Tag Archives: Aiding and abetting

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

Case 000590

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in summarily denying the defendant’s Penal Code section 1172.6 petition for resentencing at the prima facie stage.

First Holding:

Effective January 2019, the Legislature amended the law to eliminate liability for murder based on the natural and probable consequences doctrine or theories of imputed malice predicated solely on one’s participation in a crime. As relevant here, section 1172.6 applies to those who pled guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 959

People v. Gaillard (2024) 99 Cal.App.5th 1206, 121

Second Holding:

A trial court considering a section 1172.6 petition must first determine whether the petitioner made a prima facie showing he or she could not presently be convicted under the amended laws. In doing so, the court accepts the petitioner’s factual allegations as true. The court may deny the petition at the prima facie stage only if the record of conviction—which includes facts admitted in a guilty plea—conclusively establishes that the petitioner is ineligible for relief as a matter of law.

Here, as the People concede, the record did not foreclose the possibility that the defendant was convicted under the invalid natural and probable consequences theory. His admissions and factual basis for the guilty plea were generic and did not establish the specific theory of aiding and abetting under which the defendant admitted guilt. Accordingly, they do not establish that he is ineligible for section 1172.6 relief as a matter of law. He pled that he aided and abetted a murder, but the natural and probable consequences doctrine is one theory of aiding and abetting.

Authority:

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

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211. 1212

Third Holding:

We review de novo the trial court’s resentencing denial at the prima facie stage.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

Abstracts and Minutes, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000583

Posted on by Gary McCurdy

Error and/or relief

Though the trial court erred in failing to instruct that mere presence at the scene is insufficient to prove guilt, the error was harmless in light of the other evidence presented. The abstract of judgment is premature. The trial court suspended imposition of sentence and placed the defendant on probation for two years. The abstract of judgment, however, indicates that the defendant was sentenced to state prison for two years. It must be corrected.

First Holding:

The abstract of judgment is premature. The trial court suspended imposition of sentence and placed the defendant on probation for two years. The abstract of judgment, however, indicates that the defendant was sentenced to state prison for two years. it must be corrected.

(GARY note: The court cited no authority for its directive that the abstract of judgment be corrected. Likely because the error and cure seem so obvious. But there is plenty of authority for the court’s order, and I have set out some below.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

We review questions of instructional error de novo. In so doing, we consider the jury instructions as a whole, as well as the charges and entire record.

Authority:

People v. Posey (2004) 32 Cal.4th 193, 218

People v. Serrano (2022) 77 Cal.App.5th 902, 909

Third Holding:

In determining a sufficiency of the evidence challenge, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence.Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

In other words, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The standard is the same in cases in which the People rely primarily on circumstantial evidence. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

People v. Johnson (1980) 26 Cal.3d 557, 578

People v. Cuevas (1995) 12 Cal.4th 252, 261

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

People v. Nguyen (2015) 61 Cal.4th 1015, 1055

People v. Bean (1988) 46 Cal.3d 919, 932

Fourth Holding:

A person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, and (3) by act or advice aids, promotes, encourages or instigates the commission of the crime. Whether a person has aided and abetted a crime is a question of fact for which the trier of fact may consider presence at the scene of the crime, companionship, and conduct before and after the offense. The requisite state of mind may be proven with circumstantial evidence.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1054-1055

Fifth Holding:

Although defendant’s mere presence at the scene cannot alone establish aiding and abetting, her presence may be considered along with other evidence to establish that she aided and abetted the burglary. Further, possession of recently stolen property cannot alone establish burglary, but such possession is highly incriminating and need only be slightly corroborated.

Authority:

People v. Pettie (2017) 16 Cal.App.5th 23, 57

People v. Nguyen (2015) 61 Cal.4th 1015, 1055

People v. Mendoza (2000) 24 Cal.4th 130, 176

People v. McFarland (1962) 58 Cal.2d 748, 754-755

Sixth Holding:

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. The trial court has a sua sponte duty to give the mere presence portion of the aiding and abetting instructions where there is substantial evidence supporting its consideration.

