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People v. Rodriguez CA5

Court: California Court of Appeal
Date filed: 2023-10-03
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Filed 10/3/23 P. v. Rodriguez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

    THE PEOPLE,
                                                                                             F084165
           Plaintiff and Respondent,
                                                                              (Super. Ct. No. CF01662053)
                    v.

    EDMUNDO ANTHONY RODRIGUEZ,                                                            OPINION
           Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Heather
Mardel Jones, Judge.
         Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez, Erin R. Doering and William K. Kim, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-


*        Before Meehan, Acting P. J., Snauffer, J. and DeSantos, J.
                                     INTRODUCTION
       Petitioner and appellant Edmundo Anthony Rodriguez appeals from the trial
court’s denial of his petition to vacate his second degree murder conviction and for
resentencing under Penal Code section 1172.6 (formerly § 1170.95).1, 2 He argues the
trial court erred in denying his petition without issuing an order to show cause and
conducting an evidentiary hearing. Petitioner contends he established a prima facie case
for resentencing by alleging the jury could have been misled by the jury instructions
regarding aiding and abetting, leaving open the possibility petitioner was convicted of
second degree murder under an improper theory of imputed malice.
       Assuming, without deciding the reasonable likelihood standard applies in this
context, we conclude there is a reasonable likelihood the jury construed the instructions
in the manner petitioner asserts, and because the record of conviction does not
conclusively negate this reasonable likelihood, petitioner cannot be deemed ineligible for
resentencing as a matter of law at the prima facie stage. We reverse the trial court’s order
denying the petition, and remand for an evidentiary hearing.
                               FACTUAL BACKGROUND
I.     Original Second Degree Murder Conviction
       In 2001, petitioner was charged, along with his half brother Ernesto, of murder in
an unspecified degree under section 187, subdivision (a). Enhancement allegations were
attached to the murder charge alleging petitioner and Ernesto were principals in the
commission of the murder and that, in the commission of that crime, at least one of the
principals intentionally and personally discharged a firearm causing the death of the
victim within the meaning of section 12022.53, subdivisions (d) and (e)(1) (vicarious

1      All statutory references are to the Penal Code unless indicated otherwise.
2       Effective June 30, 2022, former section 1170.95 was renumbered to section 1172.6.
(Assem. Bill No. 200 (2021–2022 Reg. Sess.) (Assembly Bill 200).) We refer to the statute
herein by its present section number.


                                               2.
discharge allegation). It was also alleged the murder was committed for the benefit of, at
the direction of, and in association with a criminal street gang under section 186.22,
subdivision (b)(1). Finally, with respect to petitioner only, it was alleged he personally
and intentionally discharged a firearm causing the death of the victim under
section 12022.53, subdivisions (d) and (e)(2).
        Petitioner and Ernesto were tried jointly, and the jury found them both guilty of
second degree murder. The allegation that petitioner personally and intentionally
discharged a firearm was found not true; the street gang enhancement and the vicarious
discharge of a firearm enhancement were found true. Petitioner appealed, and we set
forth the original factual summary in our opinion on petitioner’s direct appeal, but we do
so for the purpose of context only.3

                “On May 30, 2001, between 6:00 and 6:30 p.m., members of rival
        street gangs—the Eastside Fresno Bulldogs and Northside Six Deuce
        Diamond Crips—exchanged insults and provocative looks in the courtyard
        of an apartment complex in Fresno. [Petitioner] and Ernesto were members
        of the Bulldogs and active participants in gang activities. Maurice Woods,
        a member of the Crips, ran from the breezeway of an apartment toward
        Ernesto. A fight broke out. Ernesto was beaten unconscious and taken to
        an apartment belonging to a fellow Bulldogs member.

               “Later that same evening, [petitioner], Ernesto, and other individuals
        were seen outside, angry and making references to revenge. The group
        believed Woods had run out from an apartment belonging to Travone Polk,
        who was not a gang member. Although there was information to the
        contrary, the Bulldogs were under the impression that Polk had somehow
        assisted Woods or the Crips in the earlier fight. [M.A.], Polk’s niece who
        lived with him, was warned of retaliatory attacks against Polk.

              “At approximately 12:30 a.m. on May 31, 2001, [petitioner],
        Ernesto, and another individual entered Polk’s apartment. [M.A.] and Polk

3       Petitioner filed a request for judicial notice of the record on appeal in case No. F040241,
which was granted. The facts stated in our prior appellate opinion are set forth only for
contextual reference as we consider the issues petitioner raises. (See People v. Flores (2022) 76
Cal.App.5th 974, 988 [factual summary in appellate opinion not evidence that may be used to
establish, as a matter of law, a petitioner’s ineligibility for resentencing at the prima facie stage].)


                                                   3.
       were inside the apartment and heading outside to sit on the stairway. After
       a brief struggle, Polk was shot and killed. [Petitioner], Ernesto, and another
       individual were seen fleeing the scene.

               “A street gang expert testified that respect ‘is everything to a gang
       member.’ He testified that taunting is a form of disrespect and may
       provoke fights between gangs. Retaliatory action, ranging from another
       fight to a shooting, is expected if a gang member is knocked out by a rival
       gang member during a fight. A non-gang member, who is perceived by the
       disrespected gang to have somehow assisted the opposing gang, may be the
       target of the retaliatory action. Further, the retaliatory action is not
       necessarily proportional to the disrespectful act. [¶] … [¶]

               “[Petitioner] testified in his own defense that he had been drinking,
       to the point of intoxication, on May 30, 2001. He claimed he spent the
       night at [M.J.]’s house and had gone to bed between 10:30 and 11:00 p.m.

               “[Petitioner] challenged the reliability and accuracy of the
       eyewitnesses’ identification. An expert on witness identification testified
       regarding the various factors that affect the reliability of eyewitness
       identifications. He opined that this case presented many factors weighing
       against the reliability of the identifications.

