Filed 3/19/24 P. v. Young CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B324008
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA024815)
v.
DENEAL D. YOUNG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Allen J. Webster, Judge. Affirmed.
Edward Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance Winters, Chief
Assistant Attorney General, Susan Pithey, Assistant Attorney
General, Wyatt Bloomfield and Christopher Sanchez, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
In 1994, a jury convicted Deneal Deshawn Young of second
degree murder and attempted murder. Young now appeals from
an order denying his petition for resentencing under Penal Code
section 1170.95.1 The trial court concluded Young did not make a
prima facie showing of eligibility for resentencing relief because
he was convicted of second degree murder as a direct aider and
abettor. Young contends the trial court improperly relied on a
prior appellate court opinion to determine he was ineligible for
relief. He also argues ambiguities in the jury instructions and
the prosecutor’s statements during closing argument allowed the
jury to convict him without finding he personally harbored
malice. We find the record conclusively establishes Young’s
ineligibility for resentencing and affirm the trial court’s denial of
Young’s petition.
BACKGROUND
The underlying offense
We take our statement of the facts underlying Young’s
crime from the Court of Appeal opinion affirming the judgment of
1 All further undesignated statutory references are to the
Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
We therefore refer to the statute as section 1172.6 for the
remainder of this opinion.
2
conviction. (People v. Young (Nov. 13, 1996) B093511) [nonpub.
opn.] (Young).)2
“On May 17, 1993, Victor [Manual Felix] and [his brother,
Epifanio] Felix drove to 106th Street so Victor could sell Young
cocaine. They drove in Victor’s brown Chevette. As they passed
a certain address, Victor said he was looking for Young. When
they returned to the address a minute or two later, Young was in
the driveway. Victor and Young went into a house at 913 East
106th Street. Epifanio saw some people looking out of the
adjacent house at 915 East 106th Street.
“In a few minutes, Victor came out of the house at #913,
took a grocery bag from the back seat of his car and went back
inside #913. Meanwhile a man holding a semi-automatic gun
stood by the car watching Epifanio. Victor did not have the
grocery bag with him when he and Young came out of #913.
Victor went to talk to Young after Epifanio told him about the
man with the gun. Young called to the man with the gun, who
walked over to Young. After speaking with Young, the man went
into the house at #915. Epifanio told Victor he wanted to leave,
but Victor said he was waiting for some money.
“Young took a telephone from his pocket and made a call.
Thereafter, a woman Epifanio had previously seen at Young’s
residence on 103rd Street drove up. Young spoke to the woman,
and then she left. Young went back to #913 and made another
2 At Young’s request, we took judicial notice of records from
Young, including the reporter’s transcript of Young’s 1994 trial.
We refer to the factual background from Young only “for
background purposes and to provide context for the parties’
arguments.” (People v. Flores (2022) 76 Cal.App.5th 974, 978,
fn. 2 (Flores).)
3
phone call. Young then went into #915. A man with a gun came
up and ordered Epifanio out of the car. Then two other men (one
of whom was the man who had previously been at the car with
the gun) came out of #915. Victor looked surprised. The two men
took Victor into #913. Then the third man took Epifanio into
#913.
“The inside of #913 was completely empty. Young was not
present at this point. Victor and Epifanio were put face down on
the floor of the living room. Their wallets and money were taken
and they were tied up. Someone shot Victor. Then Epifanio was
shot in the neck. Victor was then shot a second time. Epifanio
did not see who fired the shots. He remained still to avoid being
shot again. When the men had gone, Epifanio checked on Victor,
who seemed to be alive, but was choking. Epifanio went out the
back door of #913. As he approached 105th Street, a man yelled
at him, chased him and shot at him. Epifanio ran and finally
found someone who called 911. Victor’s body was found two days
later under a pile of grass clippings about two blocks from 913
106th Street. He had been shot in the back of the head and the
thigh.”
The underlying proceedings
The People charged Young with murder (§ 187, subd. (a))
and attempted murder (§§ 664, 187, subd. (a)). The attempted
murder count included an allegation that Young acted willfully,
deliberately, and with premeditation. Both counts included a
firearm enhancement (§ 12022, subd. (a)(1)).
