People v. Warren CA4/1

Filed 12/20/23 P. v. Warren CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081199

Plaintiff and Respondent,

v. (Super. Ct. No. SWF1200636)

ADE JESSIE WARREN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County, John
D. Molloy, Judge. Affirmed.
Sally Patrone, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lane E. Winters and Charles C. Ragland,
Assistant Attorneys General, Lynne G. McGinnis and Collette C. Cavalier,
Deputy Attorneys General for Plaintiff and Respondent.
The People charged Ade Jessie Warren with first degree murder with

premeditation, deliberation, and malice aforethought (Pen. Code,1 § 187,

1 Undesignated statutory references are to the Penal Code.
subd. (a); count 1) and gang participation (§ 186.22, subd. (a); count 2),
alleging as a special circumstance with respect to the murder charge that he
was an active participant in a gang (§ 190.2, subd. (a)(22)). The People also
alleged as to the murder charge that Warren personally and intentionally
discharged a firearm (§ 12022.53, subd. (c)), as well as gang-related firearm
and sentencing enhancements (§§ 186.22, subd. (b), 12022.53, subd. (e)).
(People v. Warren (Aug. 5, 2015, D067416) [nonpub. opn.].) In 2013, a jury
found Warren guilty of second degree murder and gang participation, and
found true the criminal street gang sentence enhancement (§ 186.22, subd.
(b)) as well as the gang-related firearm enhancement, that is, that he acted as
a principal in a gang crime in which a principal discharged a firearm causing
death to another person who was not an accomplice (§ 12022.53, subd. (e)).
The jury found not true the allegation that Warren personally and
intentionally discharged a firearm. On Warren’s direct appeal, this court
held there was insufficient evidence to support his gang participation

conviction and reversed it. (People v. Warren, supra, D067416.)2
Claiming the jury determined there was insufficient evidence to prove
he was the shooter or actual killer, Warren appeals an order summarily

denying his section 1170.95 (now section 1172.6)3 petition for resentencing of

2 We also modified the judgment as to certain fines. (People v. Warren,
supra, D067416.) The jury did not render a verdict on the gang special
circumstance allegation given its not guilty verdict on the first degree murder
charge. (Ibid.) Warren did not claim that any lack of evidence as to whether
he committed the murder with another gang member affected the jury’s
findings on the gang related firearm enhancement or any other sentence
enhancements on the murder count. (Ibid.)

3 Effective June 30, 2022, the Legislature renumbered section 1170.95 as
section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.)
We refer to section 1172.6 throughout this opinion.
2
his second degree murder conviction. He contends he made out a prima facie
claim for relief under the statute by filing a facially sufficient petition
alleging he was convicted of second degree murder and could not now legally
be convicted based on changes to the murder laws. The People maintain that
in convicting Warren, the jury necessarily found he committed second degree

murder either as a direct perpetrator or direct aider and abettor.4 In
response to the People’s briefing, Warren contends the aiding and abetting
instruction given to his jury, CALCRIM No. 401, combined with CALCRIM
No. 520 as to murder with malice aforethought, permitted jurors to find him
guilty of second degree murder on a theory under which malice was imputed
to him based solely on his participation in the crime, which is prohibited by
section 1172.6. He maintains the matter must be remanded for the court to
issue an order to show cause and conduct an evidentiary hearing. We affirm
the order.
FACTUAL AND PROCEDURAL BACKGROUND
The detailed facts underlying Warren’s 2013 second degree murder
conviction are set out in People v. Warren, supra, D067416. We do not rely on
the facts in resolving this appeal, but for context set them out here with some
edits.
The People’s evidence
On the afternoon of the murder, Ezequial Ruedas was on the front
porch of his home in a neighborhood in San Jacinto, with his friend Anthony
Valdies. At approximately 3:00 p.m. that day, a group of young men
approached Ruedas and Valdies. One of the men, whom Ruedas recognized

