Tag Archives: Vicarious liability

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

Case 001069

Posted on by Gary McCurdy

Error and/or relief

The court erred by engaging in factfinding at the prima facie stage of the proceedings on the defendant motion to vacate his manslaughter conviction under section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 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.

SB 1437 also created a procedural mechanism in section 1172.6 for those convicted under the former law to seek retroactive relief under the law as amended.

SB 775 (2021-2022 Reg. Sess.) later expanded the statute to apply to attempted murder under the natural and probable consequence doctrine and manslaughter.

Authority:

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

Second Holding:

Section 1172.6(a) applies to those 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 or a person convicted of attempted murder based on the natural and probable consequences doctrine. To be eligible for relief, the petitioner must make a prima facie showing that he could not presently be convicted of murder or attempted murder under changes to these theories of murder liability made effective on January 1, 2019, by SB 1437.

If the petitioner makes a prima facie showing, the trial court must issue an order to show cause and conduct an evidentiary hearing where the prosecution bears the burden of proving beyond a reasonable doubt that the defendant could still be convicted of murder under current law.

Authority:

PEN 1172.6

Third Holding:

At the prima facie stage, the court may deny a resentencing petition only if the petitioner is ineligible for relief as a matter of law. That is, the petition and the record of conviction must establish conclusively that the defendant is ineligible for relief. This is a pure question of law we review de novo.

Authority:

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

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

Fourth Holding:

While the trial court may look to the record of conviction after appointing defense counsel, the prima facie inquiry 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 those factual allegations were proved. If so, the court must issue an order to show cause.

At that early stage, the trial court should not reject the petitioner’s factual allegations on credibility grounds or engage in factfinding that involves the weighing of evidence or the exercise of discretion. But if the record contains facts refuting the allegations in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

(Gary note: For the most part, the balance of the opinion discusses facts specific to this case to show that the preliminary examination, the defendant’s admission that he personally used a firearm, and that he admitted that manslaughter is a serious felony did not establish that the defendant was the actual killer. For the trial court to have reached a conclusion that the defendant was the actual killer, it would have had to engage in factfinding that is not permitted at the prima facie stage. The court should have issued an order to show cause and held and evidentiary hearing, which is what the appellate court remanded the matter for.)

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957, 971-972

People v. Jones (2005) 30 Cal. 4th 1084, 1120 [the finding of personal use does not in itself prove defendant was the actual killer]

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

Case 001064

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

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

Section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

Second Holding:

Under section 189(e), a participant in the perpetration or attempted perpetration of a felony listed in section 189(a) in which a death occurs is liable for murder only if one of the following is proven:

(1) The person was the actual killer.

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

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

Authority:

PEN 189(e)

Third Holding:

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

Authority:

PEN 1172.6

Fourth Holding:

Upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.

Authority:

PEN 1172.6(b), (c)

Fifth Holding:

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

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

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

Authority:

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

Sixth Holding:

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

Authority:

PEN 1172.6(c), (d)

Seventh Holding:

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

Authority:

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

Eighth Holding:

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

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

Authority:

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

Amelioration, Appellate Principles, Elements of crime, Jury instructions, Sentencing, Statutory interpretation, Vicarious liability

Case 001049

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition at the prima facie stage. The jury instructions on aiding and abetting, implied malice, and lying-in-wait murder allowed for the jury to convict him of murder under a theory by which malice was imputed to him based solely on his participation in the crime.

First Holding:

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

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

Accordingly, section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The change reflects the Legislature’s intent that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Additionally, section 189 previously stated that all murder committed in the perpetration of, or attempt to perpetrate, various specified crimes, is murder of the first degree. SB 1437 amended section 189 to add subdivision (e), which provides that a participant in the perpetration or attempted perpetration of one of the enumerated feloines in which a death occurs is liable for murder only if:

(1) The person was the actual killer; or

(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; or

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

Authority:

PEN 188

PEN 189

Second Holding:

Section 1172.6 sets forth procedures on how the court is consider the petitions.

There is a first stage review to determine whether the petition states fact that demonstrate a prima facie entitlement to relief. The court is not permitted to do fact-finding at that stage, but it may review certain portions of the record to determine whether the record establishes that the defendant is ineligible for relief as a matter of law.

If a prima facie case appears from the petition, the court must then hold an evidentiary hearing, at which the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty under current law

Authority:

PEN 1172.6

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

Third Holding:

In SB 775, effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure, in part, by expressly permitting persons convicted of attempted murder under the natural and probable consequences doctrine to petition for relief.

