Tag Archives: SB 1437

Generically SB 1437 and SB 775 regarding redefining vicarious liability for murder and attempted murder and the process for obtaining relief and resentencing.

Amelioration, Elements of crime, Sentencing

Case 000986

Posted on by Gary McCurdy

Error and/or relief

We reverse the denial of the defendant’s petition for recall under section 1172.6 at the prima facie stage, and remand for further proceedings because the record of conviction does not conclusively establish as a matter of law that defendant is ineligible for relief as required at the prima facie stage of section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 (2017-2018 Reg. Sess.) was enacted to amend 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.

SB 1437 amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that malice shall not be imputed to a person based solely on his or her participation in a crime. This language eliminated the use of the natural and probable consequences doctrine in second degree murder prosecutions.

SB 775 (2021-2022 Reg. Sess.) expanded the scope of those changes to encompass, among other things, murder convictions 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.

Authority:

PEN 1172.6

People v. Harden (2022) 81 Cal.App.5th 45, 51

People v. Gentile (2020) 10 Cal.5th 830, 846

People v. Langi (2022) 73 Cal.App.5th 972, 978

Second Holding:

Section 1172.6 creates a petition process for an eligible defendant to seek to be resentenced. Section 1172.6(b) and (c) create the process for evaluating the petition. First, the trial court must determine whether the petition is facially sufficient under section 1172.6(b). If the petition is facially sufficient, the court must appoint counsel (if requested) and follow the briefing schedule set forth in the statute. Following the completion of this briefing, the trial court must hold a hearing to determine whether the petition has made a prima facie showing that the petitioner is entitled to relief.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960-962, 966

Third Holding:

While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1172.6 relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, 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.

A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. 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.

Stated another way, a petition for resentencing may be denied at the prima facie stage where the record of conviction, including items such as the jury instructions and associated findings, establishes a defendant’s ineligibility for relief as a matter of law.

Authority:

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

People v. Curiel (2023) 15 Cal.5th 433, 459-461

Fourth Holding:

Defendant’s jury in 2013 was given the murder instruction under CALCRIM No. 520 and aider and abettor instructions under CALCRIM Nos. 400 and 401. The jury ultimately found defendant guilty of second degree murder.

Under these instructions, the perpetrator’s purpose need not have been to kill the victim; the aider and abettor’s knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the perpetrator need not have had murderous intent, certainly the aider and abettor need not have had such an intent.

Although the definition of second degree murder in CALCRIM No. 520 states that the perpetrator must have acted with conscious disregard for human life, the definition of an aider and abettor in CALCRIM No. 401 does not include the same requirement. Thus, under the instructions that were given, the jury was entitled to conclude that, to be guilty as an aider and abettor of second degree murder, the defendant need only have intended to encourage the perpetrator’s intentional act—in this case, assaulting the victim—whether or not the defendant intended to aid or encourage the victim’s killing, and whether or not he personally knew of and disregarded the risk of such a killing.

This possible application of defendant’s instructions establishes a prima facie case for a section 1172.6 petition.

Authority:

People v. Langi (2022) 73 Cal.App.5th 972, 984

Fifth Holding:

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. The prima facie bar was intentionally and correctly set very low.

Authority:

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

Sixth Holding:

The record of conviction therefore does not establish defendant is ineligible for relief under section 1172.6 as a matter of law. In order to conclude defendant is ineligible for relief as a matter of law, we would have to weigh the evidence and find defendant to have been the actual killer, which would be impermissible at this stage. The trial court consequently erred by denying defendant’s section 1172.6 petition at the prima facie stage.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 20

People v. Maldonado (2023) 87 Cal.App.5th 1257, 1269

Amelioration, Appellate Principles, Sentencing

Case 000940

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition for recall under section 1172.6, challenging his convictions for murder. The petition was denied, and the denial was affirmed on appeal. The opinion noted that the defendant had not challenged his convictions for attempted murder. The defendant then filed a section petition to challenge his convictions of attempted murder in light of legislation enacted to encompass attempted murder under section 1172.6. The trial court summarily denied that petition on the grounds that he had already filed a petition that had been denied.

That was error.

First Holding:

On January 1, 2019, SB. 1437 eliminated the natural and probable consequences doctrine as a basis for murder and limited the scope of the felony murder rule. SB 1437 also created the resentencing procedure at issue here. The defendant filed his first section 1172.6 petition seeking resentencing of his conviction for second degree murder pursuant to the changes to the law effectuated by SB 1437.

On January 1, 2022, while the defendant’s first petition was pending, SB 775 further amended the Penal Code to eliminate the natural and probable consequences doctrine as a theory of liability for attempted murder.

Authority:

SB 1437

SB 775

PEN 1172.6

Second Holding:

The defendant’s first petition sought resentencing of the murder conviction only. This court expressly did not consider the attempted murder convictions as they had not been presented for resentencing in the trial court.

The denial of the first petition did not prevent the defendant from subsequently seeking resentencing of the attempted murder convictions once that relief became available due to changes in the law. The second petition was not the same as the first.

