People v. Vargas CA2/4

INTRODUCTION

Appellant Geovanny Antonio Vargas appeals from the superior court’s denial of his petition under Penal Code section 1170.95 to vacate his first degree murder conviction.1 The evidence at trial established appellant was present when his codefendant fatally shot a rival gang member in broad daylight, and after the two men fled together, appellant attempted to hide the gun. The prosecution alleged that before the shooting, appellant and his codefendant were informed rival gang members were crossing out their gang’s graffiti, and appellant agreed to retaliate by committing either murder or assault. The jury was instructed that if appellant intended to aid and abet only an assault, he could be guilty of murder under a natural and probable consequences theory. The prosecutor relied on this theory (among others) during closing arguments, initially suggesting that the natural and probable consequences theory established appellant’s guilt of first degree murder, before stating in rebuttal that appellant

1 Undesignated statutory references are to the Penal Code.

2 could be guilty of first degree murder only under a premeditation theory. The instruction on the latter theory…