At trial, the court instructed the jury, in relevant part, on
murder (CALJIC No. 8.10); two theories of first degree murder—
deliberate and premeditated murder (CALJIC No. 8.20) and first
degree felony murder (CALJIC No. 8.21); aiding and abetting
4
principles specific to first degree felony murder (CALJIC
No. 8.27); second degree murder (CALJIC No. 8.30); and
attempted murder (CALJIC No. 8.66). The court also instructed
the jury on general principles of aiding and abetting liability
(CALJIC Nos. 3.00, 3.01), and express and implied malice
(CALJIC No. 8.11). The court further instructed the jury with
CALJIC No. 3.31, which advised that the jury could find Young
guilty of the crimes charged only if it found “a union or joint
operation of act or conduct and a certain specific intent in the
mind of the perpetrator.” The jury was not instructed on the
natural and probable consequences doctrine.
The jury convicted Young of second degree murder and
attempted murder and found true the firearm enhancement as to
both counts. The jury found not true the allegation that Young
acted willfully, deliberately, and with premeditation as to the
attempted murder. The court sentenced Young to an aggregate
term of 26 years to life, consisting of 15 years to life for the
second degree murder count plus one year for the firearm
enhancement, and a consecutive term of nine years for the
attempted murder count plus one year for the firearm
enhancement.
Young filed a direct appeal. This Division affirmed the
judgment. (Young, supra, B093511.)
Young’s petition for resentencing
In January 2019, Young filed a pro. per. petition for
resentencing under section 1172.6, alleging he could not be
convicted of second degree murder because he was not the actual
killer, he did not act with the intent to kill, he was not a major
5
participant in a felony who acted with reckless indifference to
human life, and the victim was not a peace officer.3
The People filed an opposition arguing Senate Bill
No. 1437’s amendments to the Penal Code violated the California
Constitution. Young filed a reply through counsel. The People
filed a supplemental opposition contending that even if Senate
Bill No. 1437 is constitutional, Young was ineligible for
resentencing relief because, in the direct appeal from Young’s
convictions, the appellate court found there was sufficient
evidence that Young directly aided and abetted the murder and
attempted murder.
In August 2022, the court held a hearing on Young’s
petition. The court referenced the Court of Appeal opinion,
explaining the “appellate court made a ruling that Mr. Young
aided and abetted this particular murder that occurred . . . .” The
trial court stated that it had “to use the remittitur as some basis
for trying to decide what’s going on in all of these cases” and
expressed doubt that it had to “move forward” with the petition
“because the appellate court has already decided exactly.” The
3 Young’s petition requested resentencing under Senate Bill
No. 1437 (2017–2018 Reg. Sess.) on his second degree murder
conviction. After he filed his petition, Senate Bill No. 775 (2021–
2022 Reg. Sess.) was enacted, extending resentencing relief for
some attempted murder convictions. Young did not file an
amended petition or otherwise request resentencing on his
attempted murder conviction. As a result, only Young’s challenge
to the trial court’s denial of his request for resentencing on the
second degree murder conviction is properly before this court.
We reject Young’s argument that we should consider the
application of section 1172.6 to his attempted murder conviction
since he has not sought resentencing in the trial court in the first
instance.
6
court concluded, “based on reading the transcripts, reading the
remittitur, and . . . making a finding based on the law that’s
presented to the court,” that Young was not eligible for relief.
Young timely appealed.
DISCUSSION
I. Senate Bill Nos. 1437 and 775
Senate Bill No. 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder and limited the scope of the felony murder rule. (People
v. Strong (2022) 13 Cal.5th 698, 707–708 (Strong); People v. Lewis
(2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile (2020) 10
Cal.5th 830, 842–843 (Gentile).) The bill amended section 188 by
adding the requirement that, except as stated in section 189, “in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).) Among other things, Senate Bill No. 775
expanded Senate Bill No. 1437’s mandate by eliminating the
natural and probable consequences doctrine as a means of finding
a defendant guilty of attempted murder. (§ 1172.6, subd. (a).)
However, a principal in a murder, including an aider or
abettor, may still be criminally liable if he or she personally
possesses malice aforethought, whether express or implied.
(People v. Silva (2023) 87 Cal.App.5th 632, 639–640; People v.
Offley (2020) 48 Cal.App.5th 588, 595–596 [Senate Bill No. 1437
did not “alter the law regarding the criminal liability of direct
aiders and abettors of murder because such persons necessarily
‘know and share the murderous intent of the actual
perpetrator’ ”].)
7
Senate Bill No. 1437 also created a procedure, now codified
at section 1172.6, for a person convicted under the former law of
a qualifying offense to seek resentencing if he or she could no
longer be convicted of that offense under amended section 188.
(Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra, 10 Cal.5th at
p. 847.) A defendant commences the procedure by filing a
petition containing a declaration that, among other things, the
defendant could not presently be convicted of murder or
attempted murder under the current law. (Strong, supra, 13
Cal.5th at p. 708.) In relevant part, the statute requires the
court, “[a]fter the parties have had an opportunity to submit
briefings,” to “hold a hearing to determine whether the petitioner
has made a prima facie case for relief. If the petitioner makes a
prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause. If the court declines to
make an order to show cause, it shall provide a statement fully
setting forth its reasons for doing so.” (§ 1172.6, subd. (c).)
II. Prima Facie Stage and Standard of Review
At the prima facie stage, “ ‘ “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.” ’ ” (Lewis, supra, 11
Cal.5th at p. 971.) “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.” (Ibid.) Courts may not reject
the petitioner’s allegations “ ‘on credibility grounds’ ” or “ ‘engage
in factfinding involving the weighing of evidence or the exercise
of discretion. [Citation.]’ ” (Id. at pp. 971, 972.) Rather, “[t]he
record should be consulted at the prima facie stage only to
8
determine ‘readily ascertainable facts,’ such as the crime of
conviction and findings on enhancements.” (People v. Duchine
(2021) 60 Cal.App.5th 798, 815; see, e.g., People v. Harden (2022)
81 Cal.App.5th 45, 54–56 (Harden) [considering jury instructions
and verdicts to determine whether the defendant made prima
facie showing of eligibility]; People v. Ervin (2021) 72 Cal.App.5th
90, 106 (Ervin) [considering sentencing enhancements, jury
instructions, closing arguments, and verdicts at prima facie
stage].)
A petitioner fails to make a prima facie showing for relief
“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.) The trial court’s denial of a
sentencing petition at the prima facie stage “ ‘is a purely legal
conclusion,’ ” which appellate courts review de novo. (Ervin,
supra, 72 Cal.App.5th at p. 101; see Flores, supra, 76 Cal.App.5th
at pp. 986–992.)
III. The Record of Conviction Conclusively Establishes
Young is Ineligible for Relief
A. Any error by the trial court in relying on Young
does not warrant reversal
Young claims reversal is necessary because the trial court
9
impermissibly relied on this court’s opinion in the direct appeal
in determining his eligibility for relief. We conclude any error
does not warrant reversal.
In the direct appeal, Young argued the trial court erred by
failing to instruct the jury on the natural and probable
consequences doctrine. (Young, supra, B093511.) This court
rejected the argument, explaining that the trial court instructed
the jury on the offenses of direct aiding and abetting murder and
attempted murder, and further concluding substantial evidence
supported the jury’s verdicts. (Ibid.)
At the hearing on Young’s section 1172.6 petition, the trial
court referred to this court’s prior opinion several times. The
trial court primarily appeared to reference the opinion’s
statement that the jury was not instructed on the natural and
probable consequences doctrine, a fact that was also reflected
elsewhere in the record of conviction. Those references were
appropriate. (Lewis, supra, 11 Cal.5th at p. 972 [appellate
opinions are generally considered part of the record of
conviction].)
However, the trial court also commented that the appellate
court reviewed the evidence and made a finding that Young acted
as a direct aider and abettor. To the extent the trial court
considered the appellate opinion as the source of a binding prior
factual finding, this reliance was misplaced. Fact-based holdings
in a prior appellate opinion are not law of the case that
necessarily foreclose resentencing relief. (Harden, supra, 81
Cal.App.5th at p. 50.) Further, the court in Young had no
occasion to consider whether, despite the absence of a natural
and probable consequences instruction, Young was nonetheless
convicted on a theory in which malice was imputed to him based
10
solely on his participation in a crime.
But even if the trial court improperly relied on the prior
appellate opinion, any error does not mandate reversal. As we
explain below, our de novo review indicates the record of
conviction conclusively establishes Young is ineligible for relief
under section 1172.6 as a matter of law. (See, e.g., People v.
Mejorado (2022) 73 Cal.App.5th 562, 572 [error in failing to
appoint counsel harmless “if we can determine that the record of
conviction ‘ “ ‘contain[s] facts refuting the allegations made in the
petition’ ” ’ ”], review granted Mar. 23, 2022, S273159, review
dism. Oct. 12, 2022.) The trial court’s ultimate conclusion was
correct and, “ ‘ “if [a trial court’s] ruling was correct on any
ground, we affirm.” ’ [Citation.]” (People v. Brooks (2017) 3
Cal.5th 1, 39.)
