Filed 2/23/26 P. v. Darden CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E085105
v. (Super.Ct.No. RIF091190)
TELESFORO JOSEPH DARDEN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Joshlyn R. Pulliam,
Judge. Affirmed.
Courtney Reed, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Stephanie H. Chow and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.
1 I.
INTRODUCTION
Defendant and appellant Telesforo Joseph Darden appeals from the trial court’s
order denying his Penal Code1 section 1172.6 petition for resentencing at the prima facie
review stage. A jury convicted defendant of attempted premeditated murder (§§ 187,
664), along with numerous other felonies, for helping an accomplice commit a gang-
related shooting. On appeal, defendant asserts he is eligible for resentencing relief
because the jury instructions when read together show he was convicted on a theory of
imputed malice or theories of liability that are no longer valid.
II.
FACTUAL AND PROCEDURAL BACKGROUND2
Defendant drove codefendant Jason Coryell to an apartment where rival gang
member H.B. was. When H.B. emerged, Coryell shot at him. As defendant and Coryell
sped away, Coryell fired more shots, hitting a car and a house. (Coryell, supra, at p. 5.)
The police were called and a description of defendant’s vehicle went out.
(Coryell, supra, at p. 6.) Riverside Sheriff’s Deputy Dan Kelly soon spotted the vehicle
1 All future statutory references are to the Penal Code unless otherwise stated.
2 We provide factual context relating to the attempted murder from the prior appellate opinion from defendant’s direct appeal. (People v. Coryell (July 28, 2003, E030693) [nonpub. opn.] (Coryell).) “These facts are ‘for background purposes and to provide context for the parties’ arguments.’ [Citation.] We do not rely on these facts to review the trial court’s determination for [defendant’s] prima facie showing.” (People v. Rushing (2025) 109 Cal.App.5th 1025, 1028, fn. 2.)
2 and pulled it over. Coryell shot at the deputy. Defendant tried to flee on foot but was
apprehended. (Ibid.)
On April 18, 2001, an amended information was filed charging defendant with
three counts of attempted murder (§§ 664, 187; counts 1, 3 & 5); one count of assault
with a semiautomatic firearm on peace officer (§ 245, subd. (d)(2); count 2); two counts
of assault with a semiautomatic firearm on H.B. (§ 245, subd. (b); counts 4 & 6); two
counts of shooting at an inhabited dwelling house (§ 246; counts 7 & 8); one count of
carjacking (§ 215; count 9); one count of taking a vehicle without the owner’s consent
(Veh. Code, § 10851, subd. (a); count 10); one count of assault with a deadly weapon
other than a firearm (§ 245, subd. (a)(1); count 11); misdemeanor battery (§ 242;
count 12); and misdemeanor brandishing a weapon (§ 417; count 13). The amended
information also alleged firearm enhancements pursuant to section 12022.53,
subdivision (c) as to counts 1, 2, 3 and 5, a firearm enhancement pursuant to
section 12022.5 as to count 4, and gang enhancements pursuant to section 186.22,
subdivision (b) as to counts 1 through 11. The amended information also alleged that
defendant had suffered a prior prison term (§ 667.5, subd. (b)), a prior serious felony
(§ 667, subd. (a)), and a prior strike conviction (§§ 667, subds. (c) & (e) & 1170.12,
subd. (c).)
On July 23, 2001, a jury found defendant not guilty as to counts 1 and 2, and
guilty as to counts 3, 4, 8, 9, 10 and 11. The jury found the firearm enhancement
pursuant to section 12022.53 not true as to count 3, but found the gang enhancement
3 pursuant to section 186.22, subdivision (b), true for all counts for which they found
defendant guilty. The remaining enhancements were stricken. Defendant admitted the
prior strike conviction. The trial court sentenced defendant to 15 years plus 30 years to
life plus life in prison.
On direct appeal, this court vacated defendant’s vehicle theft conviction and
ordered that a concurrent term imposed on the assault with a deadly weapon (§ 245,
subd. (a)) conviction be stayed under section 654. (Coryell, supra, at p. 41.) Defendant
was subsequently resentenced.
