Error and/or relief
The defendant appeals the denial of his petition for relief under section 1172.6 of the Penal Code after an evidentiary hearing. The trial court’s finding that appellant was a direct aider and abettor for purposes of implied malice murder is not supported by substantial evidence.
We reverse the denial and remand this matter with directions to vacate appellant’s murder conviction and to resentence him in accordance with section 1172.6(e).
First Holding:
The Legislature enacted SB 1437 in 2018, abolishing the natural and probable consequences doctrine in cases of murder and limiting the application of the felony-murder doctrine.
The legislation bars murder convictions premised on any theory of imputed malice unless the People also prove that the nonkiller defendant personally acted with the intent to kill or was a major participant who acted with reckless indifference to human life. S
pecifically, the Legislature amended section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder shall act with malice aforethought and malice shall not be imputed to a person based solely on his or her participation in a crime.
Authority:
PEN 188
PEN 189
People v. Lewis (2021) 11 Cal.5th 952, 957
People v. Gentile (2020) 10 Cal.5th 830, 842–843
Second Holding:
Section 1172.6 contains the procedure for vacating the murder convictions of defendants who could no longer be convicted because of the amendments to section 188 and 189. If a prima facie case is made—that is, if the petitioner is not ineligible as a matter of law—the court must issue an order to show cause and hold an evidentiary hearing.
At the evidentiary hearing, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder” under the law as amended by the changes to sections 188 and 189.
If the prosecution does not meet this burden, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence is not greater than the initial sentence.
Where the murder was charged generically, and the target offense was not charged, the conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.
Authority:
PEN 1172.6
People v. Lewis (2021) 11 Cal.5th 952, 971
People v. Coley (2022) 77 Cal.App.5th 539, 543
People v. Arellano (2024) 16 Cal.5th 457, 474, fn. 5 [What matters for purposes of subdivision (e)’s requirement that the underlying felony or target offense was not charged is that the defendant was neither convicted of the underlying felony or target offense nor was either crime actually litigated]
Third Holding:
We review the trial court’s findings for substantial evidence.
Authority:
People v. Vargas (2022) 84 Cal.App.5th 943, 951
Fourth Holding:
Direct aiding and abetting remains a valid theory of murder liability after SB 1437. It 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 the 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. Coley (2022) 77 Cal.App.5th 539, 546
People v. Reyes (2023) 14 Cal.5th 981, 990–991
Garcia v. Superior Court (2024) 106 Cal.App.5th 1005, 1022
Fifth Holding:
The record here may support the finding that appellant had the requisite mens rea, but it does not show the actus reus required for direct aiding and abetting.
The co-defendant perpetrator shot the victim in the chest to free the defendant from the victim’s grasp.
It is too far of a stretch to consider the defendant’s circumstance of being physically restrained to be an act of his that aided the commission of the perpetrator’s fatal shooting, even if the defendant wanted the perpetrator to shoot the victim so he could be freed. Nothing in the record shows that the defendant told the perpetrator to shoot, or acted at all to facilitate the shooting—aside from his planning and participation in the underlying robbery.
Authority:
People v. Powell (2021) 63 Cal.App.5th 689, 712 [An aider and abettor must do something and have a certain mental state]
Sixth Holding:
Although direct aiding and abetting liability has been extended to cases where someone has a legal duty to act but fails to do so, we are unaware of any such case outside the context of parent-child or caregiver relationships.
Authority:
People v. Werntz (2023) 90 Cal.App.5th 1093, 1101
People v. Collins (2025) 17 Cal.5th 293, 312
People v. Zemek (2023) 93 Cal.App.5th 313, 339
Seventh Holding:
We do not see fit to remand for reconsideration of the defendant’s liability for felony murder because the trial court expressly rejected that possibility.
We instead remand for the trial court to vacate appellant’s murder conviction, and to redesignate the conviction as the underlying felony or felonies consistent with section 1172.6(e).
Authority:
People v. Arellano (2024) 16 Cal.5th 457, 477 [declining to remand where it would be an idle act as shown by the trial court’s statement]
People v. Tyus (2026) 120 Cal.App.5th 798, 817 [reversing trial court’s decision to simply dismiss the case after vacating a manslaughter conviction from a plea; the trial court was required to redesignate the conviction as an underlying felony]