People v. Bazzo CA4/1

Filed 11/10/26 P. v. Bazzo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D086983 Plaintiff and Respondent, (Super. Ct. No. RIF129919) v. FRANK MONICO BAZZO, Defendant and Appellant. APPEAL from a judgment and order of the Superior Court of Riverside County, Joshlyn R. Pulliam, Judge. Affirmed as modified. Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Seth M. Friedman and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.  In 2008, a jury convicted Frank Monico Bazzo of one count of first degree murder under a direct aiding and abetting theory and found true special circumstance allegations that the killing was carried out for financial gain and by means of lying in wait. In 2022, Bazzo filed a petition for resentencing under Penal Code section 1172.6.1 The court denied the petition, finding that Bazzo was ineligible for resentencing as a matter of law because the jury found that although he was not the actual shooter, he aided and abetted the murder with the intent to kill. Bazzo appeals, arguing that the instructions given at his trial allowed the jury to convict him of aiding and abetting first degree murder under an imputed malice theory. He also argues that the court should vacate his unpaid restitution fine because over 10 years have passed since imposition of the fine. We reject Bazzo’s argument that he is eligible for resentencing under section 1172.6. The Attorney General concedes, and we agree that Bazzo’s unpaid restitution fine must be vacated because it is no longer enforceable and collectable under section 1465.9. FACTUAL AND PROCEDURAL BACKGROUND In 2008, a jury convicted Bazzo of first degree murder under a direct aiding and abetting theory and found true special circumstance allegations that the killing was carried out for financial gain and by means of lying in 1 All statutory references are to the Penal Code. 2 wait.2 As set forth in Bazzo I, the prosecution obtained the judgment of conviction under a theory that Bazzo paid and conspired with a third party to kill the ex-husband of Bazzo’s ex-wife. (Bazzo I, supra, D058082.) The trial court sentenced Bazzo to life in prison without the possibility of parole. In 2011, this court affirmed the judgment. (Bazzo I, supra, D058082.) In 2019, Bazzo filed a petition to vacate the murder conviction and obtain resentencing under section 1170.95 (now section 1172.6). The trial court denied the petition after appointing counsel. The trial court concluded that Bazzo was ineligible for relief under section 1170.95 because the jury’s special circumstance findings required the jury to find Bazzo harbored an intent to kill. Bazzo’s appointed counsel agreed. Thus, the trial court summarily denied the petition. Bazzo appealed and his appointed appellate counsel requested that the court review the judgment under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 (Anders). After conducting an independent review of the record and considering the Anders issues identified by appointed counsel and the points raised by Bazzo in his supplemental brief, the court affirmed the judgment. (Bazzo II, supra, D075835.) The court explained that “the special circumstance findings necessarily required the jury to find Bazzo aided the killer in an intentional killing. [Citations.] Therefore, Bazzo could still be convicted of first degree murder, despite the legislative amendments to sections 188 and 189, and Bazzo did not make a prima facie showing entitling him to relief under 2 On March 5, 2026, the court took judicial notice of records from Bazzo’s prior appeals: People v. Olivarez (May 5, 2011, D058082) [nonpub. opn.] (Bazzo I) and People v. Bazzo (Sept. 6, 2019, D075835) [nonpub. opn.] (Bazzo II). 3 section 1170.95.” (Bazzo II, supra, D075835.) In 2022, Bazzo filed another petition for resentencing under section 1172.6. The trial court appointed counsel and set the matter for a prima facie hearing. Following the hearing, the court issued an order to show cause why Bazzo should not be resentenced. During the hearing on the order to show cause, the trial court heard Bazzo’s arguments and informed him that he had the right to present evidence. The court also invited him to argue why he could not be presently convicted of murder under current murder statutes. Bazzo made arguments but did not present any evidence.3 The prosecution argued that Bazzo was ineligible for resentencing as a matter of law. The prosecution noted that Bazzo was convicted of murder as a direct aider and abettor and that the true findings on the special circumstance allegations required the jury to find that he acted with the intent to kill. Further, the jury was not instructed on felony murder or the natural and probable consequences doctrine. After hearing from Bazzo and the prosecution, the trial court found that Bazzo was ineligible for resentencing under section 1172.6 because the jury found he acted with the intent to kill and he could be convicted of murder under current law. DISCUSSION I. Overview of Section 1172.6 Resentencing Procedure Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), effective January 1, 2019, significantly limited the scope of California’s felony murder rule and eliminated liability for murder under the natural and 3 After multiple continuances of the order to show cause hearing, Bazzo elected to represent himself. 