Authority:

PEN 1172.6

Fourth Holding:

There has been a split of authority on whether a defendant is ineligible for relief under section 1172.6 if the defendant could have raised the the instructional argument in a prior appeal. (Gary note: For the main part, the discussions in the split cases were over the impact of various jury instructions that were given in the original trials, and whether the failure to raise those arguments gave rise to issue preclusion in determining the applicability of section 1172.6. If you are interested in reading the development and evolution of those cases, Lopez might be a good read.)

Lopez resolved the dispute by holding that a defendant is not barred by issue preclusion. The mere fact that a petitioner could have raised an analogous … claim of instructional error at trial or in his original appeal does not render him categorically ineligible for relief under section 1172.6. The primary and overarching purpose of SB 1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 661

Fifth Holding:

Resentencing courts should not ignore potentially ambiguous or even openly flawed instructions when evaluating a petitioner’s prima facie allegations merely because these flaws were not raised in a prior appeal. Rather, the section 1172.6 resentencing court should address on the merits the alleged flaws or ambiguities in instructions that may have resulted in conviction under now invalid theories of imputed malice.

After considering Lopez, we now agree with the defendant that the record here does not establish he is categorically ineligible for relief. Accordingly, we reverse the trial court’s order denying defendant’s petition for recall and resentencing at the prima facie stage and remand for the court to issue an order to show cause and hold a hearing pursuant to section 1172.6(d).

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 668

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

Case 001041

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the denial of his motion for recall of sentence under section 1172.6. The evidence is insufficient to support he was a major participant who acted with reckless indifference to human life. The order denying the defendant’s section 1172.6 petition is reversed and the matter is remanded to the trial court with instructions to vacate his voluntary manslaughter conviction and resentence him on the remaining charges.

First Holding:

In 2018, the Legislature enacted SB 1437 (2017–2018 Reg. Sess.) 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 was 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.

To accomplish these goals, SB 1437 redefined malice in section 188, and narrowed the classes of persons liable for felony murder under section 189. It also added what is now section 1172.6 to the Penal Code, which permitted those convicted of felony murder or murder under a natural and probable consequences theory to petition to have their murder convictions vacated and be resentenced on any remaining counts. SB 775 (2021–2022 Reg. Sess.) subsequently extended this relief to persons convicted of manslaughter.

If a trial court determines that a petitioner has made a prima facie case for relief, it shall issue an order to show cause” and hold an evidentiary hearing.

At the evidentiary hearing, the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioner is guilty of murder under California law as amended by SB 1437. The parties may offer evidence from a prior trial or hearing or offer new or additional evidence.

If the prosecution fails to carry 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 188

PEN 189

PEN 1172.6

Second Holding:

We review the denial of a section 1172.6 petition following an evidentiary hearing 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 major participant who acted with reckless indifference to human life.

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.

Authority:

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

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

Third Holding:

A person who did not kill or act with the intent to kill may be liable for murder under the felony-murder doctrine only if they were a major participant in the underlying felony and acted with reckless indifference to human life. The major participant and reckless indifference standards did not originate with SB. 1437, but rather the Legislature imported those standards from section 190.2(d), which governs the felony-murder special circumstance that renders a criminal act eligible for the death penalty or life without parole.

In Banks and Clark, our high court interpreted section 190.2(d) and provided guidelines for the major participant and reckless indifference standards. When SB 1437 amended section 189 to incorporate major participation and reckless indifference requirements, it codified the understanding of those requirements elucidated in Banks and Clark.

Authority:

PEN 189(e)(3)

People v. Emanuel (2025) 17 Cal.5th 867, 881

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

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

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

Fourth Holding:

Banks identified factors relevant to determining whether a defendant was a major participant in the underlying felony:

(1) the defendant’s role in planning the crime that led to the death;

(2) the defendant’s role in supplying or using deadly weapons;

(3) the defendant’s awareness of the particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of other participants;

(4) whether the defendant was present at the scene of the killing, in a position to facilitate or prevent it, and whether the defendant’s own actions or inactions played a particular role in the death; and

(5) the defendant’s actions after lethal force was used.

Authority:

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

Fifth Holding:

Clark identified factors relevant to whether a defendant acted with reckless indifference to human life:

(1) the defendant’s knowledge of weapons, and the use and number of weapons;

(2) the defendant’s physical presence at the scene of the crime and opportunity to restrain the crime and/or aid the victim;

(3) the duration of the interaction between the perpetrator and the victim;

(4) the defendant’s knowledge of their cohort’s propensity for violence or likelihood of killing; and

(5) the defendant’s attempts to minimize violence during the crime.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618-622

Sixth Holding:

A defendant’s youth can also be a relevant factor in the reckless indifference analysis.

