People v. McKinney CA4/3

Filed 7/13/23 P. v. McKinney CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061751

v. (Super. Ct. No. 09CF1955)

JOHN KIRK MCKINNEY, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County,
Michael J. Cassidy, Judge. Reversed and remanded with directions.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Lynne
G. McGinnis and James M. Toohey, Deputy Attorneys General, for Plaintiff and
Respondent.
 Appellant John Kirk McKinney challenges an order denying his petition for
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resentencing under former Penal Code section 1170.95. Although the order was based
on appellant’s alleged failure to state a prima facie case for relief, the record does not
conclusively establish appellant is ineligible for resentencing as a matter of law. We
therefore reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, 77-year-old Cecil Warren was confronted by two men in a parking
lot. One or both of the men demanded Warren’s money, struck him in the face and took
his wallet. Warren lapsed into a coma and died. Appellant and his friend Curtis Hill
were identified as the assailants, but at appellant’s murder trial there was conflicting
evidence as to whether he actually participated in the attack. Appellant told the police
that although he was at the scene with Hill, he did not speak to, hit, or take anything from
Warren. However, Warren told responding officers that both Hill and appellant hit him
in the face with their fists or some kind of object.
During closing argument, the prosecutor conceded appellant did not intend
to kill Warren. However, he argued appellant was guilty of first degree felony murder
because he and Hill killed Warren during the commission of a robbery. Alternatively, the
prosecutor submitted appellant was guilty of second degree implied malice murder for
perpetrating or aiding and abetting that offense. The jury convicted on the lesser offense,
for which appellant was sentenced to prison for 15 years to life. On direct appeal, we
affirmed the judgment, which has since become final. (People v. McKinney (Nov. 22,
2
2013, G047331) [nonpub. opn.].)

1
In 2022, that section was renumbered without substantive change as Penal Code section 1172.6.
(Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code.
2
Hill was tried separately and convicted of special circumstances felony murder. (See People v.
Hill (Nov. 5, 2013, G046249) [nonpub. opn.].) His petition for resentencing was denied because the jury’s true
finding on the special circumstances allegation conclusively established he committed an act that led to Warren’s
death. (People v. Hill (June 29, 2022, G060426) [nonpub. opn.].)

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 However, in 2018, the Legislature enacted Senate Bill No. 1437, which
retroactively narrowed the scope of vicarious liability for the crime of murder. (Stats.
2018, ch. 1015 (SB 1437).) On January 2, 2019 – the day after SB 1437 went into effect
– appellant petitioned to vacate his murder conviction and to be resentenced pursuant to
that measure. The trial court summarily denied the petition for two reasons. First, it
determined SB 1437 was facially unconstitutional as violative of the California
Constitution. Second, from a factual standpoint, it found appellant was ineligible for
resentencing because he was either the actual killer or a major participant in the
underlying robbery.
Appellant was paroled from prison on May 1, 2020. On August 30, 2022,
we granted his petition for a writ of habeas corpus, allowing him to file a late notice of
appeal from the trial court’s order, which he did the very next day. His appeal takes aim
at the trial court’s decision to deny his petition for resentencing at the prima facie stage of
the proceedings without conducting an evidentiary hearing on his entitlement to relief.
DISCUSSION
At the time the trial court issued its ruling in July 2019, SB 1437 was in its
infancy, so there were very few cases to guide the court in its analysis. Since then,
decisional law has firmly established that SB 1437 is a constitutional legislative
enactment. (See, e.g., People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270;
People v. Lamoureux (2019) 42 Cal.App.5th 241.)
Furthermore, the California Supreme Court has clarified that, in evaluating
whether a petition for resentencing has established a prima facie case for relief, the trial
court may not engage in judicial factfinding. (People v. Lewis (2021) 11 Cal.5th 952,
972 (Lewis).) In light of these developments, the parties agree that both of the trial
court’s stated reasons for denying appellant’s petition are invalid.
Nevertheless, the Attorney General contends the trial court’s denial order
should be affirmed because appellant was convicted of implied malice murder as either a