Authority:

People v. Ochoa (1998) 19 Cal.4th 353, 422

People v. Boyd (1990) 222 Cal.App.3d 541, 557

Seventh Holding:

We conclude that the defendant’s testimony was sufficient to trigger the trial court’s sua sponte duty to give the mere presence portion of the aiding and abetting instruction. However, whether prejudice is to be measured under the Watson standard or the more rigorous Chapman standard, we find beyond a reasonable doubt that the failure to instruct was harmless, in light of our review of the entire record, including the arguments of the parties.

Authority:

People v. Boyd (1990) 222 Cal.App.3d 541, 557

People v. Perry (1979) 100 Cal.App.3d 251, 260

People v. Powell (2021) 63 Cal.App.5th 689, 715

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

Chapman v. California (1967) 386 U.S. 18

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

Case 000482

Posted on by Gary McCurdy

Error and/or relief

No substantial evidence supports the juvenile court’s order sustaining allegations relating to property theft. The minor came into the store with two adult males. One of the adults asked the clerk to bring him clothes that matched shoes he had previously purchased. The group took six items into a fitting room. Subsequently, one of the adults asked the clerk for different sizes and she went to the back of the store to get them. When she returned to the fitting room, only the two adults were there. The clerk did not see the minor leave. Security camera footage showed the minor leaving the store about five minutes after the group had entered the fitting room. Shortly thereafter, the two adults came out of the fitting room, returned five items to the clerk, and left. The sixth item, a green sweater, was missing from the store.

The possibility that the minor stole the sweater or otherwise aided and abetted the theft is insufficient. Accordingly, no substantial evidence supports the true findings.

First Holding:

Our review of the minors’ substantial evidence claim is governed by the same standard applicable to adult criminal cases. In reviewing the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Evidence that merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence, it merely raises a possibility, and this is not a sufficient basis for an inference of fact. The substantial evidence rule mandates consideration of the weight of the evidence before deferring to the conclusions drawn from the evidence by the trier of fact.

In determining whether the record is sufficient the appellate court can give credit only to substantial evidence, i.e., evidence that reasonably inspires confidence and is of solid value. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

Authority:

In re V.V. (2011) 51 Cal.4th 1020, 1026

People v. Collins (2025) 17 Cal.5th 293, 307-308

Second Holding:

An aider and abettor is one who acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.

Authority:

People v. Smith (2014) 60 Cal.4th 603, 611

Third Holding:

The possibility that the minor stole the sweater or otherwise aided and abetted the theft is insufficient. Accordingly, no substantial evidence supports the true findings.

Authority:

People v. Collins (2025) 17 Cal.5th 293, 307

In re Leanna W. (2004) 120 Cal.App.4th 735, 741, 744 [where liquor was missing and property was damaged after the minor hosted a party at her grandmother’s home while her grandmother was away, no substantial evidence supported burglary and vandalism findings because the fact that the minor was present when the liquor was used does not show that she actually consumed it, much less that she had the specific intent to take it when she entered the house and there is no evidence that the minor was the person who damaged or destroyed the property]

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

Case: 000432

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the petition for recall of sentence for attempted murder under section 1172.6 because there was insufficient evidence of intent to kill. We reverse the order denying the petition and remand the matter with directions for the trial court to grant the resentencing petition, vacate the attempted murder conviction, and resentence on the remaining charges.

First Holding:

The Legislature enacted SB 1437 (2017–2018 Reg. Sess.) to eliminate the natural and probable consequences doctrine and to limit application of the felony murder rule. Except in cases of felony murder, a principal must act with malice aforethought to be convicted of murder, and malice shall not be imputed to a person based solely on his or her participation in a crime. A defendant convicted of murder or attempted murder under a now-invalid theory may petition the sentencing court to have his or her conviction vacated and to be resentenced on any remaining counts under section 1172.6.

Authority:

PEN 188(a)(3)

People v. Curiel (2023) 15 Cal.5th 433, 448–449

People v. Strong (2022) 13 Cal.5th 698, 708

Second Holding:

At the evidentiary hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under a currently valid theory. If the prosecution fails to sustain its burden of proof, 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.