               “Ernesto presented the testimony of another gang expert who
       testified that when a shooting is retaliatory, the gang members will
       generally make it known that it is gang-related. For instance, a Bulldogs
       member may bark as a signal. The expert further noted that Polk was shot
       in the buttocks and suggested that Polk may have molested a female gang
       member who retaliated by shooting and killing him.”
Petition For Resentencing
       In September 2020, petitioner, acting in pro. per., filed a petition for
resentencing under section 1172.6. The People filed an opposition brief in
November 2020. The trial court appointed counsel for petitioner in December
2021. Petitioner refiled his petition in January 2022, which the trial court
considered “fundamentally identical” to the September 2020 petition, and the trial
court thus considered the People’s opposition to the original petition without
another statement of opposition. No reply brief was filed.




                                              4.
       The trial court concluded petitioner failed to make a prima facie showing under
section 1172.6 that he is eligible for resentencing. The trial court determined the theory
of guilt at trial did not rely on felony murder, 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. Specifically, the jury was never
instructed on, and thereby could not have found guilt based on felony murder, murder
under the natural and probable consequences doctrine or other theory under which malice
is imputed based solely on that person’s participation in a crime. The trial court also
noted petitioner was more than a mere participant in the crime as he was found to be a
principal and a direct aider and abettor of the murder acting with express or implied
malice.
                                       DISCUSSION
       On appeal, petitioner argues the trial court erred in dismissing his petition without
an evidentiary hearing.
I.     Applicable Law
       A.     Senate Bill No. 1437 and Senate Bill No. 7754
       Effective January 1, 2019, the Legislature passed Senate Bill 1437, which
“eliminated natural and probable consequences liability for murder as it applies to aiding
and abetting, and limited the scope of the felony-murder rule.” (People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) Senate Bill 1437 added three separate provisions to the
Penal Code.
       “First, to amend the felony-murder rule, Senate Bill 1437 added section 189,
subdivision (e): ‘A participant in the perpetration or attempted perpetration of
[qualifying felonies] in which a death occurs is liable for murder only if one of the


4      Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437).
       Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775).


                                              5.
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person 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 person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in subdivision (d) of Section
190.2.’ …
       “Second, to amend the natural and probable consequences doctrine, Senate
Bill 1437 added section 188, subdivision (a)(3) (section 188(a)(3)): ‘Except [for felony-
murder liability] as stated in subdivision (e) of 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.’
       “Third, Senate Bill 1437 added [former] section 1170.95 to provide a procedure
for those convicted of felony murder or murder under the natural and probable
consequences doctrine to seek relief under the two ameliorative provisions above.”
(People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Under this section, “the process
begins with the filing of a petition containing a declaration that all requirements for
eligibility are met ([§ 1172.26], subd. (b)(1)(A)), including that ‘[t]he petitioner could not
presently be convicted of murder or attempted murder because of changes to [Penal
Code] Section 188 or 189 made effective January 1, 2019,’ the effective date of Senate
Bill 1437 (§ 1172.6, subd. (a)(3)).” (People v. Strong (2022) 13 Cal.5th 698, 708
(Strong).)
       Effective January 1, 2022, the Legislature passed Senate Bill 775, which
“expanded the scope of those changes to encompass, among other things, murder
convictions ‘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.’” (People v. Langi (2022) 73 Cal.App.5th 972, 978 (Langi).) Assembly Bill 200
subsequently renumbered section 1170.95 to section 1172.6, effective June 30, 2022.

                                              6.
       B.      Section 1172.6
       To seek relief under section 1172.6, a petitioner must file a petition in the superior
court averring that: “(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder,
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[;] [¶] (2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could have been convicted of murder or attempted murder[; and] [¶] (3) The
petitioner could not presently be convicted of murder or attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019.” (Id., subd. (a)(1)–(3),
italics added; see id., subd. (b)(1)(A).)
       If a petition fails to comply with these requirements, “the court may deny the
petition without prejudice to the filing of another petition .…” (§ 1172.6, subd. (b)(2).)
If the petition complies with subdivision (b)’s requirements, then the court proceeds to
subdivision (c) to assess whether the petitioner has made “a prima facie showing” for
relief. (Id., subd. (c).)
       “After the parties have had an opportunity to submit briefings, the court shall 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).)
       If an order to show cause is issued, “the court shall hold a hearing to determine
whether to vacate the murder, attempted murder, or manslaughter conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the same manner as



                                              7.
if the petitioner had not previously been sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.…” (§ 1172.6, subd. (d)(1).)
II.    Standard of Review
       In this case, the trial court denied petitioner’s petition at the prima facie stage
under section 1172.6, subdivision (c). A denial at this stage is appropriate only if the
petitioner is ineligible for relief as a matter of law. (Strong, supra, 13 Cal.5th at p. 708;
Lewis, supra, 11 Cal.5th at p. 960.) “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.) This is solely a
legal conclusion that we review de novo. (See Lewis, supra, at p. 961.)
III.   Instructional Challenge
       To directly aid and abet implied malice murder, “‘[t]he 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.’” (People v. Reyes (2023) 14 Cal.5th 981, 991 (Reyes).)
       Petitioner’s challenge centers primarily around how the jury was instructed on
these principles under CALJIC No. 3.01 (relating to aiding and abetting) and CALJIC
No. 8.31 (relating to implied malice murder). In relevant part, those instructions were
given in this case as follows:



                                                8.
              “A person aids and abets the commission of a crime when he, [¶]
       1. Wth 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, and [¶] 3. By act or advice aids, promotes,
       encourages or instigates the commission of the crime .…” (CALJIC
       No. 3.01.)