We therefore reverse the trial court order denying the defendant’s second petition for resentencing. On remand, the trial court must appoint counsel for the defendant and conduct further proceedings under section 1172.6 as to his attempted murder convictions.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 949–951

Amelioration, Appellate Principles, Effective assistance of counsel, Sentencing, Sixth Amendment, Standard of review

Case 000888

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. There could be no rational tactical reason for defense counsel to concede that the defendant was ineligible.

First Holding:

In 2018, the Legislature amended the definition of felony murder in section 189 to restrict culpability for murder to actual killers, aiders and abettors, and anyone who was a major participant in the underlying felony and acted with reckless indifference to human life unless the victim was a peace officer.

At the same time, the Legislature added section 1170.95, later renumbered to section 1172.6, which allows a person convicted of felony murder or murder under the natural and probable consequences doctrine, to file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts, if, among other things, the petitioner could not presently be convicted of murder because of the changes to the law wrought by SB 1437. I

f the petition makes a prima facie case for relief the court must hold an evidentiary hearing. At this hearing, the People have the burden to prove beyond a reasonable doubt that the petitioner is guilty of murder under the law as it exists now, with the trial judge sitting as factfinder.

Authority:

PEN 189

PEN 1172.6

Second Holding:

When conducting a prima facie review, the court takes the 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 the record of conviction does not conclusively demonstrate that the defendant engaged in the requisite acts and had the requisite intent to be convicted on a theory of murder that remains valid, denying relief at the prima facie stage is improper.

A preliminary hearing transcript is part of the record of conviction for these purposes, and courts may rely on them when reviewing petitions at the prima facie stage.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 975

People v. Barboza (2021) 68 Cal.App.5th 955, 965-966

People v. Patton (2025) 17 Cal.5th 549, 568 [there is no dispute that the record of conviction the parties may consult at the prima facie stage includes a preliminary hearing transcript preceding a guilty plea.]

Third Holding:

We review the trial court’s decision at the prima facie stage de novo. Reviewing de novo, we therefore find that the defendant established a prima facie case for relief, and the trial court should not have denied his petition for failing to do so.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Fourth Holding:

At the hearing, the defendant’s counsel stated that he was appointed to determine eligibility pursuant to 1172.6, and concluded the defendant was not eligible.

The defendant’s counsel cited cases involving defendants who made a prima facie showing for the proposition that a guilty plea is a judicial admission. That it’s an admission that he was, in fact, the killer, and therefore the defendant could not state a prima facie case for relief. Based on this, the court summarily denied the defndant’s petition.

Contrary to the court’s and counsel’s understanding below, a guilty plea (without more) is not an admission to any particular theory of guilt, and therefore cannot render a defendant ineligible for relief as a matter of law.

Moreover, the record of conviction, including the preliminary hearing transcript, does not contain any facts definitively foreclosing the defendant’s eligibility for relief. It is undisputed that the defendant was not the sole participant in either the burglary or murder of the victim.

Nor is there any clear evidence the defendant was the actual killer—indeed, the only evidence presented suggests that the co-defendant, not not the defendant, was the actual killer.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 977 [By pleading guilty, the defendant admitted every element of the charged offense but the defendant did not admit facts supporting liability on any particular theory. Accordingly, the guilty plea did not constitute an admission that the defendant acted with malice.]

Fifth Holding:

The People assert the doctrine of invited error. The doctrine of invited error is an application of the estoppel principle and applies when a party invites the court or the jury to commit error.

Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error. It is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest.

However, for the doctrine to apply, it must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. In order to apply the doctrine, the record must show only that counsel made a conscious, deliberate tactical choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice.

In other words, the invited error doctrine applies so long as counsel made a conscious, tactical choice even if such choice was based on a misunderstanding of the law.  We conclude that on this record defense counsel’s decision to concede that the defendant is ineligible for relief was not a deliberate tactical choice.

Put simply, there was no possible tactical purpose for counsel’s decision to concede the matter. The defendant did not stand to receive any possible benefit from this concession, and therefore the decision to concede could only have been a genuine mistake.

Authority:

People v. Midell (2025) 113 Cal.App.5th 1060, 1072

Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

People v. Cooper (1991) 53 Cal.3d 771, 83

People v. Duncan (1991) 53 Cal.3d 955, 970

People v. Wader (1993) 5 Cal.4th 610, 658

Sixth Holding:

Even if the invited error doctrine did apply, we would still reach the merits.

Because a deliberate tactical choice by counsel may be an incompetent one, courts have recognized that defendants barred from raising error under the invited error doctrine may instead claim they received ineffective assistance of counsel.

However, courts may also address the merits of an otherwise procedurally barred claim in order to avert any claim of inadequate assistance of counsel. T

hus, even if we concluded the defendant had invited the error he now complains of, we would exercise our discretion to reach the merits anyway to avoid the same result obtaining through an ineffective assistance of counsel claim.

We reverse the order denying the defendant’s section 1172.6 petition and remand. On remand, we direct the trial court to issue an order to show cause and to conduct further proceedings as required under section 1172.6.

