waiting, an SUV pulled up.
Zapata and Jamul talked with the occupants of the SUV. Zapata
then heard arguing behind him. He turned and saw Jamul
arguing with Gonzalez; the men were cursing at each other.
Zapata saw appellant standing 10 to 12 feet behind Gonzalez at
an angle, with his shotgun out. After he saw appellant, Zapata
pulled Jamul toward the middle of the street.
As Zapata pulled Jamul away, Gonzalez drew a handgun
and repeatedly pointed it at Jamul’s head. Jamul batted the gun
away several times and told Gonzalez to put the gun down and
fight like a man. Gonzalez asked Jamul if he was afraid to die
and demanded the chain Jamul wore around his neck. Jamul
removed the chain and held it out. Gonzalez grabbed the chain.
He then shot Jamul in the chest.
Zapata reached toward Jamul, and Gonzalez pointed the
gun at him and demanded his chain as well. As Zapata was
taking off his chain, Gonzalez shot at him and missed. Appellant
remained in the same general area throughout the entirety of the
incident, angled behind Gonzalez, with his shotgun out.
When Zapata realized he had not been hit, he ran down the
sidewalk. Gonzalez fired at him several more times. A group of
men standing behind appellant yelled “Astoria, Astoria” as
Zapata ran away.4 Zapata also heard bullets flying past his head
as he ran. Teevaughn, who was running behind him, shouted
4A gang expert testified that Astoria Gardens Locos was a
gang, and that appellant had tattoos demonstrating allegiance
with the Astoria Gardens Locos.

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that he too had been hit. Both Zapata and Teevaughn made it to
the car. Jamul died of a single gunshot wound.
Police recovered three .22 caliber casings and one shotgun
shell from the area of the shooting. The shotgun shell had been
fired from a shotgun later recovered from appellant’s apartment.
PROCEDURAL HISTORY
I. Trial
Appellant and Gonzalez were jointly charged with murder
in the commission of a robbery (§§ 187, subd. (a), 190.2, subd.
(a)(17)) and attempted murder with premeditation and
deliberation (§§ 664, 187, subd. (a)). The information also
included firearm (§ 12022.53, subds. (b)-(e)) and gang (§ 186.22,
subd. (b)(1)) allegations, and a felon in possession charge against
appellant (former § 12021, subd. (a)(1)).
Appellant and Gonzalez were tried jointly. The jury found
Gonzalez guilty of second degree murder and attempted murder,
but rejected the gang and firearm allegations. The jury found
appellant guilty of the felon in possession charge. It was unable
to reach a verdict on the murder and attempted murder charges
and related allegations.
The prosecution subsequently filed an amended
information against appellant, adding an additional count of
robbery (§ 211) to the counts and allegations mistried during the
first trial. A second jury found appellant guilty of first degree
murder with a robbery special circumstance, attempted murder,
and robbery. It also found true the firearm and gang
enhancements. The trial court sentenced appellant to life
without the possibility of parole for the special circumstances
murder conviction, plus 25 years to life for the firearm
enhancement on that count. Appellant also received a life term

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for the attempted murder. The court imposed concurrent
sentences for the robbery and felon in possession convictions, and
stayed the gang enhancement.
II. Direct Appeal
On direct appeal, appellant challenged his convictions on
numerous grounds. Most relevant here, he argued the murder
conviction should be reversed because there was insufficient
evidence to support liability under an aiding and abetting theory.
We summarized the relevant procedural history and argument as
follows: “The prosecution case rested on aiding and abetting and
felony-murder theories. The jury was instructed on general
aiding and abetting principles, but a proposed instruction on the
natural and probable consequences doctrine was withdrawn by
the prosecutor, and the instruction was not given. Thus,
appellant argues, the jury had to find that appellant shared
Gonzalez’s intent to commit murder or robbery, which is
necessary for aiding and abetting liability. He claims such
evidence is lacking.”
We rejected appellant’s argument. After reiterating the
facts summarized above, we added: “Throughout this altercation,
Zapata glanced over at appellant many times. He felt appellant
‘was almost as much of a threat as the person with the gun
[Gonzalez].’ Zapata yelled ‘stop’ many times, but did not
physically try to intervene. He felt ‘it was bad enough that
[Jamul] was in the middle of an argument with a guy with a gun
at his head. I didn’t want to bring any more physicality, to stir up
the incident any more.’ He felt that ‘if a second party outside of
[Jamul] and the shooter was involved, that would bring in more
people from their group to be involved. And they had guns. We
didn’t.’ Zapata was referring specifically to appellant, who was