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perpetrator or an aider and abettor of that offense. The Attorney General argues that
regardless of which of those theories the jury adopted, appellant is ineligible for
resentencing because both of them required the jury to find that he personally acted with
implied malice. Stated differently, the Attorney General argues resentencing is precluded
as a matter of law because the jury did not convict appellant based on a theory of imputed
liability. For the reasons explained below, we disagree.
Legal Framework
SB 1437 was intended to ensure a defendant’s culpability is commensurate
with his conduct. (Lewis, supra, 11 Cal.5th at p. 971.) To that end, the measure
eliminated the natural and probable consequences theory in murder cases by providing
that malice may not be imputed to a person based solely on his participation in a crime.
(§ 188, subd. (a)(3).) In addition, SB 1437 reined in the felony murder rule so that it can
only be applied to nonkillers if they aided and abetted the actual killer with the intent to
kill, or they were a major participant in the underlying felony and acted in a manner that
was recklessly indifferent to human life. (§ 189, subd. (e).)
SB 1437 also created a statutory procedure, originally codified in former
section 1170.95, by which defendants who have been convicted of murder based on the
felony murder rule or the natural and probable consequences doctrine may petition for
resentencing if their conduct did not constitute murder as redefined by SB 1437. (Former
§ 1170.95, subd. (a).) If the petition makes a prima facie showing to that effect, the trial
court must issue an order to show cause and conduct an evidentiary hearing at which the
prosecution must prove beyond a reasonable doubt the defendant would still be liable for
murder despite the changes wrought by SB 1437. (Id., subds. (c), (d).) Otherwise, the
court must vacate the defendant’s murder conviction and sentence him anew. (Ibid.)
When it was first enacted, former section 1170.95 applied only to
defendants who were convicted of murder under the felony murder rule or the natural and
probable consequences doctrine. (Former § 1170.95, subd. (a).) However, effective

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January 1, 2022, the scope of the statute was expanded to include defendants who were
convicted of murder pursuant to any “other theory under which malice [was] imputed to
[them] based solely on [their] participation in a crime[.]” (Former § 1170.95, subd. (a),
as amended by Stats. 2021, ch. 551, § 2.) This change applies to appellant’s case because
the order denying his petition for resentencing is not yet final. (In re Estrada (1965) 63
Cal.2d 740, 744-745; People v. Porter (2022) 73 Cal.App.5th 644, 652; People v. Montes
(2021) 71 Cal.App.5th 1001, 1006-1007.)
In determining whether appellant has made a prima facie showing for
resentencing, we may consider the record of conviction, which includes the jury
instructions given at his trial. (Lewis, supra, 11 Cal.5th at pp. 971-972; People v. Jenkins
(2021) 70 Cal.App.5th 924.) But we must keep in mind the threshold for establishing a
prima facie case for resentencing is “‘very low.’” (Lewis, supra, 11 Cal.5th at p. 972.)
An evidentiary hearing is required unless the record conclusively establishes the
defendant is ineligible for resentencing as a matter of law. (People v. Strong (2022) 13
Cal.5th 698, 708; Lewis, supra, 11 Cal.5th at p. 971.)
The Attorney General asks us to employ a more forgiving standard of
review and reverse only if it is reasonably likely the jury misunderstood the instructions
to permit a conviction based on a theory of imputed malice. However, the reasonable
likelihood standard is used on direct appeal to determine whether the jury interpreted its
instructions in a manner that violated the defendant’s constitutional rights. (See, e.g.,
Boyde v. California (1990) 494 U.S. 370, 380; People v. Rogers (2006) 39 Cal.4th 826,
873.)
Here, we are concerned with the different issue of whether the defendant
has made a prima facie case for resentencing under an ameliorative sentencing law. In
that context, the “ultimate question” is whether the information contained in the record of
conviction defeats the defendant’s petition. (People v. Maldonado (2023) 87 Cal.App.5th
1257, 1269.) “Only ‘[i]f the petition and record in the case establish conclusively that the

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defendant is ineligible for relief’” may we affirm the summary denial of a petition
without an evidentiary hearing. (Ibid., quoting People v. Strong, supra, 13 Cal.5th at p.
708.) In this case, that would require proof that, in convicting appellant of second degree
murder, the jury necessarily determined he personally harbored malice and did not
convict appellant based on a theory of imputed malice. We now turn to that issue.
Relevant Jury Instructions
Appellant’s jury was instructed a person may be guilty of a crime as either
the actual perpetrator or as an aider and abettor. The latter theory was encompassed in
CALCRIM No. 401, which explained to the jury, “To prove that the defendant is guilty
of a crime based on aiding and abetting that crime, the People must prove that: [¶] One.
The perpetrator committed the crime. [¶] Two. The defendant knew that 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.”
As to that theory, the jury was also told, “Someone aids and abets a crime if
he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in
fact, aid, facilitate, promote, encourage or instigate the perpetrator’s commission of that
crime.” (CALCRIM No. 401.) And it was instructed, “Under 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.)
With respect to the charge of murder, appellant’s jury was instructed
pursuant to CALCRIM No. 520 that murder requires “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

