Error and/or relief
The court erred in concluding at the prima facie stage that the defendant was ineligible for relief under section 1172.6 as an aider and abettor. The matter is remanded to the superior court with directions to issue an order to show cause and hold an evidentiary hearing on the petition.
First Holding:
In 2018, the Legislature enacted SB 1437, which amended provisions of the Penal Code pertaining to the felony-murder rule and the natural and probable consequences doctrine. Regarding the felony-murder rule, SB 1437 added section 189(e), which states that a participant in the perpetration or attempted perpetration of qualifying felonies in which a death occurs is liable for murder only if one of the following is proven:
(1) The person was the actual killer.
(2) The person was not the actual killer, but, 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.
(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).
As to the natural and probable consequences doctrine, section 188(a)(3) now provides that, except for felony-murder liability as stated in section 189(e), 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.
SB 1437 created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended, by filing a petition for resentencing under what is now section 1172.6.
Pursuant to section 1172.6, a person previously convicted of murder or attempted murder may file a resentencing petition when all of the following conditions apply:
(1) the charging document filed against the petitioner permitted the prosecution to proceed under a theory of felony murder, or another theory of imputed malice;
(2) the petitioner was convicted of murder, attempted murder or manslaughter; and
(3) the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019.
Authority:
PEN 188
PEN 189
PEN 1172.6
People v. Lewis (2021) 11 Cal.5th 952, 959
People v. Strong (2022) 13 Cal.5th 698, 708
Second Holding:
At the prima facie stage of a resentencing matter, the court evaluates both the petition and the record of conviction. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.
If, on the other hand, the defendant has made a prima facie showing of entitlement to relief, the court shall issue an order to show cause. Denial of a resentencing petition at the prima facie stage is reviewed de novo.
Authority:
PEN 1172.6
People v. Strong (2022) 13 Cal.5th 698, 708
People v. Williams (2022) 86 Cal.App.5th 1244, 1251
People v. Lewis (2021) 11 Cal.5th 952, 97
Third Holding:
In this case, the dispositive issue under section 189 is whether the jury’s special circumstance findings (in the early 1990s, when the case was tried) conclusively establish the defendant’s liability for felony murder as a nonkiller aider and abettor. That is, we must determine whether the jury necessarily found that if the defendant was not the actual killer, he at least–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.
A finding of intent to kill made pursuant to a special-circumstance murder allegation is relevant and binding on the petitioner in a resentencing proceeding.
Importantly though, a resentencing petition puts at issue whether all elements of the murder offense are established by a valid theory.
Authority:
People v. Curiel (2023) 15 Cal.5th 433, 462, 453-460 [addressing a gang-murder special circumstance]
People v. Strong (2022) 13 Cal.5th 698, 710
People v. Lopez (2026) 19 Cal.5th 639, 659
Fourth Holding:
The true findings as to the special circumstance allegations do not establish that the jury necessarily found his conduct met the actus reus required for aiding and abetting murder under section 189(e)(2). Section 189(e)(2) requires proof that a nonkiller defendant not only intended to kill, but also assisted the actual killer in the commission of murder in the first degree. Section 189(e)(2) requires that the nonkiller aid or abet the actual killer in the lethal act itself, and not just the underlying felony.
While the special circumstances findings established that the defendant had the intent to kill and aided a cohort, the jury was not required to find that the defendant aided the actual killer in the act of killing.
Further, the instructions on the special circumstances referred to murder in the first degree, which may have led jurors to consider the instructions on first degree murder. Those instructions on murder contained no-longer-valid theories, which may have led the jury to believe the defendant aided or abetted in the commission of first degree murder without finding that he assisted in the lethal act itself.
True findings as to special circumstance allegations did not necessarily establish defendant was a direct aider and abettor even though jury received general instruction regarding aider and abettor liability.
Authority:
PEN 189(e)(2)
People v. Morris (2026) 19 Cal.5th 671, 693
In re Lopez (2023) 14 Cal.5th 562, 587–588
ADD AUTHORITIES HERE