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holding the shotgun.” We then concluded: “Evidence that
appellant stood watch with his shotgun while Gonzalez
repeatedly pointed a gun at Jamul’s head and demanded Jamul’s
chain supports the finding that appellant intended to facilitate
the robbery and murder by precluding anyone from attempting to
physically intervene on Jamul’s behalf. There is sufficient
evidence to support appellant’s conviction as an aider and abettor
of murder and robbery.” We affirmed both the robbery and
murder convictions.5
Appellant petitioned the Supreme Court for review of his
case. (S151594). The petition was denied.
III. Section 1170.95 Petition
On March 11, 2019, appellant filed a petition for
resentencing under section 1170.95. On the form petition, he
checked a box asserting that he was convicted of first or second
degree murder under the felony murder rule or natural and
probable consequences doctrine. Appellant also checked boxes
stating that he could not now be convicted of first degree felony
murder because he was not the actual killer; he “did not, with the
intent to kill, aid, abet, counsel, command, induce, solicit,
request, or assist the actual killer in the commission of murder in
the first degree”; he “was not a major participant in the felony or
[he] did not act with reckless indifference to human life during
the course of the felony”; and the murder victim was not a peace
officer. Appellant checked the box requesting appointment of
counsel.
5We reversed appellant’s attempted murder conviction on
other grounds.

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On May 10, 2019, the prosecution filed an opposition to the
petition.6 It argued that the petition should be denied because
appellant was a major participant who acted with reckless
indifference to human life. The prosecution attached our prior
appellate opinion to the opposition, and pointed out that we had
also held there was sufficient evidence to support appellant’s
conviction on an aiding and abetting theory.
The court appointed counsel for appellant and continued
the matter for hearing on July 25, 2019. It is unclear from the
record whether the July 25, 2019 hearing occurred.
On August 27, 2019, appellant filed a reply to the
prosecution’s opposition. Appellant relied on the facts recited in
our appellate opinion without qualification. He contended that,
“[o]n this record, there is insufficient evidence that [he] was a
‘major participant’ who harbored the required ‘reckless
indifference to human life’ required for the imposition of a special
circumstance LWOP sentence” under the recent Supreme Court
cases People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 532 (Clark).
The prosecution filed a response, arguing that appellant
was ineligible for relief as a matter of law due to our previous
holding that sufficient evidence supported his conviction under a
direct aiding and abetting theory. It further argued that
appellant was a major participant who acted with reckless
indifference to human life.
6The prosecution actually filed two oppositions: one arguing
that section 1170.95 and its enabling legislation were
unconstitutional, and another opposing appellant’s petition on
substantive grounds. Only the latter opposition is relevant here;
the trial court did not reach the constitutional issue.

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The court held a hearing on the petition on September 26,
2019. At the hearing, appellant’s counsel argued that the court
could not rely on the jury’s findings that appellant was a major
participant who acted with reckless indifference in light of Banks
and Clark. The prosecutor responded that the jury also found,
and we affirmed, that appellant was a direct aider and abettor,
such that “there’s no theory upon which the court would [sic]
grant defense motion.” Appellant’s counsel declined the court’s
invitation to respond to that argument.
The court concluded that appellant was not eligible for
resentencing under section 1170.95. The court stated, “Evidence
is clearly overwhelming that he was a direct aider and abetter
[sic] and that he was a major participant with reckless
indifference. He stood guard with a shotgun, and while the
robbery and murder took place right in front of him, backing up
the actual shooter. It’s just - - it’s not really even a close call. So
this is not appropriate for resentencing under SB[ ] 1437
Appellant timely appealed.
DISCUSSION
I. Governing Law
In 2018, the Legislature enacted Senate Bill No. 1437 (SB
1437), the primary purpose of which is to align a person’s
culpability for murder with his or her own actions and subjective
mens rea. (See Stats. 2018, ch. 1015, § 1, subd. (g).) To
effectuate that purpose, SB 1437 amended sections 188 and 189.
As amended, section 188, subdivision (a)(3) now provides that “in
order 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.” (§ 188, subd.
(a)(3).) Section 189 now provides that a participant in qualifying

