Filed 7/2/26 P. v. Jones CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B342348
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. TA088018)
FREDDIE HOWARD JONES, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed.
Maggie Shrout, 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, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Allison H. Chung, Deputy
Attorney General, for Plaintiff and Respondent.
Defendant Freddie Howard Jones, Jr., (defendant) and
several co-defendants were tried for murder in 2008. A jury
found two of the co-defendants guilty of premeditated first degree
murder and found defendant guilty of second degree murder.
Many years later, defendant filed a petition for resentencing
pursuant to Penal Code section 1172.6 (former section 1170.95).1
The trial court denied the petition at the prima facie stage
without issuing an order to show cause. Defendant asks us to
decide whether this was error because he could have been
convicted on a “theory under which malice is imputed to a person
based solely on that person’s participation in a crime.” (§ 1172.6,
subd. (a)(1).)
I. BACKGROUND
A. The Offense Conduct
In June 2003, defendant and several fellow members of a
local criminal street gang gathered near a Compton apartment
complex that served as one of the gang’s “stronghold areas.” The
other gang members included Shawney Jackson (Jackson), Jamie
Cox (Jamie), and Christopher Johnson (Johnson). Also present
were defendant’s girlfriend, Nakiea Larkin (Larkin), and another
woman named Shelnesha Cox (Shelnesha).
The group got into a Lincoln Navigator, with Jamie driving.
Jamie suggested they “‘pass by’” the home of Sergio Bernal
(Bernal), a member of a rival gang who used to chase Jamie home
from school and who had convictions for gang-related shootings.
Bernal was outside watering his yard. Jamie said, “‘There he
1
Undesignated statutory references that follow are to the
Penal Code.
2
go,’” and Jackson asked, “‘What you want me to do?’” According
to Shelnesha, defendant and the other men in the car said, “‘We
gonna milk blood.’”2
Jackson got out of the Navigator and approached Bernal’s
house; Jamie circled the block. When the Navigator was once
again within sight of Bernal’s house, Jackson shot Bernal in the
back from behind a fence—killing him.
Jackson then got back in the Navigator after defendant
opened the door for him. Jamie drove back to the apartments
where the group initially congregated. Defendant and his fellow
gang members warned Shelnesha and Larkin not to talk to law
enforcement about the shooting.
B. Jury Instructions, Conviction, and Sentencing
Defendant, Jackson, Jamie, and Johnson were each
charged with murder. The information further alleged firearm
sentencing enhancements and gang enhancements.
Defendant, Jackson, Jamie, and Johnson were tried
together. During trial, the jury was not instructed on the felony
murder rule or the natural and probable consequences doctrine.
The jury was given instructions on malice murder and on aiding
and abetting (and these instructions are central to defendant’s
argument in this appeal).
The aiding and abetting instructions, based on CALCRIM
Nos. 400 and 401, provided: “A person may be guilty of a crime in
2
On cross-examination, Shelnesha testified defendant did
not talk about milking blood. On re-direct, she reiterated that
defendant (and “all the boys”) did make this comment. Larkin
denied hearing defendant make this comment.
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two ways. One, he or she may have directly committed the crime.
I will call that person the perpetrator. Two, he or she may have
aided and abetted a perpetrator, who directly committed the
crime. A person is equally guilty of the crime whether he or she
committed it personally or aided and abetted the perpetrator who
committed it. [¶] . . . [¶] 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. . . .”
