Filed 7/24/26 P. v. Hernandez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B345569
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. XCNBA312691
ARMANDO HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Charlaine F. Olmedo, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
A jury convicted defendant and appellant Armando
Hernandez of the second degree murder of 16-year-old Giovanny
Mancia. More than a decade later, Hernandez filed a petition
for resentencing under Penal Code section 1172.6.1 The court
summarily denied the petition on the ground Hernandez had
not been convicted under either the felony murder rule or the
natural and probable consequences doctrine. The Legislature
subsequently made changes to the law that eliminated murder
convictions based on imputed malice. In response to those
changes, Hernandez filed a new petition for resentencing,
this time asserting the jury may have imputed malice to him.
The trial court summarily denied the petition at the prima facie
stage.
On appeal, Hernandez contends he made a prima facie
showing and is entitled to an evidentiary hearing. He relies on
cases in which courts have observed the standard CALCRIM
and CALJIC jury instructions were not tailored to a theory of
aiding and abetting implied malice murder. Hernandez argues
that, because the trial court instructed his jury with the standard
CALCRIM instructions, it is possible the jury convicted him
of murder without having found he personally harbored malice.
We conclude the instructions required the jury to find
Hernandez possessed malice to convict him of aiding and abetting
any form of murder, including implied malice murder. The
1 References are to the Penal Code. Hernandez filed his
petition under former section 1170.95. Effective June 30, 2022,
the Legislature renumbered former section 1170.95 to section
1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) (People
v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.) For the sake of
simplicity, we refer only to section 1172.6.
2
record of conviction demonstrates Hernandez is not entitled
to relief under section 1172.6 as a matter of law. Therefore,
we affirm the order denying his petition for resentencing.
FACTS AND PROCEDURAL BACKGROUND
1. Hernandez’s conviction for second degree murder
In 2007 the People charged Hernandez with a single count
of murder. A jury convicted Hernandez of second degree murder
and found true allegations that, in the commission of the crime,
a principal personally and intentionally used and discharged
a firearm causing death and that Hernandez acted to benefit
a criminal street gang. The trial court sentenced Hernandez
to 40 years to life in the state prison. In 2011, we affirmed
Hernandez’s conviction. (People v. Hernandez (Apr. 25, 2011,
B215707) [nonpub. opn.] (Hernandez I).)
According to our opinion in Hernandez’s direct appeal,2
around 5:30 p.m. on April 5, 2006, Hernandez drove his gold
Toyota Camry down 49th Street in Los Angeles. Two fellow
members of Hernandez’s gang, known as Rascal and Flaco,
were passengers in the car. Mancia was sitting in a parked car
with two other people. When Rascal saw them, he said, “What?
Who’s those fools?” Rascal and Flaco got out of the car. Flaco
shot Mancia in the chest, killing him. Hernandez drove the two
to Rascal’s house and then went home. (Hernandez I.)
2 As the truth of the facts of the crime recited in Hernandez I
are not necessary for our resolution of this appeal, we summarize
them only for the basis of Hernandez’s conviction. (See People v.
Woodell (1998) 17 Cal.4th 448, 459–460.)
3
2. Hernandez’s first petition for resentencing
After Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
Bill 1437) took effect, Hernandez filed on April 8, 2019 a petition
for resentencing under section 1172.6. Hernandez asserted he
had been convicted of second degree murder “pursuant to the
felony murder rule or the natural and probable consequences
doctrine” and could not now be convicted of murder because
of changes made to sections 188 and 189.
The superior court reviewed the jury instructions as well
as the reporter’s transcript of the instructions as read to the jury
and of closing arguments at Hernandez’s trial. The court found
Hernandez was not tried or convicted under either the felony
murder rule or the natural and probable consequences doctrine.
Based on that determination, the court denied the petition.
Hernandez appealed. His appointed counsel filed
an opening brief raising no issues and asking this court
independently to review the record under People v. Wende
(1979) 25 Cal.3d 436. This court affirmed the order denying
the petition. (People v. Hernandez (July 19, 2021, B309075)
[nonpub. opn.] (Hernandez II).)
3. Hernandez’s second petition for resentencing
After Senate Bill No. 775 (2020−2021 Reg. Sess.) (Senate
Bill 775) took effect, Hernandez filed on January 5, 2022 a new
petition for resentencing under section 1172.6. The superior
court summarily denied the petition, reasoning it was a
successive claim and barred by collateral estoppel.
On appeal, the parties agreed the petition was not barred.