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felonies during which a death occurs generally will not be liable
for murder unless (1) he or she was “the actual killer,” (2) he or
she, “with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree,” or (3) he
or she “was a major participant in the underlying felony [who]
acted with reckless indifference to human life.” (§ 189, subds.
(e)(1)-(3).) The effect of these changes was to restrict the
application of the felony murder rule and the natural and
probable consequences doctrine as applied to murder. (People v.
Lamoureux (2019) 42 Cal.App.5th 241, 248.) “Felony murder and
aiding and abetting a murder remain crimes, but to be convicted
of murder it isn’t enough to participate in a felony that results in
a death. Now, a person so accused must have killed the victim,
aided the person who did kill the victim with the intent to kill
them, or acted as a major participant in the felony with reckless
indifference to human life.” (People v. Johns (2020) 50
Cal.App.5th 46, 54.)
SB 1437 also added section 1170.95 to the Penal Code.
Section 1170.95 permits a person convicted of murder on a
charging document that allowed the prosecution to argue felony
murder or the natural and probable consequences doctrine to
petition the sentencing court to vacate the conviction and
resentence on any remaining counts if the person could not be
convicted of murder under sections 188 and 189 as amended by
SB 1437. (§ 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include: “(A) A declaration by the petitioner
that he or she is eligible for relief under this section, based on all
the requirements of subdivision (a). [¶] (B) The superior court

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case number and year of the petitioner's conviction. [¶] (C)
Whether the petitioner requests the appointment of counsel.”
(§ 1170.95, subd. (b)(1).) If any of this information is missing
“and cannot be readily ascertained by the court,” the court may
deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, section
1170.95, subdivision (c) provides that “[t]he court shall review the
petition and determine if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section. If the petitioner has requested counsel, the court shall
appoint counsel to represent the petitioner. The prosecutor shall
file and serve a response within 60 days of service of the petition
and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served. These deadlines shall be
extended for good cause. If the petitioner makes a prima facie
showing that he or she is entitled to relief, the court shall issue
an order to show cause.” (§ 1170.95, subd. (c).)
Soon after section 1170.95 took effect, considerable debate
arose as to how trial courts should operate in accordance with
section 1170.95, subdivision (c). We follow the approach taken in
People v. Verdugo (2020) 44 Cal.App.5th 320, review granted
March 18, 2020, S260493 (Verdugo), and People v. Lewis (2020)
43 Cal.App.5th 1128, 1137-1140, review granted March 18, 2020,
S260598 (Lewis). (See Cal. Rules of Court, rule 8.1115(e)(1).)
These cases, along with People v. Torres (2020) 46 Cal.App.5th
1168, 1177, review granted June 24, 2020, S262011, hold that
subdivision (c) prescribes “a two-step process” for the court to
determine if it should issue an order to show cause. (Verdugo,
supra, 44 Cal.App.5th at p. 327.) First, the court must “review
the petition and determine if the petitioner has made a prima

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facie showing that the petitioner falls within the provisions of
this section.” (§ 1170.95, subd. (c).) If the petitioner has made
this initial prima facie showing, he or she is entitled to appointed
counsel, if requested. (Ibid.; Verdugo, supra, at p. 328; see also
Lewis, supra, at p. 1140.) The prosecutor must file a response,
and the petitioner may file a reply. (§ 1170.95, subd. (c).) The
court then reviews the petition a second time. If, in light of the
parties’ briefing, it concludes the petitioner has made a prima
facie showing that he or she is entitled to relief, it must issue an
order to show cause. (Ibid.; Verdugo, supra, at p. 328; Lewis,
supra, at p. 1140.)
In determining whether the petitioner has made a prima
facie showing that he or she is entitled to relief under section
1170.95, subdivision (c), “[t]he trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. . . . [I]f the record
‘contain[s] facts refuting the allegations made in the petition . . .
the court is justified in making a credibility determination
adverse to the petitioner.’ [Citation.] However, this authority to
make determinations without conducting an evidentiary hearing
... is limited to readily ascertainable facts from the record (such
as the crime of conviction), rather than factfinding involving the
weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference
to human life in the commission of the crime.” (People v. Drayton
(2020) 47 Cal.App.5th 965, 980 (Drayton)).