               “Murder of the second degree is also the killing of a human being
       when: [¶] 1. The killing resulted from an intentional act, [¶] 2.. The
       natural consequences of the act are dangerous to human life, and [¶]
       3. The act was deliberately performed with knowledge of the danger to, and
       with conscious disregard for, human life. [¶] When the killing is the direct
       rest of such an act, it is not necessary to prove that a defendant intended
       that the act would result in the death of a human being.” (CALJIC
       No. 8.31.)
IV.    Scope of Section 1172.6
       Petitioner argues ambiguity in the aiding and abetting instruction under CALJIC
No. 3.01 in the context of implied malice murder may have confused the jury and caused
them to convict him of second degree murder under an impermissible theory of imputed
implied malice based solely on his participation in the crime. Specifically, the aiding and
abetting instruction required that the aider and abettor knowingly and intentionally aid
and abet the commission of the crime, which, in this case, was murder. Yet, in the
context of implied malice murder, which the jury was instructed on, neither the direct
perpetrator nor the aider and abettor had to act with an intent to kill.
       Relying on Langi, petitioner asserts there is a possibility the jury could have
construed the aiding and abetting instruction with the implied malice murder instruction
to mean the aider and abettor must knowingly and intentionally aid and abet only the
commission of the life-endangering act the direct perpetrator intended to commit. Under
this construction, the jury would have convicted petitioner of second degree murder
without finding he personally harbored any malice. Given this possibility, petitioner
maintains he has made a prima facie showing that he was convicted under a theory under
which malice was imputed to him based solely on his participation in the crime, and the



                                              9.
trial court erroneously dismissed his petition at the prima facie stage without ordering an
evidentiary hearing.
       In light of this argument and petitioner’s underlying conviction, petitioner’s ability
to make a prima facie showing is conditioned upon showing (1) a charging document
allowed the prosecution to proceed pursuant to a theory under which malice was imputed
to petitioner based solely on petitioner’s participation in a crime (§ 1172.6, subd. (a)(1));
(2) petitioner was convicted of murder following a trial (id., subd. (a)(2)); and
(3) petitioner could not presently be convicted of murder because of changes to
sections 188 or 189 made effective January 1, 2019 (§ 1172.6, subd. (a)(3)).
       The People argue petitioner cannot make the showing required under
section 1172.6, subdivision (a)(3). The People point out Senate Bill 1437 did not affect
direct aider and abettor liability for implied malice murder. Direct aiding and abetting of
an implied malice murder remains viable after Senate Bill 1437 (Reyes, supra, 14 Cal.5th
at p. 990), and both before and after Senate Bill 1437, a direct aider and abettor had to act
with malice—either implied or express—to be liable for murder (see People v. McCoy
(2001) 25 Cal.4th 1111, 1118 (McCoy); People v. Gentile, supra, 10 Cal.5th at p. 850).
Even if petitioner is correct about the instructional ambiguity, the People maintain he
cannot show that he could not presently be convicted of murder or attempted murder
“because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (a)(3), italics added.) The People contend section 1172.6 is not a procedural
vehicle to remedy trial errors that petitioner could have, but did not, address on direct
appeal.
       In Strong, the California Supreme Court resolved a split among the Courts of
Appeal involving a similar argument about the scope of section 1172.6,
subdivision (a)(3)’s “‘because of’” language. (Strong, supra, 13 Cal.5th at pp. 709–712.)
The high court explained, this “‘because of’ language does not require a showing that a



                                             10.
claim to relief under Senate Bill 1437 arises from no other cause—only that the 2019
changes [to the law] supply a basis for the claim and so are a cause.” (Id. at p. 712.)
       In 2019, under Senate Bill 1437, section 188 was amended, in relevant part, to
state “Malice shall not be imputed to a person based solely on his or her participation in a
crime.” Consistent with section 188, section 1172.6 was expanded in 2022 beyond those
convicted of felony murder or murder under the natural and probable consequences to
include those convicted of murder under a theory “under which malice is imputed to a
person based solely on that person’s participation in a crime .…” (§ 1172.6,
subd. (a)(1).) As petitioner has identified an instructional ambiguity theory under which
malice may have been improperly imputed to him based solely on his participation in a
crime, the changes to the law in 2019 supplied at least a basis for his claim for
resentencing under section 1172.6, regardless that he could have raised this issue on
direct appeal of his 2001 murder conviction. (Strong, supra, 13 Cal.5th at p. 712.)5
       The People do not address Strong, and, based on the arguments presented, we are
currently disinclined to conclude the changes in the law under Senate Bill 1437 did not
supply at least a basis for petitioner’s instructional claim for purposes of section 1172.6,
subdivision (a)(3).




5       Moreover, as noted in Langi, although Senate Bill 1437 did not alter the law regarding
the criminal liability of direct aiders and abettors of murder, “there was ‘a dearth of decisional
law on aiding and abetting implied malice murder,’ attributable to ‘the heretofore availability of
the natural and probable consequences doctrine for second degree murder,’ which was ‘much
easier to prove … than … direct aider and abettor liability for an implied malice murder.’
([People v.] Powell [(2021)] 63 Cal.App.5th [689,] 711, fn. 26.) Powell clarifies the precise
elements of directly aiding and abetting a second degree implied-malice murder, and points out
that the use of an untailored, standard aiding-and-abetting instruction fails to convey those
elements. (Id. at pp. 712–714.) “Thus, while Senate Bill No. 1437 did not alter the law
regarding direct aiding and abetting of second degree murder, it did bring out the inadequacy of
standard aiding-and-abetting instructions in this context.” (Langi, supra, 73 Cal.App.5th at
p. 982, fn. 10.)


                                                11.
V.     Aiding and Abetting Instructional Ambiguity
       Petitioner’s ambiguity argument relies on a line of cases beginning with Powell,
which was a direct appeal that involved a claim of ambiguity in the pattern instruction for
aiding and abetting in the context of second degree implied malice murder. Powell was
subsequently extended in the section 1172.6 context by the First District Court of Appeal
in Langi and People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado). To frame
the parties’ arguments about these cases and whether and how they should be applied
here, we begin by briefly describing these courts’ reasoning and holdings that pattern
aiding and abetting instructions are ambiguous in the context of implied malice murder.6
       A.     Powell, Langi and Maldonado
       Our high court has explained that “[a]ider and abettor liability is premised on the
combined acts of all the principals, but on the aider and abettor’s own mens rea.”
(McCoy, supra, 25 Cal.4th at p. 1120, italics added.) A direct aider and abettor of murder
must act with malice—the mental state of the perpetrator is not imputed to the aider and
abettor. (Ibid.)
       “‘In the context of implied malice, the actus reus required of the perpetrator is the
commission of a life-endangering act. For the direct aider and abettor, the actus reus
includes whatever acts constitute aiding the commission of the life-endangering act.
Thus, to be liable for an implied malice murder, the direct aider and abettor must, by
words or conduct, aid the commission of the life-endangering act, not the result of that
act. The mens rea, which must be personally harbored by the direct aider and abettor, is
knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in
the commission of the act, knowledge that the act is dangerous to human life, and acting



6      Powell and Maldonado considered the CALCRIM series of instructions, while Langi
considered the CALJIC series. (People v. Powell (2021) 63 Cal.App.5th 689, 714 (Powell);
Maldonado, supra, 87 Cal.App.5th at p. 1264; Langi, supra, 73 Cal.App.5th at pp. 982–983.)