In 2022, defendant filed a petition for resentencing pursuant to former
section 1170.95 (now section 1172.6.)
The trial court appointed counsel for defendant. Following numerous
continuances, the court held a prima facie hearing on November 26, 2024. The court
noted that it reviewed and took judicial notice of the court’s own records and the jury
instructions provided by the People. The court found that defendant failed to make a
prima facie case and found defendant ineligible for resentencing. Defendant timely
appealed.
III.
DISCUSSION
Defendant contends “the packet of jury instructions created a realistic risk that the
jurors imported the imputation of malice principle into their evaluation” of the attempted
murder of H.B. charged in count 3. Specifically, he assets when the jury instructions are
4 read together with CALJIC No. 3.01’s generic aiding-and-abetting instruction and
CALJIC No. 8.66’s attempted-murder elements, the jury could have convicted him on a
theory of imputed malice, a theory of liability that is no longer valid, and the trial court
should have issued an order to show cause since the court may not resolve the ambiguity
at the prima facie stage.
A. Governing Law and Standard of Review
Effective 2019, the Legislature enacted Senate Bill No. 1437 (2017-2018, Reg.
Sess.) (Stats. 2018, ch. 1015), which amended the law of murder. Senate Bill No. 1437
eliminated murder liability “as an aider and abettor solely because the ‘natural and
probable consequences’ of [another] crime included a confederate’s commission of
murder.” (People v. Patton (2025) 17 Cal.5th 549, 558 (Patton).) The bill also amended
the felony-murder rule, limiting murder liability to actual killers, those who aid or abet
the actual killer with the intent to kill, and major participants in the underlying felony
who act with reckless indifference to human life. (People v. Strong (2022) 13 Cal.5th
698, 707-708 (Strong).) Effective 2022, Senate Bill No. 775 (2021-2022, Reg. Sess.)
(Stats. 2021, ch. 551) “expanded Senate Bill No. 1437’s mandate by eliminating any
‘other theory under which malice is imputed to a person based solely on that person’s
participation in a crime’ as a means of finding a defendant guilty of murder.” (People v.
Love (2025) 107 Cal.App.5th 1280, 1286 (Love); accord, People v. Antonelli (2025) 17
Cal.5th 719, 724 (Antonelli); People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921,
931.)
5 Senate Bill No. 1437 created former section 1170.95, now section 1172.6, to
provide “a special procedural mechanism for those convicted under the former law to
seek retroactive relief under the law as amended.” (Strong, supra, 13 Cal.5th at p. 708,
fn. 2.) Under section 1172.6, a person convicted of “murder under the natural and
probable consequences doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime . . . may file a petition with
the court that sentenced the petitioner to have the petitioner’s murder . . . conviction
vacated.” (§ 1172.6, subd. (a).) The petition must allege entitlement to relief because
“[t]he petitioner could not presently be convicted of murder or attempted murder because
of changes” made by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3).) The petition must
also state whether the petitioner requests appointed counsel. (See § 1172.6, subd. (b).)
When a facially sufficient petition is filed, the court must appoint counsel, if requested.
(See § 1172.6, subd. (b)(3).) Once the prosecutor has filed a response, and the petitioner
has an opportunity to submit a reply, the “court shall hold a hearing to determine whether
the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall issue an order to show
cause.” (§ 1172.6, subd. (c); see Strong, supra, 13 Cal.5th at p. 708.)