4 probable consequences doctrine through two key statutory provisions. (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Strong (2022) 13 Cal.5th 698, 707– 708.) Section 189 was amended so that a defendant is liable for felony murder only if he was (1) the actual killer, (2) a direct aider and abettor with the intent to kill, or (3) a major participant in the underlying felony and acted with reckless indifference to human life. (Strong, at p. 708.) Section 188 was amended to impose a new requirement that, except in cases of felony murder, a principal in the crime of murder can only be convicted where he or she acted “with malice aforethought,” and “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3); see People v. Curiel (2023) 15 Cal.5th 433, 449 (Curiel).) Section 1172.6, subdivision (a), authorizes defendants who could not have been convicted for murder under current law to petition the court for resentencing. (See Curiel, supra, 15 Cal.5th at pp. 449–450.) Upon receiving a petition that contains all required information, the trial court must appoint counsel for the petitioner if requested (§ 1172.6, subd. (b)(3)), and “[a]fter the parties have had an opportunity to submit briefings, 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 [he] is entitled to relief, the court shall issue an order to show cause” (§ 1172.6, subd. (c)) and proceed to an evidentiary hearing (§ 1172.6, subd. (d)(3)). However, the court may deny the petition at the prima facie stage if the record of conviction (which includes, among other things, jury instructions and verdict forms) conclusively establishes the petitioner is ineligible for relief as a matter of law. (§ 1172.6, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 970–971, 972.) 5  The trial court’s finding that appellant is ineligible for relief under section 1172.6 as a matter of law is a legal conclusion, which we review de novo. (People v. Ervin (2021) 72 Cal.App.5th 90, 101.) II. Bazzo is Not Eligible for Resentencing Bazzo argues that he is eligible for resentencing because several instructions given to the jury allowed the jury to convict him of murder based on imputed malice. A. Relevant Jury Instructions in Bazzo’s Trial 1. Aiding and Abetting Instructions The trial court instructed the jury with CALCRIM Nos. 400 and 401 on direct aiding and abetting liability. CALCRIM No. 400 stated: “A person may be guilty of a crime in two ways. One, he may have directly committed the crime. I will call that person the perpetrator. Two, he may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.” CALCRIM No. 401 stated in relevant part: “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 6  “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 knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” 2. Murder Instructions The court also instructed the jury with CALCRIM No. 520 concerning murder with malice aforethought. The instruction stated, in relevant part: “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. “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 express malice if he unlawfully intended to kill. “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; 7  “AND “4. He deliberately acted with conscious disregard for human life.” The court further instructed the jury with CALCRIM No. 521 on theories of murder, including: (1) willful, deliberate, and premeditated murder, and (2) murder by lying in wait. To find that Bazzo committed willful, deliberate, and premeditated murder, CALCRIM No. 521 required the jury to find that “he intended to kill.” In contrast, the jury was not required to find intent to kill for lying in wait murder. Instead, CALCRIM No. 521 required the jury to find that defendant concealed his purpose from the person killed, waited and watched for an opportunity to act, and “[t]hen, from a position of advantage, he intended to and did make a surprise attack on the person killed.” The court did not instruct on any other theory of first degree murder. 3. Special Circumstance Instructions The court also instructed the jury on special circumstances of murder committed for financial gain and by means of lying in wait. The court introduced the special circumstances with CALCRIM No. 702, which informed the jury that in order to find the special circumstances true for a defendant who is not the actual killer, it must find that “the defendant acted with the intent to kill.” Concerning the special circumstance of murder committed by means of lying in wait, the court instructed the jury with CALCRIM 728, in relevant part, as follows: “The defendant is charged with the special circumstance of murder committed by means of lying in wait in violation of Penal Code section 190.2(a)(15). 8  “To prove that this special circumstance is true, the People must prove that: “1. The defendant intentionally killed [the victim]; “AND “2. The defendant committed the murder by means of lying in wait. “A person commits a murder by means of lying in wait if: “1. He concealed his purpose from the person killed; “2. He waited and watched for an opportunity to act; “3. Then he made a surprise attack on the person killed from a position of advantage; “AND “4. He intended to kill the person by taking the person by surprise.” Similarly, concerning the special circumstance of murder for financial gain, the court instructed the jury with CALCRIM No. 720 as follows: “The defendant is charged with the special circumstance of murder for financial gain in violation of Penal Code section 190.2(a)(1). “To prove that this special circumstance is true, the People must prove that: “1. The defendant intended to kill; “AND “2. The killing was carried out for financial gain.” B. Bazzo was Not Convicted Under a Theory of Imputed Malice Based on CALCRIM Nos. 401 and 520 9  Bazzo contends that because the trial court instructed the jury with CALCRIM Nos. 401 (aiding and abetting) and 520 (murder with malice aforethought), the jury could have convicted him under a theory of imputed malice. Specifically, he argues that the jury was not informed he must have personally acted with malice and intended to kill the victim. He faults CALCRIM No. 401 because that instruction merely required that he, as an aider and abettor, had to know the perpetrator intended to commit a particular crime and that he intended to aid and abet the perpetrator in committing that crime. Similarly, CALCRIM No. 520 only required the jury to find that the perpetrator, not the aider and abettor, committed a life- endangering act with conscious disregard. We reject Bazzo’s arguments. “In general, to establish liability for murder under the theory of direct aiding and abetting, ‘the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.’ ” (Curiel, supra, 15 Cal.5th at p. 466.) “ ‘Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea’—which here includes knowledge that the direct perpetrator intends to commit the crime or life-endangering act, ‘and (c) the aider and abettor’s actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime.’ ” (Id. at p. 467.) Bazzo contends that the jury instructions did not require the jury to find that he intended to aid or encourage killing the victim. As a result, the jury could have merely found that he intended to aid and encourage a surprise attack on the victim or crime other than murder. Bazzo relies on 10 People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado) to support his argument. In Maldonado, the defendant was convicted of first degree murder based on a theory of lying in wait, though the jury found not true a lying in wait special circumstance allegation. (Maldonado, supra, 87 Cal.App.5th at p. 1260.) The jury was instructed on both premeditated murder and lying in wait murder. (Ibid.) Like here, the jury was not instructed on felony murder or the natural and probable consequences doctrine. (Ibid.) Also, like here, the jury was instructed on both express and implied malice and on direct aiding and abetting liability. The Maldonado court noted that the aiding and abetting instruction was “ ‘not tailored for’ aiding and abetting an implied malice murder” because it “refers to an intent to aid and abet a ‘crime,’ ” when “the aider and abettor in fact needs to ‘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.’ ” (Maldonado, supra, 87 Cal.App.5th at p. 1265.) Maldonado held that the instruction permitted the jury to conclude that the appellant aided and abetted a murder without finding that the aider and abettor himself harbored an intent, either express or implied, to kill: “[T]he jury was instructed that a person aids and abets a crime if ‘he or she knows 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.’ The murder by lying in wait instruction did not instruct the jury that the perpetrator needed to intend to cause death. While the perpetrator must have concealed his purpose from the victim, waited and watched for an opportunity to act, intentionally made a surprise attack from 11 a position of advantage, and have lain in wait for a substantial enough duration to show a state of mind equivalent to deliberation or premeditation, the jury may have found the perpetrator’s purpose was only to injure or intimidate the victim in a surprise attack. Thus, . . . the jury could have construed the instructions such that, ‘to be guilty as an aider and abettor of [lying in wait first degree] murder, appellant need only have intended to encourage the perpetrator’s intentional act—in this case, [a surprise attack on the victim]—whether or not appellant 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.’ ” (Maldonado, supra, 87 Cal.App.5th at p. 1266.) Despite Bazzo’s argument, Maldonado does not support his position. Here, the court instructed the jury with CALCRIM No. 728 regarding the special circumstance of murder committed by means of lying in wait, which required a finding of intent to kill. Similarly, the court instructed the jury with CALCRIM No. 720 concerning the special circumstance of murder for financial gain, which also required a finding of intent to kill. Further, CALCRIM No. 702 clearly informed the jury that “[i]n order to prove the[] special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, or a member of a conspiracy, the People must prove that the defendant acted with the intent to kill.” Unlike Maldonado, in the case before us, the jury found true the special circumstances of lying in wait and murder committed for financial gain. Notably, the special circumstance of lying in wait is different from lying in wait first degree murder. “The lying-in-wait special circumstance requires intent to kill,” whereas lying in wait first degree murder does not. (People v. Cage (2015) 62 Cal.4th 256, 278; Maldonado, supra, 87 Cal.App.5th at 12 pp. 1262–1263 [“ ‘[N]othing in section 189 requires the lying in wait to have been done with the intent to kill.’ ”].) Bazzo does not dispute that the special circumstance allegations required the jury to find intent to kill, but he nevertheless argues he is eligible for resentencing based on the reasoning in Curiel, supra, 15 Cal.5th at page 463. In Curiel, the Supreme Court explained that a jury’s finding of intent to kill for a gang-murder special circumstance, “alone is insufficient to establish the requisite mens rea for aiding and abetting murder.” (Curiel, supra, 15 Cal.5th at p. 468.) “Because the jury was instructed on the natural and probable consequences doctrine, the jury was required to find only that Curiel knew that [the perpetrator] intended to commit one of the underlying target offenses and that Curiel intended to aid him in that offense, not murder.” (Ibid.) Here, unlike Curiel, the jury was not instructed on the natural and probable consequences doctrine. Rather, Bazzo was prosecuted only on a direct aiding and abetting theory, which remains valid. Further, murder was the only crime alleged. There was no theory propounded under which Bazzo could aid and abet a crime other than murder. Based on the record, including the jury instructions, Bazzo’s jury necessarily determined that he acted with requisite mens rea for aiding and abetting murder. The only way for the jury to find the special circumstance allegations true was for it to conclude that Bazzo aided and abetted the target offense of murder. Further, there was no theory presented under which the jury could have imputed malice to him. Thus, we reject Bazzo’s argument that based on CALCRIM Nos. 401 and 520, the jury could have convicted him under a theory of imputed malice. 13  C. Bazzo was Not Convicted Under a Theory of Imputed Malice Based on CALCRIM No. 400 Bazzo argues that the language in CALCRIM No. 400 stating that aiders and abettors are “equally guilty” as direct perpetrators permitted the jury to convict him based on a finding of imputed malice. We reject Bazzo’s argument. California law creates varying levels of culpability for homicide. In People v. McCoy (2001) 25 Cal.4th 1111, the Supreme Court concluded that codefendants in the same homicide could have different levels of culpability for the death, depending on their different mental states. Subsequent cases have recognized that someone who aids and abets a homicide might have greater or lesser responsibility than the perpetrator. (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164 (Samaniego); People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero).) In doing so, these later cases criticized language in a standard jury instruction on aiding and abetting liability, former CALCRIM No. 400, that told jurors “[a] person is equally guilty of the crime, whether he or she committed the crime personally or aided and abetted the perpetrator who committed it.” These opinions warned that the “equally guilty” language of the instruction might mislead jurors in some circumstances by suggesting that once they decide the direct perpetrator is guilty of a particular crime (e.g., first degree murder), the aider and abettor is necessarily guilty of the same crime, regardless of his or her mental state. (Samaniego, at p. 1165; Nero, at pp. 517–518.) In 2010, CALCRIM No. 400 was revised to remove “equally” from the phrase “equally guilty.” (People v. Johnson (2016) 62 Cal.4th 600, 639 (Johnson).) In Johnson, the Supreme Court rejected the defendant’s argument that the “equally guilty” language in CALCRIM No. 400 allowed the jury to 14 convict him as an aider an abettor of first degree murder based on the culpability of the perpetrator, without considering the defendant’s own mental state. (Johnson, supra, 15 Cal.4th at pp. 640−641.) The Supreme Court rejected the defendant’s argument because “there was no version of the evidence . . . suggesting that defendant’s mental state was less culpable than that of the actual killer.” (Id. at p. 640.) Further, the Supreme Court found that CALCRIM No. 401, which set forth the requirements for establishing aider and abettor liability, “cleared up any ambiguity arguably presented by former CALCRIM No. 400’s reference to principals being ‘equally guilty’.” (Id. at p. 641.) Here, as in Johnson, although the version of CALCRIM No. 400 in effect at the time of Bazzo’s trial included the phrase “equally guilty,” the additional instructions provided to the jury, including CALCRIM No. 401, did not permit the jury to convict Bazzo of aiding and abetting murder without considering his own mental state. Further, there was no version of the evidence or theory presented to the jury suggesting that Bazzo’s mental state was less culpable than that of the actual killer. Based on the foregoing, we reject Bazzo’s argument that the “equally guilty” language in CALCRIM No. 400 allowed the jury to convict him based on imputed malice. Having considered the merits of Bazzo’s arguments and concluding that Bazzo is ineligible for relief under section 1172.6 as a matter of law, we need not consider respondent’s argument that the trial court was required to deny Bazzo’s petition for resentencing under the law of the case doctrine. III. Bazzo’s Section 1202.4 Restitution Fine Must be Vacated Bazzo argues, and the People concede, that any remaining balance on Bazzo’s section 1202.4 restitution fine must be vacated. 15  In 2008, the court ordered Bazzo to pay a $10,000 restitution fine under section 1202.4, subdivision (b). The court reimposed the fine in September 2011. Section 1465.9, subdivision (d), provides, “[u]pon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.” We agree with the parties that any remaining balance on Bazzo’s restitution fine must be vacated because more than 10 years have elapsed since the imposition of the fine. 16  DISPOSITION The judgment is modified to reflect that the balance of the restitution fine imposed under section 1202.4 is vacated. The judgment is otherwise affirmed. The trial court is directed to modify the abstract of judgment consistent with this opinion and to forward the modified abstract to the California Department of Corrections and Rehabilitation. The trial court’s order denying Bazzo’s section 1172.6 petition is affirmed. AMIN, J. WE CONCUR: MCCONNELL, P. J. DATO, J. 17