B. The jury instructions required the jury to find
Young personally acted with malice
In Young’s underlying case, the trial court did not instruct
the jury on the natural and probable consequences doctrine. And
although the trial court instructed the jury on first degree felony
murder, the jury rejected the felony murder theory. Instead, the
jury found Young guilty of aiding and abetting second degree
murder and of aiding and abetting an attempted murder arising
out of the same shooting. The attempted murder conviction
required the jury to find that Young “harbored express malice
aforethought, namely, a specific intent to kill unlawfully another
human being.” (CALJIC No. 8.66.)
Young nonetheless contends the definitions of principals in
CALJIC No. 3.00, aiding and abetting in CALJIC No. 3.01, and
attempted murder in CALJIC No. 8.66, did not adequately
explain to the jury that it had to find Young personally acted
11
with malice to convict him of aiding and abetting murder. He
asserts ambiguities in the jury instructions combined with the
prosecutor’s statements during the closing argument allowed the
jury to convict him of second degree murder by imputing malice
to him. We review the instructions to evaluate his claim.
CALJIC No. 3.00, as given in this case, instructed the jury
that “[t]he persons concerned in the commission or attempted
commission of a crime who are regarded by law as principals in
the crime thus committed or attempted and equally guilty thereof
include, one, those who directly and actively commit or attempt
to commit the act constituting the crime, or two, those who aid
and abet the commission or attempted commission of the crime.”
CALJIC No. 3.01 then elaborated that “[a] person aids and
abets the commission of a crime when he or she, one, with
knowledge of the unlawful purpose of the perpetrator and two,
with the intent or purpose of committing, encouraging, or
facilitating the commission of the crime, by act or advice aids,
promotes, encourages, or instigates the commission of the crime.”
The court further instructed the jury with CALJIC
No. 8.66, which provided, in relevant part: “Every person who
attempts to murder another human being is guilty of a violation
of sections 664 and 187 of the Penal Code. Murder is the
unlawful killing of a human being with malice aforethought. [¶]
In order to prove such crime, each of the following elements must
be proved: [¶] One, a direct but ineffectual act was done by one
person towards killing another human being; and, [¶] [t]wo, the
person committing such act harbored express malice
aforethought, namely, a specific intent to kill unlawfully another
human being.”
12
Young contends CALJIC No. 3.00 is deficient because it
“conflicts with” the California Supreme Court’s decision in People
v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy), which
established that aiders and abettors must personally know
“ ‘ “the full extent of the perpetrator’s criminal purpose . . . .” ’ ”
We find no such conflict.
In McCoy, the court held an aider and abettor may be found
guilty of a greater offense than the direct perpetrator. The Court
reasoned that when “ ‘joint participants in a crime are tied to a
“single and common actus reus,” ’ ” “each person’s guilt would be
based on the combined actus reus of the participants, but also
solely on that person’s own mens rea. Each person’s level of guilt
would ‘ “float free.” ’ [Citation.]” (McCoy, supra, 25 Cal.4th at
pp. 1118–1119, 1121.) “ ‘When the offense charged is a specific
intent crime, the accomplice must “share the specific intent of the
perpetrator”; this occurs when the accomplice “knows the full
extent of the perpetrator’s criminal purpose and gives aid or
encouragement with the intent or purpose of facilitating the
perpetrator’s commission of the crime.” [Citation.]’ [Citation.]”
(Id. at p. 1118.) Thus, when a defendant is charged with aiding
and abetting a murder, “the aider and abettor must know and
share the murderous intent of the actual perpetrator.” (Ibid.)
In People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
335, 433 (Bryant), the California Supreme Court explained that
former CALJIC No. 3.00, which was given at Young’s trial,
“generally stated a correct rule of law. All principals, including
aiders and abettors, are ‘equally guilty’ in the sense that they are
all criminally liable.” While the court indicated the instruction
“could be misleading if the principals in a particular case might
be guilty of different crimes and the jury interprets the
13
instruction to preclude such a finding,” the concern in this case is
not whether the jury may have mistakenly believed Young might
be guilty of the same crime as the direct perpetrators. (Ibid.)
That the former version of CALJIC No. 3.00 could be misleading
is only relevant if any imprecision in the instruction allowed the
jury to convict Young on a theory of imputed malice. It did not.