Authority:

People v. Wader (1993) 5 Cal.4th 610,

People v. Yarbrough (2008) 169 Cal.App.4th 303, 310

Amelioration, Sentencing, Standard of review, Vicarious liability

Case 000884

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition for resentencing under Penal Code section 1172.6 at the prima facie stage on the ground that the record of conviction showed the defendant is ineligible for resentencing. The trial court exceeded the limited scope of review permitted at the prima facie stage under section 1172.6 and engaged in fact finding that should have been reserved for the evidentiary stage.

First Holding:

Under section 1172.6 the prima facie inquiry is limited. While a court may consider whether the record of conviction refutes eligibility allegations at this stage, a trial court should not engage in fact finding involving the weighing of evidence or the exercise of discretion. Indeed, at the prima facie stage, the strength of the evidence in the record is not material.

Instead, at the prima facie stage the question in applying section 1172.6 is not whether it is likely that the defendant was convicted of murder on a now-invalid grounds but whether the court’s jury instructions or other aspect of the record of conviction foreclose that possibility that possibility as a matter of law.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 562, 564, 567 fn. 10

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

People v. Curiel (2023) 15 Cal.5th 433, 470

Second Holding:

Although the verdict and jury instructions on the special circumstance found true by the jury showed that two of the three requirements for direct aiding and abetting liability were satisfied, the record of conviction did not show that the final requirement was satisfied and, thus, did not establish direct aiding and abetting liability as a matter of law.

In addition, while the special circumstance finding suggests that the jury found the defendant guilty of murder based on direct aiding and abetting, which remains a valid theory, it is possible that the jury found him guilty based on conspiracy and a natural and probable consequences theory, which is now invalid.

Under the strict test that the Supreme Court has interpreted section 1172.6 to impose, the record of conviction does not conclusively refute the defendant’s allegations that he was convicted of a now-invalid theory of murder, and the trial court should have proceeded beyond the prima facie stage to an evidentiary hearing to determine whether in fact he was convicted based on a now-invalid theory.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 470

Third Holding:

We review trial court orders at the prima facie stage de novo.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Fourth Holding:

in determining whether a prima facie case has been shown, trial courts may examine jury instructions, the verdict, and other parts of the record of conviction to determine whether that record refutes the petition’s allegations. But at the prima facia stage, hearing transcripts may not be used to prove disputed facts. If the record of conviction contains facts refuting the allegations in the petition, then the court is justified in making a credibility determination adverse to the petitioner. However, the record of conviction must establish conclusively such facts.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 568

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

Fifth Holding:

To establish liability for murder under the theory of direct aiding and abetting, the prosecution must show that the defendant [1] aided or encouraged the commission of the murder [2] with knowledge of the unlawful purpose of the perpetrator and [3] with the intent or purpose of committing, encouraging, or facilitating its commission. The trial court’s special circumstance finding established only two of these requirements.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 466

Amelioration, Sentencing, Standard of review

Case 000877

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition under section 1172.6 by construing the jury’s verdicts on two firearm enhancements as reflecting a finding that the defendant killed the victim by personally discharging a firearm.

First Holding:

In 2018, the Legislature enacted SB 1437 (2017-2018 Reg. Sess.) and altered the substantive law of murder in two areas.

First, with certain exceptions, it narrowed the application of the felony-murder rule by adding section 189(e) to the Penal Code. Under that provision, A participant in the perpetration or attempted perpetration of a specified felony 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).

Second, SB 1437 imposed a new requirement that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. Malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

SB 1437

PEN 189

PEN 188

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

People v. Morris (2026) 19 Cal.5th 671, 682 [discussing narrowed scope of the felony-murder rule]

Second Holding:

SB 1437 also created a mechanism for defendants convicted under now-invalid theories of murder to seek resentencing. Upon receipt of a petition containing the required information, the trial court must appoint counsel for the defendant if requested, hold a hearing, and determine if the petition has made a prima facie case for relief.

If a petitioner demonstrates a prima facie entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty of murder under a still-valid theory.

In deciding whether a petitioner has demonstrated a prima facie case, the court takes the 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.

At this stage, a court should not reject the petitioner’s factual allegations on credibility grounds

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 556, 558, 563

Third Holding:

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.

Where facts from the record of conviction are undisputed, accepting them over contrary legal allegations that are merely conclusory is not factfinding involving the weighing of evidence or the exercise of discretion.

At this preliminary stage, denial of a section 1172.6 petition is proper only if the petition and record in the case establish conclusively that the defendant is ineligible for relief.

Whether the record of conviction shows the petitioner is ineligible for section 1172.6 relief as a matter of law is a legal question that we review de novo.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 565-566

People v. Lopez (2026) 19 Cal.5th 639, 658

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Fourth Holding:

The People concede that the trial court erred in relying on the true findings on the firearm enhancements as a basis to deny relief at the prima facie stage.

We accept this concession because, contrary to the trial court’s reasoning, the verdicts on the firearm enhancements do not establish that the jury found the defendant guilty as the actual killer. The trial court instructed the jury that it could find the enhancements true if the defendant intentionally displayed a firearm in a menacing manner, intentionally fired it or intentionally struck or hit a human being with it.

