Filed 9/18/26 P. v. Bennett CA5
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F086760
Plaintiff and Respondent,
(Super. Ct. No. VCF230530)
v.
JOHNNIE ALBERT BENNETT, OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2010, a jury convicted defendant Johnnie Albert Bennett (defendant) of
first degree murder (Pen. Code, § 187) and the trial court sentenced defendant to 25 years
to life. (Undesignated statutory references are to the Penal Code.) At trial, the jury was
instructed on first degree murder based on two theories: premeditation and deliberation
and lying in wait. In November 2019, defendant filed a petition for resentencing under
former section 1170.95 (now § 1172.6), which the trial court denied days later. Our court
reversed the trial court’s order and remanded for further proceedings. The court then
held a hearing on remand at which it again denied defendant’s petition without issuing an
order to show cause on the grounds the jury was not instructed on felony murder or the
natural and probable consequences doctrine.
On appeal, defendant argued the trial court erred in denying his petition at the
prima facie stage, asserting the jury instructions on aiding and abetting, implied malice,
and lying-in-wait murder allowed for the jury to convict him of murder under a theory by
which malice was imputed to him based solely on his participation in the crime, relying
on People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado). The People
disagreed and asserted the record of conviction conclusively established the jury was not
instructed on any of the theories of liability that were abrogated by Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437).
Our court previously affirmed the trial court’s order in an unpublished opinion.
Thereafter, defendant filed a petition for review with the California Supreme Court. The
court granted defendant’s petition and transferred the matter back to our court with
directions to vacate our opinion and reconsider the matter in light of People v. Lopez
(2026) 19 Cal.5th 639 (Lopez).
We now conclude the matter must be remanded for further proceedings consistent
with this opinion.
FACTUAL AND PROCEDURAL HISTORY
In 2010, a jury convicted defendant of first degree murder (§ 187; count 1) and he
was sentenced to 25 years to life in prison. Our court affirmed defendant’s conviction in
2.
an unpublished opinion. (See People v. Bennett (Aug. 9, 2011, F060576) [nonpub.
opn.].)
In November 2019, defendant submitted a petition for resentencing pursuant to
former section 1170.95 (now § 1172.6) using a preprinted form. He checked boxes
stating a charging document had been filed against him allowing the prosecution to
proceed under a felony-murder theory or murder under the natural and probable
consequences doctrine; at trial, he was convicted of first or second degree murder under a
felony-murder theory or the natural and probable consequences doctrine; and he could
not now be convicted of murder in light of changes made to sections 188 and 189,
effective January 1, 2019 (pursuant to Senate Bill 1437). He also checked a box
indicating he was convicted of first degree murder but could not now be convicted
because he was not the actual killer, he did not, with the intent to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in the commission of murder
in the first degree, and he was not a major participant in the felony or did not act with
reckless indifference to human life during the course of the crime or felony. He
requested that counsel be appointed for him during the resentencing process.
Three days after defendant filed his petition, and before any response was filed by
the People, the trial court signed an order denying the petition, concluding the “facts of
the crime do not qualify for the requested relief. He was a major participant.” Defendant
appealed from the court’s order, and we previously reversed the court’s order and
remanded for further proceedings.
Thereafter, the trial court held another prima facie review hearing on October 22,
2021, at which it again denied defendant’s petition, concluding section 1172.6 was
inapplicable to his case. At the hearing, the People argued the jury instructions made
clear “the only theories of liability were premeditation, aiding and abetting, and lying in
wait. There was no natural and probable consequence argument and no felony murder, so
[Senate Bill] 1437 was inapplicable.” Accordingly, counsel for the People stated he did
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not “see any grounds where [section 1172.6] applies” and he believed defense counsel
was “in agreement.” Defense counsel agreed that “any error in the argument” was
“harmless based on the instructions.” In denying the petition, the trial court noted it
would include in the record the jury instructions and transcript of final arguments, stating
“contained therein is nothing that falls within the [section 1172.6] legislation.”
Defendant timely appealed the trial court’s denial of his petition for resentencing.
DISCUSSION
I. Jury Instructions
Here, the trial court instructed the jury on both express and implied malice
pursuant to CALCRIM No. 520:
“The defendant is charged with murder.