However, they disagreed about whether Hernandez had
otherwise made a prima facie showing. A different panel of
this court reversed the order summarily denying Hernandez’s
4
petition. (See People v. Hernandez (Feb. 7, 2024, B323919)
[nonpub. opn.] (Hernandez III).) We remanded the case
and directed the superior court to consider whether to issue
an order to show cause and hold an evidentiary hearing.
On remand, Hernandez filed a brief arguing he is entitled
to an evidentiary hearing because the standard jury instructions
were not tailored to fit the specifics of aiding and abetting
implied malice murder. According to Hernandez, this allowed
the jury to impute malice to him based on his participation
in a crime.
The superior court denied the petition, concluding
Hernandez failed to make a prima facie showing. The court
explained Hernandez could have raised the instructional error
issue in his direct appeal, as the law at the time precluded
imputing malice to an aider and abettor outside the natural
and probable consequences doctrine. The court concluded
Hernandez failed to make a prima facie showing that he could
not be convicted of murder “because of” the 2019 amendments
to sections 188 and 189. The court also suggested the
instructions given to Hernandez’s jury were lawful.
Hernandez timely appealed.
DISCUSSION
The parties agree—as do we—the superior court erred
to the extent it concluded Hernandez could not rely on issues he
could have raised in his direct appeal from his conviction. In fact,
while this appeal was pending, the California Supreme Court
held section 1172.6 does not render ineligible for relief petitioners
who could have raised their challenges to imputed malice on
direct appeal. (People v. Lopez (2026) 19 Cal.5th 639, 649.)
5
Nevertheless, the parties disagree as to whether reversal
is required. Hernandez contends he made a prima facie showing
because the record of conviction does not conclusively rule out the
possibility the jury convicted him under a theory that is no longer
valid. Specifically, he argues the instructions allowed the jury
to convict him of aiding and abetting implied malice murder
without having to find he possessed malice.
The Attorney General argues, instead of determining
whether the jury instructions conclusively show Hernandez is
ineligible for relief, we should ask whether it is reasonably likely
the jurors understood the instructions as permitting conviction
on an improper theory. According to the Attorney General,
Hernandez failed to make a prima facie showing because it is
not reasonably likely the jurors understood the instructions as
allowing them to convict Hernandez by imputing malice to him.
We need not determine which standard is correct because
Hernandez is ineligible for relief under both.
1. Section 1172.6
Senate Bill 1437 took effect on January 1, 2019. (See Stats.
2018, ch. 1015, § 4.) It limited accomplice liability under the
felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder to ensure a person’s
sentence is commensurate with his or her individual criminal
culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842–843;
People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).)
The Legislature then passed Senate Bill 775. Among other
changes to the law, the bill eliminated convictions for murder
based on a theory under which malice is imputed to a person
based solely on that person’s participation in a crime. Senate
6
Bill 775 took effect on January 1, 2022. (See Stats. 2021, ch. 551,
§ 2.)
As relevant here, individuals convicted of murder under a
now-invalid theory may petition to vacate their convictions and
be resentenced. (§ 1172.6, subd. (a).) If the petitioner makes
a prima facie showing of entitlement to relief, the superior court
must issue an order to show cause and hold an evidentiary
hearing. At the hearing, the prosecution bears the burden of
proving beyond a reasonable doubt that the petitioner is guilty
of (in this case) murder under the amended law. (§ 1172.6,
subds. (c), (d)(3).)
“The record of conviction will necessarily inform the trial
court’s prima facie inquiry under section 117[2.6], allowing the
court to distinguish petitions with potential merit from those
that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.)
The jury instructions are part of the record of conviction, because
the instructions “given at a petitioner’s trial may provide ‘readily
ascertainable facts from the record’ that refute the petitioner’s
showing, and reliance on them to make the eligibility or
entitlement determinations may not amount to ‘factfinding
involving the weighing of evidence or the exercise of discretion,’ ”
which may not take place until after an order to show cause
issues. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055,
abrogated on other grounds in Lewis, supra, 11 Cal.5th 952;
see People v. Estrada (2022) 77 Cal.App.5th 941, 943–944, 946
[jury instructions showed trial court never instructed the jury
on the natural and probable consequences doctrine; summary
denial of petition affirmed].)
7
2. The instructions required the jury to find Hernandez
personally harbored malice
In People v. Reyes (2023) 14 Cal.5th 981 (Reyes), the
California Supreme Court confirmed aiding and abetting implied
malice murder is a valid theory of murder, and it clarified the
elements required to convict a defendant under that theory.
