Tag Archives: Vicarious liability

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

Case 000482

Posted on by Gary McCurdy

Error and/or relief

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

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

First Holding:

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

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

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

Authority:

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

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

Second Holding:

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

Authority:

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

Third Holding:

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

Authority:

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

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

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

Case: 000432

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 188(a)(3)

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

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

Second Holding:

At the evidentiary hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under a currently valid theory. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.

Authority:

PEN 1172.6(d)(3)

Third Holding:

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

Authority:

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

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

Fourth Holding:

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

Authority:

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

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

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

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

Fifth Holding:

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

Authority:

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

Sixth Holding:

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

Authority:

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

Seventh Holding:

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

Authority:

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

Eighth Holding:

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

Authority:

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

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

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

Case: 000331

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

Second Holding:

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

Authority:

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

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

Third Holding:

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

Authority:

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

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

Fourth Holding:

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

Authority:

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

Fifth Holding:

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

Authority:

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

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

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

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

Sixth Holding:

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

Authority:

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

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

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

People v. Gentile (2020) 10 Cal.5th 830, 850 [Notwithstanding SB 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life]

Seventh Holding:

In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

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

Amelioration, Elements of crime, 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