4 We granted the People’s request to take judicial notice of the
instructions given to the jury in the underlying matter, the jury’s verdict
forms and this court’s prior opinion on Warren’s direct appeal.
3
as “Junior” (Norris Tremble), started yelling the name of Tremble’s gang, L-
Squad. Tremble also said, “Fuck San Jacinto,” a reference to a rival gang,
and directed several racially derogatory comments toward Ruedas.
At some point during the altercation, Ruedas called his neighbor,
victim Fernando Villarino, on the telephone. Villarino and his cousin, Victor
Chavez, came outside and watched the altercation from across the street.
Ruedas angrily told Tremble that he was not a member of the San Jacinto
gang and to get away from his fence. Tremble tried to get Ruedas to come
outside of his yard and fight. Ruedas refused, but challenged Tremble to
come inside his yard to fight. Tremble’s group eventually walked away. L-
Squad gang members Javohn Milne and Warren were among those who were
with Tremble during the altercation.
About 20 or 30 minutes later, Tremble’s group walked by Ruedas’s
residence again and made several additional derogatory comments. After
approximately 30 more minutes, the group walked by a third time, and
uttered several racial slurs and gang related insults.
At approximately 6:40 that evening, police detained five L-squad gang
members near the scene of the altercations: Tremble, Warren, Milne, Andre
Banks, and Jacob Cramer. Tremble was arrested after an officer observed
him making racial slurs and threatening Villarino. Warren, Milne, and
Banks were released at the scene. Cramer was arrested for providing false
information to a police officer. Cramer and Tremble were in police custody at
the time of the murder.
At approximately 7:15 p.m., a group of men, which included Milne and
Warren, returned to the area, and directed additional racial slurs and gang
related statements toward Ruedas and Chavez. According to Ruedas, some
older men, who were not present during the earlier altercations, were with

4
Milne and Warren. Ruedas, Valdies, Villarino, Chavez, and two friends of
Chavez (Juan Sanchez and Marcelino Robles), chased the group out of the
neighborhood.
Around 8:30 p.m. that evening, Warren returned to the scene of the
earlier altercations, walking up the middle of the street. Ruedas saw a
second man on the left side of the street, and a third man on the right side of
the street. Ruedas could not describe the two men because they stayed
behind Warren and it was dark. Chavez, Sanchez, Robles, Ruedas, Villarino,
and Valdies walked toward Warren.
According to Ruedas, Warren called out, “ ‘Well, let’s do this then,’ ”
and Chavez answered, “All right, let’s do it.” Warren reached into his
waistband, pulled out a gun, and began firing. Chavez saw Villarino get hit
and fall to the ground.
Police responded to the shooting at 8:37 p.m. Villarino was lying
partially on the sidewalk and partially on the street. He had been shot in the
head and the left arm, and was pronounced dead at the scene.
Eight nine-millimeter shell casings were found in the middle of street,
approximately 152 feet from Villarino. In addition, three nine-millimeter
casings were found farther south down the street. Two .45-caliber casings
were also found on the south side of the street. The groupings of the casings
were consistent with the possibility that there was another shooter in
addition to Warren.
Ruedas, Chavez and Valdies each identified Warren in a photographic
lineup.
Senior District Attorney Investigator David Haskins testified as a gang
expert. According to Investigator Haskins, L-Squad and San Jacinto have a
history of violence between the two gangs dating back to the early 2000’s.

5
Investigator Haskins explained that the rivalry is partially racial, and that L-
Squad members are “motivated by the hatred of Hispanics.” Haskins stated
that in his opinion, a hypothetical murder based on the facts of this case
would have been committed for the benefit of L-Squad.
The defense
Warren presented an alibi defense through three witnesses who
testified that he was with them, and not at the scene of the shooting, at the
time of the murder.
Jury instructions
The court instructed the jury with CALCRIM No. 400 on aiding and
abetting generally. That instruction reads: “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 guilty
of the crime whether he or she committed it personally or aided and abetted
the perpetrator who committed it.” It instructed the jury with CALCRIM No.
401, which reads: “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

6
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 an aider and abettor.”
(Some italics omitted.)
The court also instructed the jury as to relevant principles of homicide,
then with CALCRIM No. 520 as to first or second degree murder with malice
aforethought, which reads: “The defendant is charged in count one with
murder in violation of [ ] section 187. [¶] 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; [¶] 2. When the
defendant acted, he had a state of mind called malice aforethought; [¶] AND
[¶] 3. He killed without lawful excuse or justification. [¶] 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; [¶] 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 caused death is committed. It does not require
deliberation or the passage of any particular period of time.” (Italics and
some capitalization omitted.)