The trial court’s instruction on murder with malice
aforethought, based on CALCRIM No. 520, provided: “[T]he
People must prove that: [¶] 1. The defendant committed an act
that caused the death of (another person); [¶] AND [¶] 2. When
the defendant acted, (he/she) had a state of mind called malice
aforethought[.] [¶] There are two kinds of malice aforethought,
express malice and implied malice. Proof of either is sufficient to
establish the state of mind required for murder. [¶] The
defendant acted with express malice if (he/she) unlawfully
intended to kill. [¶] The defendant acted with implied malice if:
[¶] 1. (He/She) intentionally committed an act; [¶] 2. The natural
consequences of the act were dangerous to human life; [¶] 3. At
the time (he/she) acted, (he/she) knew (his/her) act was dangerous
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to human life; [¶] AND [¶] 4. (He/She) deliberately acted with
conscious disregard for (human) life. . . .”3
The court also instructed the jury on degrees of murder,
using CALCRIM No. 521. That instruction explained a
defendant is guilty of first degree murder “if the People have
proved that (he/she) acted willfully, deliberately, and with
premeditation. The defendant acted willfully if (he/she) intended
to kill. The defendant acted deliberately if (he/she) carefully
weighed the considerations for and against (his/her) choice and,
knowing the consequences, decided to kill. The defendant acted
with premeditation if (he/she) decided to kill before committing
the act that caused death. [¶] . . . [¶] All other murders are of
the second degree. . . .”
After deliberating, the jury found defendant guilty of
second degree murder and Jackson and Jamie guilty of first
degree murder. The jury also found the firearm and gang
allegations to be true as to defendant, Jackson, and Jaime.
Johnson was acquitted. The trial court sentenced defendant to
40 years to life in prison: 15 years to life for murder plus a
consecutive term of 25 years for the firearm discharge causing
death enhancement.
3
During closing argument, the prosecution argued “the
malice aforethought that [i]s in play in this case is express
malice.”
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C. Appeal and Petitions for Resentencing
On direct appeal in 2010, this Court ordered defendant’s
judgment modified in certain respects but affirmed his murder
conviction.4 (People v. Cox (2010) 187 Cal.App.4th 337, 364.)
In 2019, defendant filed a section 1172.6 petition for
resentencing. The trial court summarily denied the petition,
reasoning defendant was ineligible for resentencing because he
was “not prosecuted under either a felony murder or a natural
and probable consequence theory of culpability. A jury
determined he was a direct aider and abettor to the murder.”
Defendant filed a second petition for resentencing in 2023
following amendments to section 1172.6. The prosecution
opposed the petition, arguing defendant remained ineligible for
resentencing because “[t]he jury was not instructed on felony
murder, natural and probable consequences or any other theory
of culpability that imputed malice to [defendant].” Defendant’s
attorney filed a reply arguing that “even though the jury was not
instructed on the felony murder or natural and probable
consequences doctrines, he may nonetheless have been convicted
on a theory under which malice was imputed to him based solely
on his participation in a crime.” The defense asserted the jury
could have imputed malice (1) because the court’s aiding and
abetting instruction modeled on CALCRIM No. 401 was “‘not
tailored for’ aiding and abetting an implied malice murder” (by
not expressly stating defendant “must personally harbor the
4
The trial court was directed to reverse a gang enhancement
imposed under former section 186.22, subdivision (b)(1)(C),
impose and stay firearm enhancements under sections 12022.53,
subdivisions (b) and (c), and correct presentence custody credits.
(Cox, supra, 187 Cal.App.4th at 364.)
6
mental state of implied malice or express malice”), and (2)
because CALCRIM No. 400’s provision that “[a] person is equally
guilty of the crime whether he or she committed it personally or
aided and abetted the perpetrator who committed it” allowed the
jury to convict defendant of murder based solely on Jackson
and/or Jamie’s mental state.
The trial court held a prima facie hearing on defendant’s
second section 1172.6 petition in October 2024. Both sides
submitted on the briefing they had filed without further
argument, and the trial court found defendant had not made a
prima facie case for relief. The court explained that defendant
was convicted on an aiding and abetting theory, without
instructions on felony murder or the natural and probable
consequences doctrine, and that “the way in which the jury was
instructed, there is no other way for the finding [of guilt] other
than malice in the matter.”
II. DISCUSSION
The trial court did not err in finding defendant did not
make a prima facie case for section 1172.6 relief. There were no
instructions on any theory of murder other than malice murder,
and there is no basis to believe the court’s aiding and abetting
instructions allowed for the imputation of malice on this record.
