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 000493

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to support the trial court’s reckless indifference finding. Accordingly, we will reverse the trial court’s order denying the petition for resentencing and remand the matter with directions to grant the petition, vacate defendant’s murder conviction, and resentence him. Under the circumstances, we need not address whether defendant was a major participant or whether the trial court applied the correct standard.

First Holding:

Effective January 1, 2019, SB 1437 amended the felony-murder rule to provide, in relevant part: A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

SB 1437

PEN 189

Second Holding:

Where the trial court issues an order to show cause and holds an evidentiary hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty of murder under California law as amended by SB 1437. The parties may rely on evidence in the record of conviction or offer new or additional evidence at the hearing. The trial court acts as an independent fact finder and determines whether the evidence establishes beyond a reasonable doubt that the defendant would be guilty of murder under the amended sections 188 and 189 and, therefore, ineligible for relief under section 1172.6.

Authority:

SB 1437

PEN 1172.6

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

Third Holding:

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. We must review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier of fact could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

Authority:

People v. Montanez (2023) 91 Cal.App.5th 245, 270

Fourth Holding:

The major participation and reckless indifference requirements contained in capital case special circumstances section 190.2(d), and incorporated into the felony-murder rule by SB 1437, codify the holding of Tison and a prior decision on which it is based, Enmund, collectively place conduct on a spectrum. At one end of the spectrum is a defendant like Enmund, who planned and participated, as the getaway driver, in an armed robbery that resulted in the unplanned murder of the robbery victim and his wife.

At the other end of the spectrum are “actual killers and those who attempted or intended to kill. In between are defendants like the Tison brothers, who helped plan and carry out the escape of two convicted murderers from prison, including their father, who was serving a life sentence for killing a guard in the course of a previous escape. The Tison brothers brought a cache of weapons to prison, armed both murderers, and held at gunpoint guards and visitors alike. During their subsequent escape, they carjacked and kidnapped a family of four, took the family’s possessions, and the convicted murderers then killed all four family members. Although the Tison brothers did not kill or intend to kill, their major participation in the felony committed, combined with reckless indifference to human life, was sufficient to satisfy the Enmund culpability requirement.

Authority:

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

Enmund v. Florida (1982) 458 U.S. 782,

People v. Banks (2015) 61 Cal.4th 788, 794, 799, 800, 802

Fifth Holding:

Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death. The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create. Although the major participation and reckless indifference elements are interrelated such that the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life, significant participation does not necessarily establish reckless indifference, which 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 his actions.

The degree of risk to human life is crucial to the analysis. The possibility of bloodshed is inherent in the commission of any violent felony, such that one who perpetrates or attempts to perpetrate such a crime may well anticipate the use of lethal force as a possibility. Were that degree of culpability sufficient, however, it would amount to little more than a restatement of the former felony-murder rule that SB 1437 retired. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient” to establish reckless indifference to human life; only knowingly creating a grave risk of death satisfies the statutory requirement.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 883, 884

People v. Banks (2015) 61 Cal.4th 788, 801

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

Tison v. Arizona (1987) 481 U.S. 137, 153

Sixth Holding:

In determining whether defendant acted with reckless indifference, we analyze the totality of the circumstances using the following factors derived from Clark: (1) Did defendant know that a weapon would be used during the felony? (2) Was defendant present during the murder and did he have an opportunity to restrain the perpetrator or aid the victim? (3) What was the duration of the interaction between the perpetrators of the felony and the victim? (4) What was defendant’s knowledge of his confederate’s propensity for violence or likelihood of using lethal force? (5) What efforts did defendant make to minimize the risk of violence during the felony? With the foregoing factors in mind, we conclude substantial evidence does not support the trial court’s finding that defendant acted with reckless indifference to human life.

Authority:

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

People v. Emanuel (2025) 17 Cal.5th 867, 884-88

Amelioration, Sentencing

Case 000463

Posted on by Gary McCurdy

Error and/or relief

Assuming, without deciding, the preliminary hearing testimony may be considered at the prima facie stage of a section 1172.6 resentencing proceeding, it does not conclusively establish the defendant was necessarily convicted by plea under a still-valid theory. The record of conviction reflects a factual dispute as to the basis of his conviction that must be resolved at an evidentiary hearing. We reverse the trial court’s ruling, and remand for an evidentiary hearing.