Authority:

People v. Keel (2022) 84 Cal.App.5th 546, 558–559

Seventh Holding:

No one of the Banks or Clark factors is necessary, nor is any one of them necessarily sufficient to establish a defendant was a major participant or acted recklessly indifferent to human life. Moreover, there is often a significant overlap between being a major participant and acting with reckless indifference to human life, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.

Authority:

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

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

Eighth Holding:

In cases where a major participant finding was substantiated, there was evidence that the defendant played a substantial role or was a mastermind who planned and organized the underlying offense and orchestrated the events at the scene.

(Gary note: A portion of this part of opinion compares the defendant’s participation to cases in which there was a finding of substantial participation. I have listed those cases below–after the Clark reference, which pertains to the first paragraph of this “Eighth Holding”–because they do hold that the conduct as described does represent sufficient substantial evidence in support of a finding that the accused was a major participant in the underlying felony.)

Authority:

People v. Clark (2016) 63 Cal.4th 522, 615, 612

Tison v. Arizona (1987) 481 U.S. 137, 158 (Tison) [petitioners were actively involved in every element of the kidnaping-robbery and were physically present during the entire sequence of criminal activity culminating in the murder and the subsequent flight]

People v. Mitchell (2022) 81 Cal.App.5th 575, 584 [defendant agreed to rob someone with his brother, helped pick out the victim, and after the victim was injured, held the firearm while his brother rifled through the victim’s pockets]

People v. Richardson (2022) 79 Cal.App.5th 1085, 1088, 1091-1092 [The defendant yelled, “Shoot him. Shoot him,” directing his armed coparticipants to shoot a citizen who was following the defendant’s car during the commission of the crime. Richardson was a major participant in the underlying robbery, as his orders to shoot showed he took on—or already had—a role in directing the robbery and the conduct of his coparticipants.]

Ninth Holding:

But even if we assume the defendant was a major participant, the evidence is insufficient to support that he exhibited reckless indifference to human life. Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death.

It 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. Examples of reckless indifference include the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 616-617

In re Scoggins (2020) 9 Cal.5th 667, 676

Tenth Holding:

The reckless indifference standard has both a subjective and an objective component. Subjectively, 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.

Objectively, 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. 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. Clark (2016) 63 Cal.4th 522, 617

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

Eleventh 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.

Authority:

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

In re Scoggins (2020) 9 Cal.5th 667, 677 [the fact a participant or planner of an armed robbery could anticipate lethal force might be used is not sufficient to establish reckless indifference to human life]

People v. Banks (2015) 61 Cal.4th 788, 805 [participation in an armed robbery, without more, does not involve engaging in criminal activities known to carry a grave risk of death]

(Gary note:

(At this point and throughout the opinion, the appellate court compares and contrasts the defendant’s conduct in this case with other cases in which the question of major participant and reckless indifference to human life was resolved by finding either the presence or the absence of same.

(The analysis is fact-specific and would be of no value in your cases because you cannot cite an unpublished case, so you would have no way to get the facts of this summarized case before your court. But you should be able to learn what you need from the published cases this appellate court discussed in reaching its conclusion that this defendant was not a major participant in the underlying felony, and that his conviction for voluntary manslaughter (obtained by plea agreement) must be vacated.)

 

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

Case 001033

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to deny the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. Remanded for the court to conduct an evidentiary hearing.

First Holding:

Section 189, as amended, limits liability under a felony-murder theory principally to actual killers and those who, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree. 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 section 190.2(d)—that is, the statute defining the felony-murder special circumstance.

Authority:

PEN 189

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

Second 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. The petition must allege the petitioner was:

(1) charged with one of the enumerated crimes under a theory of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime;

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

(3) could not presently be convicted of murder because of changes to sections 188 or 189.

Authority:

PEN 1172.6

Third Holding:

Where the petition complies with the three requirements, the superior court proceeds to section 1172.6c), to assess whether the petitioner has made a prima facie showing for relief. The prima facie inquiry is limited. 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. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the superior court may dismiss the petition.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960, 971

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

Fourth Holding:

A denial 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. This is a purely legal conclusion, which we review de novo.

Authority:

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

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

Fifth Holding:

To be liable for felony murder as a direct aider and abettor, a nonkiller must not only share the perpetrator’s intent to kill but must also aid or abet the actual killer in the lethal act, and not just the underlying felony.