                                             12.
in conscious disregard for human life.’” (Reyes, supra, 14 Cal.5th at p. 991, quoting
Powell, supra, 63 Cal.App.5th at p. 713.)
       In Powell, a group of four men broke into the victim’s house, seeking retaliation
for an altercation earlier in the evening. (Powell, supra, 63 Cal.App.5th at pp. 691–692.)
Two of the men, Powell and Langlois, and possibly a third man, J.D., beat the victim and
the four men fled the home. (Id. at p. 692.) The victim sustained three stab wounds, one
of which was fatal, and a number of blunt force injuries to his body. (Id. at p. 699.)
Powell and Langlois were tried together for murder, with the prosecution asserting
Powell inflicted the fatal stab wound and that Langlois could be guilty of murder by
directly aiding and abetting express malice murder and guilty under indirect theory of
liability for the natural and probable consequences of the assault Langlois aided and
abetted. (Id. at p. 708.) A jury found Powell and Langlois guilty of second degree
murder, first degree burglary, and found that Powell had personally used a deadly
weapon. (Id. at p. 692.)
       Langlois argued on appeal that the language of the standard aiding and abetting
instruction under CALCRIM No. 401 couched direct aiding and abetting liability in terms
of the aider and abettor knowing the perpetrator intended to commit the crime, the aider
and abettor intending to aid and abet the perpetrator in committing the crime, and that, by
words or conduct, the aider and abettor in fact aided the perpetrator’s commission of the
crime. (Powell, supra, 63 Cal.App.5th at p. 714.) The court observed that an aider and
abettor of implied malice murder need not intend the commission of the crime of murder.
(Ibid.) “Rather, relative to the aider and abettor’s intent, 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 court concluded that because the aiding
and abetting instruction was not tailored for implied malice murder, the jury instructions
were erroneous. (Ibid.)

                                             13.
       Extending Powell in the section 1172.6 context, the First District Court of Appeal,
Division Four, concluded in Langi that the substantially identical aiding and abetting
instruction under CALJIC No. 3.01 was ambiguous in the context of implied malice
murder. (Langi, supra, 73 Cal.App.5th at pp. 981–983.) In that case, the defendant and
three other men beat a victim who died from head trauma after falling and hitting his
head during the assault; it was not clear who threw the fatal punch. (Id. at pp. 976–977.)
The prosecutor argued the victim was killed during a robbery, and urged the jury to
convict the defendant of felony murder. (Id. at p. 977.) The defendant’s jury was not
instructed on the natural and probable consequences doctrine, but was instructed on
aiding and abetting under CALJIC No. 3.01 and on second degree murder under CALJIC
No. 8.31. (Langi, supra, at p. 981.) The jury found the defendant guilty of second degree
murder, and the conviction was affirmed on direct appeal in 2009. (Id. at pp. 976, 977.)
After the enactment of Senate Bill 1437, the trial court summarily denied the defendant’s
section 1172.6 petition at the prima facie stage. (Langi, supra, at p. 977.)
       The appellate court reversed, holding that the defendant was entitled to an
evidentiary hearing because the jury instructions permitted him to be found guilty of
directly aiding and abetting second degree murder under an impermissible theory of
imputed malice. (Langi, supra, 73 Cal.App.5th at p. 984.) Langi explained the aiding
and abetting instruction under CALJIC No. 3.01 stated that a person aids and abets a
crime if the person acts with knowledge of the perpetrator’s unlawful purpose and with
the intent or purpose to commit or encourage the crime, but the implied malice murder
instruction under CALJIC No. 8.31 directed the jury that a perpetrator of that crime need
not act with an unlawful intent of causing death. (Langi, supra, at pp. 981–982.) The
court reasoned that under these instructions, the jury could have concluded the direct
perpetrator’s unlawful purpose in beating the victim was only to strike, injure or
embarrass the victim—not to kill. (Id. at p. 982.) Because the perpetrator’s unlawful
purpose need not have been to kill the victim, the aider and abettor’s knowledge of that

                                            14.
purpose similarly need not have been that the perpetrator aimed to kill. (Ibid.) As a
result, the court reasoned, a jury could have concluded all the aider and abettor had to
intend was the perpetrator’s unlawful purpose—the intentional life-endangering act. (Id.
at pp. 982–983.) Thus, the instructions entitled the jury to conclude that to be guilty of
implied malice murder as a direct aider and abettor, the aider and abettor needed only to
intentionally encourage the perpetrator’s intentional act. (Id. at p. 983.) As such, the
instruction should have been tailored to state that to be guilty as a direct aider and abettor
of second degree murder, an accomplice must have acted with the mental state of implied
malice. (Ibid.)
       The appellate court concluded that because the record did not conclusively negate
the possibility the jury found the defendant guilty of second degree murder by imputing
to him the implied malice of the actual killer without finding that he personally acted
with implied malice, an evidentiary hearing was required. (Langi, supra, 73 Cal.App.5th
at p. 984.)
       In Maldonado, Division Five of the First District Court of Appeal applied Langi’s
reasoning in the context of aiding and abetting lying-in-wait murder. (Maldonado, supra,
87 Cal.App.5th at p. 1266.) Like second degree implied malice murder, lying-in-wait
first degree murder does not require the intent to kill. (Id. at p. 1262.) Rather, “‘[i]f the
act which the perpetrator intends to commit while lying in wait results in a killing which
satisfies the elements of murder, it is immaterial whether the perpetrator intended to
kill .…’” (Ibid.) Maldonado reasoned that, much like the situation in Langi where the
aider and abettor may have known of and intended only to facilitate the perpetrator’s
intentional act of assault and not the resulting killing of the victim, the aider and abettor
of lying-in-wait murder may have known of and intended only to facilitate the
perpetrator’s intentional act of a surprise attack on the victim absent any intent to kill.
(Maldonado, supra, at p. 1266.)