Authority:

PEN 1172.6(d)(3)

Third Holding:

We review the trial court’s factual findings following a section 1172.6(d) hearing for substantial evidence. We review the entire record in the light most favorable to the court’s order to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Clements (2022) 75 Cal.App.5th 276, 298

People v. Manibusan (2013) 58 Cal.4th 40, 87

Fourth Holding:

To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. A defendant cannot be convicted of attempting to kill someone if the defendant is not aware that person is present. Because direct evidence of a defendant’s intent is rare, intent to kill may be inferred from the defendant’s acts and the circumstances of the crime.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 602

People v. Mumin (2023) 15 Cal.5th 176, 191

People v. Ibarra (2024) 106 Cal.App.5th 1070, 1079

People v. Smith (2005) 37 Cal.4th 733, 741

Fifth Holding:

A defendant may be convicted of attempted murder as a direct aider and abettor. To be convicted under such a theory, the defendant must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1054

Sixth Holding:

Without any evidence that someone inside the co-defendant’s car targeted or otherwise shot at another person when they fired the underlying shots, we can only speculate as to whether the defendant acted with the intent to kill. Speculation is not substantial evidence.

Authority:

People v. Waidla (2000) 22 Cal.4th 690, 735

Seventh Holding:

The trial court also improperly relied on its own experience as a former gang prosecutor when it denied the petition, noting that it had prosecuted several cases against members of a gang in the 1990’s in explaining why it found that the defendant acted with the intent to kill. The court’s personal experience is not evidence.

Authority:

Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 286

Eighth Holding:

When admitting a sentencing enhancement, the defendant admits only the facts necessary to establish the enhancement’s elements.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 338

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

Case: 000331

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to appropriately instruct the jury that, in order to find them guilty of implied malice murder as aiders and abettors, the jury must find that they personally acted with malice.

First Holding:

In order to find the defendants guilty of implied malice murder as aiders and abettors, the jury must find that they personally acted with malice.

Authority:

People v. Langi (2022) 73 Cal.App.5th 972, 982 [the previous standard jury instructions on aider and abettor liability create an ambiguity under which the jury may find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice]

Second Holding:

We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. When we review a purportedly erroneous instruction, we consider whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. We consider the instructions as a whole and assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

Third Holding:

If a trial court incorrectly instructs on an element of a charged offense such that the error impermissibly shifted or lowered the burden of proof for that element, the applicable standard of prejudice is the Chapman standard. Under the Chapman standard, a federal constitutional error requires reversal unless the People show the error was harmless beyond a reasonable doubt.

Authority:

Rose v. Clark (1986) 478 U.S. 570, 570–581

Chapman v. California (1967) 386 U.S. 18, 24

Fourth Holding:

For the error to be harmless, the state must show it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also making the findings that would support a valid theory of liability. While overwhelming evidence may demonstrate harmlessness, a court’s analysis of whether the evidence is overwhelming in this context is not as subjective or free-ranging as that term might imply. Instead, the analysis requires a court to rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well. The question here is not the sufficiency of the evidence to support a valid theory, but its opposite.

Authority:

In re Lopez (2023) 14 Cal.5th 562, 568, 591

Fifth Holding:

In determining whether instructional error that leaves out an element of the offense is harmless, we do not focus exclusively on the evidence favorable to the verdict, and we do not presume the existence of any facts the jury might reasonably infer in favor of the prosecution. We do not view the evidence in the light most favorable to the prosecution. We review the evidence in the light most favorable to the defendant, and in doing so, we do not reweigh the evidence or resolve evidentiary conflicts. The testimony of a single witness may be sufficient—even if there is significant countervailing evidence, and the testimony is subject to justifiable suspicion. If a thorough review of the record shows there is any evidence that a rational juror could find as a basis for reasonable doubt as to any erroneously omitted element, then the error requires reversal, even when there is ample evidence to support a finding of guilt.

Authority:

People v. Madrigal (2023) 93 Cal.App.5th 219, 243

People v. Mil (2012) 53 Cal.4th 400

People v. Valenti (2016) 243 Cal.App.4th 1140, 1166, 1167

People v. Barnwell (2007) 41 Cal.4th 1038, 1052

Sixth Holding:

Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. Malice may be either express, i.e., when a defendant manifests an intention to kill, or implied. Malice is implied 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. Thus, implied malice includes an objective component—an act that is dangerous to life—and a subjective component—the defendant’s awareness of and disregard for the danger. Intent to kill may be inferred from the defendant’s acts and the circumstances of the crime. A person can be convicted of aiding and abetting second degree murder based on implied malice.