Authority:

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

People v. Reyes (2023) 14 Cal.5th 981, 991 [implied malice murder liability as a direct aider and abettor requires aiding the commission of the perpetrator’s life-endangering act]

Sixth Holding:

Since a nonkiller must aid or abet the actual killer in the lethal act itself, and not just the underlying felony, the jury’s true finding on the lying-in-wait special circumstance is insufficient to prevent defendant from making a prima facie showing for resentencing relief under section 1172.6.

Authority:

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

People v. Bocanegra (2026) 122 Cal.App.5th 481

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

Case 001024

Posted on by Gary McCurdy

Error and/or relief

In light of Emanuel, we reverse the denial of the defendant’s motion for resentencing filed under section 1172.6.

First Holding:

The trial court denied the defendant’s petition for resentencing, finding that he was a major participant who acted with reckless indifference to for human life during the commission of the offenses. there is insufficient evidence to support the trial court’s finding that the defendant acted with reckless indifference to human life. For that reason alone, he is entitled to resentencing relief under section 1172.6.

Authority:

People v. Guiffreda (2023) 87 Cal.App.5th 112, 117

Second Holding:

Effective January 1, 2019, the Legislature passed 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.

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.

When the felony-murder rule does not apply, a principal in the crime of murder can only be convicted where he 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 188

PEN 189

People v. Gentile (2020) 10 Cal.5th 830, 842-843, 846-847

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

Third Holding:

SB 1437 also created a procedure for offenders previously convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief if they could no longer be convicted of murder under the new law.

The 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 made effective January 1, 2019.

When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition to determine whether the petitioner has made a prima facie case for relief. If the defendant makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether relief should be granted.

Authority:

PEN 1172.6

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

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

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

Fourth Holding:

Because the standard under section 189(e)(3) for holding a defendant liable for felony murder is the same as the standard for finding a special circumstance under section 190.2(d), death penalty cases interpreting section 190.2(d), including Banks and Clark, are controlling here.

Authority:

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

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

People v. Guiffreda (2023) 87 Cal.App.5th 112, 123

Fifth Holding:

To determine whether a defendant exhibited reckless indifference to human life under section 190.2(d), courts consider a list of considerations, including use of or awareness of the presence of a weapon or weapons, physical presence at the scene and opportunity to restrain confederates or aid victims, the duration of the crime, knowledge of any threat the confederates might represent, and efforts taken to minimize risks.

This list of factors is nonexhaustive. None of them is necessary, nor is anyone one of them necessarily sufficient. Instead, the totality of the circumstances must be analyzed to determine whether the defendant acted with reckless indifference.

Authority:

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

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

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

Sixth Holding:

Reckless indifference to human life has a subjective and an objective element. 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:

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

Seventh Holding:

On appeal from an order denying a petition under section 1172.6, 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. Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Authority:

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

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

People v. Guiffreda (2023) 87 Cal.App.5th 112, 1225

People v. Brooks (2017) 3 Cal.5th 1, 57

Eighth Holding:

As the passenger in the car driven by another who drove dangerously and recklessly in an effort to evade capture, the defendant had no meaningful opportunity to interfere with the driving. The driving resulted in a collision with the victim’s car, killing her. There is insufficient evidence that the defendant knowingly created a grave risk to the life of that person.

Instead, the record shows that the defendant was, at worst, a passive passenger as the codefendant drove recklessly, which is insufficient to support a finding that the defendant acted with reckless indifference to the victim’s life.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 896

Amelioration, Elements of crime, Sentencing, Vicarious liability

Case 001018

Posted on by Gary McCurdy

Error and/or relief

The trial court was mistaken in concluding that the jury was not instructed on felony murder, and was therefore in error when it denied the petition for resentencing under section 1172.6 at the prima facie stage.

Holding:

A person convicted of felony murder may file a petition to have the murder conviction vacated and to be resentenced under section 1172.6. For reviewing the petition at the prima facie stage to determine whether it states facts that, if true, presents a qualifying claim, the Legislature has set the prima facie bar intentionally low.

The record in fact establishes that the jury was instructed on felony murder. Because the record of conviction does not preclude the possibility that the jury could have improperly imputed malice, the trial court erred in denying the defendant’s petition at the prima facie stage. Remanded for further proceedings.

Authority:

PEN 1172.6

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

Amelioration, Elements of crime, Sentencing, Vicarious liability

Case 000967

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his petition for relief under section 1172.6 of the Penal Code after an evidentiary hearing. The trial court’s finding that appellant was a direct aider and abettor for purposes of implied malice murder is not supported by substantial evidence.