7
 The jury was instructed with CALCRIM No. 521 that it could find
Warren guilty of first degree murder if the People proved he acted willfully,
deliberately, and with premeditation. Apart from conspiracy to commit

murder,5 the jurors were not instructed on any other theory of first or second
degree murder.
In his direct appeal Warren did not challenge any of these jury
instructions or advance any other jury instruction challenge.
Warren’s petition for resentencing
In November 2021, Warren, representing himself, petitioned for
resentencing under now section 1172.6. He checked boxes indicating that “[a]
complaint, information, or indictment was filed against [him] that allowed
the prosecution to proceed under a theory of felony murder, murder under the
natural 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”

5 The court instructed the jurors that the People had presented evidence
of a conspiracy to commit murder. The instructions stated in part that to
prove the defendant was a member of a conspiracy in this case, the People
must prove that “[t]he defendant intended to agree and did agree with one or
more unidentified people to commit the crime of murder”; “[a]t the time of the
agreement, the defendant and one or more of the alleged member[s] of the
conspiracy intended that one or more of them would commit murder”; and
“the defendant, or one or more of the unidentified alleged co-conspirators, or
all of them, committed the following overt act to accomplish murder: one or
more of the alleged co-conspirators entered Santa Rosa street armed with at
least one firearm and discharged that firearm[.]” Warren does not raise any
issues with the conspiracy instructions in this appeal. That likely is because
“conspiracy to commit murder may not be based on a theory of implied
malice” (People v. Beck & Cruz (2019) 8 Cal.5th 548, 642) but requires intent
to kill. (People v. Lopez (2023) 14 Cal.5th 562, 588; see also People v. Allen
(2023) 97 Cal.App.5th 389, ___.)

8
and “[a]t trial [he] was convicted of murder, attempted murder, or
manslaughter pursuant to the felony murder rule, other theory which malice
imputed to a person based solely on that person’s participation in a crime, or
the natural and probable consequences doctrine.” He did not check a box
stating: “I was charged or convicted of [second] degree murder or attempted
murder under the natural and probable consequence doctrine or under the
[second] degree felony murder doctrine and I could not now be charged or
convicted of murder or attempted murder because of changes to . . . [section]
188, effective January 1, 2019.” The People did not file a written response to
the petition.
The court appointed counsel for Warren. At a status conference, the
prosecutor argued that while the jury found Warren was not one of the
shooters, the jury instructions given showed Warren’s petition should be
denied. Defense counsel stated he had reviewed the instructions and
submitted on the matter without argument. The court summarily denied the
petition, ruling it was “denied for the reasons articulated by [the prosecutor].”
Warren appeals from the court’s order.
DISCUSSION
I. Legal Principles and Standard of Review
Senate Bill No. 1437, effective January 1, 2019, “amend[ed] the
felony[-]murder rule and the 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); People v.
Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) “The Legislature enacted
Senate Bill [No.] 1437 ‘to more equitably sentence offenders in accordance

