Tag Archives: Aiding and abetting

Amelioration, Sentencing, Vicarious liability

Case 001143

Posted on by Gary McCurdy

Error and/or relief

In light of Morris, it was error to deny the defendant’s motion to recall his sentence under section 1172.6 based on the court’s conclusion that he was ineligible because the defendant was an aider and abettor to the underlying felony.

Holding:

In Morris, the court specifically held that an aider and abettor must aid the actual killer in the commission of the fatal act itself, not merely the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671

Gary note:

This opinion was very short, because it was a remand from the Supreme Court’s grant of review, held pending the decision in Morris. This opinion does not discuss Morris and relies simply on its own recognition and the concession by the People that the defendant was not ineligible for consideration under section 1172.6 as a matter of law.

Though not cited by the court in this opinion, you can get the gist of Morris by the Supreme Court’s statement in Morris on page 678, “We interpret the statutory language to mean just what it says: the phrase ‘aided … or assisted the actual killer in the commission of murder in the first degree’ requires proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.” The language it was interpreting was in section 188(a)(3), that malice “shall not be imputed to a person based solely on his or her participation in a crime.”

Under section 189(e)(2), when a person was not the actual killer, that person must have, “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.”

Amelioration, Elements of crime, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 001124

Posted on by Gary McCurdy

Error and/or relief

We reverse the denial of the petition for recall of sentence under section 1172.6 and direct the trial court to consider the defendant’s youth at the time of the killing as a relevant factor in determining whether the defendant formed the requisite mental state to be convicted of aiding and abetting an implied malice murder.

First Holding:

The trial court found that the defendant directly aided and abetted an implied malice murder. To satisfy the actus reus for that theory of liability, the aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The relevant act is the act that proximately causes death.

The required mens rea 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, 991

Second Holding:

Based on our review of the trial court’s written order denying resentencing, we conclude the trial court understood and applied the elements of directly aiding and abetting an implied malice murder. We therefore review its decision for substantial evidence.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We do not reweigh evidence or second-guess credibility determinations. We presume the existence of every fact the trier of fact could reasonably deduce from the evidence to support the judgment. To overturn a conviction based on insufficient evidence, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Ramirez (2022) 13 Cal.5th 997, 1118

People v. Redmond (1969) 71 Cal.2d 745, 755

Third Holding:

The defendant asserts that the trial court failed to consider his youth when deciding the resentencing petition. He did not raise the issue in the trial court, arguably forfeiting the issue. But we agree that considering the issue on the merits is appropriate where this emerging area of the law was only developing at the time the trial court denied the petition.

In Pittman, for example, the defendant argued for the first time on appeal after the denial of resentencing that his youth (21 years old at the time of the offense) was relevant to whether he acted with implied malice and therefore could be found guilty of second degree murder. The appellate court observed that the policy interests underlying the felony-murder cases—that youth is relevant to a criminal defendant’s ability to perceive risk and consequences, and therefore to the level of culpability—apply equally in the context of implied malice murder.

The Pittman court further concluded that failure to consider Pittman’s youth was not harmless, given trial evidence of Pittman and his peers acting impulsively and under the influence of transient rashness.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 416, 418 [Cases discussing the role of youth in relation to criminal culpability stress two areas: youthful offenders’ relative impulsivity and their vulnerability to peer pressure]

Fourth Holding:

The defendant was 20 years old at the time of the crime. Impulsivity and vulnerability to peer pressure may have contributed to his participation in the unplanned group attack of a rival gang member. We find it is reasonably probable a more favorable result would have been reached on the defendant’s petition had the trial court considered his youth.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 417 (applying the Watson standard)

People v. Watson (1956) 46 Cal.2d 818

Amelioration, Elements of crime, Jury instructions, Sentencing, Vicarious liability

Case 001095

Posted on by Gary McCurdy

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

Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review, Vicarious liability

Case 001077

Posted on by Gary McCurdy

Error and/or relief

Because there was a change in the statutory or case law, previous petitions under section 1172.6 are not a bar to a petition filed in reliance on the change in the law. It was error to summarily deny the petition.

First Holding:

Neither the express language of section 1172.6 nor the stated purpose of the legislation supports limiting access to relief under section 1172.6 where the subsequent petition rested on new legal authority that challenged the basis for the superior court’s summary denial of the previous petition. Enactment of SB 775 constituted new legal authority that entitled the defendant to file a new petition.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 946-947

Second Holding:

A defendant whose resentencing petition is denied before an order to show cause issues must demonstrate there is a reasonable probability that in the absence of the error the defendant would have obtained a more favorable result.

The record of conviction here fails to establish that defendant was ineligible for resentencing under section 1172.6 as a matter of law. Accordingly, it is apparent that but for the trial court’s error, defendant would have obtained a more favorable result.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 974

Third Holding:

The jury was instructed that an aider and abettor must have intended to commit, or aid and abet the felony of robbery (in this case) before or at the time that she caused the death. This was error. Under section 189(e)(2), a nonkiller must intend to kill and must assist the actual killer in the lethal act itself to be guilty of felony murder.

The instructions did not require the jury to make that finding. Thus, the record of conviction does not establish that the defendant is ineligible for relief as a matter of law and the trial court’s error in dismissing her petition for resentencing as an invalid, successive petition was not harmless. The order denying defendant’s petition for resentencing under section 1172.6 is reversed and the matter is remanded for further proceedings.

Authority:

PEN 189(e)(2)

People v. Morris (2026) 19 Cal.5th 671, 678, 693

Amelioration, Elements of crime, Jury instructions, Sentencing, Vicarious liability

Case 001064

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding that the defendant was, as a matter of law, ineligible under section 1172.6 to seek recall of the early 2000s murder conviction. The court’s order denying defendant’s petition for resentencing is reversed and the matter is remanded with directions for the trial court to issue an order to show cause and hold further proceedings consistent with section 1172.6(d).

First Holding:

SB 1437, effective on January 1, 2019, amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Section 188 now provides that, except 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.

Authority:

PEN 188

PEN 189

Second Holding:

Under section 189(e), a participant in the perpetration or attempted perpetration of a felony listed in section 189(a) 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).

Authority:

PEN 189(e)

Third Holding:

SB 775, effective January 1, 2022, extended SB 1437’s application to those convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

PEN 1172.6

Fourth Holding:

Upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. After 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 court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.

Authority:

PEN 1172.6(b), (c)

Fifth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry under section 1172.6, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.

At the prima facie inquiry stage, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

If so, the court must issue an order to show cause. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner. In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

Sixth Holding:

If the petitioner has made a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. Within 60 days after the order to show cause has issued, the trial court must then hold a hearing “to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.

Authority:

PEN 1172.6(c), (d)

Seventh Holding:

In Morris, the Supreme Court construed the language in section 189(e) on the liability of one aiding and abetting first degree murder to require proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 678, 681-686

Eighth Holding:

The jury here was instructed that, if the jury determined that the defendant was not the killer, the defendant could be convicted of murder if the jury found that the defendant, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of robbery, kidnapping, and/or carjacking that resulted in the death of the named human being.

Such a finding is insufficient under Morris to establish the requisite actus reus to the extent the defendant was convicted as a nonkiller.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 683