                                              15.
       Maldonado reasoned the jury could have misconstrued the instructions “such that,
‘to be guilty as an aider and abettor of [lying in wait first degree] murder, [the] appellant
need only have intended to encourage the perpetrator’s intentional act—in this case, [a
surprise attack on the victim]—whether or not [the] 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.’” (Maldonado, supra, 87 Cal.App.5th at p. 1266,
quoting Langi, supra, 73 Cal.App.5th at p. 983.) In view of the ambiguous instructions,
the appellate court was unable to “say the record conclusively establishes [the defendant]
is ineligible for relief [under section 1172.6].” (Maldonado, supra, at p. 1269.)
       B.     Analytical Framework For Assessing Ambiguity
       Before taking up the issue of whether an ambiguity in the aiding and abetting
instruction allowed the prosecution to proceed on, and the jury to convict petitioner of
murder under, an impermissible theory of imputed malice based solely on his
participation in a crime, the parties dispute how the existence of an instructional
ambiguity should be assessed in this context.
       The People argue we must apply the “reasonable likelihood” standard that is
utilized to determine whether jury instructions caused the jury to misapply the law in the
direct appeal context. (Boyde v. California (1990) 494 U.S. 370, 380; Estelle v. McGuire
(1991) 502 U.S. 62, 72 & fn. 4, accord, People v. Mitchell (2019) 7 Cal.5th 561, 579; see
Calderon v. Coleman (1998) 525 U.S. 141, 146 [“constitutional error exists only if ‘there
is a reasonable likelihood’ that the jury so interpreted the instruction”].) In
section 1172.6 proceedings at the prima facie stage, the People contend, the prosecutor
could not have proceeded on an impermissible theory if there is no reasonable likelihood
the jury understood the instructions to present such an impermissible theory. Langi, the
People assert, relied on an any possibility standard, which the People contend was
incorrect and inconsistent with the Supreme Court’s observation in Strong that the



                                             16.
Legislature did not intend to “permit wholesale relitigation of findings supporting murder
convictions .…” (Strong, supra, 13 Cal.5th at p. 715.)
       Petitioner, on the other hand, relies on Langi and argues that so long as the record
of conviction does not conclusively negate any possibility the jury found defendant guilty
of second degree murder by imputing malice, then he has made a prima facie showing of
eligibility for resentencing and he is entitled to an evidentiary hearing. (See Langi,
supra, 73 Cal.App.5th at pp. 983–984 [aiding and abetting instruction allowed the jury to
convict under direct aiding and abetting theory without any finding of malice, and
because the record did not conclusively negate the possibility the jury did so, an
evidentiary hearing was required].)
       We recognize that some courts have referenced or expressly relied upon the
“reasonable likelihood” standard when assessing instructional ambiguity presented at the
prima facie stage under section 1172.6. (See, e.g., People v. Estrada (2022) 77
Cal.App.5th 941, 947–948 [referencing the reasonable likelihood standard in concluding
jury would not have imputed malice to the petitioner based on purported ambiguity in
CALCRIM No. 400].) Yet, we have lingering doubts the “reasonable likelihood”
standard for measuring instructional ambiguity in the direct appeal context is wholly
suitable at the prima facie stage of section 1172.6 proceedings.
       On the one hand, “the prima facie inquiry under [section 1172.6,] subdivision (c)
is limited” (Lewis, supra, 11 Cal.5th at p. 971), and the threshold for establishing a prima
facie case for resentencing is “‘very low’” (id. at p. 972). It does not involve any
factfinding or weighing of evidence. (Ibid..) An evidentiary hearing is required unless
the record conclusively establishes the petitioner is ineligible for resentencing as a matter
of law. (Strong, supra, 13 Cal.5th at pp. 708–709.) Although the “reasonable likelihood”
standard does not mean more likely than not (Boyde v. California, supra, 494 U.S. at
p. 380), it has parallels to harmless error analyses (id. at p. 393 (dis. opn. of Marshall, J.))



                                              17.
and is not necessarily perfectly suited for making a conclusive determination as a matter
of law.
          On the other hand, there must be some analytical structure to assess an allegation
that instructional ambiguity may have led the jury to convict a petitioner of murder under
a theory whereby malice is imputed to a person based solely on his or her participation in
a crime. In this regard, the People’s criticism of the “any possibility” standard is
warranted. If a prima facie showing may be made by alleging the mere possibility a jury
misconstrued or misapplied the instructions to convict the petitioner under an
impermissible theory of imputed malice, this would encompass every type of theoretical
possibility from the improbable to the patently absurd. An allegation based on a mere
possibility might require presuming the jury acted unintelligently, was unable to correlate
instructions, construed the instructions in an entirely unreasonable manner, or simply
chose not to follow the instructions given. (Cf. Samia v. United States (2023) 599 U.S.
__, __ [143 S.Ct. 2004, *2014] [jurors are credited with being able to comprehend and
follow the instructions of the court, and to “make unnecessary exceptions to [this
presumption] ‘would make inroads into th[e] entire complex code of … criminal
evidentiary law, and would threaten other large areas of trial jurisprudence”].)
          Such conduct by the jury is always possible in an abstract sense and difficult to
conclusively negate, but presuming so is contrary to the general presumptions
underpinning our jury system. (See generally Francis v. Franklin (1985) 471 U.S. 307,
324, fn. 9 [“[We] presume[] that jurors, conscious of the gravity of their task, attend
closely the particular language of the trial court’s instructions in a criminal case and
strive to understand, make sense of, and follow the instructions given them.”].)
Embracing a standard that may have the effect of casting aside those presumptions and/or
permits all manner of speculation untethered to any facts is unworkable. In light of these
concerns, there must be a basis in fact and reason, beyond speculation or mere possibility,



