Error and/or relief
At the defendant’s hearing on his petition filed under section 1172.6 for recall of sentence in light of the changes in homicide law, the trial court denied the defendant’s resentencing petition on the ground the evidence established beyond reasonable doubt he aided and abetted an implied malice murder. The trial court did not conclude that the defendant was the direct perpetrator or an aider and abettor in an express malice murder. The trial court misidentified the relevant life-endangering act and thereby used an incorrect legal standard for determining the defendant’s mens rea for aiding and abetting implied malice murder.
We therefore reverse and remand with directions to the trial court to conduct a new evidentiary hearing using the correct life-endangering act and consistent with this opinion. The trial court did not address the defendant’s convictions on counts 2 through 4 for attempted murder. Sentencing relief under section 1172.6 extends to attempted murder. In conducting a new evidentiary hearing following remand, the court shall make findings and rule on the defendant’s resentencing petition on the attempted murder convictions. The amended abstract of judgment indicates that the defendant pleaded guilty to second degree murder. That is incorrect: He was convicted by a jury, not pursuant to a plea agreement. The abstract of judgment must be corrected accordingly.
First Holding:
The trial court denied the defendant’s resentencing petition on the ground the evidence established beyond reasonable doubt he aided and abetted an implied malice murder. The trial court did not conclude that the defendant was the direct perpetrator or an aider and abettor in an express malice murder.
Murder is committed with implied malice when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. A defendant may directly aid and abet an implied malice murder. Notwithstanding Senate Bill 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.
Authority:
People v. Knoller (2007) 41 Cal.4th 139, 143
People v. Reyes (2023) 14 Cal.5th 981, 990
Second Holding:
Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.
Authority:
People v. Reyes (2023) 14 Cal.5th 981, 990-991
Third Holding:
A life-endangering act is the act that proximately causes death. To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. Here, the life-endangering act was the shooting by the co-defendant at the vehicle carrying the victim.
Authority:
People v. Powell (2021) 63 Cal.App.5th 689, 713, fn. 27
People v. Jennings (2010) 50 Cal.4th 616, 643
Fourth Holding:
Although a homicide might have more than one proximate cause, to suffice for implied malice murder, the perpetrator’s act must not merely be dangerous to life in some vague or speculative sense; it must involve a high degree of probability that it will result in death.
Authority:
People v. Garcia (2022) 82 Cal.App.5th 956, 963
People v. Reyes (2023) 14 Cal.5th 981, 989
Fifth Holding:
The co-defendant perpetrator’s act of bringing the gun to the anticipated confrontation with the other gang did not in itself give rise to a high probability that death would result. Rather, that act merely created a dangerous situation in which death was possible depending on how circumstances unfolded. Deeming a life-endangering act to be the act of the co-defendant perpetrator bringing the gun to the fight comes precariously close to a natural and probable consequences theory of liability: Bringing the gun to a gang fight becomes life endangering only because a natural and probable consequence of doing so is the gun is fired and someone is killed. [GARY NOTE: Implicit in that example is that the change in the homicide law eliminated the natural and probable consequences rationale as supporting a murder conviction of the non-killer.]
Authority:
People v. Reyes (2023) 14 Cal.5th 981, 989
Sixth Holding:
By misidentifying the life-endangering act committed by the perpetrator, the trial court used the incorrect legal standard for determining mens rea for aiding and abetting implied malice murder.
Authority:
People v. Reyes (2023) 14 Cal.5th 981, 990–991 [using incorrect life-endangering act constitutes legal error]
Seventh Holding:
We have the ability to order the correction of clerical errors in an abstract of judgment.
Authority:
People v. Mitchell (2001) 26 Cal.4th 181, 185–187