9
with their involvement in homicides.’ [Citation.] The Legislature recognized,
‘It is a bedrock principle of the law and of equity that a person should be
punished for his or her actions according to his or her own level of individual
culpability.’ ” (People v. Curiel (2023) ___ Cal.5th ___, ___ [2023 WL 8178140,
at *6] (Curiel).) Under the new law and its later expansion by Senate Bill No.
775, “[a] person 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,
attempted murder under the natural and probable consequences doctrine, or
manslaughter may file a petition with the court that sentenced the petitioner
to have the petitioner’s murder, attempted murder, or manslaughter
conviction vacated and to be resentenced on any remaining counts . . . .”
(§ 1172.6, subd. (a).)
Thus, “[o]utside of the felony-murder rule, ‘a conviction for murder
requires that a person act with malice aforethought. A person’s culpability
for murder must be premised upon that person’s own actions and subjective
mens rea.’ ” (Curiel, supra, ___ Cal.5th at p. ___ [2023 WL 8178140, at *6].)
The change eliminates liability for first or second degree murder as an aider
and abettor under the under the natural and probable consequences theory.
(Id. at p. ___ [2023 WL 8178140, at *15]; People v Reyes (2023) 14 Cal.5th
981, 986; see also Strong, 13 Cal.5th at p. 707, fn. 1.)
The Legislature created a procedural mechanism for those convicted
under the former law to petition the trial court for retroactive relief under the
amended law. (§ 1172.6, subd. (a); Curiel, supra, ___ Cal.5th at p. ___ [2023
WL 8178140, at *7]; Strong, supra, 13 Cal.5th at p. 708.) The petition must
allege (1) that the petitioner was subject to a complaint, information, or

10
indictment that allowed the prosecution to proceed under the natural and
probable consequences doctrine or other theory of imputed malice; (2) the
petitioner was convicted of murder, attempted murder, or manslaughter; and
(3) the petitioner could no longer be convicted of murder because of changes
to section 188 or 189. (§ 1172.6, subd. (a); see Curiel, at p. ___ [2023 WL
8178140, at *8].)
“ ‘When the trial court receives a petition containing the necessary
declaration and other required information, the court must evaluate the
petition “to determine whether the petitioner has made a prima facie case for
relief.” [Citations.] If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial court may
dismiss the petition. [Citations.] If, instead, the defendant has made a
prima facie showing of entitlement to relief, ‘the court shall issue an order to
show cause.’ ” (Curiel, supra, ___ Cal.5th at p. ___ [2023 WL 8178140, at *8];
§ 1172.6, subd. (c); see also Strong, supra, 13 Cal.5th at p. 708; People v.
Harden (2022) 81 Cal.App.5th 45, 52.)
“A petitioner is ineligible for resentencing as a matter of law if the
record of conviction conclusively establishes, with no factfinding, weighing of
evidence, or credibility determinations, that (1) the petitioner was the actual
killer, or (2) the petitioner 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 petitioner was a major participant in the underlying felony and acted
with reckless indifference to human life, or (4) the petitioner acted with
malice aforethought that was not imputed based solely on participation in a
crime.” (People v. Lopez (2022) 78 Cal.App.5th 1, 14; see §§ 188, subd. (a)(3),
189, subd. (e).) If the record contains facts refuting the allegations made in

11
the petition, then the court is justified in making a credibility determination
adverse to the petitioner. (Curiel, supra, ___ Cal.5th at p. ___ [2023 WL
8178140, at *13]; People v. Lewis (2021) 11 Cal.5th 952, 971; People v. Bodely
(2023) 95 Cal.App.5th 1193, 1200.) To make the prima facie determination,
the court may review the jury instructions and jury verdicts, which are part
of the record of conviction. (Bodely, at p. 1200; People v. Flores (2023) 96
Cal.App.5th 1164, 1170.) A relevant jury finding can establish a defendant’s
ineligibility for resentencing under Senate Bill No. 1437 and preclude a
defendant from making a prima facie case for relief. (Curiel, at p. ___ [2023
WL 8178140, at *10]; Strong, supra, 13 Cal.5th at p. 510.)
We review de novo an order denying a section 1172.6 petition at the
prima facie review stage. (People v. Flores, supra, 96 Cal.App.5th at p. 1170;
People v. Coley (2022) 77 Cal.App.5th 539, 545; People v. Harrison (2021) 73
Cal.App.5th 429, 437.) Warren agrees a de novo standard of review applies,
but characterizes the issue as one of statutory interpretation.
II. Warren Cannot Establish a Prima Facie Claim for Relief
Warren contends that, accepting the truth of the allegations in his
petition, and considering the jury’s not true findings on the special
circumstance and firearm allegations, he established prima facie he is
entitled to relief, as “he was not the actual killer, and he was convicted of
second degree murder under a legal theory which is no longer valid.” For the
latter proposition, he cites People v. Lewis, supra, 11 Cal.5th at page 971 and