Nothing in this instruction thus required the jury to find that the defendant himself shot and killed the victim.

The People contend that the trial court’s error was harmless in light of a record of conviction that shows the defendant was prosecuted and found guilty as the actual killer. They nevertheless concede that the defendant is entitled to an opportunity to amend his petition. We agree that remand is appropriate.

Patton held that a petitioner who offers only conclusory allegations of entitlement to relief under section 1172.6, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima facie showing. The Patton court remanded the matter to allow that defendant to plead additional facts in support of a prima facie case for relief.

We remand to give the defendant an opportunity to plead facts he believes will demonstrate a prima facie case for relief.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 569-570

Amelioration, Appellate Principles, Elements of crime, Standard of review, Statutory interpretation, Vicarious liability

Case 000852

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. Remanded for an evidentiary hearing.

First Holding:

Morris held that an aider and abettor of murder must actually aid and abet the lethal act in order to be convicted of murder, we agree with defendant that the record of conviction does not show he was convicted as either the actual killer or as an aider and abettor who acted with the intent to kill as a matter of law,

Authority:

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

Second Holding:

SB 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, significantly limited the scope of California’s felony-murder rule and eliminated liability for murder under the natural and probable consequences doctrine through two key statutory provisions.

Section 189 was amended so that a defendant is liable for felony murder only if he was (1) the actual killer, (2) a direct aider and abettor with the intent to kill, or (3) a major participant in the underlying felony and acted with reckless indifference to human life.

Section 188 was amended to impose a new requirement that, except in cases of felony murder, a principal in the crime of murder can only be convicted where he or she acted with malice aforethought, and malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 189

PEN 188

People v. Strong (2022) 13 Cal.5th 698, 707-708

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

People v. Love (2025) 107 Cal.App.5th 1280, 1286

People v. Antonelli (2025) 17 Cal.5th 719, 724

People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 931

Third Holding:

A person convicted of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced.

Authority:

PEN 1172.6

Fourth Holding:

Courts may not engage in factfinding at the prima facie 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.

A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. At the prima facie hearing, the court may consider the record of conviction. The record of conviction includes jury verdicts, jury instructions, and closing arguments.

This does not include our appellate opinion. The factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for resentencing. If such evidence may not be considered at an evidentiary hearing to determine a petitioner’s ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner’s ineligibility for resentencing at the prima facie stage.

If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

Authority:

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

People v. Harden (2022) 81 Cal.App.5th 45, 54-56 [considering jury instructions and verdicts to determine whether defendant made prima facie showing of eligibility]

People v. Ervin (2021) 72 Cal.App.5th 90, 106 [considering sentencing enhancements, jury instructions, closing arguments, and verdicts at prima facie stage]

People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. omitted

People v. Clements (2022) 75 Cal.App.5th 276, 292 [Trial judges should not rely on the factual summaries contained in prior appellate decisions when a section 1172.6 petition reaches the stage of a full-fledged evidentiary hearing.]

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

Fifth Holding:

We independently review a trial court’s determination of whether a petitioner has made a prima facie showing. We may affirm a ruling that is correct in law on any ground.

Authority:

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

People v. Cortes (2022) 75 Cal.App.5th 198, 204

Sixth Holding:

For a person to be convicted of murder as an aider and abettor, the person must aid and abet the actual killer in the lethal act itself, and not just in the underlying felony.

Here, the record of conviction does not establish as a matter of law that defendant participated in aiding and abetting the kidnapping and other acts that led to the victim’s death and that he acted with the intent to kill. We thus reverse the trial court’s order and remand the matter with directions to issue an order to show cause and to conduct an evidentiary hearing.

Authority:

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

Amelioration, Discretion, Duty of the court, Retroactivity, Sentencing, Sixth Amendment, Standard of review

Case 000842

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, the appellate court reversed the denial of the defendant’s petition for recall of sentence under section 1172.6 and ordered the trial court to grant the petition. On remand, the trial court granted the motion and redesignated the offense as three counts, and imposed the upper term.

It was error to resurrect and redesignate for sentencing counts that were dismissed in the original plea negotiations. It was also error to impose the upper term on circumstances in aggravation that were not submitted to a jury for proof beyond a reasonable doubt.

First Holding:

When the trial court granted the defendant’s petition for resentencing under section 1172.6, his judgment became nonfinal and was subject to the retroactive application of AB 333. AB 333 made changes to the law on gang enhancements and narrowed the definition of a criminal street gang.

The defendant’s admission under the former law does not satisfy the elements now required under the current law. The stipulation at the preliminary hearing that the [named gang] was an ongoing street gang that engages in a pattern of criminal activity pursuant to section 186.22(f) is insufficient under any standard to prove either the gang enhancement or the gang offense under current law.

Authority:

People v. Trent (2025) 112 Cal.App.5th 251, 262–263 [once petition for resentencing under sec. 1172.6 is granted, judgment is no longer final]

People v. Lopez (2025) 17 Cal.5th 388, 393 [AB 333 is retroactive to nonfinal judgments]

In re Estrada (1965) 63 Cal.2d 740

People v. Silva (2021) 72 Cal.App.5th 505, 526–527

Second Holding:

When a murder or attempted murder conviction is set aside under section 1172.6, the petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the murder or attempted murder was charged generically, and the target offense was not charged.