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defendant acted with implied malice if: [¶] One. He intentionally committed an act. [¶]
Two. The natural and probable consequences of the 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.”
Jury’s Questions
During deliberations, the jury sent a note to the trial judge asking, “If a
crime is committed, are all parties involved equally responsible according to the law?”
The judge replied, “The answer to that could be yes or no, depending upon some other
determinations.” He suggested the jurors might gain better insight on the issue by
reviewing the instructions on aiding and abetting.
The jurors also asked the judge to provide them with instructions on second
degree murder. The judge told them second degree murder “is the kind of murder that is
discussed in CALCRIM [No.] 520.” “That is the only theory of second degree murder in
this case.”
Aiding and Abetting Implied Malice Murder
The jury’s questions indicate it may have convicted appellant of second
degree murder for aiding and abetting implied malice murder. Given that possibility, we
directed the parties to submit supplemental briefing on People v. Powell (2021) 63
Cal.App.5th 689 (Powell) and People v. Langi (2022) 73 Cal.App.5th 972 (Langi).
Those cases are instructive because they examine how the standard jury instructions on
aiding and abetting and implied malice murder correlate with each other.
In Powell, the defendant Christopher Langlois was convicted of implied
malice murder for aiding and abetting a group beating during which the victim was
fatally stabbed. (Powell, supra, 63 Cal.App.5th at p. 706.) On appeal, the court rejected
Langlois’ argument that aiding and abetting a murder requires express malice, i.e., the
specific intent to kill. Relying on People v. Gentile (2020) 10 Cal.5th 830, 850, the court
determined an aider and abettor who lacks such intent can still be convicted of second

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degree murder if he or she intentionally aids the commission of a life threatening act in
conscious regard of the risk created by that act. (Powell, supra, 63 Cal.App.5th at p.
713.)
More particularly, “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, fn. omitted.)
However, Powell found CALCRIM No. 401 failed to adequately convey
these requirements to Langlois’ jury because the instruction was not specifically tailored
to the elements of implied malice murder. Instead, it simply required the jury to find
Langlois knowingly assisted the perpetrator in committing “the crime.” (Powell, supra,
63 Cal.App.5th at p. 714.) Powell ruled that direction was erroneous because “the aider
and abettor of implied malice murder need not intend the commission of the crime of
murder. Rather, . . . he or she need only 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.” (Ibid.)
The Attorney General argues Powell is inapt because it involved a direct
appeal from a criminal conviction. Indeed, the Powell court expressly noted, “Nothing
we say herein is intended to express an opinion as to the appropriate outcome on a section
1170.95 petition should Langlois choose to file one.” (Powell, supra, 63 Cal.App.5th at
p. 711, fn. 25.) However, as the Langi decision makes clear, the reasoning of Powell
logically applies in the context of such a petition.

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 Like the defendant in Powell, Remus Langi was convicted of implied
malice murder for aiding and abetting a group beating that led to the victim’s death.
(Langi, supra, 73 Cal.App.5th at p. 975.) In assessing his right to resentencing relief
under former section 1170.95, the Langi court focused on CALJIC No. 3.01, the
predecessor to CALCRIM No. 401. As given to Langi’s jury, that instruction provided,
“‘A person aids and abets the commission . . . of a crime when he or she: [¶] (1) With
knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or
purpose of committing or encouraging or facilitating the commission of the crime, . . .
[¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the
crime.’” (Id. at p. 981, fn. omitted.) Langi’s jury also received CALJIC No. 8.31, the
predecessor to CALCRIM No. 520, which described the elements of implied malice
murder.
Although CALJIC No. 8.31 described those elements correctly, Langi
found CALJIC 3.01 failed to adequately explain to the jury that, like the perpetrator
himself, an aider and abettor must personally harbor implied malice to be guilty of
second degree murder. The court cited two aspects of the instruction as being deficient in
that regard.
First, like the Powell court, Langi criticized CALJIC No. 3.01’s phrasing
that the aider and abettor must act with “‘the intent or purpose of committing or
encouraging or facilitating the commission of the crime[.]”’ (Langi, supra, 73
Cal.App.5th at p. 981.) Langi found, “That language 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. In the context of the full
instructions that were given, there is no reason to conclude that the jury found that to be
true of [Langi’s] state of mind.” (Id. at p. 982.)
The Langi court also expressed concern about how CALJIC No. 3.01
phrases the knowledge requirement for aiding and abetting liability. In particular, the