“To prove that the defendant is guilty of this crime, the People must
prove that:
“1. The defendant committed an act that caused the death of another
person;
“AND
“2. When the defendant acted, he 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 unlawfully intended
to kill.
“The defendant acted with implied malice if:
“1. He intentionally committed an act;
“2. The natural and probable consequences of the act were
dangerous to human life;
4.
“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.
“Malice aforethought does not require hatred or ill will toward the
victim. It is a mental state that must be formed before the act that causes
death is committed. It does not require deliberation or the passage of any
particular period of time.”
The jurors were also instructed on the different degrees of murder pursuant to
CALCRIM No. 521, which told them defendant was being prosecuted for first degree
murder under two theories: (1) the murder was willful, deliberate, and premeditated; and
(2) the murder was committed while lying in wait. Specifically, the jury was instructed
regarding murder while lying in wait:
“The defendant may also be guilty of first degree murder if the
People have proved that the defendant murdered while lying in wait or
immediately thereafter. The defendant murdered by lying in wait if:
“1. He concealed his purpose from the person killed;
“2. He waited and watched for an opportunity to act;
“AND
“3. Then, from a position of advantage, he intended to and did make
a surprise attack on the person killed.
“The lying in wait does not need to continue for any particular
period of time, but its duration must be substantial enough to show a state
of mind equivalent to deliberation or premeditation.
“A person can conceal his or her purpose even if the person killed is
aware of the person’s physical presence.
“The concealment can be accomplished by ambush or some other
secret plan.”
The jury was instructed on aiding and abetting general principles pursuant to a
former version of CALCRIM No. 400:
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“A person may be guilty of a crime in 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.”
The jury was also instructed on aiding and abetting principles pursuant to
CALCRIM No. 401 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.
“If all of these requirements are proved, the defendant does not need
to actually have been present when the crime was committed to be guilty as
an aider and abettor.
“If you conclude that defendant was present at the scene of the crime
or failed to prevent the crime, you may consider that fact in determining
whether the defendant was an aider and abettor. However, the fact that a
person is present at the scene of a crime or fails to prevent the crime does
not, by itself, make him or her an aider and abettor.”
II. Senate Bill 1437 and Senate Bill No. 775
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] the felony murder rule and the
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natural and probable consequences doctrine, as it relates to murder, to ensure that murder
liability is not imposed on a person who is not the actual killer, did not act with the intent
to kill, or was not a major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It amended
section 188, which defines malice, and section 189, which defines the degrees of murder
to address felony-murder liability, and it added section 1170.95, now section 1172.6,
which provides a procedure by which those convicted of murder can seek retroactive
relief if the changes in the law would affect their previously sustained convictions.
(Stats. 2018, ch. 1015, §§ 2–4.)
Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in a crime shall act with
malice aforethought. Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3), italics added.) The change reflects the
Legislature’s intent that “[a] person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, “All murder … which is committed in
the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288,
288a, or 289, or any murder which is perpetrated by means of discharging a firearm from
a motor vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in
part, by adding subdivision (e), which provides:
“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
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acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
The legislation also added section 1172.6, which provides a procedure by which
defendants whose cases are final can seek retroactive relief if the changes in the law
would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.)
Initially, section 1172.6 (former § 1170.95) permitted those “convicted of felony murder
or murder under a natural and probable consequences theory [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts ….” (Stats. 2018, ch. 1015, § 4, subd. (a).)
In Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775), effective
January 1, 2022, the Legislature amended the language of this section to expand the
scope of the petitioning procedure, in part, by expressly permitting persons convicted of
attempted murder under the natural and probable consequences doctrine to petition for
relief. (Stats. 2021, ch. 551, § 2.) Under the amended statute, an offender may file a
petition under section 1172.6 where all three of the following conditions are met:
“(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony
murder, 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, or attempted murder under the natural and
probable consequences doctrine[;]
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder[; and]
“(3) The petitioner 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)(1)–(3).)
