Tag Archives: Vicarious liability

Amelioration, Sentencing, Vicarious liability

Case 001143

Posted on by Gary McCurdy

Error and/or relief

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

Holding:

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

Authority:

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

Gary note:

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

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

Under section 189(e)(2), when a person was not the actual killer, that person must have, “with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.”

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

Case 001124

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

The required mens rea is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

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

Second Holding:

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

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

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

Authority:

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

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

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

Third Holding:

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

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

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

Authority:

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

Fourth Holding:

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

Authority:

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

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

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

Case 001095

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding at the prima facie stage that the defendant was ineligible for relief under section 1172.6 as an aider and abettor. The matter is remanded to the superior court with directions to issue an order to show cause and hold an evidentiary hearing on the petition.

First Holding:

In 2018, the Legislature enacted SB 1437, which amended provisions of the Penal Code pertaining to the felony-murder rule and the natural and probable consequences doctrine. Regarding the felony-murder rule, SB 1437 added section 189(e), which states that a participant in the perpetration or attempted perpetration of qualifying felonies in which a death occurs is liable for murder only if one of the following is proven:

(1) The person was the actual killer.

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

As to the natural and probable consequences doctrine, section 188(a)(3) now provides that, except for felony-murder liability as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

SB 1437 created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended, by filing a petition for resentencing under what is now section 1172.6.

Pursuant to section 1172.6, a person previously convicted of murder or attempted murder may file a resentencing petition when all of the following conditions apply:

(1) the charging document filed against the petitioner permitted the prosecution to proceed under a theory of felony murder, or another theory of imputed malice;

(2) the petitioner was convicted of murder, attempted murder or manslaughter; and

(3) the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019.

Authority:

PEN 188

PEN 189

PEN 1172.6

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

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

Second Holding:

At the prima facie stage of a resentencing matter, the court evaluates both the petition and the record of conviction. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If, on the other hand, the defendant has made a prima facie showing of entitlement to relief, the court shall issue an order to show cause. Denial of a resentencing petition at the prima facie stage is reviewed de novo.

Authority:

PEN 1172.6

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

People v. Williams (2022) 86 Cal.App.5th 1244, 1251

People v. Lewis (2021) 11 Cal.5th 952, 97

Third Holding:

In this case, the dispositive issue under section 189 is whether the jury’s special circumstance findings (in the early 1990s, when the case was tried) conclusively establish the defendant’s liability for felony murder as a nonkiller aider and abettor. That is, we must determine whether the jury necessarily found that if the defendant was not the actual killer, he at least–with the intent to kill–aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.

A finding of intent to kill made pursuant to a special-circumstance murder allegation is relevant and binding on the petitioner in a resentencing proceeding.

Importantly though, a resentencing petition puts at issue whether all elements of the murder offense are established by a valid theory.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 462, 453-460 [addressing a gang-murder special circumstance]

People v. Strong (2022) 13 Cal.5th 698, 710

People v. Lopez (2026) 19 Cal.5th 639, 659

Fourth Holding:

The true findings as to the special circumstance allegations do not establish that the jury necessarily found his conduct met the actus reus required for aiding and abetting murder under section 189(e)(2). Section 189(e)(2) requires proof that a nonkiller defendant not only intended to kill, but also assisted the actual killer in the commission of murder in the first degree. Section 189(e)(2) requires that the nonkiller aid or abet the actual killer in the lethal act itself, and not just the underlying felony.

While the special circumstances findings established that the defendant had the intent to kill and aided a cohort, the jury was not required to find that the defendant aided the actual killer in the act of killing.

Further, the instructions on the special circumstances referred to murder in the first degree, which may have led jurors to consider the instructions on first degree murder. Those instructions on murder contained no-longer-valid theories, which may have led the jury to believe the defendant aided or abetted in the commission of first degree murder without finding that he assisted in the lethal act itself.

True findings as to special circumstance allegations did not necessarily establish defendant was a direct aider and abettor even though jury received general instruction regarding aider and abettor liability.