The court explained, “ ‘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.’ ”
(Id. at pp. 990–991, quoting People v. Powell (2021) 63
Cal.App.5th 689, 712–713, fn. omitted (Powell).)
Hernandez does not dispute that aiding and abetting
implied malice murder remains a valid theory. However,
he contends the instructions given at his trial contained an
ambiguity that allowed the jury to convict him under that theory
by imputing malice to him.
The court in Hernandez’s trial instructed the jury with
the standard CALCRIM instructions on murder and aiding and
abetting. It did not specifically tailor the instructions for aiding
and abetting implied malice murder.
8
As to aiding and abetting generally, the court instructed
the jury with CALCRIM No. 400, which stated, “A person is
equally guilty of the crime whether he committed it personally
or aided and abetted the perpetrator who committed it.” The
court also instructed the jury with CALCRIM No. 401, which
described the elements required to find a defendant aided
and abetted an intended crime. The relevant portion of the
instruction provided as follows:
“To prove that the defendant is guilty of a crime
based on aiding and abetting that crime, the People
must prove that:
“[¶] 1. The perpetrator committed the crime;
“[¶] 2. The defendant knew that the perpetrator
intended to commit the crime;
“[¶] 3. Before or during the commission of the crime,
the defendant intended to aid and abet the
perpetrator in committing the crime;
“[¶] AND
“[¶] 4. The defendant’s words or conduct did in fact
aid and abet the perpetrator’s commission
of the crime.
“[¶] Someone aids and abets a crime if he or she
knows of the perpetrator’s unlawful purpose and
he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate
the perpetrator’s commission of that crime.”
On the issue of implied malice, the court instructed the jury
with CALCRIM No. 520 as follows: “The defendant acted with
implied malice if: [¶] 1. He intentionally committed an act; [¶]
2. The natural consequences of the act were dangerous to human
9
life; [¶] 3. At the time he acted, he knew his act was dangerous
to human life; [¶] AND [¶] 4. He deliberately acted with conscious
disregard for human [life].”
Contrary to Hernandez’s contentions, these instructions
did not allow the jury to convict him of murder by imputing
malice to him. CALCRIM No. 401 told the jury aiding and
abetting requires: (1) the “defendant knew that the perpetrator
intended to commit the crime”; (2) “the defendant intended to
aid and abet the perpetrator in committing the crime”; and (3) the
defendant “did in fact aid and abet the perpetrator’s commission
of the crime.” (Italics added.) Where, as here, the defendant is
accused of aiding and abetting murder, “the crime” plainly refers
to murder. (See Powell, supra, 63 Cal.App.5th at p. 714 [“As
relevant here, ‘the crime’ would be murder.”].) Moreover, because
the People charged Hernandez with a single crime—murder—
there is no risk the jury interpreted the phrase to mean a crime
other than murder. Even if the jury understood “the crime” to
refer specifically to “implied malice murder,” CALCRIM No. 401
required it to find Hernandez (1) knew the perpetrator intended
to commit implied malice murder; (2) intended to aid and abet
the perpetrator in committing implied malice murder; and (3)
did in fact aid and abet the perpetrator’s commission of implied
malice murder. Our Supreme Court has explained, “one cannot
knowingly and intentionally help another commit an unlawful
killing without acting with malice.” (People v. McCoy (2001)
25 Cal.4th 1111, 1123.) An implied malice murder is a type of
unlawful killing. Accordingly, to convict Hernandez as an aider
and abettor of implied malice murder, the instructions required
the jury to find he personally possessed malice.
10
Hernandez’s reliance on Powell, supra, 63 Cal.App.5th 689,
People v. Langi (2022) 73 Cal.App.5th 972 (Langi), and People
v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado) is
misplaced.
In Powell, supra, 63 Cal.App.5th 689, a jury convicted
the defendant of second degree murder based on evidence
showing he was a member of a group that beat and stabbed a
man to death. (Id. at p. 692.) On appeal, the defendant argued
the standard CALCRIM instructions allowed the jury to convict
him of aiding and abetting implied malice murder, which he
asserted is an invalid theory. (Id. at pp. 706–709.) The court
rejected the argument that aiding and abetting implied malice
murder is an invalid theory. However, it noted the instructions
had not been tailored to that theory of murder. (Id. at p. 714.)