The same jury that found defendant guilty of second degree
murder found Jackson and Jamie guilty of premeditated first
degree murder. As the case was charged and tried, the jury
therefore necessarily found defendant knew his co-defendants
intended to murder Bernal and intended to aid and abet them in
committing that crime. There is no chance the jury simply
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attributed Jackson and Jamie’s state of mind to defendant with
no independent evaluation.
A. Section 1172.6 and Appellate Review
Section 1172.6 provides in relevant part that a “person
convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime” may file a petition to have that
conviction vacated under certain circumstances. (§ 1172.6, subd.
(a).) At the prima facie stage of section 1172.6 review, a trial
court must determine whether the petitioner would be entitled to
relief if the petition’s allegations were proven. (People v. Lewis
(2021) 11 Cal.5th 952, 971.) In making its determination at the
prima facie stage, the court should not make credibility
determinations or engage in “‘factfinding involving the weighing
of evidence or the exercise of discretion.’ [Citation.]” (Id. at 974.)
Our review is de novo. (People v. Anaya (2025) 117 Cal.App.5th
615, 620.)
B. There Is No Possibility the Jury Imputed Malice to
Defendant
Defendant acknowledges his jury was not instructed on
felony murder or the natural and probable consequences doctrine,
but he makes the same argument he made below: the jury
instructions nonetheless permitted the jury to impute malice
aforethought to him instead of concluding he harbored malice
himself.
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1. CALCRIM No. 401, and aiding and abetting
Defendant’s first argument—that the aiding and abetting
and murder instructions permitted the jury to impute malice to
defendant—is based principally on the terms of the CALCRIM
No. 401 instruction given and the holdings in People v. Powell
(2021) 63 Cal.App.5th 689 and People v. Langi (2022) 73
Cal.App.5th 972.
In Powell, the defendant and a co-defendant were convicted
of second degree murder and first degree residential burglary for
joining a group that stormed the home of the victim, who was
beaten and fatally stabbed. (Powell, supra, 63 Cal.App.5th at
692.) On appeal, the Powell court rejected the defendant’s
argument that a person cannot aid and abet an implied malice
murder, but held the standard aiding and abetting instruction,
CALCRIM No. 401, is “not tailored for” aiding and abetting an
implied malice murder. (Id. at 713-714.) The instruction’s
language focuses on whether the aider and abettor knew the
perpetrator intended to commit the crime, but in the context of
implied malice murder, the relevant question is whether the
aider and abettor intended the commission of the life
endangering act. (Id. at 714.) The Powell court therefore
concluded the instructions were erroneous, though it found the
error harmless. (Id. at 714-718.)
Langi applied Powell’s reasoning concerning the lack of fit
between standard aiding and abetting instructions and implied
malice murder in the context of a petition for resentencing.
(Langi, supra, 73 Cal.App.5th at 982.) The defendant in Langi
was one of four men who robbed a group that included the
decedent, who fell, hit his head, and died after someone punched
him. (Id. at 975.) The jury found the defendant not guilty of
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felony murder, but convicted him of second degree murder,
robbery, and battery. (Id. at 977.) On appeal from the summary
denial of the defendant’s petition for resentencing, the reviewing
court determined the record did not “conclusively establish that
appellant was convicted as the actual killer” (id. at 980, fn.
omitted) and proceeded to discuss whether, in the absence of an
instruction on the natural and probable consequences doctrine,
the instructions permitted the jury to convict the defendant of
murder on a theory under which malice was imputed to him.
The Langi court observed the instruction on implied malice
second degree murder stated that a killing is second degree
murder if it resulted from an intentional act, the natural and
probable consequences of which are dangerous to human life, and
the act was performed with knowledge of the danger to or
reckless disregard for human life. (Langi, supra, 73 Cal.App.5th
at 981.) The aiding and abetting instruction provided that a
person aids and abets a crime if, with “‘knowledge of the unlawful
purpose of the perpetrator,’” they aided the perpetrator “‘[w]ith
the intent or purpose of committing or encouraging or facilitating
the commission of the crime.’” (Ibid.) The Langi court reasoned
that, read together, these instructions would allow a jury to find
the defendant guilty of murder based merely on his aiding and
abetting the actual killer’s intentional act—even if he had no
knowledge of the danger to, or reckless disregard for, human
life—so long as the killer acted with implied malice. (Id. at 981-
983.)