The trial court’s prima facie inquiry determines whether the petitioner is ineligible
for resentencing relief as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 971
(Lewis); see People v. Harden (2022) 81 Cal.App.5th 45, 51-52.) At the prima facie
stage, the court must accept the petitioner’s factual allegations as true and “ ‘should not
6 reject the petitioner’s factual allegations on credibility grounds without first conducting
an evidentiary hearing,’ ” nor “engage in ‘factfinding involving the weighing of evidence
or the exercise of discretion.’ ” (Lewis, at pp. 971-972; accord, Patton, supra, 17 Cal.5th
at p. 563.) The court may consult the record of conviction, however, and “ ‘if the record,
including the court’s own documents, “contain[s] facts refuting the allegations made in
the petition,” then “the court is justified in making a credibility determination adverse to
the petitioner.” ’ ” (Lewis, at p. 971; accord, Patton, at p. 563.) “In assessing
section 1172.6 petitions from individuals convicted following jury trials, the jury
instructions will be critical.” (Antonelli, supra, 17 Cal.5th at p. 731.) The court should
also “look to the jury’s verdicts, and the factual findings they necessarily reflect, to
determine whether the record of conviction refutes the factual allegations in [the]
petition.” (People v. Curiel (2023) 15 Cal.5th 433, 465 (Curiel).)
We review de novo the denial of a section 1172.6 petition at the prima facie stage.
(Love, supra, 107 Cal.App.5th at p. 1287; People v. Williams (2022) 86 Cal.App.5th
1244, 1251 (Williams).)
B. Attempted Murder Law
“ ‘Specific intent to kill is a necessary element of attempted murder. It must be
proved, and it cannot be inferred merely from the commission of another dangerous
crime.’ ” (People v. Collie (1981) 30 Cal.3d 43, 62; see People v. Lee (2003) 31 Cal.4th
613, 623 (Lee) [“Attempted murder requires the specific intent to kill and the commission
of a direct but ineffectual act toward accomplishing the intended killing.”]; People v.
7 Rodriguez (2024) 103 Cal.App.5th 451, 456 (Rodriguez) [“Implied malice cannot support
a conviction of attempted murder.”]; People v. Mumin (2023) 15 Cal.5th 176, 190
[same].) An intent to kill is shown if the assailant either desires the death of the victim or
knows to a substantial certainty that death will occur as the result of the assailant’s action.
(People v. Smith (2005) 37 Cal.4th 733, 739.)
“Prior to the enactment of Senate Bills Nos. 1437 [citations] and 775 [citations],
the natural and probable consequences doctrine provided an avenue for finding an aider
and abettor acted with malice. [Citation.] Under this doctrine, an aider and abettor who
lacked a specific intent to kill could be found guilty of attempted murder solely due to
their participation in a different target crime, if attempted murder was the natural and
probable consequence of the target crime.” (Rodriguez, supra, 103 Cal.App.5th at
p. 456.) When a defendant was “found guilty of attempted murder under a natural and
probable consequences theory of liability, the ‘intent to kill’ was imputed onto [the
defendant] from the actual killer or perpetrator.” (People v. Montes (2021) 71
Cal.App.5th 1001, 1007.) “Because section 188, subdivision (a)(3), prohibits imputing
malice based solely on participation in a crime, the natural and probable consequences
doctrine cannot prove an accomplice committed attempted murder. Accordingly, the
natural and probable consequences doctrine theory . . . is now invalid.” (People v.
Sanchez (2022) 75 Cal.App.5th 191, 196.) Section 1172.6 thus “permits a defendant
convicted of attempted murder under the natural and probable consequences doctrine to
petition for resentencing.” (Rodriguez, at p. 457.)
8 Although a defendant can no longer be held liable for attempted murder based on
the natural and probable consequences doctrine, under current law, “[d]irect aiding and
abetting remains a valid theory of attempted murder after the enactment of Senate Bill
No. 775.” (People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley); see People v. Ervin
(2021) 72 Cal.App.5th 90, 101 [“Liability for intentional, target offenses is known as
‘direct’ aider and abettor liability; liability for unintentional, nontarget offenses is known
as the ‘ “ ‘natural and probable consequences’ doctrine.” ’ ”].)