                                               18.
to allege the prosecution proceeded under a theory of imputed malice for which the jury
was permitted to convict the petitioner of murder.
       For these reasons, we are disinclined to read Langi as holding that a prima facie
showing under section 1172.6 is established if there is any possibility (no matter how
remote, improbable or absurd), which cannot be conclusively negated, that the jury
construed the instructions to permit conviction for murder under a theory of imputed
malice. (Langi, supra, 73 Cal.App.5th at p. 984.) Langi reviewed the full text of the jury
instructions given in considering the parties’ arguments (id. at p. 982), concluded the
aiding and abetting instruction was ambiguous in the implied malice murder context
(ibid.), and reasoned the jury was “entitled to conclude” the aiding and abetting
instruction permitted conviction without a finding the aider and abettor personally
harbored the requisite mental state for second degree implied malice murder (id. at
p. 983). As the record of conviction did not conclusively negate this possibility, an
evidentiary hearing was required. (Id. at p. 984.) At a minimum, we view this reasoning
to implicitly indicate, considering the instructions as a whole, there must be an
ascertainable instructional ambiguity from which a reasonable jury (acting under all the
general presumptions regarding jury conduct) could have misapplied the aiding and
abetting instruction to convict the petitioner without concluding the aider and abettor
personally acted with malice.
       Whether this less stringent formulation of the reasonable likelihood standard is
what Langi intended to convey and/or is more appropriate in the section 1172.6 prima
facie context than the reasonable likelihood standard may be debatable, but a standard
based around any possibility is untenable. Nevertheless, whatever hesitation we may
have about applying the reasonable likelihood standard in this context, we do not need to
resolve the issue because, for reasons we will explain, that standard is satisfied here.




                                             19.
       C.     Instructional Ambiguity
       Moving to petitioner’s assertion of ambiguity, the petitioner argues, by relying on
Powell and Langi, the instructions permitted the jury to find him guilty of aiding and
abetting second degree murder if it found the killing resulted from the actual killer’s
intentional act, and petitioner knowingly and intentionally aided this intentional act
without respect to whether petitioner personally harbored any malice.
       The People maintain this interpretation of the instruction is unreasonable and
argue Powell and Langi were wrongly decided. The People argue CALJIC No. 3.01
unambiguously informs the jury the aider and abettor must share the same mental state as
a direct perpetrator of the crime, and the crime at issue is murder, which the jury was
instructed could be committed with express or implied malice. Thus, to knowingly aid
and abet a murder, the jury would have understood the perpetrator’s unlawful purpose
known to the aider and abettor had to amount to at least implied malice, and to
intentionally aid and abet the commission of any degree of murder, the aider and abettor
had to share this minimum mental state of implied malice with the perpetrator.
       The People present an interpretation of the instructions whereby the jury would
have necessarily found petitioner personally harbored malice, but there remains a
reasonable likelihood the jury misunderstood the aiding and abetting instruction in the
manner petitioner asserts and did not necessarily find petitioner personally acted with
malice in convicting him of murder. Due to the ambiguity in the aiding and abetting
instruction, it cannot be conclusively established petitioner is ineligible for resentencing
as a matter of law. We note the jury’s verdict clearly reflects it found that petitioner was
a principal in the shooting. And, given the facts of this case, it may be highly likely the
jury would have found those who aided and abetted the shooter to have personally acted
with implied malice, but this strays into factfinding and weighing the evidence, which is
not permitted at the prima facie stage.



                                             20.
       To explain this conclusion, we begin with the theories of murder presented to the
jury, and the relevant instructional charges given.
              1.     Theories of Murder and Jury Instructions
       Petitioner and his half brother, Ernesto, were tried together on the sole charge of
murder. The prosecutor advanced three theories in closing arguments: first degree
premeditated murder, express malice second degree murder, and implied malice second
degree murder. As to each theory, the prosecutor argued all the principals in the
apartment were guilty as either the shooter or as a direct aider and abettor of the shooter.
Neither the jury instructions nor the prosecutor’s theory of the case included or relied
upon felony murder or the natural and probable causes doctrine. The prosecutor argued
petitioner was the shooter, but he also argued petitioner could be convicted of first or
second degree murder as a direct aider and abettor even if he was not the shooter.
       Based on these theories, the jury was instructed in relevant part as follows:
                         Murder—Defined (CALJIC No. 8.10)
             “The defendants are accused in Count One of having committed the
       crime of murder, a violation of Penal Code section 187.

              “Every person who unlawfully kills a human being with malice
       aforethought is guilty of the crime of murder in violation of section 187 of
       the Penal Code.

             “In order to prove this crime, each of the following elements must be
       proved:

              “1.    A human being was killed; and

              “2.    The killing was done with malice aforethought.”
         Malice Aforethought—Defined (CALJIC No. 8.11 in relevant part)
              “‘Malice’ may be either express or implied.

            “Malice is express when there is manifested an intention to kill a
       human being.

              “Malice is implied when:


                                             21.
            “1.   The killing resulted from an intentional act,

            “2.   The natural consequences of the act are dangerous to human
    life, and

          “3.     The act was deliberately performed with knowledge of the
    danger to, and with conscious disregard for, human life. [¶] When it is
    shown that a killing resulted from the intentional doing of an act with
    express or implied malice, no other mental state need be shown to establish
    the mental state of malice aforethought.”

Second Degree Murder—Killing Resulting From Unlawful Act Dangerous to Life
                           (CALJIC No. 8.31):

            “Murder of the second degree is also the killing of a human being
    when:

            “1.   The killing resulted from an intentional act,

            “2.   The natural consequences of the act are dangerous to human
    life, and

          “3.     The act was deliberately performed with knowledge of the
    danger to, and with conscious disregard for, human life.

           “When the killing is the direct result of such an act, it is not
    necessary to prove that a defendant intended that the act would result in the
    death of a human being.”

                         Aiding and Abetting—Defined
                       (CALJIC No. 3.01 in relevant part):

            “A person aids and abets the commission of a crime when he,

            “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, and

         “3.    By act or advice aids, promotes, encourages or instigates the
    commission of the crime.”




