Error and/or relief
The record of conviction does not show as a matter of law that defendant is ineligible for resentencing under section 1172.6 on his murder and attempted murder convictions. The jury was instructed on the natural and probable consequence doctrine, and the record does not show the jury necessarily found all elements of murder and attempted murder under current law. We therefore reverse the trial court’s order denying defendant’s petition.
First Holding:
SB 1437, effective in 2019, the Legislature amended sections 188 and 189 of the Penal Code to eliminate natural and probable consequences liability for murder as it applies to aiding and abetting, and to limit the scope of the felony-murder rule. Amended section 188 provides that except as stated in the amended section 189 governing felony murder, 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. The bill also added what is now section 1172.6, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Relief is potentially available for a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter .
Authority:
SB 1437
PEN 1172.6
People v. Lee (2023) 95 Cal.App.5th 1164, 1173
People v. Lewis (2021) 11 Cal.5th 952, 957
Second Holding:
The section 1172.6 petitioning process begins with the filing of a petition containing a declaration that all requirements for eligibility are met, including that the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 . If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. A defendant who petitions for resentencing under section 1172.6 is ineligible for resentencing only if the record conclusively establishes every element of the offense. In making that determination a court may give effect to a jury’s factual finding. If the petition survives the prima facie stage, the court must hold an evidentiary hearing at which the People bear the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by SB 1437.
Authority:
PEN 1172.6.
People v. Antonelli (2025) 17 Cal.5th 719, 724
People v. Curiel (2023) 15 Cal.5th 433, 463, 465
Third Holding:
Under the jury instructions given at defendant’s trial, the defendant could have been found guilty even if not the slayer, because there was a second person who was the slayer. Additionally, the finding defendant personally discharged a firearm and proximately caused great bodily injury and death does not establish the defendant intended to kill or was aware of the danger to life that his act posed. In sum, the jury verdict does not show as a matter of law defendant harbored malice aforethought. Under the trial court’s instructions, the jury could instead have concluded defendant aided and abetted an assault with a firearm the natural and probable consequences of which was murder. Thus, the entire record of conviction does not foreclose that defendant was convicted based on a now invalid theory of murder.
Authority:
People v. Offley (2020) 48 Cal.App.5th 588, 598
People v. Curiel (2023) 15 Cal.5th 433, 463, 465
Fourth Holding:
Under current law, attempted murder requires intent to kill. We cannot conclude, as a matter of law, that the record of conviction shows defendant harbored intent to kill. The jury finding that the attempted murder was committed willfully and with premeditation and deliberation shows only that the slayer harbored this mental state. The jury does not further identify the slayer. Additionally, the fact defendant intended to discharge a firearm does not show the defendant harbored a particular mental state.
Authority:
People v. Morales (2024) 102 Cal.App.5th 1120, 1132
People v. Offley (2020) 48 Cal.App.5th 588, 598 [explaining that section 12022.53(d) provides that the defendant must have intended to discharge a firearm, but does not refer to an intent to achieve any additional consequence.]