First Holding:

Pursuant to SB 1437 (2017–2018 Reg. Sess.) (SB 1437), the Legislature modified accomplice liability for murder and the felony-murder rule. The modification eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. The changes were meant 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 changes did not, however, affect murder liability for actual killers. SB 1437 also created a procedure under section 1172.6 to provide retroactive relief for those convicted of murder who could not presently be convicted under the law as amended.

Authority:

SB 1437

PEN 1172.6

People v. Gentile (2020) 10 Cal.5th 830, 841

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

People v. Arellano (2024) 16 Cal.5th 457, 468

People v. Mares (2024) 99 Cal.App.5th 1158, 1166

Second Holding:

A petition that includes a declaration by petitioner that the petitioner is eligible for relief based on all the requirements of section 1172.6(a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel. A facially sufficient petition also triggers the People’s duty to submit a response and the petitioner’s right to submit a reply on the question of whether a prima facie case for relief exists. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief.

Authority:

PEN 1172.6(c)

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

People v. Patton (2025) 17 Cal.5th 549, 558–559

Third Holding:

In assessing whether the petitioner has made a prima facie showing he is entitled to relief, the court may consult the record of conviction to inform its inquiry, but that inquiry is limited” as the prima facie bar was intentionally and correctly set very low. At this stage, 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.

Authority:

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

Fourth Holding:

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. Further, in reviewing any part of the record of conviction at the prima facie stage, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction includes a preliminary hearing transcript preceding a guilty plea.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 563, 568

Fifth Holding:

If the petitioner makes a prima facie showing, then the trial court issues an order to show cause and holds a hearing to determine whether to vacate the … conviction and to recall the sentence and resentence the petitioner. At this hearing, evidence may be presented and ‘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 current law.

Authority:

PEN 1172.6(c) and (d)

People v. Strong [(2022)] 13 Cal.5th 698, 709

People v. Patton (2025) 17 Cal.5th 549, 559

Sixth Holding:

Where undisputed facts in the record of conviction demonstrate the petitioner was necessarily convicted under a still-valid theory, the petitioner is ineligible for relief as a matter of law, and the petition can be dismissed at the prima facie stage.

Authority:

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

People v. Delgadillo (2022) 14 Cal.5th 216, 233 [as the petitioner was the only participant in the killing, he was not convicted under an invalid theory and could not have made a prima facie showing of relief]

Seventh Holding:

Here, the trial court concluded undisputed facts in the record of conviction—namely, the plea form stipulation and firearm enhancement admission—show the defendant was necessarily convicted as an actual killer. But admission to personal use of a firearm during the commission or attempted commission of a felony did not then (in 1993), nor does it now, amount to an admission the firearm was discharged or that the user personally killed with the gun and, thus, by itself, is not an admission to being an actual killer. Personal use of a firearm includes displaying weapon in menacing manner, hitting someone with the weapon, or firing the weapon.

Authority:

PEN 1203.06(c)(2)

People v. Chambers (1972) 7 Cal.3d 666, 672, 673 [Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies; pointing a gun at the victim and demanding money was personal use under sec. 12022.5]

People v. Bland (1995) 10 Cal.4th 991, 997

People v. Cooper (2020) 54 Cal.App.5th 106, 125 [even if personal-use enhancement were found true, it does not establish ineligibility for resentencing relief under sec. 1172.6]

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

Amelioration, Sentencing

Case: 000416

Posted on by Gary McCurdy

Error and/or relief

A trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has stated a prima facie entitlement to relief under section 1172.6. We affirm the denial but remand to give the defendant the opportunity file an amended petition.

First Holding:

A trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has stated a prima facie entitlement to relief under section 1172.6.

Authority:

PEN 1172.6

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

Second Holding:

Hearsay testimony by a police officer at a preliminary hearing could support a trial court’s finding that the petitioner did not make a prima facie case under section 1172.6.