Upon receiving a petition, if the petitioner has requested counsel, the court must
appoint counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).) “After the parties
have had an opportunity to submit briefings, the court shall hold a hearing to determine
8.
whether the petitioner has made a prima facie case for relief.” (§ 1172.6, subd. (c).) “If
the court declines to make an order to show cause, it shall provide a statement fully
setting forth its reasons for doing so.” (Ibid.) “The record of conviction will necessarily
inform the trial court’s prima facie inquiry under section [1172.6], allowing the court to
distinguish petitions with potential merit from those that are clearly meritless.” (People
v. Lewis (2021) 11 Cal.5th 952, 971.) At the prima facie inquiry stage, “ ‘ “the court
takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved. If so, the court must issue an order to show cause.” ’ ” (Ibid.) “ ‘However,
if the record, including the court’s own documents “contain[s] facts refuting the
allegations made in the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ ” (Ibid.) “In reviewing any part of the record
of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.)
“If the petitioner makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause.” (§ 1172.6, subd. (c).) Within
60 days after the order to show cause has issued, the trial court must then hold a hearing
“to determine whether to vacate the murder, attempted murder, or manslaughter
conviction and to recall the sentence and resentence the petitioner on any remaining
counts in the same manner as if the petitioner had not previously been sentenced,
provided that the new sentence, if any, is not greater than the initial sentence.” (§ 1172.6,
subd. (d)(1).)
III. Applicable Law
In People v. Powell (2021) 63 Cal.App.5th 689, the Third District Court of Appeal
considered a claim of instructional error on direct appeal. (Id. at pp. 709–710.) The
Powell court concluded the aiding and abetting instructions (CALCRIM No. 401) given
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to the jury in that case were not accurately tailored for second degree implied malice
murder. (Powell, at p. 714.) Powell observed, “[t]he 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. 713.) While CALCRIM No. 401 requires an intent to aid and abet “the crime,” it
does not instruct the jury that the aider and abettor must personally harbor the mental
state of implied malice to be convicted of second degree murder. (See Powell, at p. 714.)
Accordingly, the Powell court concluded the given instructions were erroneous. (Ibid.)
However, the Powell court concluded the instructional error was harmless because the
prosecutor did not rely upon or argue an implied malice theory as to the defendant
challenging the instruction. (Id. at pp. 714–715.)
Thereafter, in People v. Langi (2022) 73 Cal.App.5th 972 (Langi), the First
District Court of Appeal, Division Four, extended Powell’s holding to conclude the
appellant was not categorically ineligible for section 1172.6 relief where there was a
similar alleged ambiguity in the aiding and abetting instructions. (Langi, at pp. 982,
983.) The Langi court explained, “The [given] aiding-and-abetting instruction stated that
a person aids and abets a crime if he or she acts ‘with knowledge of the unlawful purpose
of the perpetrator, and … with the intent or purpose of committing or encouraging or
facilitating the commission of the crime.’ (CALJIC No. 3.01, italics added.) However,
… the second degree murder instruction specified that the direct perpetrator of that crime
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’ (CALJIC No. 8.31), his purpose may have been only
to strike or to injure, or conceivably only to embarrass, the victim.” (Langi, at p. 982.)
Thus, “[s]ince 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
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perpetrator aimed to kill.” (Ibid.) That is, “[i]f the perpetrator need not have had
‘murderous intent,’ certainly the aider and abettor need not have had such an intent.” (Id.
at pp. 982–983.) The Langi court reasoned, “under the instructions that were given, the
jury was entitled to conclude that, to be guilty as an aider and abettor of second degree
murder, appellant need only have 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 p. 983.) Langi held, in light of these
instructions, the record of conviction did not conclusively negate the possibility the jury
convicted the appellant of second degree murder by imputing to him the implied malice
of the actual killer, without finding that he personally acted “ ‘with knowledge of the
danger to, and with conscious disregard for, human life.’ ” (Id. at p. 984.)
And, relevant here, in Maldonado, supra, 87 Cal.App.5th 1257, the defendant
was convicted of first degree murder in 2013; the jury found a lying-in-wait
special-circumstance allegation not true. (Id. at p. 1260.) Notably, the jury was not
instructed on the natural and probable consequences or felony-murder doctrines. (Ibid.)
The defendant filed a section 1172.6 petition for resentencing in 2020, which the trial
court summarily denied, concluding the record conclusively proved the defendant was
not convicted under a felony-murder or natural and probable consequences theory.