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People v. Flores (2022) 76 Cal.App.5th 974, 986 without discussion.6 Warren
does not explain precisely how his second degree murder conviction no longer
survives the passage of Senate Bill Nos. 1437 or 775.
In response, the People point out that Warren’s jury was not instructed
on felony murder, the natural and probable consequences doctrine, or any
other theory of liability that would have permitted the jury to impute malice
to him. Rather, as indicated, the jury was instructed on direct aiding and

6 At the cited page in People v. Lewis, supra, 11 Cal.5th 951, the court
simply sets out general principles about the limited prima facie inquiry and
use of the record of conviction. (Id. at p. 971.) In People v. Flores, supra, 76
Cal.App.5th 974, the defendant pleaded no contest to second degree murder
on an amended information that generically charged him with murder. (Id.
at p. 978.) The trial court on his petition for resentencing did not make the
required preliminary assessment by deciding whether his record of conviction
conclusively refuted the petition’s allegations, which were facially sufficient
under the law. (Ibid.) The Court of Appeal went ahead to conclude the
petitioner had made out a prima facie case. It rejected the People’s reliance
on its prior appellate opinion in the matter (id. at p. 988), and held the
preliminary hearing transcript (in which a sheriff’s deputy testified the
defendant said his codefendant shot the victim “multiple times and beat him
around the head and upper body, after which [the defendant] may have
accidentally run over [the victim] twice while leaving the scene”) did not
establish the petitioner’s ineligibility for relief as a matter of law, as it did not
conclusively rebut his allegations or exclude the possibility that the petitioner
was, or could have been, convicted under the imputed malice theories
eliminated by Senate Bill No. 1437. (People v. Flores, at pp. 991-992 [“To find
petitioner ineligible for resentencing on this record would require judicial
factfinding, which is impermissible at the prima facie stage”].) In Flores, the
defendant’s statements to the deputy did not preclude the possibility that the
codefendant/accomplice, not the defendant, was the actual killer, or that the
defendant aided and abetted his accomplice without the intent to kill the
victim. Here, Warren’s record of conviction from his jury trial does preclude
the possibility that the jury found he committed second degree murder by
imputing malice to him based solely on his participation in a crime. Flores
does not assist Warren.

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abetting (CALCRIM Nos. 400, 401), first and second degree murder along
with the difference between express and implied malice aforethought
(CALCRIM No. 520), and first degree murder based on premeditation and
deliberation (CALCRIM No. 521). The People say under the instructions
given, “the jury necessarily found that [Warren] committed the murder as
either a direct perpetrator or a direct aider and abettor” and even if the jury
found he was not the actual killer, they “could convict [Warren] of second
degree murder as an aider or abettor only upon concluding, beyond a
reasonable doubt, that he had ‘the intent or purpose of committing or
encouraging or facilitating the commission of the crime.’ ” Pointing out the
jury was not instructed it could find Warren guilty of murder by concluding
he had the intent to commit, encourage, or facilitate the commission of a non-
homicide offense, the People argue the record conclusively demonstrates he
was not convicted of murder under a theory eliminated by Senate Bill No.
1437, thus the court properly denied the resentencing petition.
In reply, Warren is silent on the People’s assertion that the jury
instructions did not permit the jury to impute malice, consider felony murder,
or apply the natural and probable consequences doctrine. For the first time,
he argues based on People v. Langi (2022) 73 Cal.App.5th 972 that the aiding
and abetting instruction, CALCRIM No. 401, and the implied malice
instruction within CALCRIM No. 520 permitted the jury to find him guilty of
second degree murder as an accomplice without finding he personally
intended to kill the victim. According to Warren, “[s]ince the aiding and
abetting instruction [of CALCRIM No. 401] did not specify the perpetrator
had to commit the crime of murder, the instruction stated only ‘the
perpetrator intended to commit the crime,’ the jury could have convicted