We reverse the denial and remand this matter with directions to vacate appellant’s murder conviction and to resentence him in accordance with section 1172.6(e).

First Holding:

The Legislature enacted SB 1437 in 2018, abolishing the natural and probable consequences doctrine in cases of murder and limiting the application of the felony-murder doctrine.

The legislation bars murder convictions premised on any theory of imputed malice unless the People also prove that the nonkiller defendant personally acted with the intent to kill or was a major participant who acted with reckless indifference to human life. S

pecifically, the Legislature amended 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 malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

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

People v. Gentile (2020) 10 Cal.5th 830, 842–843

Second Holding:

Section 1172.6 contains the procedure for vacating the murder convictions of defendants who could no longer be convicted because of the amendments to section 188 and 189. If a prima facie case is made—that is, if the petitioner is not ineligible as a matter of law—the court must issue an order to show cause and hold an evidentiary hearing.

At the evidentiary hearing, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder” under the law as amended by the changes to sections 188 and 189.

If the prosecution does not meet this burden, 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 in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence is not greater than the initial sentence.

Where the murder was charged generically, and the target offense was not charged, the conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.

Authority:

PEN 1172.6

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

People v. Coley (2022) 77 Cal.App.5th 539, 543

People v. Arellano (2024) 16 Cal.5th 457, 474, fn. 5 [What matters for purposes of subdivision (e)’s requirement that the underlying felony or target offense was not charged is that the defendant was neither convicted of the underlying felony or target offense nor was either crime actually litigated]

Third Holding:

We review the trial court’s findings for substantial evidence.

Authority:

People v. Vargas (2022) 84 Cal.App.5th 943, 951

Fourth Holding:

Direct aiding and abetting remains a valid theory of murder liability after SB 1437. It is based on the combined actus reus of the participants and the aider and abettor’s own mens rea.

In the context of implied malice, the actus reus required of the perpetrator is the commission of the life-endangering act.

For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act.

Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act.

The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

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

People v. Reyes (2023) 14 Cal.5th 981, 990–991

Garcia v. Superior Court (2024) 106 Cal.App.5th 1005, 1022

Fifth Holding:

The record here may support the finding that appellant had the requisite mens rea, but it does not show the actus reus required for direct aiding and abetting.

The co-defendant perpetrator shot the victim in the chest to free the defendant from the victim’s grasp.

It is too far of a stretch to consider the defendant’s circumstance of being physically restrained to be an act of his that aided the commission of the perpetrator’s fatal shooting, even if the defendant wanted the perpetrator to shoot the victim so he could be freed. Nothing in the record shows that the defendant told the perpetrator to shoot, or acted at all to facilitate the shooting—aside from his planning and participation in the underlying robbery.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 712 [An aider and abettor must do something and have a certain mental state]

Sixth Holding:

Although direct aiding and abetting liability has been extended to cases where someone has a legal duty to act but fails to do so, we are unaware of any such case outside the context of parent-child or caregiver relationships.

Authority:

People v. Werntz (2023) 90 Cal.App.5th 1093, 1101

People v. Collins (2025) 17 Cal.5th 293, 312

People v. Zemek (2023) 93 Cal.App.5th 313, 339

Seventh Holding:

We do not see fit to remand for reconsideration of the defendant’s liability for felony murder because the trial court expressly rejected that possibility.

We instead remand for the trial court to vacate appellant’s murder conviction, and to redesignate the conviction as the underlying felony or felonies consistent with section 1172.6(e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 477 [declining to remand where it would be an idle act as shown by the trial court’s statement]

People v. Tyus (2026) 120 Cal.App.5th 798, 817 [reversing trial court’s decision to simply dismiss the case after vacating a manslaughter conviction from a plea; the trial court was required to redesignate the conviction as an underlying felony]

Amelioration, Appellate Principles, Sentencing, Standard of review, Vicarious liability

Case 000951

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, we reconsider our earlier decision denying relief on the defendant’s appeal from the denial of his petition for recall of sentence under section 1172.6. We reverse the lower court’s denial and remand for the court to conduct a full evidentiary hearing under section 1172.6.

(Gary note: The Court of Appeal earlier had concluded that the defendant is not eligible to petition for relief under section 1172.6, because he could have raised the issue on direct appeal. The Supreme Court granted review and held it pending its opinion in People v. Lopez. Once that was decided–holding in a case with a similar procedural posture that Lopez was not ineligible despite not raising the issue on his direct appeal–it returned this case to the Court of Appeal for further proceedings consistent with the Lopez decision.)

