Implied Malice Remains A Valid Theory Of Liability For Aiders And Abettors To Murder

People v. Silva (Cal. Ct. App., Jan. 18, 2023, No. F083248) 2023 WL 240015, at *1

Summary:  Silva petitioned the superior court, under former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his conviction for second degree murder arising from the murder of Bill James who was stabbed during an altercation with members of the Mongols motorcycle club, including Silva.   The superior court held an evidentiary hearing (§ 1172.6, subd. (d)(1)) and denied the petition after finding petitioner was guilty of murder under an implied malice theory.

On appeal, Silva  argued the order denying the petition must be reversed because Senate Bill No. 1437 eliminated implied malice as a valid theory of murder liability for aiders and abettors and substantial evidence did not support a finding petitioner acted with implied malice. The Court of Appeal held that implied malice remains a valid theory of liability for aiders and abettors to murder and affirmed.

Applicable Law

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend the felony murder rule and the natural and probable consequences doctrine … 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.”

The bill amended the natural and probable consequences doctrine by requiring that a principal act with malice aforethought before they may be convicted of murder. It also amended the felony-murder rule by providing that a participant in a qualifying felony is liable for murder only if the victim was a peace officer in the performance of his or her duties, or the defendant was the actual killer, aided and abetted the actual killer in the commission of first degree murder with the intent to kill, or was a major participant in the felony and acted with reckless indifference to human life.

Senate Bill No. 1437 also added former section 1170.95, now renumbered as section 1172.6, which provides a procedure for persons convicted of “felony murder or 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” to seek vacatur of the conviction and resentencing.

The Court of Appeal reviews the trial court’s findings following the evidentiary hearing for substantial evidence, and the application of those facts to the statute de novo.

An Aider and Abettor to Murder Need Not Act with Express Malice

Silva argued that  Senate Bill No. 1437 eliminated implied malice as a valid theory of murder for aiders and abettors and an aider and abettor to murder must act with express malice. The Court of Appeal concluded that implied malice remains a valid theory of liability for aiders and abettors to murder.

When a person directly perpetrates a killing, it is the perpetrator who must possess … malice. Similarly, when a person directly aids and abets a murder, the aider and abettor must possess malice aforethought.” (Gentile, supra, 10 Cal.5th at p. 844.) “Aiding and abetting is not a separate offense but a form of derivative liability for the underlying crime.” (Id. at p. 843.) Thus, “[g]uilt as an aider and abettor is guilt ‘based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.’ ” (Powell, supra, 63 Cal.App.5th at p. 710.)

 “[I]n 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. 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.” (Powell, supra, 63 Cal.App.5th at p. 713.)

Silva argued that, in eliminating the natural and probable consequences doctrine, Senate Bill No. 1437 eliminated aider and abettor liability for “unintended” murders and made the crime of aiding and abetting murder “structurally identical” to crimes like attempted murder and conspiracy to commit murder, which both require specific intent to kill. However, the  California Supreme Court has continued to recognize “[t]hat one may intentionally aid a perpetrator in doing an act when he or she knows the act naturally and probably will cause death and consciously disregards this probable result.”

The Court of Appeal rejected Silva’s contention that an aider and abettor to murder must act with express malice.

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