(People v. Burns (2023) 95 Cal.App.5th 862, 868–869 (Burns) [use
of “ ‘equally guilty’ ” language in former CALCRIM No. 400 “did
not operate to offer the jury a theory of legal liability that can no
longer support a conviction for murder as a result of the recent
statutory changes”].)
Reading CALJIC No. 3.00 “in the context of the
instructions and record as a whole” (People v. Vang (2022) 82
Cal.App.5th 64, 84), it is clear the jury found Young personally
possessed a particular mental state—specifically, knowledge of
the unlawful purpose of the shooters and the specific intent to
encourage or facilitate the killing—to find him guilty of murder.
CALJIC No. 3.01 informed the jury it could hold Young liable for
murder as an aider and abettor only if it concluded he aided,
promoted, encouraged, or instigated the commission of the
murder “(1) with knowledge of the unlawful purpose of the
perpetrator and [¶] (2) with the intent or purpose of committing,
encouraging, or facilitating the commission of the crime . . . .”
(Italics added.) This was consistent with McCoy’s holding
requiring an aider and abettor to share a direct perpetrator’s
specific intent, resolving any ambiguity potentially created by
CALJIC No. 3.00. (People v. Johnson (2016) 62 Cal.4th 600, 640–
641; Bryant, supra, 60 Cal.4th at p. 434; People v. Amezcua and
Flores (2019) 6 Cal.5th 886, 919, 918 [CALJIC No. 3.01
“sufficiently explained” that defendants had to share the intent to
14
kill to be “ ‘equally guilty’ ” under CALJIC No. 3.00 as aiders and
abettors of murder and attempted murder].) The jury had to
consider CALJIC No. 3.00 in light of CALJIC No. 3.01.
Young cites People v. Langi (2022) 73 Cal.App.5th 972
(Langi) to support his argument that CALJIC No. 3.01 also failed
to unambiguously require the jury to find that Young, as an aider
and abettor, personally acted with malice. However, his reliance
on Langi is misplaced. In Langi, the jury rejected a felony
murder theory, but found the defendant guilty of second degree
murder, robbery, and battery. The Langi court reasoned that
because the instruction for second degree implied malice murder
did not require a finding that the perpetrator intended to kill, the
aiding and abetting jury instructions left open the possibility that
the jury convicted the appellant for intending to aid the
perpetrators’ intentional acts, without necessarily possessing an
intent to aid or encourage the victim’s killing.4 (Id. at p. 983.)
As an initial matter, Young is incorrect that the jury’s
rejection of the first degree murder theories implicitly means the
jury found Young guilty of second degree murder based on a
theory of implied malice. Young’s argument is entirely
inconsistent with the jury instructions. The jury was instructed
on two theories of first degree murder: felony murder occurring in
the commission of a robbery, and willful, deliberate, and
premeditated murder. The jury was separately instructed on
malice aforethought and second degree murder, and informed
that a second degree murder is a killing with malice aforethought
4 Although the jury at Young’s trial was instructed generally
on implied malice, in contrast to Langi, the trial court here did
not instruct the jury with CALJIC No. 8.31 defining second
degree implied malice murder.
15
“when there is manifested an intention unlawfully to kill a
human being, but the evidence is insufficient to establish
deliberation and premeditation.”
The court distinguished between “malice aforethought” and
deliberation, explaining that “[t]he word ‘aforethought’ does not
imply deliberation or the lapse of considerable time. It only
means that the required mental state must precede rather than
follow the act.” Additionally, the jury was instructed with
CALJIC No. 8.20, which distinguished intent from premeditation
and deliberation by stating that “a mere unconsidered and rash
impulse, even though it include[s] an intent to kill, is not such
deliberation and premeditation as will fix an unlawful killing as
murder of the first degree.” (Italics added.) (People v. Boatman
(2013) 221 Cal.App.4th 1253, 1270 [“premeditation and
deliberation is not synonymous with malice aforethought
[citation]; it requires ‘substantially more reflection’ ”].) Likewise,
the jury was given separate instructions regarding felony murder
that explained the elements of that crime, without suggesting the
jury could find Young guilty of either attempted murder or second
degree murder without concluding Young harbored the intent to
kill.