                                         22.
       The jury convicted petitioner and Ernesto of second degree murder, but found not
true the allegation petitioner personally and intentionally discharged a firearm
proximately causing the death of the victim under section 12022.53, subdivision (d).
              2.     Analysis
       As already noted, “[a]ider and abettor liability is premised on the combined acts of
all the principals, but on the aider and abettor’s own mens rea.” (McCoy, supra, 25
Cal.4th at p. 1120.) “‘To prove that a defendant is an accomplice … the prosecution
must show that the defendant acted “with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense.” ([People v. Beeman (1984) 35 Cal.3d 547,] 560,
italics in original.) 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.” (Ibid.)’ (People v. Prettyman [(1996)] 14 Cal.4th [248,] 259.)” (Id. at
p. 1118, fn. omitted.)
       As outlined in Powell and reiterated by our high court in Reyes, to be liable for
second degree implied malice murder, an aider and abettor must (1) have knowledge the
perpetrator intended to commit the life-endangering act; (2) intend to aid the perpetrator
in the commission of this act; (3) have knowledge the act is dangerous to human life; and
(4) act in conscious disregard for human life. (Powell, supra, 63 Cal.App.5th at p. 713;
Reyes, supra, 14 Cal.5th at p. 991.)
       Turning to CALJIC No. 3.01, which sets out the requirements for aiding and
abetting liability, there are three divergent paths a jury could take in construing this
instruction in the context of implied malice murder. Petitioner adheres to Langi’s
interpretation. Langi, as well as Maldonado, indicates the instruction is reasonably
susceptible to the following interpretation: because the unlawful purpose of the direct

                                             23.
perpetrator might not include the intent to kill, then the jury would understand the aider
and abettor’s “knowledge of that purpose similarly need not have been knowledge that
the perpetrator aimed to kill.” (Langi, supra, 73 Cal.App.5th at p. 982; accord,
Maldonado, supra, 87 Cal.App.5th at p. 1266.) As a result, the jury could have
understood the aiding and abetting instruction to mean the aider and abettor could be
found guilty of second degree implied malice murder if (1) the killing resulted from the
direct perpetrator’s intentional life-endangering act; (2) the aider and abettor aided and
abetted that intentional act; and (3) the direct perpetrator deliberately performed the act
with knowledge of the danger to, and with conscious disregard for, human life whether or
not the aider and abettor personally knew of and consciously disregarded the risk to
human life. (Langi, supra, at p. 983; Maldonado, supra, at p. 1266.)
       As we understand the reasoning of these courts, the risk of such an interpretation
arises if the jury construes knowledge of the perpetrator’s unlawful purpose to be
knowledge of the intentional, life-endangering act the perpetrator intends to commit, but
not necessarily knowledge the perpetrator knows the act is dangerous to human life and
acts with conscious disregard for human life. If the jury understands the aider and
abettor’s knowledge of the perpetrator’s unlawful purpose is only the intentional life-
endangering act, then it would be possible for the aider and abettor to intentionally aid the
commission of that act without being subjectively aware of the risks to human life.7 As
the aiding and abetting instruction does not explain the aider and abettor has to personally
harbor implied malice, a jury could believe that to aid and abet second degree implied




7        If the aider and abettor knows the perpetrator has subjective knowledge of the danger to
life the act poses and acts with conscious disregard of that danger, then, necessarily, to have
knowledge of that state of mind in someone else, the aider and abettor has to personally
understand the danger to human life. Then, by intentionally aiding and abetting the commission
of the perpetrator’s life-endangering act, the aider and abettor acts with conscious disregard for
human life.


                                               24.
malice murder, the aider and abettor need only intend to encourage the perpetrator’s
intentional act.
       To arrive at this interpretation, though, requires more than the jury construing the
unlawful purpose phrase in this manner. The jury would also have to construe the
instruction’s reference to the crime as the intentional life-endangering act that the aider
and abettor knew the perpetrator intended to commit. Specifically, in addition to the
knowledge of the perpetrator’s unlawful purpose, CALJIC No. 3.01 states the aider and
abettor must, by act or advice, aid, promote, encourage or instigate the commission of the
crime with the intent or purpose of committing or encouraging or facilitating the
commission of the crime. Where, as here, the charged crime is murder, the instruction
reads the aider and abettor must aid and abet murder with the intent or purpose of
committing or encouraging or facilitating the commission of murder. That, however,
indicates the aider and abettor intends the commission of the unlawful killing, but the
implied malice murder instruction under CALJIC No. 8.31 states the killing does not
have to be intended. Given that duality, a jury may read the instruction’s reference to the
crime and replace it with the intentional act of the perpetrator. Once reference to the
crime is understood as the intentional act of the perpetrator, all the elements that
comprise the crime, including the required mental state, are no longer implicitly
referenced when the instruction describes what the aider and abettor must intend. Under
that interpretation, the instruction reads only that the aider and abettor must knowingly
and intentionally aid and abet the commission of the perpetrator’s intentional act, without
any requirement the accomplice must have acted with the mental state for the crime.
(Langi, supra, 73 Cal.App.5th at p. 983; Maldonado, supra, 87 Cal.App.5th at p. 1266.)
       This reading of the instruction by Langi and Maldonado is grounded in part in
Powell’s observation the aiding and abetting instruction’s reference to the crime is
problematic because an “aider and abettor of implied malice murder need not intend the
commission of the crime of murder …, he or she need only intend the commission of the

                                             25.
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.” (Powell, supra, 63 Cal.App.5th at p. 714.)
       Yet, while Powell seems to support the potential misinterpretation of the
instruction Langi and Maldonado articulate, it also implicates another interpretation
whereby the jury does not construe the aiding and abetting instruction’s reference to the
crime to mean the perpetrator’s intentional act. Instead, when the instruction’s reference
to the crime is replaced with murder (which, here, is the sole crime at issue), the
instruction reads that the aider and abettor must knowingly aid and abet the commission
of murder with the intent or purpose of facilitating the commission of murder. “Murder
by any commonsense definition is a form of killing … it is impossible to intend to
commit a murder without intending to kill.” (People v. Coleman (1989) 48 Cal.3d 112,
139 (Coleman).)8 Interpreting the instruction this way, a jury could understand
(incorrectly) that, to be liable for murder, the aider and abettor had to knowingly aid and
abet with an intent to kill. That does not implicate a theory of imputed malice, and it
actually inures to the benefit of an aiding and abetting principal, but it demonstrates the
ambiguity of the aiding and abetting instruction in the implied malice murder context.
       The People criticize Langi and Powell, arguing there is no reasonable likelihood
the jury would construe the instruction’s reference to the crime to mean murder with an

8       In Coleman, the court addressed an instructional argument regarding the former crime of
assault to commit murder under repealed section 217, which required an express intent to kill.
(Coleman, supra, 48 Cal.3d. at pp. 137–138.) Among other instructions, the jury was instructed
under CALJIC Nos. 8.10 and 8.11, which indicated that murder could be committed with implied
malice. (Coleman, supra, at pp. 138–139.) When the jury was specifically instructed on the
crime of assault with the intent to commit murder under a version of CALJIC No. 9.01, it was
directed that the assault for that crime had to be committed with the “‘specific intent to commit
murder.’” (Coleman, supra, at p. 139.) The defendant argued the jury would have believed it
could convict the defendant of assault with the intent to commit murder even if it found the
defendant acted only with implied malice because murder required malice, which could be with
express or implied. The court rejected this claim, pointing out that it is impossible to intend to
commit murder without intending to kill. (Ibid.)


