Filed 8/24/26 P. v. Villalba CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B345034
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. KA076786)
ANTHONY MICHAEL VILLALBA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Reversed and remanded
with directions.
Neil J. Rosenbaum, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland and
Susan Sullivan Pithey, Assistant Attorneys General, Steven D.
Matthews and Rama R. Maline, Deputy Attorneys General, for
Plaintiff and Respondent.
_________________________________________
Anthony Villalba appeals the denial of his petition for relief
under section 1172.6 of the Penal Code1 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 subdivision
(e) of section 1172.6.
FACTS AND PROCEDURAL HISTORY
1. Facts2
On October 17, 2006, about 14 men were at the basketball
courts at Hilda Solis Park. Ten were playing a game on the
court, while the remaining sat on a bench, next to a pile of the
players’ belongings.
Appellant and his codefendant Cruz Soto Lopez (Lopez)
approached the courtside bench wearing hoods, Lopez armed
with a rifle. Lopez pointed the gun at the players on the bench,
and the two men grabbed the players’ cell phones and wallets.
The men on the court were alerted to the ongoing robbery and
asked appellant and Lopez why they were taking their phones.
Lopez responded by firing eight to 10 shots in the direction of the
court, which did not hit anyone. Someone yelled that the shooter
had no bullets left, and another yelled that it sounded like a BB
gun. The players then chased after appellant and Lopez.
Filiberto Moreno Hernandez chased Lopez about 15 meters
before Lopez turned and shot him in the foot. Filiberto’s brother
1 Undesignated statutory references are to the Penal Code.
2 These facts are drawn from the preliminary hearing
transcript.
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Sabas Moreno Hernandez continued the chase and eventually
grabbed ahold of appellant. As Sabas held onto appellant, Lopez
shot Sabas in the chest, killing him, and the men absconded with
their loot.
2. Procedural history
In March 2007, appellant was charged by information with
one count of murder, two counts of robbery, and numerous counts
of assault with a firearm.
In April 2008, appellant pleaded guilty to murder and
admitted a firearm allegation in exchange for a sentence of 16
years to life.
On March 11, 2021, appellant filed a petition for
resentencing under section 1172.6. The court appointed counsel,
found a prima facie showing had been made, and set the matter
for an OSC.
Before the evidentiary hearing, appellant was released
from prison on parole.
The court convened the hearing on March 24, 2025. It
considered the preliminary hearing transcript; neither party
submitted additional evidence. The court stated its view that the
evidence was “insufficient to support felony murder.” After
hearing the parties’ arguments, the court denied appellant’s
petition, finding him guilty of murder under a theory of implied
malice direct aiding and abetting. It reasoned that appellant
“knew of the dangerous nature of Lopez’s conduct and still he
aided and facilitated that conduct by continuing to hold onto the
property [after Sabas grabbed him], continuing to make efforts to
get away” while knowing that Lopez was armed and capable of
shooting appellant’s captor.
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DISCUSSION
1. Section 1172.6, generally
The Legislature enacted Senate Bill No. 1437 in 2018,
abolishing the natural and probable consequences doctrine in
cases of murder and limiting the application of the felony-murder
doctrine. (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Lewis
(2021) 11 Cal.5th 952, 957 (Lewis).) 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. (§§ 188, subd. (a)(3) & 189,
subd. (e).) Specifically, 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 “[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3); People v. Gentile (2020) 10 Cal.5th 830, 842–843.)
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.
(Lewis, supra, 11 Cal.5th at pp. 957, 959, 971.) After
appointment of counsel (if requested), the trial court must permit
briefing and hold a hearing “to determine whether the petitioner
has made a prima facie case for relief.” (§ 1172.6, subd. (c);
Lewis, at p. 971.) “If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial
court may dismiss the petition.” (People v. Strong (2022) 13
Cal.5th 698, 708.) 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.
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(§ 1172.6, subds. (c) & (d)(1); People v. Coley (2022) 77
Cal.App.5th 539, 543 (Coley).)