Authority:

PEN 1172.6(e)

Third Holding:

Section 1172.6 does not define what constitutes an underlying felony or target offense, but our high court in Arellano held that the meaning of these terms is clear—an underlying felony refers to the felony underlying a felony-murder theory, and the target offense refers to the offense the natural and probable consequence of which was murder.

Authority:

People v. Arellano (2024) 16 Cal.5th 457

People v. Lara (2025) 108 Cal.App.5th 1005 [the trial court erred by resurrecting counts dismissed in the parties’ plea agreement on resentencing]

Fourth Holding:

Application of the trial court’s resentencing discretion under section 1172.6(e) here is circumscribed by the prosecution’s exercise of charging discretion in the original proceeding. Here, that limitation is the district attorney’s election to dismiss all charges involving [victim 1] as well as the substantive gang count in return for the defendant’s plea to a single count of attempted second degree murder of [victim 2].

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 476 [deeming it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions  every time a petitioner succeeds in setting aside a  conviction under section 1172.6]

People v. Lara (2025) 108 Cal.App.5th 1005, 1026

Fifth Holding:

There is no dispute that there is no qualifying felony for which the prosecutor could have proceeded under a theory of felony murder in this case.

Thus when resentencing the defendant, the trial court was required to redesignate his offense as a target offense—the offense of which the natural and probable consequence was the attempted murder.

In this case, conviction for attempted murder of [victim 2] was properly redesignated as assault with a semiautomatic firearm on [victim 2]. We conclude that the trial court erred by resurrecting counts stemming from conduct that the district attorney plainly chose to dismiss as part of the negotiated settlement.

These dismissed counts cannot form the predicate for relief for the defendant’s petition for resentencing. Because the defendant did not plead to any other offenses than the attempted murder of [victim 2], the target offense underlying the attempted murder of one named person is not two assaults with a firearm on two persons. Courts may not impose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 475, 477

People v. Lara (2025) 108 Cal.App.5th 1005, 1027

Sixth Holding:

Though not applicable here, had the prosecution alleged and proved a target offense in addition to the attempted murder, on successful petition under section 1172.6, the court would be limited to sentencing the defendant on the charged target offenses that were proved. The trial court under section 1172.6(d)(3) would not have been otherwise entitled to resentence the defendant on charges that could have been [but were not] established by the evidence.

Authority:

PEN 1172.6(d)(3)

People v. Arellano (2024) 16 Cal.5th 457, 470

Seventh Holding:

The trial court erred by imposing an upper term for the count of assault with a semiautomatic firearm on [victim 2] without holding a jury trial as requested.

Under section 1170(b), when a statute specifies three possible terms, the trial court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless circumstances in aggravation that justify an upper term sentence have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial.

However, a trial court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)

Eighth Holding:

After the defendant’s resentencing, the California Supreme Court decided Wiley. Relying on Erlinger, our high court held that the Sixth Amendment requires a jury determination on aggravating factors related to a defendant’s criminal history, such as whether a defendant’s convictions were of increasing seriousness under rule 4.421(b)(2), and whether the defendant’s prior performance on probation was unsatisfactory under rule 4.421(b)(5).

Wiley concluded that a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. 

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086

Erlinger v. United States (2024) 602 U.S. 821, 834 [virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea]

Ninth Holding:

where a defendant was deprived of a jury trial on aggravating factors used at sentencing, we must apply the harmless beyond a reasonable doubt standard in Chapman.

Under this standard, we must reverse the judgment unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1087

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

Tenth Holding:

The trial court relied on the defendant’s rap sheet to determine that the crimes were of increasing seriousness and were numerous under rule 4.421(b)(2). According to defendant’s rap sheet, he had a juvenile adjudication in 2007 [for specified offenses], 2010 juvenile adjudications for [different offenses] and a 2014 conviction for [a different offense].  

Based on these series of offenses, a rational jury could have disagreed as to whether it demonstrated criminal conduct of increasing seriousness. Likewise, a rational jury could have also found that the defendant’s prior convictions were not particularly numerous. The failure to submit these aggravating factors to the jury was not harmless beyond a reasonable doubt, and the defendant is entitled to reversal of the upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1089

People v. Wright (2025) 113 Cal.App.5th 832, 848

 

Amelioration, Sentencing

Case 000803

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by believing that, because the defendant pleaded guilty to attempted murder after the original the original effective date of section 1172.6., the defendant was ineligible for section 1172.6 relief as a matter of law.

First Holding:

We review de novo a trial court’s denial of a section 1172.6 resentencing petition at the prima facie stage.

Authority:

People v. Lovejoy (2024) 101 Cal.App.5th 860, 865

Second Holding:

Effective January 1, 2019, SB 1437 eliminated natural and probable consequences liability for murder as it applies to aiding and abetting and limited the scope of the felony-murder rule. SB 1437 also established a procedure for convicted individuals to retroactively seek resentencing relief if they had been convicted under either the natural and probable consequences doctrine or felony murder rule, as set forth in what is now section 1172.6.