The court explained “the aider and abettor of implied malice
murder need not intend the commission of the crime of murder,”
as CALCRIM No. 401 requires. (Powell, at p. 714.) “Rather,
relative to the aider and abettor’s intent, he or she 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.”3 (Ibid.)
3 The Powell court ultimately concluded the error was
harmless because the prosecutor did not pursue an aiding and
abetting implied malice theory, there was “compelling evidence”
supporting the theories the prosecutor did pursue, and the
instructional error was unimportant in relation to everything else
the jury considered. (Powell, supra, 63 Cal.App.5th at pp. 716–
718.)
11
We agree with the Powell court that CALCRIM No. 401
is not tailored to the crime of implied malice murder.4 However,
the Powell court did not consider the implications of the lack
of tailoring, let alone hold it allows a jury to impute malice
to the defendant. If anything, the lack of tailoring worked to
Hernandez’s benefit. For example, with respect to Hernandez’s
knowledge of the perpetrator’s intent, a tailored instruction
would have required the jury to find only that Hernandez knew
the perpetrator intended to commit the act that caused death.
(See Reyes, supra, 14 Cal.5th at pp. 990–991.) CALCRIM No.
401, in contrast, required the jury to find Hernandez knew the
perpetrator intended to commit “the crime,” i.e. implied malice
murder. Considered with the instruction on implied malice—
CALCRIM No. 520—this required the jury to find Hernandez
knew the perpetrator intended to commit the act that caused
death. However, it also required the jury to find Hernandez
knew (1) the perpetrator knew the act was life-endangering
and (2) the perpetrator was deliberately acting with conscious
disregard for life. Therefore, CALCRIM No. 401 actually
required a greater showing than the law required to convict
Hernandez of aiding and abetting implied malice murder.5
4 In 2023, the Judicial Council added an instruction on
aiding and abetting implied malice murder, CALCRIM No. 526.
The instruction closely tracks the language in Reyes, supra,
14 Cal.5th 981.
5 CALCRIM No. 401 did not explicitly require the jury to find
Hernandez knew the act was dangerous to human life or that
Hernandez was acting with conscious disregard for human life,
as required for aiding and abetting implied malice murder. (See
Reyes, supra, 14 Cal.5th at pp. 990–991.) However, both were
12
The court in Langi, supra, 73 Cal.App.5th 972 reached a
different conclusion with respect to the CALJIC counterpart to
CALCRIM No. 401. However, it is distinguishable. As in this
case, Langi concerned an appeal of an order denying a section
1172.6 petition at the prima facie stage. (See Langi, at p. 977.)
The jury convicted the defendant of second degree murder,
robbery, and assault based on evidence that he was a member
of a group that robbed and beat several victims. (Id. at pp. 975–
977.) One of the victims died after someone in the defendant’s
group punched him, causing him to fall and hit his head. (Id. at
p. 975.) The trial court instructed the jury with the standard
CALJIC instruction on aiding and abetting—CALJIC No. 3.01—
as follows: “ ‘A person aids and abets the commission . . . of a
crime when he or she: [¶] (1) With knowledge of the unlawful
purpose of the perpetrator, and [¶] (2) With the intent or purpose
of committing or encouraging or facilitating the commission of
the crime, . . . [¶] (3) By act or advice aids, promotes, encourages
or instigates the commission of the crime.’ ” (Langi, at p. 981.)
The Court of Appeal concluded the defendant made a
prima facie showing under section 1172.6. (Langi, supra, 73
Cal.App.5th at p. 984.) The court explained CALJIC No. 3.01
contains an “ambiguity” that allowed the jury to convict the
defendant of aiding and abetting second degree murder without
implicit in the other findings required under CALCRIM No. 401.
Specifically, the jury necessarily found Hernandez knew the act
was dangerous to human life if it found he knew the perpetrator
knew the act was dangerous to human life. Moreover, the jury
must have found Hernandez was acting with conscious disregard
for human life if it found he intentionally helped the perpetrator
commit a dangerous act knowing the perpetrator was acting with
conscious disregard for human life.
13
finding he personally acted with malice. (Langi, at p. 982.)
The court noted the instruction required the jury to find the
defendant had knowledge only of the direct perpetrator’s
“unlawful purpose,” which under the facts of the case might
have been to strike, injure, or embarrass the victim. (Ibid.)