For the purposes of direct aider and abettor liability, “[w]hen the crime at issue
requires a specific intent, in order to be guilty as an aider and abettor the person ‘must
share the specific intent of the [direct] perpetrator,’ that is to say, the person must
‘know [ ] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[ ]
aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator’s
commission of the crime.’ [Citation.] Thus, to be guilty of attempted murder as an aider
and abettor, a person must give aid or encouragement with knowledge of the direct
perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s
accomplishment of the intended killing—which means that the person guilty of attempted
murder as an aider and abettor must intend to kill.” (Lee, supra, 31 Cal.4th at p. 624; see
People v. Acero (1984) 161 Cal.App.3d 217, 224 [“a jury must find the aider and abettor
shared the perpetrator’s specific intent to kill”]; People v. Chiu (2014) 59 Cal.4th 155,
166-167, superseded by statute as stated in Lewis, supra, 11 Cal.5th at p. 959, fn. 3
[discussing direct aiding and abetting principles]; Chiu, at pp. 171-172 (conc. & dis. opn.
9 of Kennard, J.); People v. Gentile (2020) 10 Cal.5th 830, 843, superseded by statute on
another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869 [explaining
direct aiding and abetting principles]; People v. Powell (2021) 63 Cal.App.5th 689, 712-
713 [“As the court in McCoy made clear, direct aiding and abetting is based on the
combined actus reus of the participants and the aider and abettor’s own mens rea.”].)
C. Analysis
Defendant concedes that the jury was not instructed with the conspiracy
instruction, CALJIC No. 6.11, and that the opening brief mistakenly suggested the
instruction had been given to the jury. Defendant concedes the jury was not instructed on
the natural and probable consequences doctrine, CALJIC No. 3.02, or felony murder
liability as to count 3. But he asserts he made a prima facie showing of eligibility for
resentencing under section 1172.6 because the jury could have convicted him on another
theory of imputed malice because the jury was instructed with CALJIC No. 3.02 as to
counts 1 and 2 and presumes the jury read that instruction as to count 3. In defendant’s
view, when read together with the generic jury instruction on aiding and abetting liability
(CALJIC No. 3.01) and CALJIC No. 8.66’s attempted-murder elements, the jury
instructions, which included CALJIC No. 3.02 as to counts 1 and 2, “created a realistic
risk that jurors imported the imputation of malice principle into their evaluation of
[c]ount 3.” As explained below, we conclude defendant’s arguments lack merit.
The record conclusively establishes defendant is ineligible for section 1172.6
resentencing as a matter of law. The jury’s findings necessarily reflect that defendant was
10 not convicted under any theory of liability affected by Senate Bill Nos. 1437 and 775.
The jury in this case was instructed that to prove attempted murder, each of the following
elements must be proved: “1. A direct but ineffectual act was done by one person
towards killing another human being; and [¶] 2. The person committing the act harbored
express malice aforethought, namely, a specific intent to kill unlawfully another human
being.” (CALJIC No. 8.66.) The jury was also instructed on direct aiding and abetting
liability, which remains a valid theory “ ‘because a direct aider and abettor to murder
must possess malice aforethought.’ ” (Williams, supra, 86 Cal.App.5th at p. 1252;
accord, People v. Burns (2023) 95 Cal.App.5th 862, 869 [Senate Bill No. 1437 “ ‘did not
change accomplice liability for murder under direct aiding and abetting principles’ ”];
Coley, supra, 77 Cal.App.5th at p. 546; People v. Estrada (2022) 77 Cal.App.5th 941,
945 (Estrada).) Indeed, CALJIC No. 3.01 instructed the jury that to find defendant guilty
of attempted murder in count 3, it had to find defendant had “knowledge of the unlawful
purpose of the perpetrator” and “the intent or purpose of committing or encouraging or
facilitating the commission of the crime.”3 On this basis, the jury’s guilty verdict on
count 3 necessarily reflected that the jury found defendant directly aided and abetted the
attempted murder with malice aforethought, i.e., knowledge of the perpetrator’s purpose
and personal intent to facilitate the attempted murder.
3 The jury was specifically instructed that “[a] person aids and abets the commission or attempted commission of a crime when he or she, [¶] 1. With knowledge of the unlawful purpose of the perpetrator and [¶] 2. With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] 3. By act or advice aids, promotes, encourages or instigates the commission of the crime.” (CALJIC No. 3.01.)