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Whether a petitioner has made the requisite prima facie
showing is a predominantly legal question. We thus review the
trial court’s ruling de novo. (See Drayton, supra, 47 Cal.App.5th
at p. 981; see also Smiley v. Citibank, N.A. (1995) 11 Cal.4th 138,
146 [“Independent review is called for when the underlying
determination involves a purely legal question or a
predominantly legal mixed question.”].)
II. Analysis
Appellant contends the trial court “short-circuited the
statutory procedure” set forth in section 1170.95 “by relying on
this court’s opinion on direct appeal.” He first argues this was
error because “the court went beyond the allegations in the
petition and sought out information that might contradict
appellant’s assertion that he could not now be convicted of first or
second degree murder under sections 188 and 189.”
This argument is not persuasive. “A court of appeal
opinion, whether or not published, is part of the appellant’s
record of conviction.” (Verdugo, supra, 44 Cal.App.5th at p. 333.)
As a general rule, the trial court may consider the entire record of
conviction, including the appellate opinion, when ruling on a
petition for resentencing. (People v. Cruz (2017) 15 Cal.App.5th
1105, 1110.) Indeed, analogous petitioning procedures for
resentencing under sections 1170.18 and 1170.126 contemplate a
gatekeeping function in which trial courts review the record of a
petitioner’s conviction to determine if the allegations set forth by
the petitioner are untrue as a matter of law. (See People v.
Washington (2018) 23 Cal.App.5th 948, 955 [§ 1170.18]; People v.
Oehmigen (2014) 232 Cal.App.4th 1, 6-7 [§ 1170.126].) Petitions
brought under section 1170.95 are no exception.

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The statutory language of section 1170.95 expressly
contemplates consideration of the record of conviction at the first
stage of prima facie review, in which the court must determine
whether a petitioner “falls within the provisions of this section”
based on “all the requirements of subdivision (a).” (§ 1170.95,
subds. (b)(1), (c).) “If any of the information required” in the
petition is missing, the trial court may deny the petition unless
the missing information can be “readily ascertained by the court.”
(§ 1170.95, subd. (b)(2).) To “readily ascertain[ ]” missing
information, the court must be permitted to consider documents
outside the petition, including the record of conviction; otherwise,
the statutory language would be rendered meaningless. (See
Cooley v. Superior Court (2002) 29 Cal.4th 228, 249.)7
Appellant next argues the trial court erred “by engaging in
an analysis of the evidence as outlined in the Court of Appeal
opinion and making credibility determinations without any
analysis of the underlying trial record.”
When considering any part of the record of conviction,
including a prior appellate opinion, during the first stage of its
prima facie review, the trial court must limit its review to
determining whether the petitioner is ineligible for relief as a
matter of law. (Verdugo, supra, 44 Cal.App.5th at pp. 328-330;
Drayton, supra, 47 Cal.App.5th at p. 980.) A trial court may
“look to a court ruling, including an appellate opinion, for the
7The statute also contemplates use of the record of
conviction at the evidentiary hearing conducted after the trial
court has issued an order to show cause. Subdivision (d)(3) states
that both the “prosecutor and the petitioner may rely on the
record of conviction . . . to meet their respective burdens.”
(§ 1170.95, subd. (d)(3).)