First Holding:

In 2018, the Legislature passed SB 1437, effective January 1, 2019, which among other things amended the definition of felony murder in section 189. This amended felony-murder rule restricted 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.

SB 1437 also 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.

SB 775 (2021–2022 Reg. Sess.) amended section 1172.6 further to expand eligibility for resentencing to persons convicted of murder pursuant to a theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Authority:

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

Second Holding:

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

Authority:

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

Third Holding:

The jury instructions permitted the jury to find the defendant guilty by imputing malice to him as an accomplice rather than finding that he shared the principal’s intent and therefore independently harbored malice. The ambiguous instruction couches direct aiding and abetting liability in terms of the aider and abettor knowing the perpetrator intended to commit the crime, and the aider and abettor of implied malice murder need not intend the commission of the crime of murder. It conveyed that the defendant need only intend the commission of the perpetrator’s act, the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life.

(Gary note: Presumably because the appellate court had gone through the review of the case law in the proceedings before it went up to the Supreme Court and came back down, there was little full discussion of the problem with the instruction. Powell, relied on by the court, does address the aiding and abetting issue, and Reyes (whose citation I listed below but was not cited in this opinion) approved the reasoning of Powell that, for aiding and abetting murder liability, the relevant act is the act that proximately causes death.

(The court remanded to the lower court to hold an evidentiary hearing, at which it will be determined whether the defendant can be found guilty under current law.)

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 714

People v. Lopez (2026) 19 Cal.5th 639, 658-668

People v. Reyes (2023) 14 Cal.5th 981, 990-992

Appellate Principles, Elements of crime, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 000923

Posted on by Gary McCurdy

Error and/or relief

The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.

We reverse those findings, but the prosecution may retry these special circumstance allegations.

The firearm enhancements found true as to counts 1, 2 and 3 must be reversed due to prejudicial error, including pleading deficiencies and insufficiency of the evidence. Retrial of the firearm enhancements is barred by principles of double jeopardy.

The trial court also erred by denying the defendant’s renewed motion for a transfer hearing in juvenile court under Welfare and Institutions Code section 707 as amended by AB 2361 (2021–2022 Reg. Sess.).

Accordingly, we conditionally reverse the judgment and remand the matter with directions to refer the case to the juvenile court for a transfer hearing under current law.

First Holding:

In setting forth the relevant pertinent facts in an appellate opinion, we view the record in the light most favorable to the judgment.

Authority:

In re Jesus O. (2007) 40 Cal.4th 859, 861

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

Second Holding:

In counts 1 through 3, the jury convicted appellant of first degree murder. The jury found true four special circumstance allegations: (1) lying in wait; (2) multiple murders; (3) murder in the commission of robbery; and (4) murder in the commission of burglary. Because of the special circumstance findings, appellant was sentenced to three consecutive LWOP terms.

There were several instructional errors, but many we find to have been harmless error. The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.

We reverse those findings, but the prosecution may retry these special circumstance allegations. Even if the People do not elect to do so, however, a full resentencing is required.

(Gary note: The opinion concluded that some of the instructions permitted finding guilt on the natural and probable consequences doctrine, which has been abolished. Cutting to the chase in this summary, the court stated in its analysis whether the instructional error was harmless, the court stated, that the evidence overwhelmingly demonstrated that appellant acted as a major participant in these crimes and with his own reckless indifference to human life. It was satisfied beyond a reasonable doubt that any rational juror who convicted appellant of first degree murder would have necessarily found the facts required under section 189(e)(3).

(Also, the jury was erroneously told at times that, if appellant was not an actual killer, the lying-in-wait and the multiple-murder special-circumstance allegations could be found true merely if he was a major participant who acted with reckless indifference to human life. This was legally incorrect. If appellant was not the actual killer, then the prosecution was required to prove that he acted with an intent to kill for each murder in order to establish these special circumstance allegations. The court did not find the error harmless on those instructions, and reversed those special circumstances, allowing the prosecution to retry them.)

Authority:

PEN 188(a)(3) [Malice shall not be imputed to a person based solely on his or her participation in a crime]

PEN 190.2(c) and (d)

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

People v. Hallock (1989) 208 Cal.App.3d 595, 607 [conviction reversed for instructional error may be retried if supported by sufficient evidence]

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, a full resentencing is required so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Third Holding:

We reject the prosecution’s contention that the defendant has forfeited claims of instructional error by failing to object. Trial courts have a sua sponte duty to correctly instruct on the elements of the charged offenses and on special circumstance allegations.

