Jury instructions which allow conviction based on imputed  malice establish a prima facile case for resentencing under 1172.6

Summary: Maldonado appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.6 (former section 1170.95). In 2013, Maldonado was convicted of first degree murder and the jury was not instructed on the natural and probable consequences and felony murder doctrines.  Maldonado argued that  the jury  could have imputed malice to him based solely on his participation in a crime, relying on the jury instructions for aiding and abetting, implied malice, and lying-in-wait murder, and on the analysis in People v. Langi (2022) 73 Cal.App.5th 972  (Langi). The Court of Appeal agreed that Maldonado established a prima facie case for resentencing relief, and reversed and remanded for the trial court to issue an order to show cause.

Background: Maldonado was charged with first degree murder (§ 187, subd. (a)), with a special circumstance allegation that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)). The jury was instructed on two theories of first degree murder: the murder was willful, deliberate and premeditated; and the murder was committed by lying in wait. The jury was also instructed on direct aiding and abetting. (See CALCRIM No. 401.) The jury was not instructed on felony murder or the natural and probable consequences doctrine.

The jury convicted Maldonado of first degree murder, but found the lying-in-wait special circumstance not true.

2020 Resentencing Petition

In September 2020,  Maldonado filed a petition for resentencing pursuant to section 1172.6. The trial court appointed counsel for appellant. The People filed an opposition, submitting the jury instructions and verdict forms from his trial and the appellate court’s opinion on direct appeal. The trial court summarily denied the petition, finding the record conclusively proved appellant’s murder conviction was not obtained under a felony murder or natural and probable consequences theory.

Section 1172.6

In Senate Bill No. 1437,  effective January 1, 2019, the Legislature “eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule.” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) “Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. Under  section 1172.6, the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met,  including that ‘[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,’ the effective date of Senate Bill 1437.

The Governor signed into law Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775), which “expanded the scope of those changes to encompass, among other things, murder convictions ‘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.’ ” (Langi, supra, 73 Cal.App.5th at p. 978. ) The Senate Bill 775 amendments apply to appellant’s appeal. New legislation generally applies to all judgments which are not final as of the effective date of the new statute.

Section 1172.6, subdivision (c), provides that if a resentencing petition includes the required components, the court must “determine whether the petitioner has made a prima facie case for relief.” “While the trial court may look at the record of conviction … to determine whether a petitioner has made a prima facie case for section [1172.6] relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “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.”  ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’  ‘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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) “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.’  If the court determines the petitioner made a prima facie case for relief, “the court shall issue an order to show cause” and “hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction ….” (§ 1172.6, subds. (c), (d)(1).)

Prima Facie Case

Maldonado claimed  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. Specifically, he  points to the instructions for aiding and abetting a lying-in-wait murder.

Aiding and Abetting Lying-In-Wait Murder

To prove the murder was perpetrated by means of lying in wait, the prosecution must prove ‘(1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. “[T]he lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.” (People v. Stevens (2007) 41 Cal.4th 182, 202, fn..) Unlike first degree premeditated murder, “nothing in section 189 requires the lying in wait to have been done with the intent to kill.” (People v. Laws (1993) 12 Cal.App.4th 786, 794 (Laws).) Instead, “If the act which the perpetrator intends to commit while lying in wait results in a killing which satisfies the elements of murder, it is immaterial whether the perpetrator intended to kill ….” (Id. at p. 795.) “Ordinarily, … [an implied malice] killing would be murder of the second degree. However, if this murder is perpetrated by means of lying in wait, it is, by statutory definition, murder of the first degree.” (Id. at p. 794.)

Aiding and abetting an implied malice murder: [D]irect aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea.  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.  Direct aiding and abetting an implied malice murder remains a valid theory after the amendments of Senate Bills 1437 and 775. (People v. Gentile (2020) 10 Cal.5th 830, 850.)

The Jury Instructions Permitted Conviction Based on Imputed Malice

The jury was instructed, with respect to malice, “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:  One, he intentionally committed an act;  Two, the natural and probable consequences of that act were dangerous to human life;  Three, at the time he acted he knew his act was dangerous to human life;  And, Four, he deliberately acted with conscious disregard for human life.” (See CALCRIM No. 520.)

As to lying in wait murder, the jury was instructed: “The defendant murdered by lying in wait if: One, he concealed his purpose from the person killed; Two, he waited and watched for an opportunity to act;  And, Three, 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;” “Deliberation means carefully weighing the considerations for and against the choice, and knowing the consequences deciding to act. An act is done with premeditation if the decision to commit the act is made before the act is done. 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.” (See CALCRIM No. 521.)

On aiding and abetting, the jury was instructed pursuant to CALCRIM No. 401: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:  Number One, the perpetrator committed the crime; Two, the defendant knew the perpetrator intended to commit the crime; Three, before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime;  And, Four, 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 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.”

In Powell, the Court of Appeal determined that CALCRIM No. 401, the same aiding and abetting instruction used here, was “not tailored for” aiding and abetting an implied malice murder. (Powell, supra, 63 Cal.App.5th at p. 714.) Specifically, while CALCRIM No. 401 refers to an intent to aid and abet a “crime,” the aider and abettor in fact needs to “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.” (Powell, at p. 714.)

In Langi, supra, 73 Cal.App.5th 972, the Court of Appeal found this left open the possibility that the jury convicted the defendant based on a theory of imputed malice. Langi noted the aiding and abetting instruction “does not state that the aider and abettor must himself have known that the act he aided was life-threatening, or that he must himself have acted with indifference to human life.” The instruction creates an ambiguity under which the jury may find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice.” (Langi, at p. 982.)

Although the definition of second degree murder in CALJIC No. 8.31 states that the perpetrator must have acted with conscious disregard for human life, the definition of an aider and abettor in CALJIC No. 3.01 does not include the same requirement. 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.” (Langi, supra, 73 Cal.App.5th at pp. 982–983.)

Because the jury could have reasonably construed the instructions in a manner permitting it to convict appellant under a theory of imputed malice, even if it could also have reasonably construed the instructions otherwise, the record of conviction does not conclusively demonstrate appellant is not entitled to resentencing relief.