14
[him] of second degree murder as an accomplice if the actual killer intended
only to assault the victim, not kill him.”
Normally we would consider these new contentions forfeited, as
“ ‘arguments made for the first time in a reply brief will not be entertained
because of the unfairness to the other party.’ ” (People v. Tran (2022) 13
Cal.5th 1169, 1208; see People v. Ng (2022) 13 Cal.5th 448, 568, fn. 13
[same].) Warren had every opportunity to raise such a claim, as his opening
brief in this appeal was filed in November 2022, well after the January 2022
issuance of People v. Langi, supra, 73 Cal.App.5th 972.
We in any event reject the contentions, and affirm the court’s summary
dismissal of Warren’s petition. As a threshold matter, we agree that the
absence of jury instructions on felony murder or the natural and probable
consequences doctrine, means the jury could not have convicted him on those
theories, permitting summary denial of section 1172.6 relief. (See People v.
Coley, supra, 77 Cal.App.5th at p. 548 [defendant convicted of attempted
murder not entitled to section 1172.6 relief because the jury was not
instructed on the natural and probable consequences doctrine]; see also
People v. Estrada (2022) 77 Cal.App.5th 941, 946 [trial court never instructed
the jury on the natural and probable consequences doctrine and instructions
as a whole did not permit conviction on natural and probable consequences
theory; summary denial of petition affirmed].) The record of conviction
here—in particular, the jury instructions as well as the verdicts and
findings—conclusively shows Warren’s murder conviction was at a minimum
based on Warren aiding and abetting implied malice second degree murder, a
still valid theory of murder notwithstanding the changes in the law. (See
People v. Reyes, supra, 14 Cal.5th at pp. 990-991; People v. Werntz (2023) 90
Cal.App.5th 1093, 1113, review granted, Aug. 9, 2023, S280278 [observing

15
this court has joined the “ ‘chorus of appellate authorities . . . which have
uniformly upheld aiding and abetting implied malice murder as a viable form
of murder liability, notwithstanding the legislative changes effectuated by
Senate Bill [No.] 1437 and Senate Bill [No.] 775’ ”]; People v. Silva (2023) 87
Cal.App.5th 632, 639; People v. Vizcarra (2022) 84 Cal.App.5th 377, 391-392
[“a person convicted of aiding and abetting implied malice murder is not a
person convicted of murder pursuant to a theory under which malice is
imputed based solely on the person’s participation in a crime”]; People v.
Langi, supra, 73 Cal.App.5th at pp. 982-983; People v. Superior Court
(Valenzuela) (2021) 73 Cal.App.5th 485, 499; People v. Powell (2021) 63
Cal.App.5th 689, 710-714.) There was no other theory presented to the jury
under which Warren could have been convicted of murder “under which
malice [was] imputed to [him] based solely on [his] participation in a crime.”
(§ 1172.6, subd. (a).)
As for Warren’s instructional error arguments, at the time of Warren’s
2013 conviction, the law already required a direct aider and abettor of
murder “know and share the murderous intent of the actual perpetrator.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1118 [“when the charged offense
and the intended offense—murder or attempted murder—are the same, i.e.,
when guilt does not depend on the natural and probable consequences
doctrine, . . . the aider and abettor must know and share the murderous
intent of the actual perpetrator”]; see also People v. Gentile (2020) 10 Cal.5th
830.) Under these circumstances, this court has decided that the sort of
instructional error claims made by section 1172.6 petitioners “ha[ve] nothing
to do with the changes to the law of murder that authorize convicted
murderers to seek relief under section 1172.6.” (People v. Flores, supra, 96
Cal.App.5th at p. 1173; People v. Burns (2023) 95 Cal.App.5th 862, 867