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, made
effective January 1, 2019. (§ 1172.6, subd. (d)(3).) 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.” (§ 1172.6,
subd. (d)(1), (3).) Relevant here, 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.” (§ 1172.6, subd. (e);
People v. Arellano (2024) 16 Cal.5th 457, 474, fn. 5 (Arellano)
[“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”].)
We review the trial court’s findings for substantial
evidence. (People v. Vargas (2022) 84 Cal.App.5th 943, 951.)
2. The trial court’s finding that appellant is guilty of
implied malice murder as a direct aider and abettor
is not supported by substantial evidence.
Direct aiding and abetting remains a valid theory of
murder liability after Senate Bill No. 1437. (Coley, supra, 77
Cal.App.5th at p. 546.) It “ ‘is based on the combined actus reus
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of the participants and the aider and abettor’s own mens rea.’ ”
(People v. Reyes (2023) 14 Cal.5th 981, 990–991 (Reyes).) 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.’ ” (Id. at p. 991; accord,
Garcia v. Superior Court (2024) 106 Cal.App.5th 1005, 1022.)
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. (People v. Powell (2021)
63 Cal.App.5th 689, 712 (Powell) [“ ‘An aider and abettor must do
something and have a certain mental state’ ”].) Lopez shot Sabas
in the chest to free appellant from Sabas’s grasp. It is too far of a
stretch to consider appellant’s circumstance of being physically
restrained to be an “act” of his that aided the commission of
Lopez’s fatal shooting, even if appellant wanted Lopez to shoot
Sabas so he could be freed. Nothing in the record shows
appellant told Lopez to shoot, or acted at all to facilitate the
shooting—aside from his planning and participation in the
underlying robbery. 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
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context of parent-child or caregiver relationships. (See 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.)
To the extent the People argue that appellant’s conduct of
“continuing in the robbery and escape” after Lopez fired his gun
qualifies as the actus reus, we are not convinced. “[T]he actus
reus includes whatever acts constitute aiding the commission of
the life endangering act,” and “[t]he relevant act is the act that
proximately causes death.” (Powell, supra, 63 Cal.App.5th at p.
713 & fn. 27.)3 There is no dispute here that the life-endangering
act was Lopez’s shooting Sabas in the chest. Although it was
conceivable that continuing with an armed robbery could result
in someone’s death, particularly after Lopez had already shot
someone, appellant’s act of running away with the stolen goods
did not carry the requisite “ ‘ “high degree of probability that it
will result in death” ’ ”—if anything, it was an effort to avoid
further confrontation between the robbers and the victims.
(Reyes, supra, 14 Cal.5th at p. 989; ibid. [“the defendant’s act
must not merely be dangerous to life in some vague or
speculative sense”].)
We do not see fit to remand for reconsideration of
appellant’s liability for felony murder because the trial court
3 Powell also explained that “there is a dearth of decisional
law on aiding and abetting implied malice murder, [which] may
be the heretofore availability of the natural and probable
consequences doctrine,” which “did not require that the aider and
abettor intend to aid the perpetrator in committing a life-
endangering act.” (Powell, supra, 63 Cal.App.5th at p. 711, fn.
26.)
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expressly rejected that possibility. (Cf. Arellano, supra, 16
Cal.5th at p. 477 [declining to remand where it “would be an idle
act” as shown by the trial court’s statement].) 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, subdivision (e).4
(See 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].)
4 Our Supreme Court has not reached the issues of whether
a trial court has discretion “to redesignate a murder conviction as
multiple underlying felonies or target offenses or whether a court
must redesignate an underlying offense in any particular degree.”
(Arellano, supra, 16 Cal.5th at p. 474.) We express no views on
those issues either.
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DISPOSITION
The order is reversed and this matter is remanded for the
trial court to vacate appellant’s murder conviction and resentence
him pursuant to Penal Code section 1172.6, subdivision (e).
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
RICHARDSON, J.
GOORVITCH, J.
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