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nonhearsay purpose of determining the basis of the conviction.”
(People v. Woodell (1998) 17 Cal.4th 448, 459; see also People v.
Trujillo (2006) 40 Cal.4th 165, 180 [“an appellate court decision .
. . can be relied upon to determine the nature of a prior conviction
because it may disclose the facts upon which the conviction was
based”].) It may not make factual findings involving the
weighing of evidence or the exercise of discretion, “such as
determining whether the petitioner showed reckless indifference
to human life in the commission of the crime.” (Drayton, supra,
47 Cal.App.5th at p. 980.)
Here, the trial court recited the evidence as recounted in
our appellate opinion and found it “clearly overwhelming that
[appellant] was a direct aider and abetter [sic] and that he was a
major participant with reckless indifference.” Even if we were to
assume this was an improper use of our prior opinion, we find no
error in the trial court’s ultimate ruling.
A petitioner under section 1170.95 must make a prima
facie showing that he or she “could not be convicted of first or
second degree murder because of changes to Section 188 or 189”
made pursuant to S.B. 1437. (§ 1170.95, subd. (a)(3), emphasis
added.) Here, our prior opinion recounts, and appellant does not
dispute, that the case against him “rested on aiding and abetting
and felony-murder theories.” S.B. 1437 amended the felony
murder rule, but it did not “alter the law regarding the criminal
liability of direct aiders and abettors of murder because such
persons necessarily ‘know and share the murderous intent of the
actual perpetrator.’ [Citations.] One who directly aids and abets
another who commits murder is thus liable for murder under the
new law just as he or she was liable under the old law.” (People
v. Offley (2020) 48 Cal.App.5th 588, 595-596.)

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Appellant acknowledged on direct appeal that “the jury had
to find that appellant shared Gonzalez’s intent to commit murder
or robbery, which is necessary for aiding and abetting liability.”
He argued then that the record did not contain substantial
evidence to support such findings. We disagreed, and held, as a
matter of law, that the evidence was sufficient to support a
finding that he aided and abetted the murder and the robbery.
Appellant therefore cannot demonstrate that he could not be
convicted as a direct aider and abettor of the murder, despite his
assertions that “the facts of the case simply do not support any
conduct demonstrating encouragement, assistance or facilitation
of the act of murder as opposed to robbery.” We already found
that he could be convicted of murder under an aiding and
abetting theory, and we do not disturb that finding here. (See
Lewis, supra, 43 Cal.App.5th at pp. 1138-1139; People v. Garcia
(2020) 57Cal.App.5th 100, 108 .)
Appellant contends that the record of conviction established
only that he was an aider and abettor of the robbery, because “no
express finding was made regarding intent to kill.” He asserts
that we “conflated aiding and abetting of the robbery and the
murder and reached a general conclusion that there was
‘sufficient evidence to support appellant’s conviction as an aider
and abettor of murder and robbery.’” We disagree. We explicitly
found that the evidence “supports the finding that appellant
intended to facilitate the robbery and the murder by precluding
anyone from attempting to intervene on Jamul’s behalf.”
Appellant finally argues that the law of the case doctrine
does not control here. The law of the case doctrine precludes
multiple appellate review of the same issue in a single case where
“the point of law involved was necessary to the prior decision and

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was ‘“actually presented and determined by the court.”’
[Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 196-197.)
Appellant contends that “the issue resolved in appellant’s direct
appeal was not the same as the narrower issue raised by his
current petition for resentencing.” As we explained above,
however, this is not an accurate reading of our previous opinion.
Appellant further argues, in the alternative, that the law of the
case doctrine should not apply because it would “result in an
unjust decision given the underlying facts of this case.” As both
cases he cites for that principle point out, however, “[t]he unjust
decision exception” to the law of the case doctrine “does not apply
when there is a mere disagreement with the prior appellate
determination.” (People v. Stanley (1995) 10 Cal.4th 764, 787; see
also People v. Shuey (1975) 13 Cal.3d 835, 842, overruled on
another point as recognized by People v. Bennett (1998) 17
Cal.4th 373, 389 fn. 4.) Our determination that the evidence was
sufficient to support appellant’s conviction on an aiding and
abetting theory is the law of the case.
Our previous conclusion that substantial evidence
supported appellant’s conviction for murder under a direct aiding
and abetting theory compelled a finding that he was ineligible for
relief under section 1170.95 as a matter of law. The trial court
accordingly did not err in denying appellant’s petition. We need
not consider appellant’s alternative arguments regarding
whether he was a major participant who acted with reckless
indifference to human life and the effect of Banks and Clark on
the jury’s special circumstance finding.

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DISPOSITION
Affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.

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