Authority:

People v. Rodriguez (2026) 117 Cal.App.5th 1179

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

Case: 000374

Posted on by Gary McCurdy

Error and/or relief

The defendant was not the actual killer in the 1995 crime, but the trial court denied his 1172.6 petition based on finding that he was a substantial participant in the underlying felony and thus could be convicted of felony murder even under current law. We do not find substantial evidence to support a finding that the defendant subjectively appreciated (knew) that his actions would likely result in the victim’s death death (i.e., reckless indifference to human life). Thus, we reverse the order of the trial court denying the defendant’s section 1172.6 petition. On remand, the trial court is directed to grant the petition, vacate the murder conviction, and resentence the defendant.

First Holding:

A person who did not kill or act with the intent to kill cannot be liable under a first degree felony-murder theory unless there is substantial evidence that the person was a major participant in the underlying felony and that they subjectively appreciated that their acts were likely to result in the taking of innocent life.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 893

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.

Authority:

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

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

 

Third 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. As to murder, the actus reus is the perpetrator’s act causing death, and the mens rea is malice aforethought. 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. The legislation also created a procedure by which a defendant previously convicted of murder under either of those former theories could file a petition for resentencing.

The Legislature’s current version of the felony-murder rule now provides that a participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer; (2) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189

PEN 1172.6.

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

Fourth Holding:

For felony-murder, the required act is being a major participant in the underlying felony, and the required mental state is a reckless indifference to human life.

Authority:

PEN 189

Fifth Holding:

Ordinarily, the United States Supreme Court has held that the prohibition against cruel and unusual punishments requires a defendant to have either an express or implied intent to kill in order for the death penalty to apply. But as an exception, the Court held that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.

Authority:

Enmund v. Florida (1982) 458 U.S. 782, 797 [wheelman who did not participate in killing during armed robbery could not receive the death penalty]

Tison v. Arizona (1987) 481 U.S. 137, 158

Sixth Holding:

In Banks, the California Supreme Court later identified a nonexclusive list of factors that are relevant in deciding whether a person was a major participant under the felony-murder special circumstance. The major participant factors identified in Banks are these: 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?

No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation in criminal activities known to carry a grave risk of death was sufficiently significant to be considered major.

Authority:

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

Seventh Holding:

In Clark, the Court identified a nonexclusive list of factors that are relevant in deciding whether a person acted with reckless indifference to human life: the defendant’s knowledge, and the use and number of weapons; the defendant’s proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the conduct, that is, whether a murder came at the end of a prolonged period of restraint of the victims by defendant; the defendant’s awareness his or her confederate was likely to kill; and the defendant’s efforts to minimize the possibility of violence during the crime.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618-623

Eighth Holding:

Reckless indifference encompasses both subjective and objective elements. As to the subjective element, the defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, and he or she must consciously disregard the significant risk of death his or her actions create. As to the objective element,the risk of death must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him or her, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Ninth Holding:

The degree of risk to human life is crucial to the analysis. The possibility of bloodshed is inherent in the commission of any violent felony, such that one who perpetrates or attempts to perpetrate such a crime may well anticipate the use of lethal force as a possibility. Were that degree of culpability sufficient, however, it would amount to little more than a restatement of the former felony-murder rule that the Legislature retired. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient to establish reckless indifference to human life; only knowingly creating a grave risk of death satisfies the statutory requirement.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Tenth Holding:

Participation in a “garden-variety armed robbery,” i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference. Although any person who plans or participates in an armed robbery can be said to anticipate that lethal force might be used, only about 1 in 200 armed robberies result in death.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Eleventh Holding:

Courts must conduct a fact-intensive, individualized inquiry into where a defendant’s conduct falls on the spectrum of culpability between Enmund (the wheelman who merely participated in the underlying felony) and Tison (the defendants who armed escaped convicts and whose actions over a prolonged period demonstrated that they knew that the escapees were likely to kill).

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 882-883

Amelioration, Elements of crime, Sentencing

Case: 000362

Posted on by Gary McCurdy

Error and/or relief

The record of conviction does not show as a matter of law that defendant is ineligible for resentencing under section 1172.6 on his murder and attempted murder convictions. The jury was instructed on the natural and probable consequence doctrine, and the record does not show the jury necessarily found all elements of murder and attempted murder under current law. We therefore reverse the trial court’s order denying defendant’s petition.