11 The jury was further instructed with CALJIC No. 17.00, which ensured that in
order to convict defendant of aiding and abetting the attempted murder, the jury had to
consider defendant’s guilt separately from codefendant Coryell’s, and also find that
defendant himself harbored the requisite intent to kill. (CALJIC No. 17.00 [“You must
decide separately whether each of the defendants is guilty or not guilty.”].)
Under the instructions given to the jury, in order to convict defendant of attempted
murder as an aider and abettor, the jury necessarily found defendant knew Coryell’s
criminal purpose to kill H.B., a rival gang member, and with the intent of committing,
encouraging, or facilitating the attempted murder of H.B., defendant aided, promoted,
encouraged, or instigated the attempted murder by his own words or conduct. When a
jury has been instructed as defendant’s jury was, our Supreme Court has declared that
“ ‘the person guilty of attempted murder as an aider and abettor must intend to kill.’ ”
(People v. Nguyen (2015) 61 Cal.4th 1015, 1054, quoting Lee, supra, 31 Cal.4th at
p. 624; People v. Gonzalez (2012) 54 Cal.4th 643, 654, fn. 8.)
The instructions thus required defendant’s jury to find that he personally shared
the actual shooter’s intent to kill. This finding constitutes a finding of express malice,
which renders defendant ineligible for section 1172.6 relief as a matter of law. (See
People v. Medrano (2021) 68 Cal.App.5th 177, 182-183.)
Defendant’s arguments to the contrary are unpersuasive. While the jury was
instructed with CALJIC No. 3.02 as to counts 1 and 2, there is no evidence in the record
to suggest the jury relied on this instruction as to count 3. The jury found defendant not
12 guilty on counts 1 and 2, the attempted murder of the deputy and another person, thus
rejecting the natural and probable consequences theory. Defendant’s argument that the
jury relied on CALJIC No. 3.02 in convicting defendant on count 3 is mere speculation.
As stated, the jury was not instructed on the natural and probable consequences doctrine
and there was no identification of any target offense from which the murder naturally and
probably occurred as to count 3, so this was not a theory under which defendant could
have been convicted. (See People v. Rushing (2025) 109 Cal.App.5th 1025, 1031-1032
[affirming prima facie denial of section 1172.6 petition where jury received an
incomplete reference to the natural and probable consequences doctrine in jury
instructions because the language was not a complete instruction on the theory and the
jury instructions required the jury to find personal malice]; Estrada, supra, 77
Cal.App.5th at p. 947 [same].)
Defendant’s reliance on Antonelli, supra, 17 Cal.5th 719 is misplaced. There, our
high court held that because a jury could have imputed malice to a non-provocateur
defendant in a provocative act murder prosecution before People v. Concha (2009) 47
Cal.4th 653, “the Court of Appeal was wrong to conclude that such a defendant would be
categorically ineligible for section 1172.6 relief.” (Antonelli, at p. 731.) The Supreme
Court also stated that “the jury instructions tracked the governing law at the time of” (id.
at p. 732) defendant Antonelli’s trial, which “ ‘imposed culpability on all perpetrators of
the underlying crime so long as the provocateur acted with malice, and did so in
furtherance of the common criminal design,’ provided that the deceased was not the sole
13 provocateur.” (Id. at p. 730.) Antonelli is inapposite to our conclusion that defendant is
ineligible for relief as a matter of law under the plain language of section 1172.6,
subdivision (a) regarding attempted murder on count 3.
Defendant appears to argue that the instruction failed to differentiate between the
actual killer and the aider and abettor in defining malice because references to “[t]he
person committing the act” in CALJIC No. 8.66 allowed the jury to simply impute
Coryell’s mental state to defendant. The argument lacks merit. There is no ambiguity in
CALJIC No. 8.66. The phrase “[t]he person committing the act” in CALJIC No. 8.66
clearly refers to the perpetrator, in this case Coryell, the actual shooter. Defendant does
not contend otherwise.
In sum, based on the instructions given at trial, the jury’s verdict conclusively
establishes that defendant was convicted on a valid theory of murder liability unaffected
by Senate Bill No. 1437.
14 IV.
DISPOSITION
The order denying defendant’s section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:
McKINSTER Acting P. J.
MILLER J.