(Ibid.) The Maldonado court reversed the court’s order, concluding the instructions for
aiding and abetting a lying-in-wait murder permitted the jury to convict the defendant of
murder based on a theory under which malice was imputed to him based solely on his
participation in the crime. (Id. at pp. 1266–1267, 1269.) Maldonado explained, “the jury
was instructed that a person aids and abets a crime if ‘he or she knows 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.’ ” (Id. at
p. 1266.) But “[t]he murder by lying in wait instruction did not instruct the jury that the
11.
perpetrator needed to intend to cause death. While the perpetrator must have concealed
his purpose from the victim, waited and watched for an opportunity to act, intentionally
made a surprise attack from a position of advantage, and have lain in wait for a
substantial enough duration to show a state of mind equivalent to deliberation or
premeditation, the jury may have found the perpetrator’s purpose was only to injure or
intimidate the victim in the surprise attack.” (Ibid.) The Maldonado court relied on
Langi, supra, 73 Cal.App.5th 983 to conclude the jury could have construed the
instructions such that to be guilty as an aider and abettor of lying-in-wait first degree
murder, the appellant only needed to have intended to encourage the perpetrator’s
intentional act—in that case, a surprise attack on the victim—whether or not the appellant
intended to aid or encourage the victim’s killing and whether or not he personally knew
of and disregarded the risk of a such a killing. (Maldonado, at p. 1266.) Accordingly,
the jury “could have reasonably construed the instructions in a manner permitting it to
convict appellant under a theory of imputed malice.” (Id. at p. 1267.)
Another line of cases that was recently disapproved by Lopez, supra, 19 Cal.5th
639, adopted a different approach. In People v. Berry-Vierwinden (2023) 97 Cal.App.5th
921 (Berry-Vierwinden), the Fourth District Court of Appeal, Division One, disagreed
with Maldonado, concluding it failed to consider section 1172.6, subdivision (a)(3) in its
analysis. (Berry-Vierwinden, at pp. 933, 935.) The defendant in Berry-Vierwinden was
convicted of murder based on a theory of lying in wait. (Id. at p. 926.) He conceded he
was not tried under the felony-murder rule or the natural and probable consequences
doctrine. (Id. at p. 932.) As in Maldonado, the defendant petitioned for relief from his
conviction pursuant to section 1172.6, arguing the instructions given at his trial permitted
the jury to convict him of aiding and abetting a lying-in-wait murder by imputing malice
to him based solely on his participation in a crime. (Berry-Vierwinden, at pp. 932–933.)
Drawing from its recent decisions in People v. Burns (2023) 95 Cal.App.5th 862 and
People v. Flores (2023) 96 Cal.App.5th 1164, the Berry-Vierwinden court concluded the
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trial court correctly denied relief at the prima facie stage because the defendant’s claim of
instructional error failed to establish he “ ‘could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made effective January 1,
2019’ ” by Senate Bill 1437 (§ 1172.6, subd. (a)(3)).1 (Berry-Vierwinden, at p. 925; see
id. at pp. 934–936.) The court explained,
“[T]he instructional errors Berry-Vierwinden asserts have nothing to do
with these 2019 legislative changes. What he is really arguing is that the
instructions ‘may have misled the jury as to what was then required to
convict [him].’ [Citation.] By the time of his trial in 2010, California law
was already clear that a direct aider and abettor could not be convicted of
1In People v. Burns, supra, 95 Cal.App.5th 862, the appellate court affirmed the denial of
a section 1172.6 petition at the prima facie stage. (Burns, at p. 866.) The defendant in Burns
argued the language in the former version of CALCRIM No. 400 that told jurors “ ‘[a] person is
equally guilty of the crime whether he or she committed the crime personally or aided and
abetted the perpetrator who committed it’ ” (Burns, at p. 864), “created in effect, an ‘other
theory’ of imputed malice within the meaning of section 1172.6.” (Id. at p. 867.) The Burns
court rejected this contention, reasoning “[t]he problem with the ‘equally guilty’ language in
former version CALCRIM No. 400 was not that it permitted the jury to rely on a now-invalid
theory of criminal liability, but that it may have misled the jury as to what was then required to
convict Burns. Use of the ‘equally guilty’ language in the instruction provided at Burns’s trial
created a potential issue of instructional error, but it did not operate to offer the jury a theory of
legal liability that can no longer support a conviction for murder as a result of the recent statutory
changes.” (Id. at p. 869.) The Burns court concluded, because the defendant did not establish he
“ ‘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)(3), italics added[]),” he was not
entitled to relief. (Burns, at pp. 867, 869.)