First Holding:

SB 1437, effective in 2019, the Legislature amended sections 188 and 189 of the Penal Code to eliminate natural and probable consequences liability for murder as it applies to aiding and abetting, and to limit the scope of the felony-murder rule. Amended section 188 provides that except as stated in the amended section 189 governing felony murder, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The bill also added what is now section 1172.6, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Relief is potentially available for a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter .

Authority:

SB 1437

PEN 1172.6

People v. Lee (2023) 95 Cal.App.5th 1164, 1173

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

Second Holding:

The section 1172.6 petitioning process begins with the filing of a petition containing a declaration that all requirements for eligibility are met, including that the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 . If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. A defendant who petitions for resentencing under section 1172.6 is ineligible for resentencing only if the record conclusively establishes every element of the offense. In making that determination a court may give effect to a jury’s factual finding. If the petition survives the prima facie stage, the court must hold an evidentiary hearing at which the People bear the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by SB 1437.

Authority:

PEN 1172.6.

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

People v. Curiel (2023) 15 Cal.5th 433, 463, 465

Third Holding:

Under the jury instructions given at defendant’s trial, the defendant could have been found guilty even if not the slayer, because there was a second person who was the slayer. Additionally, the finding defendant personally discharged a firearm and proximately caused great bodily injury and death does not establish the defendant intended to kill or was aware of the danger to life that his act posed. In sum, the jury verdict does not show as a matter of law defendant harbored malice aforethought. Under the trial court’s instructions, the jury could instead have concluded defendant aided and abetted an assault with a firearm the natural and probable consequences of which was murder. Thus, the entire record of conviction does not foreclose that defendant was convicted based on a now invalid theory of murder.

Authority:

People v. Offley (2020) 48 Cal.App.5th 588, 598

People v. Curiel (2023) 15 Cal.5th 433, 463, 465

Fourth Holding:

Under current law, attempted murder requires intent to kill. We cannot conclude, as a matter of law, that the record of conviction shows defendant harbored intent to kill. The jury finding that the attempted murder was committed willfully and with premeditation and deliberation shows only that the slayer harbored this mental state. The jury does not further identify the slayer. Additionally, the fact defendant intended to discharge a firearm does not show the defendant harbored a particular mental state.

Authority:

People v. Morales (2024) 102 Cal.App.5th 1120, 1132

People v. Offley (2020) 48 Cal.App.5th 588, 598 [explaining that section 12022.53(d) provides that the defendant must have intended to discharge a firearm, but does not refer to an intent to achieve any additional consequence.]

Amelioration, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000345

Posted on by Gary McCurdy

Error and/or relief

Pursuant to a plea bargain, the two defendants pleaded no contest to voluntary manslaughter. Both petitioned the court for resentencing pursuant to section 1172.6. The court denied each man’s petition. We reverse and remand for the trial court to hold another evidentiary hearing pursuant to section 1172.6(d)(3) to determine whether the defendant’s would be guilty of murder beyond a reasonable doubt under current law.

First Holding:

In 2019, the Legislature enacted SB 1437, which altered the rules of murder liability to ensure culpability more closely matched punishment. To provide retroactive relief, SB 1437 also established a resentencing process, now codified in section 1172.6. This statute permits individuals convicted of murder, attempted murder, or manslaughter under a theory made invalid by the current law to petition the sentencing court to vacate the conviction and seek resentencing. Petitioners can seek such relief whether their convictions are the result of a trial or acceptance of a plea offer in lieu of a trial.

Authority:

PEN 1172.6

People v. Arellano (2024) 16 Cal.5th 457, 472

Second Holding:

We review the court’s finding for substantial evidence, making all inferences in favor of the judgment.

Authority:

People v. Schell (2022) 84 Cal.App.5th 437, 442

Third Holding:

Three times the court stated the defendants could be convicted of the crime to which they pleaded–voluntary manslaughter. In one instance, the court noted it was significant the crime they had pleaded to was manslaughter. However, that is not the question the court must answer. The evidentiary hearing under section 1172.6(d)(3), requires the court to determine whether the petitioner could be convicted of murder or attempted murder under current law – not manslaughter.

Authority:

PEN 1172.6

Fourth Holding:

On this record, we cannot confidently find the trial court meant to find the two men could be found guilty of murder and not manslaughter under current law. We therefore remand for the court to hold an evidentiary hearing and answer the required question under section 1172.6(d)(3) with regard to their manslaughter convictions.