Authority:

People v. Clements (2022) 75 Cal. App. 5th 276, 299

People v. Smith (2005) 37 Cal.4th 733, 741

People v. Reyes (2023) 14 Cal.5th 981, 990

People v. Gentile (2020) 10 Cal.5th 830, 850 [Notwithstanding SB 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]

Seventh Holding:

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:

ADPeople v. Reyes (2023) 14 Cal.5th 981, 991

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

Case: 000329

Posted on by Gary McCurdy

Error and/or relief

Habeas petition granted, because the defendant was convicted of first degree murder as an aider and abettor under the natural and probable consequences doctrine found improper under Chiu, decided shortly after his conviction was final. The record does not establish beyond a reasonable doubt he was convicted of first degree murder under another, valid theory of liability. We grant the petition and remand to the trial court so the People may decide whether to retry petitioner on the first degree murder charge or accept a reduction of the conviction to second degree murder.

First Holding:

An aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Natural and probable consequences liability cannot extend to first degree premeditated murder because punishing someone for first degree premeditated murder when that person did not actually perpetrate or intend the killing is inconsistent with reasonable concepts of culpability.

Authority:

People v. Chiu (2014) 59 Cal.4th 155, 165

Second Holding:

This holding is retroactive to convictions already final at the time Chiu was decided.

Authority:

In re Martinez (2017) 3 Cal.5th 1216, 1222

Third Holding:

When a trial court instructs a jury on two theories of guilt, one of which was legally correct [e.g., direct aiding and abetting] and one legally incorrect [i.e., natural and probable consequences], reversal is required, unless the court concludes beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder.

Authority:

People v. Chiu (2014) 59 Cal.4th 155, 165, 167

In re Lopez (2023) 14 Cal.5th 562, 568 [a reviewing court may hold the error harmless where it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also making the findings that would support a valid theory of liability]

Amelioration, Appellate Principles, Elements of crime, Retroactivity, Standard of review, Vicarious liability

Case: 000295

Posted on by Gary McCurdy

Error and/or relief

There are two defendants, both convicted of murder and other matters. We reverse all counts of the conviction of Defendant A because of instructional error. It is therefore not necessary for us to consider the other errors urged by Defendant A. As to Defendant B, we reverse the conviction on the firearm offenses because of instructional error, and agree that the jury’s true findings on gang enhancements and related gang-related firearm enhancements must be vacatedand remanded because of changes in the law of gang criminal activity.

[GARY NOTE: The opinion is 70 pages long and goes into extensive discussion of the elements of murder. The reversals were based on the absence of proper jury instructions. I have chosen to summarize only a few of the pronouncements in the opinion rather than present a treatise on the elements of murder. I will, however, send the opinion to attorneys on request.]

First Holding:

Due to the trial court’s failure to instruct the jury on the meanings of “willfully,” “deliberately,” and “with premeditation,” or with the instructions describing aider and abettor liability for murder, Defendant A’s conviction for first degree murder requires reversal.

To be guilty of first degree murder as an aider and abettor, the jury must be instructed that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.

Authority:

People v. Beeman (1984) 35 Cal.3d 547, 561

Second Holding:

We evaluate the failure to instruct the jury on an element of an offense for prejudice under Chapman. Under this standard, we must reverse the conviction unless after examining the entire cause, including the evidence, and considering all relevant circumstances, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

People v. Beck and Cruz (2019) 8 Cal.5th 548, 642

People v. Swain (1996) 12 Cal.4th 593, 607

Third Holding:

We review a claim of instructional error de novo. Review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. Generally, the trial court is required to instruct the jury on the general principles of law that are closely and openly connected with the evidence and that are necessary to the jury’s understanding of the case. It also has a duty to refrain from giving incorrect instructions or instructions on principles of law that are irrelevant and that would have the effect of confusing the jury or relieving it from making findings on the relevant issues. The trial court’s duty in this regard extends to lesser included offenses that find substantial support in the evidence. In determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 581, 584

People v. Barber (2020) 55 Cal.App.5th 787, 798-799

People v. Thomas (2023) 14 Cal.5th 327, 388–389

People v. Breverman (1998) 19 Cal.4th 142, 162

People v. Covarrubias (2016) 1 Cal.5th 838, 926

Fourth Holding:

An erroneous failure to instruct on a lesser included offense requires reversal of a conviction if, taking into account the entire record, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. In a noncapital case, a failure to instruct sua sponte on a lesser necessarily included offense that is supported by the evidence is state law error that we review for prejudice under Watson. Under Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error. We also consider the instructions as a whole, the jury’s findings, and the closing arguments of counsel.