Section 1172.6(c) provides that after the submission of a petition for relief, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. A denial of the petition at the prima facie stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957

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

Third Holding:

The trial court erred in denying the defendant relief at the prima facie stage. If the court issues an order to show cause it must then hold an evidentiary 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.

Authority:

PEN 1172.6(d)

Fourth Holding:

Ordinarily, section 1172.6 resentencing relief would be unavailable as a matter of law to a petitioner who, like the defendant here, was convicted after the effective date of SB 1437. However, in the years immediately following the passage of SB 1437, there was considerable controversy among the Courts of Appeal as to whether it eliminated the natural and probable consequences theory in connection with the crime of attempted murder.

This controversy was resolved upon the passage of SB 775, effective January 1, 2022, which among other things clarifies that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief under section 1172.6 as those persons convicted of murder under the same theories.

Authority:

People v. Lezama (2024) 101 Cal.App.5th 583, 590

People v. Alaybue (2020) 51 Cal.App.5th 207, 222 [summarizing the split of opinions between various Courts of Appeal]

Fifth Holding:

The defendant’s attempted murder guilty plea here was entered during the interim period between the effective dates of Senate Bill No. 1437 and Senate Bill No. 775, when the law was unsettled as to whether an individual could be convicted of attempted murder based on the natural and probable consequences theory.

Because the People struck the “willful, deliberate, and premeditated” allegation from the attempted murder charge to which the defendant pled guilty, it is possible that the prosecution proceeded under the now-disallowed theory of natural and probable consequences, which would entitle the defendant to resentencing under section 1172.6.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [where defendant did not plead to a particular type of malice in connection with his attempted murder plea, or a specific theory of guilt in connection with his voluntary manslaughter plea, the prosecution could have proceeded under any theory of liability, including a natural and probable consequences theory]

Amelioration, Sentencing, Vicarious liability

Case 000802

Posted on by Gary McCurdy

Error and/or relief

Because the record of conviction did not establish the defendant was ineligible for relief as a matter of law, we reverse and remand for the trial court to set an evidentiary hearing under section 1172.6(d).

First Holding:

In 2019, the legislature enacted SB 1437, which amended the state’s murder laws to ensure culpability was commensurate with liability. The legislature later expanded its amendments with SB 775. SB 775 allowed defendants to seek resentencing if their convictions rested on any theory under which malice is imputed to a person based solely on that person’s participation in a crime, and they could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.

To seek such relief, a defendant must file a petition under what is now section 1172.6. If petitioners make a prima facie showing that they are eligible for relief, the trial court must set an evidentiary hearing. If the record of conviction shows that the petitioner is ineligible for relief as a matter of law, the court may deny the petition at the prima facie stage.

Authority:

PEN 1172.6

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

Second Holding:

Because the trial court was incorrect there was no theory presented to the jury under which malice could have been imputed, we reverse.

Authority:

People v. Maldonado (2023) 87 Cal.App.5th 1257

Third Holding:

In Maldonado, the court traced how a defendant could be convicted of first degree murder without a requirement that the jury find the defendant harbored malice. It noted that CALCRIM No. 401 only requires an intent to aid and abet a crime. In the murder context, this instruction can muddy the waters because the crime is not necessarily the act that caused the death or may not be an act that would require a conscious disregard of human life.

Authority:

People v. Maldonado (2023) 87 Cal.App.5th 1257, 1264-1268

People v. Langi (2022) 73 Cal.App.5th 972

Fourth Holding:

Whether instructional error could have been raised on direct appeal is immaterial to the section 1172.6 analysis.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 649

Amelioration, Elements of crime, Sentencing

Case 000784

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to recall his sentence under section 1172.6. The evidence was insufficient to prove he is guilty of murder and attempted murder beyond a reasonable doubt.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) eliminated the natural and probable consequences doctrine as it relates to murder to ensure a person’s sentence is commensurate with his or her criminal culpability. Specifically, it amended section 188 by adding a requirement that, except as stated in section 189(e), all principals to murder must act with express or implied malice to be convicted of that crime. SB 775 (2021-2022 Reg. Sess.) extended relief to defendants convicted of attempted murder, but only if their convictions were based on the natural and probable consequences doctrine.

Authority:

PEN 188(a)(3)

People v. Gentile (2020) 10 Cal.5th 830, 842-843, superseded by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869

Second Holding:

SB 1437 also created a procedural mechanism for defendants with eligible murder convictions to seek retroactive relief under the amended law. Under section 1172.6, if a petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing.

At that hearing, the court sits as an independent fact finder and the prosecution has the burden of proving beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under the amended law. The parties may offer new or additional evidence at the hearing.