Authority:

PEN 1172.6

Amelioration, Elements of crime, Sentencing, Vicarious liability

Case: 000330

Posted on by Gary McCurdy

Error and/or relief

On this appeal from denial of the defendant’s petition under section 1172.6 at the prima facie stage, where the petition consisted of a check-box form, we remand with instructions for the trial court to consider any amended allegations filed by the defendant within 30 days of remand.

First Holding:

In 2019, the Legislature enacted SB 1437, which altered the rules of murder liability to ensure culpability more closely matched punishment. As part of this reform, the Legislature amended section 188 to prohibit imputing malice based solely on a defendant’s participation in a crime. In effect, a defendant can no longer be convicted of murder under an aiding and abetting theory merely because a killing was a natural and probable consequence of another intended offense.

Authority:

PEN 188

People v. Arellano (2024) 16 Cal.5th 457, 472

People v. Gentile (2020) 10 Cal.5th 830, 839

Second Holding:

To provide retroactive relief, SB 1437 also established a resentencing process, now codified in section 1172.6. This statute permits individuals convicted of murder, attempted murder, or manslaughter under a theory of imputed malice to petition the sentencing court to vacate the conviction and seek resentencing.

Authority:

PEN 1172.6(a)

Third Holding:

Once the court receives such a petition, the section 1172.6 process unfolds in three distinct stages. At the first stage, a petitioner need only submit a facially sufficient petition that alleges the statutory prerequisites for relief. If the petition is facially valid, the petitioner is entitled to the appointment of counsel, if requested, and the matter proceeds to the second stage. At the second stage, the trial court must determine whether the petitioner has made a prima facie showing of eligibility for relief. If the court finds the petitioners have met their burden of establishing a prima facie case, the court must then issue an order to show cause and proceed to the third stage: an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioners remain guilty under current law.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 562

Fourth Holding:

Patton makes clear that at the second stage a trial court may consider uncontroverted facts from the record of conviction. This includes an evaluation of preliminary hearing evidence to determine whether a still-valid theory of liability supported the conviction. However, Patton also teaches that at the second stage petitioners have the opportunity to show why they are not ineligible, despite what might appear in preliminary hearing transcripts. To meet the burden of establishing a prima facie case for relief, the petitioner must provide nonconclusory allegations that alert the court and prosecution to the issues to be decided at the evidentiary hearing.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 567

Amelioration, Sentencing, Standard of review

Case: 000319

Posted on by Gary McCurdy

Error and/or relief

Summary denial of of the defendant’s 1172.6 petition without an evidentiary hearing was error where the jury had been given instructions that permitted it to find defendant guilty of murder under the felony murder rule or under the natural and probable consequences doctrine, and allowed it to find him guilty of attempted murder under the natural and probable consequences doctrine.

First Holding:

In 2018, the Legislature passed SB 1437 that amended sections 188 and 189 to significantly limit the reach of the felony-murder rule and to eliminate the natural and probable consequences doctrine in cases of first and second degree murder as it applies to aiding and abetting. The bill also added section 1172.6 to provide a procedural mechanism for defendants who could no longer be convicted of murder because of the amendments to petition for retroactive relief. The Legislature later amended section 1172.6 effective January 1, 2022, to provide resentencing relief to defendants convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

SB 1437

PEN 188

PEN 189

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

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

Second Holding:

Section 189 as amended effective January 1, 2019, provides that a participant in the perpetration of a robbery or kidnapping (or attempted perpetration of those crimes) in which a death occurs is liable for first degree murder only if it is proven that the participant was the either (i) the actual killer; (ii) 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 the first degree murder; or, (iii) was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189

Third Holding:

Upon receipt of a petition that sets forth the required allegations, the trial court must conduct a prima facie analysis and hearing to determine the defendant’s eligibility for relief. Although the court should not reject the petition’s factual allegations without first conducting an evidentiary hearing, it may make a credibility determination adverse to the defendant if the court’s own documents refute those allegations.