The Langi court determined the instruction that an aider
and abettor must act with knowledge of the perpetrator’s
unlawful purpose did not close this gap because “the second-
degree-murder instruction specified that the direct
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perpetrator . . . need not act with the unlawful intent of causing
death. Thus, while the perpetrator must have deliberately
performed the fatal act ‘with knowledge of the danger to, and
with conscious disregard for, human life’ [citation], his purpose
may have been only to strike or to injure, or conceivably only to
embarrass, the victim. Since the perpetrator’s purpose need not
have been to kill the victim, the aider and abettor’s knowledge of
that purpose similarly need not have been knowledge that the
perpetrator aimed to kill.” (Langi, supra, 73 Cal.App.5th at 982.)
Although the instructions delivered at defendant’s trial
were similar to those discussed in Powell and Langi, the
circumstances were different and these differences foreclose the
possibility that defendant’s jury found him guilty of second
degree murder based solely on his participation in a crime.
Defendant was convicted of aiding and abetting his co-
defendants’ premeditated killing of Bernal—not an implied
malice murder. CALCRIM No. 401’s instruction that an aider
and abettor must know the direct perpetrator intended to commit
“the crime” and the aider and abettor must intend to aid and abet
the commission of “the crime” accordingly does not give rise to
any ambiguity in this case. Defendant and his co-defendants
were charged with a single count of murder, and the only theory
of first degree murder on which the jury was instructed was
murder committed willfully, deliberately, and with
premeditation.
Read together, the verdicts as to defendant, Jackson, and
Jamie thus establish defendant knew his co-defendants
unlawfully intended to kill Bernal and defendant intentionally
aided them in doing so. (People v. McCoy (2001) 25 Cal.4th 1111,
1123 [“Absent some circumstance negating malice one cannot
11
knowingly and intentionally help another commit an unlawful
killing without acting with malice”]; see also In re Ferrell (2023)
14 Cal.5th 593, 600 [express malice is a viable theory of second
degree murder].) Unlike in Langi, where the purpose of the
person who struck the fatal blow “may have been only to strike or
to injure, or conceivably only to embarrass, the victim” (Langi,
supra, 73 Cal.App.5th at 982) and there was no conviction
alongside a co-defendant found guilty of an express malice
murder, the combined verdicts in this case establish defendant
shared his co-defendants’ unlawful intent to kill and aided them
in doing so. That represents a finding of malice, not the
imputation of malice.
2. CALCRIM No. 400’s “equally guilty” language
There is similarly no possibility that defendant’s murder
conviction rests on an imputation of malice attributable to
CALCRIM No. 400’s reference to principals being “equally
guilty.” CALCRIM No. 401 informed the jury it could only find
defendant guilty of murder as an aider and abettor if it found he
knew the perpetrator(s) intended to murder, he shared their
murderous intent, and he in fact aided the perpetrator(s) in the
murder. “That instruction ‘would have cleared up any ambiguity
arguably presented by CALCRIM former No. 400’s reference to
principals being “equally guilty.”’ [Citation.]” (People v. Jasso
(2025) 17 Cal.5th 646, 692.) Moreover, the fact that the same
jury convicted Jackson and Jamie of premeditated first degree
murder, and defendant of second degree murder, precludes any
possibility that the jury believed it was required to merely impute
Jackson or Jamie’s state of mind to defendant. While the jury’s
reasons for not returning a first degree murder verdict for
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defendant are inscrutable (perhaps it was due to “‘compromise[ ]
or lenity’” (People v. Avila (2006) 38 Cal.4th 491, 600)) we can be
certain the jury did not understand CALCRIM No. 400’s “equally
guilty” language as a direction to impute Jackson and Jamie’s
malice to defendant.
DISPOSITION
The order denying defendant’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM (D.), J.
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