Authority:

PEN 1172.6

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

People v. Lewis (2021) 11 Cal.5th 952, 960

People v. Garrison (2021) 73 Cal.App.5th 735, 743

Third Holding:

Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another [e.g., murder] if the accomplice aids the commission of that offense with knowledge of the direct perpetrator’s unlawful intent and with an intent to assist in achieving those unlawful ends. The defendant must not only know the direct perpetrator’s intent to commit murder, but he or she must share that intent. And, aiding and abetting the commission of a crime requires some affirmative action. The word aids refers only to overt or affirmative forms of assistance.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 463

People v. McCoy (2001) 25 Cal.4th 1111, 1118

People v. Partee (2020) 8 Cal.5th 860, 868

Fourth Holding:

We review a trial court’s denial of a section 1172.6 petition for substantial evidence. Under this standard, we review the record in the light most favorable to the judgment below 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 beyond a reasonable doubt that the defendant was a direct aider and abettor in the murder and attempted murders.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 885

Fifth Holding:

Murder is the unlawful killing of a human being with malice aforethought. Malice may be express or implied. The difference between express malice and implied malice is the former requires an intent to kill but the latter does not.

Authority:

PEN 187(a)

PEN 188(a)

People v. Soto (2018) 4 Cal.5th 968, 976

Sixth Holding:

Although intent to kill is certainly blameworthy, it is insufficient standing alone to render a person culpable for another’s acts. The aider and abettor must know the direct perpetrator intends to commit the murder and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 453

Seventh Holding:

We cannot presume that because members of the defendant’s group belonged to the same gang, they must have known each other’s intent. Indeed, the law does not recognize a rule of guilt by association. We insist on proof of a defendant’s knowledge of, and specific intent to further, the group’s unlawful ends. Without knowledge of his cohort’s intent to kill, any of the defendant’s subsequent acts cannot constitute the actions necessary to establish aider and abettor liability.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 165

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

Case 000773

Posted on by Gary McCurdy

Error and/or relief

We reverse the juvenile court’s finding that the minor committed murder as an aider and abettor with implied malice.

First Holding:

An aider and abettor of murder must actually aid and abet the lethal act in order to be convicted of murder.

Authority:

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

Second Holding:

The trial court announced its finding that, to be liable for an implied malice murder, a direct aider and abettor must, by words or conduct, aid the commission of the life endangering act, not the result of that act. The court treated the robbery as the life-endangering act that resulted in the victim’s death.

The court went on to state that the People have proved beyond a reasonable doubt that the minor was an aider and abettor to the robbery with knowledge that his compatriots intended to commit the robbery; did, in fact, intend to aid the perpetrators in the commission of the robbery or attempted robbery, and had knowledge that the act was dangerous to human life.

The opinion in Morris was issued long after the juvenile court sustained the petition, and under Morris, the court’s reasoning was in error.

Authority:

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

Third Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We 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. In so doing, a reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

The same standard of review governs our review of the sufficiency of evidence in juvenile delinquency cases.

Authority:

People v. Edwards (2013) 57 Cal.4th 658, 715

In re Roderick P. (1972) 7 Cal.3d 801, 809

In re A.G. (2020) 58 Cal.App.5th 647, 653

In re Matthew A. (2008) 165 Cal.App.4th 537, 540

Fourth Holding:

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. An unlawful killing during the commission of a felony is also murder. Second degree implied malice 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 express or implied.

Authority:

PEN 187(a)

PEN 189(a),(e)

People v. Knoller (2007) 41 Cal.4th 139, 151

Fifth Holding:

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. In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less. This definition is referred to as “simple implied malice murder.”

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 143

People v. Reyes (2023) 14 Cal.5th 981, 988

Sixth Holding:

To suffice for implied malice murder, the defendant’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. Implied malice requires a defendant’s awareness of the risk of death to another.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 152

People v. Reyes (2023) 14 Cal.5th 981, 989

Seventh Holding:

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. The question of implied malice is to be decided in light of all the circumstances.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

People v. Moore (2010) 187 Cal.App.4th 937, 942

Eighth Holding:

Under Penal Code section 187, the mens rea required for murder is malice aforethought. Regarding aiders and abettors, 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.

In the context of implied malice murder, the aider and abettor must know the perpetrator intends to commit a life-endangering act, intend to aid the perpetrator in the commission of that act, know the act is dangerous to human life, and act in conscious disregard for human life.

Authority:

PEN 187

PEN 188(a)(3)

People v. McCoy (2001) 25 Cal.4th 1111, 1118

People v. Harris (2024) 105 Cal.App.5th 623, 631

People v. Curiel (2023) 15 Cal.5th 433, 468

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

Ninth Holding:

Murder also requires an actus reus. 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.

Authority:

People v. Concha (2009) 47 Cal.4th 653, 660

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

Tenth Holding:

As relevant to this aider or abettor theory of liability in a felony-murder, the amended felony-murder rule now states that 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. Section 189(e)(2) requires a nonkiller to aid the actual killer in the lethal act.

While the language of Penal Code section 188(a)(3), differs from section 189(e), pursuant to section 188(a)(3), a direct aider and abettor must act with malice aforethought, and act with intent to aid the life-endangering act of the direct perpetrator that proximately causes the death.