Authority:

People v. Breverman (1998) 19 Cal.4th 142, 169, 178

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Ledesma (2006) 39 Cal.4th 641, 716

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

People v. Beltran (2013) 56 Cal.4th 935, 955

People v. Larsen (2012) 205 Cal.App.4th 810, 831

Fifth Holding:

We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. When we review a purportedly erroneous instruction, we consider whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

Sixth Holding:

AB 333 amended section 186.22, by, among other things, modifying the definitions of “pattern of criminal activity” and “criminal street gang,” as well as clarifying what is required to establish that an offense benefits, promotes, furthers, or assists a criminal street gang. Section 186.22 now requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.

To benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Authority:

People v. Perez (2022) 78 Cal.App.5th 192, 206

People v. Lopez (2021) 73 Cal.App.5th 327, 345

Seventh Holding:

Because the changes to the criminal street gang statute in AB 333 are ameliorative,those changes apply retroactively to defendants whose convictions are not yet final.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206–1207

Abstracts and Minutes, Amelioration, Elements of crime, Sentencing, Vicarious liability

Case: 000260

Posted on by Gary McCurdy

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

Amelioration, Sentencing, Standard of review

Case: 000183

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition for recall filed under Penal Code section 1172.6 his attempted murder conviction. His guilty plea did not conclusively establish his ineligibility for resentencing as a matter of law and the court improperly engaged in factfinding to determine his eligibility for relief. We conclude the court erred in denying the petition at the prima facie stage without issuing an order to show cause. Because the record does not conclusively show that the defendant acted with the specific intent to kill, it cannot establish ineligibility for section 1172.6 relief as a matter of law. At minimum, the petition raised a factual question requiring further inquiry, and the trial court was not permitted to resolve that question against him at the prima facie stage.

First Holding:

When evaluating a petition for resentencing under section 1172.6, the trial court must determine at the prima facie stage whether the petitioner made a showing entitling them to relief. Although the court may consult the record of conviction to assess eligibility, it is prohibited from engaging in factfinding, weighing the evidence, or exercising its own discretion. The court generally must accept the petitioner’s factual allegations as true unless they are conclusively refuted by the record of conviction.

A court may deny a petition at the prima facie stage only if the record of conviction demonstrates, incontrovertibly and as a matter of law, that the petitioner is ineligible for relief. Unless the record “conclusively establishes” that the defendant committed the acts and harbored the mental state required for liability under a still-valid theory, the allegations of the petition may not be disregarded. And if the petitioner could, at an evidentiary hearing, present evidence rebutting the record, the matter necessarily involves factual determinations that cannot be resolved at the prima facie stage.

Authority:

PEN 1172.6

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

People v. Ervin (2021) 72 Cal.App.5th 90, 101

People v. Rivera (2021) 62 Cal.App.5th 217, 230

People v. Estrada (2024) 101 Cal.App.5th 328, 339

Second Holding:

Applying these principles, we independently review the trial court’s denial of resentencing. We review factual findings for substantial evidence but evaluate the trial court’s legal conclusions de novo. Under this standard, the record of conviction does not conclusively establish that the defendant is ineligible for relief as a matter of law.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

People v. Arnold (2023) 93 Cal.App.5th 376, 383

Third Holding:

Before SB 1437 and 775, a defendant could be convicted of attempted murder either by directly aiding and abetting with the intent to kill or under the natural and probable consequences doctrine. Following those statutory amendments, liability based on the natural and probable consequences doctrine is no longer valid for attempted murder, but direct aiding and abetting with intent to kill remains a valid theory. A petitioner is therefore eligible for resentencing only if the conviction could have been based on the natural and probable consequences doctrine.