Moreover, the instruction did not require the aider and abettor
to act with conscious disregard for human life. Therefore, the
court reasoned, the jury could have convicted the defendant of
aiding and abetting second degree murder if it found he “intended
to encourage the perpetrator’s intentional act—in this case,
punching [the victim]—whether or not appellant intended to
aid or encourage [the victim’s] killing, and whether or not he
personally knew of and disregarded the risk of such a killing.”
(Id. at pp. 982–983.)
Assuming Langi was correctly decided, it is
distinguishable. The Langi court determined the phrase
“unlawful purpose” in CALJIC No. 3.01 was ambiguous because
it might have referred to something other than the perpetrator’s
intent to commit murder, such as an intent to commit a lesser
crime or motive. (Langi, supra, 73 Cal.App.5th at pp. 982–983.)
CALCRIM No. 401 contains similar language, stating “[s]omeone
aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose.” However, unlike in Langi, the People
did not charge Hernandez with crimes other than murder.
Therefore, there was no risk the jury understood “unlawful
purpose” in CALCRIM No. 401 to refer to an intent to commit
a lesser crime.
Nor was there a risk the jury convicted Hernandez
based solely on his knowledge of the perpetrator’s motive.
The California Supreme Court has rejected the argument that
14
a jury might understand “purpose” in CALJIC No. 3.01 to refer
to something less than intent. (See People v. Hardy (2018) 5
Cal.5th 56, 96 [“If anything, ‘purpose’ is a higher standard than
‘intent.’ ”].) We see no reason why the same would not be true
of “purpose” in CALCRIM No. 401. In any event, unlike CALJIC
No. 3.01, CALCRIM No. 401 also explicitly states an aider
and abettor must know “the perpetrator intended to commit
the crime.” In this case, “the crime” could have referred only
to murder. Therefore, even if the jury understood “unlawful
purpose” to refer to the perpetrator’s motive, the jury still had
to find Hernandez knew the perpetrator intended to commit
murder. For the reasons we discussed, this precluded the jury
from imputing malice to Hernandez.
To the extent Maldonado, supra, 87 Cal.App.5th 1257
suggests otherwise, we decline to follow it. In Maldonado,
the trial court instructed the jury with CALCRIM No. 401,
and the jury convicted the defendant of first degree murder,
possibly under a lying-in-wait theory. The defendant appealed
the denial of his section 1172.6 petition at the prima facie stage.
(Maldonado, at pp. 1259–1260.) The Court of Appeal reversed,
holding the record of conviction did not conclusively establish
the defendant had not been convicted under an imputed malice
theory. (Id. at pp. 1268–1269.) The court explained, “using
Langi’s reasoning, the jury could have construed the instructions
such that, ‘to be guilty as an aider and abettor of [lying in wait
first degree] murder, appellant need only have intended to
encourage the perpetrator’s intentional act—in this case,
[a surprise attack on the victim]—whether or not appellant
intended to aid or encourage [the victim’s] killing, and whether
15
or not he personally knew of and disregarded the risk of such
a killing.’ ” (Id. at p. 1266.)
We do not find Maldonado persuasive. The defendant
in Maldonado was charged only with murder, and the court
mentioned in passing the fact that CALCRIM No. 401 required
the jury to find he knowingly and intentionally aided and abetted
“the crime.” (See Maldonado, supra, 87 Cal.App.5th at p. 1267.)
The court suggested that requirement was not sufficient because
it did “not specify that the perpetrator must have intended that
the duration of the lying in wait be substantial enough to show
a state of mind equivalent to deliberation or premeditation,
but just that the duration in fact was so substantial.” (Ibid.)
The fact that CALCRIM No. 401 does “not specify that the
perpetrator must have intended that the duration of the lying
in wait be substantial enough” is relevant to whether the
defendant is guilty of first degree lying-in-wait murder, which
was the crime at issue in Maldonado. However, it says nothing
about whether the instruction allowed the jury to convict the
defendant under an imputed malice theory.
Here, for the reasons we discussed, the instructions did
not allow the jury to convict Hernandez of murder by imputing
malice to him. Therefore, the record conclusively refutes
Hernandez’s argument and it is not reasonably likely the jury
understood the instructions in the way he suggests. Because
the trial court did not instruct the jury on any other invalid
theories of murder—felony murder or the natural and probable
consequences doctrine—Hernandez has not made a prima facie
showing under section 1172.6. Accordingly, the superior court
properly denied his petition at the prima facie stage.
16
DISPOSITION
We affirm the order.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, Acting P. J.
We concur:
ADAMS, J.
HANASONO, J.
17