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court homed in on the fact CALJIC No. 3.01 states that requirement is satisfied so long as
the accomplice was aware of the perpetrator’s “unlawful purpose,” which could include
the intent to merely strike, injure or embarrass or the victim. (Langi, supra, 73
Cal.App.5th at p. 982.) Langi held this wording impermissibly permitted the jury to
convict Langi of implied malice murder “whether or not [he] 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, fn. omitted.) Therefore, the court reversed the summary
denial of Langi’s petition for resentencing and remanded the matter for an evidentiary
hearing on his right to relief. (Id. at p. 984.)
The Attorney General contends the CALCRIM instructions given at
appellant’s trial were better than the CALJIC instructions used in Langi because they
made it more apparent the perpetrator had to act with conscious disregard for life and
commit the crime of implied malice murder before an aider and abettor could be
convicted of that offense. However, both sets of instructions frame the knowledge
requirement for aiding and abetting as knowledge of the perpetrator’s “unlawful
purpose,” which was never defined for appellant’s jury.
Moreover, both sets of instructions require the aider and abettor to assist the
crime, rather than the specific acts that constitute implied malice murder. So, in terms of
“relevant substance,” the instructions given in Langi were “identical” to the instructions
provided at appellant’s trial. (Langi, supra, 73 Cal.App.5th at p. 983.) Therefore, the
reasoning of Langi applies with equal force in our case. (Cf. People v. Maldonado,
supra, 87 Cal.App.5th at pp. 1265-1267 [applying Langi to reverse the summary denial
of the defendant’s petition for resentencing on his conviction for first degree lying in wait
murder].)
Even so, the Attorney General claims the reasoning of Langi is unsound.
Contrary to what Langi instructs us, he claims it was not improper for CALCRIM No.
401 to direct the jury’s attention to whether appellant aided and abetted “the crime”

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because that’s the term the Supreme Court has used to explain the intent requirement for
direct aiding and abetting. (See People v. Beeman (1984) 35 Cal.3d 547, 560 [stating the
requisite intent is established when the aider and abettor knowingly intends to facilitate
“the perpetrator’s commission of the crime.”].) But in so doing, the Supreme Court was
discussing the general principles governing aiding and abetting liability. It was not
addressing the adequacy of CALCRIM No. 401 in terms of conveying those principles in
the context of implied malice murder, which is the issue in our case.
Nonetheless, the Attorney General argues appellant’s jurors would have
understood CALCRIM No. 401’s reference to “the crime” was a reference to implied
malice murder, and therefore they would not have convicted him of that offense unless
they were convinced he personally satisfied all of the requirements for that offense.
However, the jury was instructed on multiple crimes and theories, including felony
murder, express malice murder, implied malice murder and robbery. At no point was
implied malice murder identified as “the crime” referenced in CALCRIM No. 401. To
the contrary, in discussing the law on aiding and abetting liability, the prosecutor largely
focused on the crime of robbery, claiming anyone involved in that offense was liable for
murder.
The jury was also told, per the court’s instructions, that a person who aids
and abets one crime may be liable for other crimes that occurred during the first crime.
This instruction bolstered the implication that appellant did not have to personally
possess the mindset required for implied malice murder to be guilty of that offense if he
aided and abetted a crime that culminated in that offense.
So did the term “unlawful purpose,” which was used in CALCRIM No. 401
to describe the knowledge requirement for aider and abetting. The Attorney General
contends Langi’s concerns about that term are misplaced because CALCRIM No. 401
requires both knowledge of the perpetrator’s unlawful purpose and the specific intent to
aid, promote or instigate the perpetrator’s commission of the crime. The Attorney

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General would have us believe that, taken as a whole, this language precluded a
conviction for aiding and abetting an implied malice murder unless the jury believed
appellant personally harbored the mental state required for that offense.
But in order to be liable for aiding and abetting an implied malice murder,
the defendant must know the perpetrator intended to commit a life-threatening act.
(Powell, supra, 63 Cal.App.5th at p. 713.) Knowing of the perpetrator’s “unlawful
purpose,” which is all CALCRIM No. 401 requires, is not enough because as Langi
explains, that phrase encompasses mental states that do not arise to the level of implied
malice murder. (Langi, supra, 73 Cal.App.5th at p. 982.) That’s why “the standard
aiding-and-abetting instructions are ill suited to the crime of second degree murder. If, as
here, a trial court uses such an instruction without tailoring it to the specifics of that
crime, 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.” (Ibid., fn. omitted.)
Although such a finding was not required in this case, the jury could have
convicted appellant of implied malice murder without finding he personally acted with
knowledge of the danger to, and with conscious disregard for, human life. Because the
record does not conclusively negate that possibility, an evidentiary hearing is required on
appellant’s right to resentencing relief. (Langi, supra, 73 Cal.App.5th at p. 984; accord,
People v. Maldonado, supra, 87 Cal.App.5th at pp. 1266-1267 [reversing summary
denial of resentencing petition and remanding for evidentiary hearing where jury
instructions allowed for the possibility the defendant was convicted of murder based on a
theory of imputed malice].)
“At that hearing, the court may find that appellant was the actual killer or
that he was an aider and abettor who facilitated the killing with personal disregard for
human life, in which case his petition will be denied. If the prosecution fails to prove that
he was either, he will be entitled to relief.” (Langi, supra, 73 Cal.App.5th at p. 984.)

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 DISPOSITION
The trial court’s order denying appellant’s petition for resentencing is
reversed and the matter is remanded for an evidentiary hearing pursuant to section
1172.6.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

MOTOIKE, J.

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