The prosecutor also distinguished between the theories,
telling the jury: “Say we didn’t have a felony. Let’s put that
felony murder rule and robbery out of the question. I’d be telling
you the definition of murder is the unlawful killing of a human
being with malice aforethought. What is [sic] malice
aforethought mean? . . . [¶] Malice aforethought is defined in
instruction [CALJIC No.] 8.11, and malice aforethought is
essentially what you need to know here. It’s killing someone
when you intend to kill them. In other words, it’s not an
16
accident. If you intend to kill someone and you kill them, that
intent is what we call malice aforethought. [¶] That is the
important definition of malice aforethought.”
The jury instructions properly reflected the distinctions
between the three legal theories and the necessary mental states
as to each. Young’s argument that the jury’s rejection of first
degree murder categorically indicated it found Young acted with
implied malice therefore misstates the law and is contradicted by
the record.
Further, the jury’s findings on both counts eliminated any
possibility that it found Young guilty of second degree murder on
an implied malice theory. The jury found Young guilty of
attempted murder and second degree murder arising out of the
same incident. The court instructed the jury with CALJIC
No. 8.66, which provided that to prove attempted murder, the
People must establish “a direct but ineffectual act was done by
one person towards killing another human being” and that “the
person committing such act harbored express malice
aforethought, namely, a specific intent to kill unlawfully another
human being.” (Italics added.) To convict Young of attempted
murder as a direct aider and abettor, the jury had to conclude
under CALJIC No. 3.01 that he knew of the direct perpetrator’s
intent to kill, and that Young aided the commission of attempted
murder with the purpose of killing. The jury found Young guilty
of attempted murder, and we presume it correctly understood
and applied CALJIC No. 3.01. (People v. Sanchez (2001) 26
Cal.4th 834, 852.)
In People v. Coley (2022) 77 Cal.App.5th 539, 547 (Coley),
as in this case, the defendant was convicted of murder based on
his aiding and abetting the same shooting that gave rise to his
17
conviction for attempted murder. We agree with the Coley court
that under those circumstances, “by finding [the defendant]
guilty of attempted murder, the jury necessarily found he had
personally harbored intent to kill or express malice when he
aided and abetted the second degree murder.” (Ibid.; see People
v. Young (1987) 189 Cal.App.3d 891, 910 [finding that because
the requisite mens rea for first degree murder was express
malice, “the jury necessarily found express malice on the
attempted murders committed as part of a single, indivisible
transaction”].) Young does not challenge the applicability of this
principle to his case. Thus, while nothing in the record of
conviction in Langi resolved any ambiguity created by CALJIC
No. 3.01 with respect to implied malice murder, here the jury
necessarily found Young personally acted with express malice in
committing both attempted murder and second degree murder.
Young asserts Coley is distinguishable because an
ambiguity in the attempted murder instruction also allowed the
jury to convict him of attempted murder by imputing express
malice to him. He cites the instruction’s requirement that the
jury find “one person” performed an act toward the attempted
killing and “the person” harbored express malice, without
specifying that this “person” must be the defendant.
This argument is unavailing because it views the
attempted murder instruction in isolation and not in the context
of the record of conviction as a whole. The prosecutor was clear
that the People were seeking to hold Young liable as an aider and
abettor of both murder and attempted murder. Under CALJIC
No. 3.01, to convict Young as an aider and abettor, the jury had
to find that Young acted to aid, promote, encourage, or facilitate
the attempted murder while sharing the direct perpetrator’s
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specific intent to kill. CALJIC Nos. 3.01 and 8.66 together did
not permit the jury to interpret the generic terms in the
attempted murder instruction as license to impute malice from
another person to convict Young of attempted murder.
The record of conviction reflects that the jury convicted
Young of second degree murder as a direct aider and abettor who
shared the direct perpetrator’s intent to kill.
C. The prosecutor’s statements during closing
argument did not allow the jury to impute
malice to Young
Young next contends that even without an express natural
and probable consequences instruction, the prosecutor’s
statements in his closing argument “embraced” the natural and
probable consequences theory, allowing the jury to impute malice
to him based solely on his participation in the murder. Young
cites the prosecutor’s statements about Young’s “leadership in
marketing drugs from the subject property,” which he contends
the jury could have understood to mean that it could convict him
of murder by finding Young aided and abetted “the promotion
and sale of drugs.” We again disagree.
