Filed 6/25/26 P. v. Mireles CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B342339
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA289903
v.
OMAR MIRELES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, H. Clay Jacke II, Judge. Reversed and
remanded with instructions.
Nancy Gaynor, 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, Jason Tran and Lauren Sanchez, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
Omar Mireles appeals the trial court’s denial of his section
1172.6 petition at the prima facie stage. Because the record of
conviction did not establish Mireles was ineligible for relief as a
matter of law, we reverse and remand for the trial court to set an
evidentiary hearing under section 1172.6, subdivision (d).
Statutory citations are to the Penal Code.
At Mireles’s trial, the court instructed the jury on aiding
and abetting, implied malice murder, and first degree murder.
The first degree murder instruction stated the murder was in the
first degree if the defendant acted willfully and with
premeditation and deliberation, or if the defendant laid in wait.
The jury convicted Mireles of first degree murder.
In 2019, the legislature enacted Senate Bill 1437, which
amended the state’s murder laws to ensure culpability was
commensurate with liability. (Sen. Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437).) The legislature later expanded its
amendments with Senate Bill 775. (Senate Bill No. 775 (2021–
2022 Reg. Sess.) (Senate Bill 775).) Senate Bill 775 allowed
defendants to seek resentencing if their convictions rested on any
“theory under which malice is imputed to a person based solely
on that person’s participation in a crime,” and they “could not
presently be convicted of murder or attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (a).) To seek such relief, a defendant must file a
petition under what is now section 1172.6. (Ibid., subds. (a) and
(b).) If petitioners make a prima facie showing that they are
eligible for relief, the trial court must set an evidentiary hearing.
(Ibid., subd. (d).) If the record of conviction shows that the
petitioner is ineligible for relief as a matter of law, the court may
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deny the petition at the prima facie stage. (People v. Lewis (2021)
11 Cal.5th 952, 971.)
Mireles filed a petition for relief under section 1172.6. He
claimed the jury instructions the court gave at his trial allowed
him to be convicted based on malice imputed from his
participation in the crime. The trial court denied the petition
because it found, based on its examination of the jury
instructions, “as a matter of law that there is no theory presented
to the jury where malice could be imputed.” Mireles appealed.
Because the trial court was incorrect there was no theory
presented to the jury under which malice could have been
imputed, we reverse. Our colleagues in Division Five of the First
District explained precisely how in People v. Maldonado (2023) 87
Cal.App.5th 1257 (Maldonado).
In Maldonado, the court traced how a defendant could be
convicted of first degree murder without a requirement that the
jury find the defendant harbored malice. (Maldonado, supra, 87
Cal.App.5th at pp. 1264–1268.) The Maldonado court noted that
CALCRIM No. 401 only requires an intent to aid and abet a
“crime.” (Id. at p. 1265.) In the murder context, this instruction
can muddy the waters because the “crime” is not necessarily the
act that caused the death or may not be an act that would require
a conscious disregard of human life. (Ibid.) The facts of People v.
Langi (2022) 73 Cal.App.5th 972 illustrate this issue. Under one
interpretation of the facts, the jury might have believed Langi’s
codefendant punched the victim, leading to the victim’s death.
(Id. at p. 980.) The aiding and abetting instruction asked if Langi
acted with knowledge of the unlawful purpose of the perpetrator
and the intent to encourage the commission of the crime. (Id. at
p. 981.) However, the second degree murder instruction clarified
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that the perpetrator need not act with the unlawful intent of
causing death. (Id. at p. 982.) Since the perpetrator need not
have had the purpose to kill, the aider and abettor’s knowledge of
the purpose need to not have been of an intent to kill. (Id. at pp.
982–983.) Thus, the jury could find Langi guilty of aiding and
abetting if he intended to encourage his codefendant’s intentional
act of punching, whether or not he personally knew of and
disregarded the risk of a killing. (Id. at 984.) This did not
require Langi as the aider and abettor of second degree murder to
have acted with implied malice, i.e. personally to have acted with
knowledge of the danger to and with conscious disregard for
human life. (Id. at p. 983–984.)
Lying in wait murder presents a similar risk for aiders and
abettors. This is because the purpose of lying in wait does not
need to be murder. If a person lies in wait to launch an attack
meant to injure or intimidate, but the attack results in a killing
which satisfies the elements of murder “it is immaterial whether
the perpetrator intended to kill.” (People v. Laws (1993) 12
Cal.App.4th 786, 795.) Thus, as with second degree murder, an
aider or abettor may intend to aid only the “crime,” a punch or a
surprise attack, and may not intend to aid an act dangerous to
human life of which they have consciously disregarded the risk.
This was the scenario presented in Maldonado. The court
instructed the jury a person aids and abets a crime if he knows
the perpetrator’s unlawful purpose and specifically intends to and
does in fact aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime. (Maldonado, supra, 87
Cal.App.5th at p. 1264.) The murder by lying in wait instruction
did not instruct the jury that the perpetrator needed to intend to
cause death. (Id. at pp. 1264, 1266.) The perpetrator could have
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intended to merely injure or intimidate the victim in a surprise
attack. (Ibid.) But, under the aiding and abetting instruction, a
jury could have construed the instruction to mean an aider and
abettor need only intend to encourage the intentional act, a
surprise attack, whether or not the aider and abettor intended to
aid the killing and whether or not the aider and abettor knew of
and consciously disregarded the risk of such a killing. (Ibid.)
While this is not the only manner in which the jury could
interpret the instructions, it was a possible interpretation. (Id. at
pp. 1266–1267.) The Maldonado court concluded this was a
theory under which malice could have been imputed to
Maldonado based solely on his participation in the crime. (Id. at
p. 1267, 1269.)
The jury instructions given at Mireles’s trial are the same
as those given in Maldonado: CALCRIM 401, 520, and 521.
Therefore, for the same reasons, it is possible the jury convicted
Mireles without finding he personally harbored malice.
In People v. Lopez (2026) 19 Cal.5th 639, 649, the Supreme
Court held that whether instructional error could have been
raised on direct appeal is immaterial to the section 1172.6
analysis. Given this guidance, the fact that the record of
conviction does not foreclose the possibility that Mireles was
convicted under a theory that imputed malice to him through his
participation in a crime requires the trial court to provide an
evidentiary hearing under Section 1172.6, subdivision (d).
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DISPOSITION
We reverse and remand for the trial court to set an
evidentiary hearing pursuant to section 1172.6, subdivision (d).
WILEY, J.
We concur:
STRATTON, P. J.
SCHERB, J.
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