Because the defendant’s plea is fully consistent with both theories—(1) direct aiding and abetting with intent to kill, and (2) aiding another offense whose natural and probable consequence was attempted murder—the record does not foreclose the latter, invalid theory. The absence of any explicit admission of intent to kill is critical. A defendant’s guilty plea to attempted murder does not, by itself, establish that he personally harbored express malice; defendants routinely plead to charges for reasons unrelated to their precise mental state, including the reasonable belief that a jury might convict under an at-the-time valid imputed-malice theory.

Authority:

People v. Rodriguez (2024) 103 Cal.App.5th 451, 456–457

People v. Coley (2022) 77 Cal.App.5th 539, 546, 548

Amelioration, Duty of the court, Sentencing, Standard of review, Vicarious liability

Case: 000181

Posted on by Gary McCurdy

Error and/or relief

The trial court employed an incorrect standard of review for determining whether the defendant’s petition for recall of sentence under Penal Code section 1172.6 should be denied. Reversed and remanded for another new hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) 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. The legislation amended section 188 to provide that, except in cases of felony murder, in order to be convicted of murder, a principal in a crime shall act with malice aforethought.

It also created, in what is now section 1172.6, a mechanism for individuals convicted of qualifying offenses to petition for resentencing. If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. At that 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 California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6

PEN 188(a)

People v. Reyes (2023) 14 Cal.5th 981, 986,

Second Holding:

On appeal from the denial of a section 1172.6 petition after an evidentiary hearing, the appellate court reviews the superior court’s factual findings for substantial evidence and the court’s application of the law to those facts de novo.

Authority:

People v. Hill (2024) 100 Cal.App.5th 1055, 1066

Third Holding:

For the trial court to properly conclude, beyond a reasonable doubt, that defendant here was guilty of murder under the law as amended, the People had to prove he was the actual killer, or that he directly aided and abetted the murder and thus possessed malice aforethought. Felony murder is not at issue in this case.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 710 [sec. 1172.6 relief is unavailable if the defendant was the actual killer]

People v. Gentile (2020) 10 Cal.5th 830, 848 [SB 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought], [abrogated on another ground as stated in People v. Oyler (2025) 17 Cal.5th 756, 836]

Fourth Holding:

It was an error for the trial court to conclude that the court had to determine whether the People could prove they could obtain a conviction of the defendant based on basic accomplice liability or whether he acted with reckless disregard for the life of the victim. The correct standard for the trial court at defendant’s section 1172.6 evidentiary hearing was whether the prosecution has proved, beyond a reasonable doubt, that defendant is guilty of murder under California law as amended.

The trial court’s reference to whether defendant acted with reckless disregard for life is inapposite, because that aspect is relevant only in the context of whether a defendant was a major participant in the commission of a different felony who acted with reckless indifference to human life–i.e., it is relevant only to felony murder, which is not at issue in this case. Further, the trial court found beyond a reasonable doubt that a reasonable jury would convict the defendant as he was charged. But at the section 1172.6 hearing, it is the trial court that is the fact finder tasked with holding the People to the beyond a reasonable doubt standard.

Authority:

People v. Harris (2024) 105 Cal.App.5th 623, 632

Abstracts and Minutes, Jury trial, Sufficiency of and substantial evidence, Vicarious liability

Case: 000111

Posted on by Gary McCurdy

Error and/or relief

We affirm the judgment of conviction as to defendant A. We reverse defendant B’s count 1 felony murder conviction, and otherwise affirm his judgment. The People concede both abstracts of judgment must be amended; we agree and remand with directions. The People concede and we agree the abstracts of judgment erroneously state that the convictions in counts 2, 4, and 6 are for first degree robbery. Both defendants were charged with second degree robbery, and the juries were instructed only on that theory. There are several other errors in the abstracts of judgment that must be corrected.

First Holding:

When reviewing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence which is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Navarro (2021) 12 Cal.5th 285, 302

People v. Albillar (2010) 51 Cal.4th 47, 60

Second Holding:

Defendant A [the actual killer] contends there was no evidence he aided and abetted Defendant B in the count 6 robbery and count 7 assault. A person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. Mere presence at the scene of a crime or knowledge of, but failure to prevent the crime, are not sufficient to establish aiding and abetting its commission. However, factors which may be considered to determine aiding and abetting include presence at the scene of the crime, companionship, and conduct before and after the offense.