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[defendant’s challenge to former CALCRIM No. 400—based on case law
decided well before the jury verdict in his trial—“has nothing to do with the
legislative changes to California’s murder law” and thus defendant “did not
satisfy the section 1172.6, subdivision (a)(3) condition” that he could not
presently be convicted of murder because of changes to section 188 or 189
made effective January 1, 2019]; accord, People v. Berry-Vierwinden (2023)
___ Cal.App.5th ___, ___ [2023 WL 8441785, at *8] [“a section 1172.6
petitioner cannot establish a prima facie case for relief by asserting that the
jury instructions permitted conviction on a theory of imputed malice that was
already prohibited even before the enactment of Senate Bill No. 1437”
because it “amounts to ‘a routine claim of instructional error’ that ‘could have
been raised in his [direct] appeal’ ”].)
Nothing in Langi compels a different conclusion in any event. There,
unlike this case, the defendant was convicted of not only second degree
murder but also battery and robbery in connection with the beating death of
a robbery victim. (People v. Langi, supra, 73 Cal.App.5th at p. 975.) The
victim died from falling and striking his head after he was punched by an
individual in a group of men including the defendant. (Ibid.) “As the case
was tried, the jury could have found [the defendant] guilty as an aider and
abettor even if it found that someone else threw the fatal punch.” (Id. at p.
980.) The defendant’s jury was not instructed on the natural and probable
consequences doctrine but was instructed on second degree murder under
CALJIC No. 8.31 and aiding and abetting under CALJIC No. 3.01. CALJIC
No. 3.01 was “identical in relevant substance” to CALCRIM No. 401. (Id. at
pp. 980-981, 983.)
Langi found that although the aiding and abetting instruction stated
that a person aids and abets a crime if he or she acts “ ‘with knowledge of the

17
unlawful purpose of the perpetrator, and . . . with the intent or purpose of
committing or encouraging or facilitating the commission of the crime,’ ” “the
second-degree-murder instruction specified that the direct perpetrator of that
crime need not act with the unlawful intent of causing death.” (People v.
Langi, supra, 73 Cal.App.5th at p. 982.) “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. Since 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 perpetrator aimed to kill. If 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.) Reasoning the

instructions created an ambiguity,7 Langi held the instructions permitted

7 In part, Langi reasoned: “[T]he 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.” (People v. Langi, supra, 73
Cal.App.5th at p. 982, fn. omitted, citing People v. Powell, supra, 63
Cal.App.5th at pp. 712-714.) We reject Warren’s argument that because the
instructions here referred to aiding and abetting the “commission of (an
unspecified) crime” instead of the “commission of murder,” there was a
possibility the jury could have convicted him of second degree murder as an
accomplice based on the conclusion that the perpetrator intended only to
commit some lesser or different crime such as assault. Nothing in the record
indicates the jury relied on some other unidentified and uncharged target
crime to convict Warren without finding he acted with implied malice.
Rather, the jury instructions properly reflected the law: “[W]hen the charged
offense and the intended offense—murder . . . are the same, i.e. guilt [for
murder] does not depend on the natural and probable consequences doctrine
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the jury “to conclude that, to be guilty as an aider and abettor of second
degree murder, [the defendant] 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, fn. omitted.) In other words, the instruction did not require the
jury to determine whether the defendant knew the act he aided (i.e., the
punch) was life-threatening or whether he acted with indifference to human
life, but allowed the jury to convict him based on a now-invalid vicarious
felony murder theory. (Id. at p. 982.) Because the record did not establish
the defendant was categorically ineligible for relief, an evidentiary hearing
was required. (Id. at p. 984.)
Langi is distinguishable. Unlike the defendant in that case, Warren
was not charged with non-murder crimes in addition to murder. Whereas the
perpetrator who threw the fatal punch in Langi, supra, 73 Cal.App.5th 972
may not have had murderous intent, the crime of murder required acting
either with an intent to kill or implied malice. And because there was no
crime other than murder charged, the aiding and abetting instructions
required the jury to find that Warren knew the perpetrator intended to
commit the crime of murder, and that he acted with the intent or purpose of
committing, encouraging, or facilitating that murder. “Absent some
circumstance negating malice,” where the only unlawful purpose charged is
an unlawful killing, “one cannot knowingly and intentionally help another

. . . the aider and abettor must know and share the murderous intent of the
actual perpetrator.” (People v. McCoy, supra, 25 Cal.4th at p. 1118.)

19
commit an unlawful killing without acting with malice.” (People v. McCoy,
supra, 25 Cal.4th at p. 1123.)
DISPOSITION
The order is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

KELETY, J.

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