The prosecutor referred to Young’s role in orchestrating the
drug sale with the Felix brothers as evidence showing Young’s
intent to aid and abet a robbery for purposes of first degree felony
murder, which was a valid theory of liability at the time. The
prosecutor explained that under this theory, “the defendant, as
an aider and abettor, . . . [a]ll he had to do is aid and abet the
robbery. If he was aiding and abetting the robbery, he’s liable for
the murder that someone else did in the course of that robbery.
[¶] . . . [¶] That’s what I have to prove to you. Not that the
defendant intended to kill these people, but that he aided and
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abetted a robbery.” The prosecutor did not state, or even suggest,
the jury could hold Young guilty of murder if it found he intended
to commit any crime other than robbery.
The prosecutor and the instructions made clear that felony
murder, the only imputed malice theory on which the jury could
find Young guilty, was premised on the commission of a robbery.
The jury unequivocally rejected this theory by finding Young
guilty of second degree murder. Neither the court’s instructions
nor the prosecutor’s comments indicated to the jury that once it
declined to find Young guilty of the felony murder charge based
on robbery, it could nevertheless impute malice to Young based
on his aiding and abetting a different crime—selling drugs—to
find him guilty of second degree murder.5
IV. People v. Curiel is Distinguishable
While this appeal was pending, the California Supreme
Court issued its decision in People v. Curiel (2023) 15 Cal.5th 433
(Curiel). At our invitation, the parties filed supplemental letter
briefs discussing the applicability of Curiel to this matter.
Having considered the parties’ supplemental briefing, we
conclude Curiel does not mandate reversal in this case.
5 In a footnote, Young argues the prosecution erred in
describing his actions after the shooting as evidence of aiding and
abetting rather than as evidence of a lesser related offense of
serving as an accessory after the fact. However, Young does not
contend these comments invited the jury to convict him using an
impermissible theory of imputed malice. A section 1172.6
petition is not an avenue for challenging alleged prosecutorial
misconduct or sufficiency of the evidence. The remedy for any
such errors was an appeal from the judgment of conviction.
(Burns, supra, 95 Cal.App.5th at pp. 867–868.)
20
In Curiel, a jury found the defendant guilty of aiding and
abetting a first degree murder by instigating a gang
confrontation that resulted in another man shooting and killing
the victim. The jury found true a gang-murder special
circumstance allegation that required a finding that the
defendant intended to kill. However, the court concluded
ineligibility for resentencing relief would only be established if
the record of conviction necessarily demonstrated the jury found
the defendant’s conduct constituted the requisite actus reus for
direct aiding and abetting and the defendant possessed the
requisite mens rea for direct aiding and abetting, even if the jury
separately concluded the defendant personally had the intent to
kill. (Curiel, supra, 15 Cal.5th at pp. 467–468.) In Curiel, the
trial court instructed the jury on the natural and probable
consequences doctrine. As such, the jury instructions did not
foreclose the possibility as a matter of law that the jury found the
defendant intended to aid and abet one of the target offenses
(disturbing the peace or concealed carry by a gang member) and
imputed malice to convict the defendant of the murder that
resulted. (Id. at pp. 446, 467–468.)
Without specifically arguing the Curiel court’s reasoning
applies in this case, Young appears to contend the decision
provides further basis for his arguments. However, in contrast to
Curiel, Young’s jury did not receive a natural and probable
consequences instruction. The only theory of imputed malice
presented to the jury was first degree felony murder, which the
jury rejected. Under the only remaining theory of liability, direct
aiding and abetting, there was no target offense other than
murder which the jury could have found Young aided and
abetted. (People v. Medrano (2024) 98 Cal.App.5th 1254, 1267.)
21
There is no basis to conclude, as the high court did in Curiel, that
the jury here did not necessarily find Young possessed the
requisite mens rea for directly aiding and abetting murder.
(Curiel, supra, 15 Cal.5th at pp. 471, 467 [“our holding today does
not necessarily apply to other cases where the jury found intent
to kill . . . . The jury instructions in other cases might be
materially different, and they might therefore have required
different factual findings by the jury”].)
The record of conviction conclusively establishes Young was
not convicted of second degree murder under a theory of imputed
malice based solely on his participation in the crime. Thus, his
petition failed to make a prima facie showing of his eligibility for
resentencing under section 1172.6 as a matter of law. We
therefore need not reach Young’s constitutional arguments
regarding the evidentiary hearing procedures in section 1172.6.
We affirm the trial court’s denial of Young’s petition.
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DISPOSITION
The trial court order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
LAVIN, Acting P. J.
EGERTON, J.
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