Authority:

PEN 1172.6(b)(3) and (c)

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

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

Fourth Holding:

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

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 545

Fifth Holding:

It appears the trial court found that giving instructions that allowed the jury to find defendant guilty of murder based on theories of liability that had been abrogated by SB 1437 was harmless because the jury also received instructions on the still valid theories of being a major participant who aided and abetted with an intent to kill or acted with reckless indifference to human life. The difficulty here, however, is defendant was convicted in 2012, well before Banks clarified the law concerning major participant findings by identifying a series of considerations to assist in the inquiry whether a defendant is a major participant. Clark reiterated the Banks elements and substantially clarified the considerations relevant to determining whether a defendant acted with reckless indifference to human life.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 798-804

People v. Clark (2016) 63 Cal.4th 522, 611-623

Sixth Holding:

Unless a felony murder defendant was tried after Banks, a major participant finding will not defeat an otherwise valid prima facie case for section 1172.6 resentencing relief and, unless a defendant was tried after Clark, a reckless indifference to human life finding will not defeat an otherwise valid prima facie case for such relief. Because defendant was convicted before Banks and Clark, the special circumstance findings that he was a major participant who acted with reckless indifference to human life do not preclude him from establishing a prima facie case for resentencing relief.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 721

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

Case: 000309

Posted on by Gary McCurdy

Error and/or relief

Denial of petition to vacate judgment of murder and for resentencing under section 1172.6 is reversed. The appellant’s participation in the planning and commission of the robbery and failure to render aid to the co-defendant do not demonstrate that he acted with the requisite reckless indifference to human life to be culpable of murder.

First Holding:

The Legislature enacted SB 1437 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. As amended by SB 1437, section 189 now limits liability under a felony-murder theory to actual killers and those who, with the intent to kill, aid or abet the actual killer in the commission of murder in the first degree. Individuals who do not fall into those categories can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d)—the statute defining the felony-murder special circumstance. Section 1172.6 permits individuals who were convicted of felony murder or murder under a natural and probable consequences theory, but who could not be convicted of murder following SB 1437’s changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts.

Authority:

SB 1437

PEN 189

PEN 1172.6

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

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

Second Holding:

On appeal from an order denying a section 1172.6 petition after an evidentiary hearing, we review the trial court’s factual findings for substantial evidence. We examine 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 that would support a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt. We do not reweigh evidence or revisit the trial court’s credibility determinations.

Authority:

People v. Richardson (2022) 79 Cal.App.5th 1085, 1090

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

People v. San Nicolas (2004) 34 Cal.4th 614, 657-658

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

People v. Cody (2023) 92 Cal.App.5th 87, 112-113

Third Holding:

In Banks, the Supreme Court set out a nonexhaustive list of considerations relevant to whether a defendant’s participation in criminal activities known to carry a grave risk of death is sufficiently significant to render him or her a major participant in the crime. Those considerations are: 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?

Authority:

People v. Banks (2015) 61 Cal.4th 788, 794, 803

People v. Strong (2022) 13 Cal.5th 698, 705

Fourth Holding:

Clark similarly set forth a list of considerations relevant to determining whether a defendant acted with reckless indifference to human life. The first factor relates to weapons: was the defendant aware that weapons would be used in the felony? Did the defendant use a weapon? How many weapons were used in the crime? The court cautioned that the mere fact of a defendant’s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life. A robbery in which the only factor supporting reckless indifference to human life is the fact of the use of a gun is what the Banks court meant by a garden-variety armed robbery.

The second factor is the defendant’s physical proximity to the murder and the events leading up to it, and the opportunities that proximity afforded to restrain the crime or aid the victim.

The third factor is the duration of the felony, particularly the duration of the interaction between victims and perpetrators; more prolonged incidents provide “‘a greater window of opportunity for violence.

The fourth factor is the defendant’s awareness of his or her codefendants’ propensity for violence or likelihood of killing a victim.