In People v. Flores, supra, 96 Cal.App.5th 1164, years after the defendant was
convicted of provocative act murder, he petitioned for relief from his murder conviction under
section 1172.6. (Flores, at p. 1170.) He argued CALCRIM No. 561 allowed the jury to convict
him of murder based on a now-invalid theory of imputed malice, namely, that he aided and
abetted his codefendant’s provocative act without himself acting with malice. (Id. at p. 1170.)
The Flores court rejected this argument, concluding it had “nothing to do with the changes to the
law of murder that authorize convicted murderers to seek relief under section 1172.6.” (Id. at
p. 1173.) It reasoned, when the defendant was convicted in 2010, “a provocative act murder
conviction required the defendant personally harbor malice, whether it was the defendant or an
accomplice who committed the provocative act that caused the death.” (Ibid.) And, “[t]hat
requirement is fully consistent with the 2019 amendments to section 188 .…” (Ibid.) So, the
defendant could not show he “ ‘could not presently by convicted of murder … because of
changes to Section 188 or 189 made effective January 1, 2019.’ ” (Ibid.)
13.
lying-in-wait murder on an imputed malice theory. Specifically, the
Supreme Court had ruled that: (1) the perpetrator of first degree murder by
means of lying in wait must act with malice aforethought (People v. Dillon
(1983) 34 Cal.3d 441, 465 (plur. opn.); People v. Mattison (1971) 4 Cal.3d
177, 182; and (2) a direct aider and abettor of murder must at a minimum
‘know and share the murderous intent of the actual perpetrator.’ (People v.
McCoy (2001) 25 Cal.4th 1111, 1118 ….)” (Berry-Vierwinden, supra, 97
Cal.App.5th at p. 935.)
That is, “[a]fter the Supreme Court’s 2001 decision in McCoy, it was unmistakable that a
direct aider and abettor’s ‘mental state is her own; she is liable for her mens rea, not the
other person’s.’ (McCoy, supra, 25 Cal.4th at p. 1118.)” (Berry-Vierwinden, at p. 935.)
Accordingly, “[b]y arguing that the jury instructions allowed the jury to convict him as a
direct aider and abettor of murder on an imputed malice theory, Berry-Vierwinden is
necessarily asserting that they were erroneous under the law in effect at the time of his
2010 trial and subsequent direct appeal.” (Id. at p. 936.) However, he is not eligible for
relief under section 1172.6 if “the jury instructions permitted conviction on a theory of
imputed malice that was already prohibited even before the enactment of Senate Bill No.
1437.” (Berry-Vierwinden, at p. 936.) Rather, the defendant’s claim amounted to “ ‘a
routine claim of instructional error’ ” that could have been raised on appeal from his
conviction and was not cognizable in a section 1172.6 proceeding. (Berry-Vierwinden, at
p. 936.)
In Lopez, supra, 19 Cal.5th 639, our Supreme Court “disapprove[d] the
Burns-Flores/Berry-Vierwinden line of cases,” concluding “[t]hese cases interpret
section 1172.6, subdivision (a)(3) in a manner that conflicts with the statute’s text and
fundamental purpose.” (Lopez, at p. 658.) Lopez held “the procedural bar these decisions
read into section 1172.6 aligns with neither the doctrine of issue preclusion that informs
analysis of prima facie ineligibility nor the purposes that the Dixon[2] bar serves in the
habeas corpus context.” (Lopez, at p. 658.) Rather, “ ‘[t]he mere fact that a petitioner
2 In re Dixon (1953) 41 Cal.2d 756.
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could have raised an analogous … claim of instructional error at trial or in his original
appeal does not render him categorically ineligible for relief under section 1172.6 .…’ ”
(Ibid.) Lopez explained the Burns/Flores/Berry-Vierwinden line of cases “would bar
resentencing for defendants who clearly were convicted under a theory of imputed malice
whenever the claim relied even in part on instructions not challenged in a prior appeal.”