Authority:

PEN 189(e)(2)

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

People v. Pittman (2023) 96 Cal.App.5th 400, 415

People v. Reyes (2023) 14 Cal.5th 981, 991-992

Eleventh Holding:

Implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim, or, as in this case, stabbing him. In other words, the aider and abettor must know the perpetrator intends to commit a life-endangering act, intend to aid the perpetrator in the commission of that act, know the act is dangerous to human life, and act in conscious disregard for human life. Even if the act results in a death that is accidental, the circumstances surrounding the act may evince implied malice.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 992

People v. Curiel (2023) 15 Cal.5th 433, 468

People v. Nieto Benitez (1992) 4 Cal.4th 91, 110

Twelfth Holding:

SB 1437 abolished the natural and probable consequences doctrine in cases of murder, amending 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 that malice shall not be imputed to a person based solely on his or her participation in a crime. As a result, the natural and probable consequences doctrine can no longer support a murder conviction.

Authority:

PEN 188

In re R.G. (2019) 35 Cal.App.5th 141, 144

People v. Gentile (2020) 10 Cal.5th 830, 847-848

Thirteenth Holding:

Instead, with the exception of section 189(e), a conviction for murder requires that a person act with malice aforethought and that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

We conclude the legislative language of Penal Code section 188(a)(3) requires a finding that the accused actually aided the perpetrator in the commission of the life-endangering act, and that the accused’s participation in a dangerous felony as an aider and abettor cannot form the basis for finding implied malice.

Only in this way will a finding that the accused aided and abetted in the commission of implied malice murder reflect a determination of the person’s guilt based on his own actions and subjective intent.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 660-661

Amelioration, Elements of crime, Evidence, Sentencing, Vicarious liability

Case 000752

Posted on by Gary McCurdy

Error and/or relief

In denying the defendant’s petition for recall of his sentence imposed nearly 20 years ago for murder, attempted murder, a gang crime, and related enhancements, for which he was sentenced to life without the possibility of parole, plus 25 years to life, plus 20 years, the trial court erred in relying on the gang expert’s testimony that the defendant aided and abetted the shooter. The denial is reversed.

On remand, the court is directed to grant the petition, vacate the murder and attempted murder convictions, and resentence the defendant on the remaining substantive gang offense.

First Holding:

A defendant’s mere presence at a crime does not constitute substantial evidence that the defendant directly aided and abetted the commission of that crime.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 493

People v. Pettie (2017) 16 Cal.App.5th 23, 57–58 [Mere presence at the scene of a crime which does not itself assist its commission does not amount to aiding and abetting]

Second Holding:

We accept the trial court’s findings to the extent they are supported by substantial evidence. Substantial evidence means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.

Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. However, a reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork; a finding of fact must be an inference drawn from evidence rather than a mere speculation as to probabilities. By definition, substantial evidence requires evidence and not mere speculation.

Authority:

People v. Breslin (2012) 205 Cal.App.4th 1409, 1415–1416

People v. Lehman (2016) 247 Cal.App.4th 795, 804

People v. Soriano (2021) 65 Cal.App.5th 278, 286

Third Holding:

Effective January 1, 2019, the Legislature passed SB 1437, which amended sections 188 and 189. The legislation effectively eliminated the natural and probable consequences doctrine as it relates to murder, and narrowed the scope of the felony-murder rule. However, it did not eliminate direct aider and abettor liability for murder or attempted murder. SB 1437 also added a procedure for those convicted under the former law to seek retroactive relief under the law as amended.

Authority:

People v. Gentile (2020) 10 Cal.5th 830, 848 [Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder], superseded by statute on other grounds as stated in People v. Oyler (2025) 17 Cal.5th 756, 836

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

Fourth Holding:

Under section 1172.6, a petitioner must first file a petition containing a declaration that he or she is eligible for relief, including that he or she could not presently be convicted of murder because of changes to Section 188 or 189” effectuated by SB 1437. Upon the filing of a facially sufficient petition, the trial court must determine whether the petitioner has made a prima facie case for relief.

If the court concludes such a showing has been made, it must issue an order to show cause and hold an evidentiary hearing. At the evidentiary hearing, the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder under the law as amended by SB 1437. The trial court acts as an independent fact finder and determines whether the evidence establishes that the petitioner is ineligible for resentencing.

Authority:

PEN 1172.6

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

People v. Cody (2023) 92 Cal.App.5th 87, 110

Fifth Holding:

Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission are principals in any crime so committed.

Authority:

PEN 31

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

Sixth 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, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.

Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice aids the commission of that offense with knowledge of the direct perpetrator’s unlawful intent and with an intent to assist in achieving those unlawful ends.

Authority:

People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295–296

People v. Gentile (2020) 10 Cal.5th 830, 843

Seventh Holding:

Proof of aider and abettor liability requires proof of a culpable actus reus on the part of the aider and abettor in the form of some conduct by him that in fact assisted the achievement of the crime. A defendant’s mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant’s criminal responsibility.

Authority:

People v. Perez (2005) 35 Cal.4th 1219, 1225

People v. Richardson (2008) 43 Cal.4th 959, 1024

Eighth Holding:

Speculative testimony by a gang expert does not constitute substantial evidence to support a gang enhancement.

Authority:

People v. Soriano (2021) 65 Cal.App.5th 278, 288

People v. Ramon (2009) 175 Cal.App.4th 843, 847