The final factor is the defendant’s efforts to minimize the risk of violence during the felony, though the court cautioned that some effort to minimize the risk of violence does not, in itself, necessarily foreclose a finding that defendant acted with reckless indifference to human life. In cases where a defendant was a youth at the time of the crime, his or her age may also be relevant to determining whether he or she acted with reckless indifference.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 617-623

People v. Banks (2015) 61 Cal.4th 788, 794, 802

People v. Emanuel (2025) 17 Cal.5th 867, 885 fn 6

In re Moore (2021) 68 Cal.App.5th 434, 453-454

People v. Ramirez (2021) 71 Cal.App.5th 970, 987

Fifth Holding:

No single Banks or Clark factor is determinative. Lower courts should take care to consider the presence or absence relating to each relevant factor on its own merits before considering the evidence in its totality.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618, 621-623

People v. Emanuel (2025) 17 Cal.5th 867, 888

Sixth Holding:

There is significant overlap between being a major participant and acting with reckless indifference to human life, and the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life. However, that does not necessarily mean that every major participant in a crime acts with reckless indifference to human life. Participation in a gardenvariety armed robbery is insufficient without more to establish reckless indifference. The defendant must not merely be aware of the foreseeable risk of death inherent in any violent felony; he or she must knowingly create a grave risk of death to demonstrate reckless indifference to human life. The defendant’s actions before and during the crime are important but not determinative; the key inquiry is what his actions reveal about his mental state.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618, 614-615

People v. Emanuel (2025) 17 Cal.5th 867, 884

Amelioration, Appellate Principles, Sentencing, Standard of review

Case: 000305

Posted on by Gary McCurdy

Error and/or relief

The order denying the petition for resentencing under section 1172.6 is reversed.

First Holding:

Effective January 1, 2019, 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. It accomplished this by amending sections 188 and 189. Section 188(a)(3) now prohibits imputing malice based solely on an individual’s participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule in section 189(e). Section 189 requires the prosecution to prove the defendant was the actual killer; an aider and abettor to murder who acted with the intent to kill; or a major participant in the underlying felony who acted with reckless indifference to human life.

Authority:

PEN 189

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

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

People v. Wilson (2023) 14 Cal.5th 839, 868–869

Second Holding:

The Legislature, to provide relief to those with existing murder convictions dependent on theories of the crime it had rejected, devised a path to resentencing. It has since expanded this path to allow relief for those with attempted murder convictions based on the natural and probable consequences doctrine.

Authority:

PEN 1172.6

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

Third Holding:

If the record of conviction establishes ineligibility for resentencing as a matter of law, the petition is properly denied at the prima facie stage. However, the petition and record of conviction must establish conclusively that the defendant is ineligible for relief.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 970-972

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

Fourth Holding:

We independently review a trial court’s determination whether a petitioner has made a prima facie showing of eligibility for relief.

Authority:

We independently review a trial court’s determination whether a petitioner has made a prima facie showing of eligibility for relief.

Fifth Holding:

We conclude the defendant has made a prima facie showing that he was entitled to relief. The record of conviction does demonstrate a possibility that he was convicted of second degree murder under an imputed malice theory, that is, that he was guilty of murder based solely on his participation in the robbery. In assessing section 1172.6 petitions, the jury instructions will be critical. Indeed we look at the jury’s verdicts, viewed in light of the court’s jury instructions, to assess whether a defendant has made a prima facie showing for relief under section 1172.6.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 731

People v. Curiel (2023) 15 Cal.5th 433, 441

Sentencing, Standard of review

Case: 000274

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to deny the section 1172.6 petition for recall of sentence based on its conclusion that the defendant was ineligible for relief because there was substantial evidence that he was convicted on a still-valid theory of murder.

First Holding:

Effective January 1, 2019, SB 1437 (2017–2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine 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. As part of these ameliorative changes, malice, a key element the People must prove in a murder prosecution, may no longer be imputed to a defendant solely because the defendant participated in another crime. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of section 190.2—that is, the statute defining the felony-murder special circumstance.

Authority:

SB 1437

PC 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 967

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

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

Second Holding:

The trial court used an incorrect legal standard to deny the petition at the prima facie stage. The court erred by applying the substantial evidence standard in concluding defendant was ineligible for relief. The statute does not permit a court to deny a petition at the prima facie stage based on a determination that substantial evidence shows defendant is ineligible for relief. Instead, at this stage, the defendant need only make a prima facie case for relief. In this inquiry, 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.

Authority:

PEN 1172.6

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

Third Holding:

Should a trial court encounter a material fact dispute, the court may not resolve that dispute at the prima facie stage and should instead grant petitioner an evidentiary hearing.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 567