Authority:

People v. McCoy (2001) 25 Cal.4th 1111, 1117

People v. Hill (1998) 17 Cal.4th 800, 851

People v. Campbell (1994) 25 Cal.App.4th 402, 409

Third Holding:

Section 189(e) provides that a participant in a specified felony is liable for murder for a death during the commission of the offense only if one of the following is proven: (1) The person was the actual killer. (2) The person, with the intent to kill, aided, abetted, or assisted the actual killer. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189(e)

Fourth Holding:

There are several factors courts should consider in determining whether, under the totality of the circumstances, a defendant was a major participant in the underlying felony who acted with reckless indifference to human life: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? Reckless indifference and the element of major participant significantly overlap, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 803

People v. Clark (2016) 63 Cal.4th 522, 615

Fifth Holding:

Defendant B was not the actual killer, but was convicted on the basis of felony murder (item (3)). We need not decide whether, under the circumstances of this case, defendant was a major participant because we conclude that the evidence was insufficient to support that he exhibited reckless indifference to human life. The actus reus for the felony-murder aider and abettor special circumstance requires more than simply being an aider and abettor of the underlying felony under section 31. The special circumstance requires that the defendant be a major participant in the underlying felony.

Likewise, the mens rea requirement for the felony-murder aider and abettor special circumstance is different from that required for first degree felony murder. The special circumstance requires that the defendant have reckless indifference to human life. A defendant’s knowing participation in a robbery with others who are armed is insufficient, without more, to prove the defendant acted with reckless indifference to human life. Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient, because a defendant must knowingly create a grave risk of death through the defendant’s own actions. Reckless indifference encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of the defendant’s actions. Reckless indifference to human life has both a subjective and an objective element.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 615-617

People v. Banks (2015) 61 Cal.4th 788, 794, 807-810

People v. Strong (2022) 13 Cal.5th 698, 706

In re Scoggins (2020) 9 Cal.5th 667, 677

Sixth Holding:

In committing the count 1 felony robbery, Defendant A entered the convenience store alone, and therefore Defendant B had no opportunity to restrain him, or to aid the victim. The evidence does not prove beyond a reasonable doubt that Defendant B was aware, when they left the third convenience store, that Defendant A had killed the victim. This factor weighs against a finding of reckless indifference. Defendant B had no meaningful opportunity to aid the victim before the shooting.

However contemptible the court may find a defendant’s conduct following a killing, the governing standard is not satisfied by evidence that the defendant was generally indifferent to the fact that someone has been killed. It requires evidence that, at the time of the shooting, the defendant acted with indifference toward the grave risk that someone could be killed. Though the former may be evidence of the latter, it is insufficient, standing alone, to support murder liability. While it is true a defendant’s willingness to engage in an armed robbery with individuals known to him to use lethal force may give rise to the inference that the defendant disregarded a grave risk of death, no evidence was presented at trial that Defendant A was known to have a propensity for violence, let alone evidence indicating that Defendant B was aware of such a propensity.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 894-895

Tison v. Arizona (1987) 481 U.S. 137, 157

Seventh Holding:

The abstracts of judgment contain several errors that must be corrected. The abstracts of judgment erroneously state that the convictions in three counts are for first degree robbery. The verdict forms do not specify the degree of the robberies. But under California law, upon the failure of the jury or the court to determine the degree of the crime of which the defendant is guilty, it shall be deemed to be of the lesser degree. Therefore, we conclude that the robberies in the three counts are in the second degree.

The jury convicted both defendants of being a felon in possession of a firearm and not a “convicted felon and narcotic” as stated in the abstracts of judgment. As to Defendant A, the abstract of judgment shows the court imposed a consecutive full term of three years for one of the counts. However, the court orally stated, “Under [that count], the court is going to use one-third the midterm for that charge of one year, and that will run consecutive to the determinate terms under [two other counts].” Given this discrepancy, the oral pronouncement of judgment controls.

Authority:

PEN 1157

People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.