Conviction overturned where jury could find defendant guilty of second-degree murder without finding that he acted with malice

People v. Virgen (Cal. Ct. App., Apr. 7, 2025, No. B333314) 2025 WL 1032450

Summary: Virgen was convicted of second-degree murder and was sentenced to 15 years to life in prison. The Court of Appeal held that:

Thr trial court committed instructional error when it used two pattern jury instructions that, when read together, could have allowed jury to find defendant guilty of second-degree murder under uncharged-conspiracy theory, without finding that he acted with malice aforethought, and the error was not harmless.

The Court reversed and remanded with directions.

Background: At trial testimony was presented consistent with a theory that Virgen, and a codefendant engaged in an uncharged conspiracy to assault the murder victim and that during the assault, the codefendant shot and killed the victim.

The court instructed on aiding and abetting principles and an uncharged conspiracy to commit assault. The court used the final paragraph of CALCRIM No. 400, which told the jury that in some circumstances, a defendant may be convicted of crimes other than the one he intended to commit, so long as the other crimes occurred during the commission of the first crime. The court also used CALCRIM No. 416 to instruct the jury that it could find “[a] member of a conspiracy [is] criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy.” Neither the court nor the prosecutor told the jury that it could not rely on the final paragraph of CALCRIM No. 400 or CALCRIM No. 416 to convict Virgen of murder.

Standard of review

A trial court must instruct on general legal principles relevant to the issues raised by the evidence and must  refrain from instructing on legal principles that either are irrelevant to the issues raised by the evidence or are likely to confuse the jury or relieve the jury from making findings on relevant issues.

A court’s failure to instruct on the elements of an offense, or any faulty instruction that has the effect of relieving the jury of its burden to find the defendant guilty of every element beyond a reasonable doubt, violates a defendant’s due process rights.

The law of murder

Murder is defined as “the unlawful killing of a human being … with malice aforethought.” (§ 187, subd. (a).)

In 2014, the California Supreme Court eliminated the natural and probable consequences doctrine as a basis for convicting a defendant of first degree murder. (People v. Chiu (2014) 59 Cal.4th 155, 167, 172 (Chiu).) Four years later, the Legislature enacted Senate Bill No. 1437, which eliminated the natural and probable consequences doctrine as a basis for convicting a defendant of murder regardless of degree.

Evidence of an uncharged conspiracy may be used “to prove criminal liability for acts of a coconspirator.” Under an uncharged conspiracy theory, “ ‘ “[e]ach member of the conspiracy is liable for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design.” ’ ”

Murder liability based on an uncharged conspiracy to commit murder remains a valid legal theory because it requires proof that the defendant acted with express malice regardless of whether he was the actual killer. But after Senate Bill No. 1437 went into effect, a defendant may no longer be convicted of murder based on a theory that he or she conspired to commit a non-murder offense because such a theory imputes malice to the defendant based on his or her participation in the nonmurder offense, without any need to find the defendant acted with actual malice.

Here, the court used two instructions—CALCRIM Nos. 400 and 416—that, when read together, could have allowed the jury to find Virgen guilty of murder under an uncharged conspiracy theory, without finding that he acted with malice aforethought. The final paragraph of CALCRIM No. 400 informed the jury that “[u]nder some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.” CALCRIM No. 400’s bench notes explain that the instruction’s final paragraph should only be given if the People are relying on a natural and probable consequences theory. The court never instructed the jury that the final paragraph of CALCRIM No. 400 did not apply to Virgen’s murder charge.

Although the court did not instruct on the natural and probable consequences doctrine, it used CALCRIM No. 416 to instruct on an uncharged conspiracy to commit assault. CALCRIM No. 416’s first paragraph told the jury that Virgen could be convicted of another crime that occurred during the commission of the conspiracy’s target offense if it found Virgen conspired to commit the target offense and the other crime was “done to help accomplish the goal of the conspiracy.” The instruction’s final paragraph told the jury that it could convict Virgen “under a conspiracy theory” if each member of the jury agreed Virgen conspired to commit assault. The court never instructed the jury that it could not rely on CALCRIM No. 416 to convict Virgen of murder.

Thus, when read together, CALCRIM Nos. 400 and 416 told the jury that a “specific circumstance[ ]” where Virgen could be convicted of a crime other than the crime he intended to aid and abet was if he conspired to commit an uncharged assault, and one of his coconspirators committed another crime, such as murder, during the assault. As we just explained, such a theory is analogous to the natural and probable consequences doctrine, as it allows the jury to impute malice to a defendant based only on his participation in the uncharged conspiracy’s target offense.

The Court could not conclude beyond a reasonable doubt that the jury did not rely on CALCRIM No. 416 when it convicted Virgen of murder. Nothing on the second degree murder verdict form asked the jury whether it found that Virgen acted with malice aforethought.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.