No objection is required to preserve a claim for appellate review when the jury instructions omit an essential element of a charge.

Moreover, a court may review any question of law involved in an instruction which affects the substantial rights of the defendant. As alleged, the instructional errors in this matter altered the mens rea and actus reus elements that the jury was required to find.

Accordingly, we decline to find forfeiture, and we will review this claim on its merits.

Authority:

PEN 1259

People v. Mil (2012) 53 Cal.4th 400, 409

People v. Hardy (2018) 5 Cal.5th 56, 91 [declining to rely on forfeiture doctrine where alleged instructional errors would have impacted defendant’s substantial rights].

Fourth Holding:

The instructional errors impacted appellant’s constitutional rights because they permitted the jury to convict him on an invalid legal theory. Accordingly, we must reverse the convictions unless, after examining the entire cause—including the evidence and considering all relevant circumstances—we determine the errors, including the disputed ones, were all harmless beyond a reasonable doubt.

Authority:

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

In re Ferrell (2023) 14 Cal.5th 593, 602

People v. Aledamat (2019) 8 Cal.5th 1, 13

Fifth Holding:

When a jury is instructed on both a legally valid theory and a legally invalid theory of guilt, harmlessness can be shown if the jury verdict on other points effectively embraces the valid theory or if, based on the evidence, it is impossible to have found what the verdict did find without also finding the facts underlying the valid theory.

To make this assessment, we must rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well.

We must be convinced that the errors were harmless beyond a reasonable doubt, and we must be satisfied that this standard is beyond serious debate.

We have rigorously reviewed the totality of the record to determine whether, based on the evidence, it is impossible for a rational juror to have found what the verdicts did find without also finding the facts underlying a valid theory.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 443-444

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

In re Ferrell (2023) 14 Cal.5th 593, 602

Sixth Holding:

Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.

Authority:

People v. Sanchez (2001) 26 Cal.4th 834, 852

Seventh Holding:

Section 12022.53(d) requires personal discharge by the defendant; it does not impose vicarious liability for another principal’s firearm discharge. Vicarious firearm liability is available only when a gang enhancement is proven. Once the gang allegations were dismissed on motion of the prosecution, the vicarious theory was unavailable.

Authority:

PEN 12022.53(d) and (e)

PEN 186.22(b)(1)

People v. Cooper (2023) 14 Cal.5th 735, 746

Eighth Holding:

Because personal discharge by appellant was neither charged nor expressly found true by the jury in the verdict forms, the court could not supply that missing fact at sentencing. Any fact increasing punishment must be found by the jury beyond a reasonable doubt.

The trial court lacked authority to stay the count 1 enhancement merely as an exercise of sentencing discretion. The court was only authorized to strike or dismiss the enhancement, not to stay it even based on its own discretionary sense of justice. Based on principles of double jeopardy, retrial is barred.

Authority:

PEN 12022.53(j)

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Porter v. Superior Court (2009) 47 Cal.4th 125, 132–133 [“Because the prosecution had a full opportunity to prove the facts necessary for a conviction but failed to do so, double jeopardy bars a second bite at the apple”]

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712 [jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction on a valid accusatory pleading]

Ninth Holding:

In January 2011, appellant was 16 years old when he committed the present crimes. In 2012, he was charged directly in adult court. In 2016, appellant filed a motion for remand to the juvenile court and a transfer hearing under Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57). Proposition 57 was passed in November 2016, and it prohibited prosecutors from charging crimes against juveniles directly in adult court.

Authority:

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303

Tenth Holding:

Before sentencing occurred in this matter, AB 2361 (2021–2022 Reg. Sess.) amended Welfare and Institutions Code section 707. These changes were effective January 1, 2023.

AB 2361 increased the burden of proof the prosecution was required to establish in order for a juvenile to be prosecuted in adult criminal court.

Under the newer heightened standard, it must be shown by clear and convincing evidence that a juvenile should be transferred to adult criminal court.

These developments materially changed the requirements for transfer in effect when the defendant originally waived his right to a transfer hearing. AB 2361 applies retroactively to nonfinal cases.

Authority:

In re E.P. (2023) 89 Cal.App.5th 409, 416

In re S.S. (2023) 89 Cal.App.5th 1277, 1284

Eleventh Holding:

A person who is eligible to have his case proceed in juvenile court may knowingly waive this statutory right. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.

A criminal defendant cannot be deemed to have waived or forfeited a legal argument that was not recognized at the time of his trial. Even where a right may be waived, a waiver generally does not include protections that were not reasonably available or contemplated at the time.