Authority:

PEN 189(e)(2)

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

In re Lopez (2023) 14 Cal.5th 562, 587–588

ADD AUTHORITIES HERE

Amelioration, Appellate Principles, Elements of crime, Plea bargains, Sentencing, Standard of review, Vicarious liability

Case 001078

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition under section 1172.6 at the prima facie stage, reasoning that the defendant was ineligible for relief because his plea occurred after the Legislature had eliminated liability for attempted murder under the natural and probable consequences doctrine. The trial court erred in concluding that the defendant’s plea to attempted murder after the adoption of SB 1437, but before SB 775’s effective date, standing alone, established his ineligibility for resentencing as a matter of law.

Further, the minutes of the sentencing and the abstract of judgment each contain separate errors, which must be corrected on remand.

First Holding:

Effective January 1, 2019, SB 1437 narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. Among other things, the enactment amended section 188 to require that a principal convicted of murder act with malice aforethought. It further provided that malice shall not be imputed to a person based solely on his or her participation in a crime. It also added a procedure, now codified in section 1172.6, to permit individuals convicted of murder under prior law to request that their conviction be vacated and to seek resentencing.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-450

Second Holding:

In 2021, the Legislature adopted SB 775 to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing under section 1172.6. The Legislature enacted the provision to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories. The law took effect on January 1, 2022.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 544, 548

Third Holding:

A person convicted of attempted murder under the natural and probable consequences doctrine may file a petition to have his or her conviction vacated when:

(1) the charges filed against the person allowed the prosecution to proceed on a theory of attempted murder under the natural and probable consequences doctrine;

(2) the person was convicted of attempted murder after trial or accepted a guilty plea in lieu of a trial at which he or she could have been convicted of attempted murder; and

(3) the person could not presently be convicted of attempted murder because of changes to section 188 made effective January 1, 2019.

Authority:

PEN 1172.6(a)

Fourth Holding:

After briefing on the petition, the trial court must hold a hearing to determine whether the petitioner has made out a prima facie case for relief. If the petition and record establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If instead the petition shows 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 attempted murder under section 188 as amended.

If the prosecution fails to carry its burden, the challenged conviction and any accompanying allegations or enhancements must be vacated and the petitioner resentenced on any remaining charges.

Authority:

PEN 1172.6(c), (d)

People v. Strong (2022) 13 Cal.5th 698, 708-709

Fifth Holding:

A trial court’s inquiry into whether a petitioner has stated a prima facie case for relief is limited. 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.

The record of conviction necessarily informs the court’s inquiry. If the record contains facts refuting the allegations in the petition, the court may make a credibility determination adverse to the petitioner. 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.

But a trial court may not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 557, 563

Sixth Holding:

We review de novo a trial court’s decision to deny a section 1172.6 petition at the prima facie stage.

Authority:

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

Seventh Holding:

When the defendant changed his plea in 2021, before SB 775 took effect, the Courts of Appeal were divided on whether SB 1437 had abrogated the natural and probable consequences doctrine as a valid basis for an attempted murder prosecution.

It was not until SB 775 became effective in January 2022—several months after the defendant pleaded guilty—that the law expressly eliminated that possibility. It therefore would have been theoretically possible, at the time of the defendant’s prosecution, for the People to proceed against him under a natural and probable consequences theory of attempted murder.

Accordingly, the trial court erred in concluding that the defendant’s plea to attempted murder after the adoption of SB 1437, but before SB 775’s effective date, standing alone, established his ineligibility for resentencing as a matter of law.

Authority:

People v. Alaybue (2020) 51 Cal.App.5th 207, 222

People v. Coley (2022) 77 Cal.App.5th 539, 544

Eighth Holding:

The sentencing minutes incorrectly reflect that the defendant’s attempted murders were willful, deliberate, and premeditated. We direct the trial court to amend the minutes to delete the “willful, deliberate, and premeditated” language.

The abstract of judgment incorrectly reflects the defendant’s sentence for the two attempted murders as 15 years and 4 years, respectively. If the attempted murders are not vacated on remand after hearing on the 1172.6 petition, the trial court shall amend the abstract of judgment to correctly state that his sentences for those two convictions are nine years and two years, four months, respectively.

(Gary note: The court did not cite authority for its orders to correct the minutes and the abstract of judgment, though there is much authority available. I have set forth a few that would support the court’s action.)

Authority:

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

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

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

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

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

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

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

Case 001077

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

Second Holding:

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

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

Authority:

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

Third Holding:

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

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

Authority:

PEN 189(e)(2)

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