(Lopez, at p. 660.) But “[i]f the Legislature had intended to erect a procedural bar based
on failure to raise claims in a prior appeal, it likely would have done so more directly.”
(Ibid.) And, more importantly, such a construction of the statute “contradicts the express
intent of Senate Bill 1437.” (Ibid.)
Lopez emphasized that “the primary and overarching purpose of Senate Bill
1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those
who may have been convicted under imputed-malice murder theories.” (Id. at p. 661.)
And “the ‘because of’ language of section 1172.6, subdivision (a)(3) requires merely that
the changes in murder liability arising from Senate Bill 1437 be a basis for the claim, not
that they be the sole basis.” (Id. at p. 663.) That is, “[i]n requiring petitioners seeking
resentencing under section 1172.6 to allege that 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)(3)), the Legislature did not … intend a causal
connection that is satisfied only when the changes effected by Senate Bill 1437 represent
a ‘but for’ reason why a petitioner is eligible for resentencing.” (Id. at p. 664.)
Lopez held that resentencing courts should not ignore “potentially ambiguous or
even openly flawed instructions” when evaluating a petitioner’s prima facie allegations
merely because these flaws were not raised in a prior appeal. (Lopez, supra, 19 Cal.5th at
p. 668.) Rather, “the section 1172.6 resentencing court should address on the merits the
alleged flaws or ambiguities in instructions that may have resulted in conviction under
now invalid theories of imputed malice.” (Ibid.)
15.
IV. Analysis
In his original briefing, defendant argued, although his jury was not instructed on
felony murder or the natural and probable consequences doctrine, “the given jury
instructions nevertheless allowed the jury to impute malice to [him] based solely on his
participation in a crime.” He asserted his case was indistinguishable from Maldonado,
supra, 87 Cal.App.5th 1257, in which the court concluded the instructions permitted the
jury to convict the defendant of murder under a theory of imputed malice. He argued his
contention was further supported by the instruction 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.’ ” In supplemental briefing after the California Supreme Court
transferred the matter back to us with directions to vacate our decision and reconsider the
cause in light of Lopez, supra, 19 Cal.5th 639, defendant argues remand is required in
light of Lopez.
After considering defendant’s contentions and Lopez, supra, 19 Cal.5th 639, we
now agree with defendant that the record here does not establish he is categorically
ineligible for relief. Accordingly, we reverse the trial court’s order denying defendant’s
petition for recall and resentencing at the prima facie stage and remand for the court to
issue an order to show cause and hold a hearing pursuant to section 1172.6,
subdivision (d).
Here, as in Maldonado, the jury was instructed that a person aids and abets a crime
if he or she knew that the perpetrator intended to commit the crime and he or she
specifically intended to and did in fact aid and abet the perpetrator’s commission of that
crime. But “[t]he murder by lying in wait instruction did not instruct the jury that the
perpetrator needed to intend to cause death. While the perpetrator must have concealed
his purpose from the victim, waited and watched for an opportunity to act, intentionally
made a surprise attack from a position of advantage, and have lain in wait for a
substantial enough duration to show a state of mind equivalent to deliberation or
16.
premeditation, the jury may have found the perpetrator’s purpose was only to injure or
intimidate the victim in the surprise attack.” (Maldonado, supra, 87 Cal.App.5th at
p. 1266.) Accordingly, as in Maldonado, the jury could have construed the instructions
such that to be guilty as an aider and abettor of lying-in-wait first degree murder,
defendant only needed to have intended to encourage the perpetrator’s intentional act—in
this case, a surprise attack on the victim—whether or not defendant intended to aid or
encourage the victim’s killing and whether or not he personally knew of and disregarded
the risk of a such a killing. (See id. at p. 1266.) Thus, as in Maldonado, the jury “could
have reasonably construed the instructions in a manner permitting it to convict appellant
under a theory of imputed malice.” (Id. at p. 1267.)
Given the ambiguous jury instructions, we cannot say the record conclusively
establishes defendant is ineligible for relief as a matter of law. Accordingly, an
evidentiary hearing is required.
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is reversed
and the matter is remanded with directions for the court to issue an order to show cause
and to hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
GUERRA, J.
WE CONCUR:
HILL, P. J.
DETJEN, J.
17.