The matter must be remanded to the juvenile court to conduct a transfer hearing.

Authority:

People v. Nguyen (1990) 222 Cal.App.3d 1612, 1620

People v. Johnson (2020) 45 Cal.App.5th 123, 132 [legal counsel may waive the right to a juvenile fitness hearing for an accused who has reached adulthood]

Johnson v. Zerbst (1938) 304 U.S. 458, 464

People v. Cardenas (2007) 155 Cal.App.4th 1468, 1479

People v. French (2008) 43 Cal.4th 36, 48 [in a negotiated plea, waiver of right to jury trial on charged offenses does not extend to proof of aggravating circumstances when no such jury right was recognized at time of plea]

People v. Panizzon (1996) 13 Cal.4th 68, 85 [general waiver of right to appeal from a negotiated plea agreement will not bar the appeal of sentencing errors occurring subsequent to the plea]
People v. Becerra (2019) 32 Cal.App.5th 178, 188 [defendant cannot knowingly and intelligently waive right to appeal an issue not contemplated at time of waiver].

 

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

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

Case 000878

Posted on by Gary McCurdy

Error and/or relief

The court’s use of the kill zone instruction was factually unsupported and should not have been given and the court’s instruction identified a primary target not supported by the evidence.

First 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. The defendant’s mental state must be examined as to each alleged attempted murder victim.

Authority:

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

People v. Bland (2002) 28 Cal.4th 313, 328

Second Holding:

To be guilty of attempted murder under an aiding and abetting theory, the defendant must share the specific intent of the direct perpetrator, that is to say, the person must know the full extent of the direct perpetrator’s criminal purpose and must give aid or encouragement with the intent or purpose of facilitating the direct perpetrator’s commission of the crime. In short, to be guilty of attempted murder as an aider and abettor, the defendant must intend to kill.

Authority:

People v. Lee (2003) 31 Cal.4th 613, 624, superseded by statute on other grounds as stated in People v. Rodriguez (2022) 75 Cal.App.5th 816, 823–824

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

Third Holding:

The Supreme Court has expressly embraced the concept of a concurrent intent to kill as a permissible theory for establishing the specific intent requirement of attempted murder. This concurrent intent theory is referred to as the “kill zone.” Under the kill zone theory, a defendant may be convicted of the attempted murder of an individual who was not the defendant’s primary target.

The kill zone theory permits a jury to infer a defendant’s intent to kill an alleged attempted murder victim from circumstantial evidence (the circumstances of the defendant’s attack on a primary target).

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 596-597, 602

People v. Mumin (2023) 15 Cal.5th 176, 193

Fourth Holding:

The kill zone theory may properly be applied only when a jury concludes:

(1) the circumstances of the defendant’s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target’s death—around the primary target, and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm.

Relevant factors in determining whether defendant intended to create a kill zone are (1) number of shots fired, (2) nature of the zoned area, (3) distance between primary target and others, (4) distance between defendant and others, (5) type of weapon used, and (6) whether anyone was hit.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 607

Fifth Holding:

Our inquiry on appeal is whether substantial evidence was presented to support a reasonable inference by the jury that defendant intended to create a zone of fatal harm around a primary target.

Justification for instructing on the kill zone theory requires substantial evidence that: (1) the defendant intended to kill a primary target; (2) he concurrently intended to achieve that goal by killing all others in the fatal zone he creates; and (3) the alleged attempted murder victim was in that zone.

These requirements must be strictly adhered to in order to protect against an improper attempted murder conviction based only on a conscious disregard for life because the kill zone theory does not apply where the defendant merely subjected persons near the primary target to lethal risk.

Because use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction, trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory.

Indeed, as stated in Canizales, we anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 203

People v. Canizales (2019) 7 Cal.5th 591, 607-608

Sixth Holding:

Fundamental to the kill zone theory is a particular relationship between the primary target, the means of the attack, and the secondary target. Specifically, the would-be secondary targets must be endangered not because they were specifically targeted by defendant but because the defendant has a primary target and reasons that he cannot miss that intended target if he kills everyone in the area in which the target is located.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 203

(Gary note: The opinion goes on to analyze the facts in the case against the above principles to determine whether it was proper to instruct on the kill zone doctrine and whether the court correctly identified the specific target. It also analyzed the impact of the prosecutor’s summation on the matter. Because this is an unpublished opinion, and the importance lies only in its legal principles and the published authority in support of those principles, I am omitting the balance of the court’s discussion applying those principles in support of its conclusions that it was improper to instruct on kill zone in this case.)