                                               26.
intent to kill, as Powell seems to indicate. Nor, in the People’s estimation, is there a
reasonable likelihood the jury would construe the instructions to mean the aider and
abettor could be found guilty merely because he intended to aid and abet the commission
of a life-endangering act, as Langi indicates.
       Rather, the People argue a third interpretation of the instruction consistent with the
law. By referencing the other instructions for murder and malice, the People maintain it
would have been clear to the jury the crime of implied malice murder does not have an
intent to kill requirement, but it does require a life-endangering act coupled with
conscious disregard for human life. Thus, the aiding and abetting instruction’s reference
to the perpetrator’s unlawful purpose would have been understood as knowledge the
perpetrator intended a life-endangering act with (at least) implied malice. If the aider and
abettor knew the perpetrator’s unlawful purpose amounted to implied malice, then the
aider and abettor cannot intentionally aid and abet the commission of that act without
himself personally harboring implied malice. Moreover, the jury would know the
instruction’s reference to the crime in this case meant murder, the only crime charged,
and that this crime could involve implied, rather than express, malice. In other words, the
jury would understand the aider and abettor did not have to intend the commission of the
unlawful killing, but had to intend to commit an implied malice murder.
       We are unsure which of these three interpretive routes the jury might be more
likely to take, but there is a reasonable likelihood the jury interpreted it as Langi and
Maldonado posit. As articulated in Powell, Langi and Maldonado, the pattern aiding and
abetting instruction is not well tailored for implied malice murder because the instruction
poses a unique dichotomy whereby the aider and abettor has to knowingly and
intentionally aid and abet the commission of the crime of murder (which necessarily
involves an unlawful killing) yet does not necessarily, nor does the direct perpetrator,
have to intend to kill. (Powell, supra, 63 Cal.App.5th at p. 714; Langi, supra, 73
Cal.App.5th at p. 982; Maldonado, supra, 87 Cal.App.5th at p. 1266.) Knowingly and

                                             27.
intentionally aiding and abetting the commission of murder without an intent to kill is an
awkward, counterintuitive formulation, and one a reasonable jury would likely struggle to
parse correctly.
       Moreover, the instruction does not clarify how to construe the unlawful purpose of
the perpetrator. The People argue Langi misunderstands this phrase to include something
less than the specific intent of the perpetrator, but we take Langi to articulate how a jury
may be reasonably prone to understand the phrase in this context.9 Because the
perpetrator does not need to intend the resulting killing in the context of implied malice
murder, there is more than a mere possibility the jury would understand the unlawful
purpose phrase to encompass knowledge the perpetrator means to commit the intentional
life-endangering act without knowledge that the perpetrator subjectively knows the act is
dangerous to life. Moreover, when the life-endangering act also constitutes a crime
different than murder (like the battery charged in Langi, or the uncharged, unlawful act of
confronting the victim with a gun in this case), that increases the likelihood the jury
would understand both the instruction’s reference to the perpetrator’s unlawful purpose
and to the crime as referring only to the life-endangering act the perpetrator intended,
without regard to whether the aider and abettor personally harbored malice or knew the
perpetrator acted with the mental state of implied malice.
       In this case, none of the other instructions provided any substantial assistance in
resolving the ambiguities. The jury was instructed under CALJIC No. 3.00 that


9       Langi explained that although the implied malice murder instruction made clear the
perpetrator had to act with implied malice, “his [unlawful] purpose might have been only to
strike or to injure, or conceivably only to embarrass, the victim.” (Langi, supra, at 73
Cal.App.5th at p. 982.) The subjective motivation of the perpetrator underlying the decision to
commit an intentional life-endangering act is not what the aider and abettor has to know with
respect to aiding and abetting implied malice murder (McCoy, supra, 25 Cal.4th at p. 1118), but
in the implied malice context, knowledge of the unlawful purpose of the perpetrator might be
limited only to the life-endangering act the perpetrator intends (Reyes, supra, 14 Cal.5th at
p. 991).


                                              28.
“[p]ersons who are involved in committing a crime are referred to as principals in that
crime. Each principal, regardless of the extent or manner of participation is equally
guilty. Principals include: [¶] 1. Those who directly and actively commit the act
constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime.”
But this did not explain an aider and abettor must have the mental state required for the
crime they have aided and abetted.
       The jury was also instructed under CALJIC No. 3.31.5 that “[i]n the crime charged
in Count One, murder, there must exist a union or joint operation of act or conduct and a
certain mental state in the mind of the perpetrator. Unless this mental state exists, the
crime to which it relates is not committed. [¶] In the crime of murder, the necessary
mental state is malice aforethought, whether express or implied.” Yet, this instruction
references the perpetrator’s state of mind and did not make clear this requirement
extends to any principal.
       Considering the instructions as a whole, and applying all presumptions the jury is
intelligent and able to correlate instructions, there remains a reasonable likelihood the
jury construed the aiding and abetting instruction in the manner petitioner, Langi and
Maldonado suggest. We do not need to resolve which of the three proffered
interpretations outlined above the jury would have been more likely to gravitate. It is
enough that there is a reasonable likelihood, beyond a mere possibility, the jury
interpreted the aiding and abetting instruction to mean the aider and abettor must
knowingly and intentionally aid and abet only the life-endangering act of the perpetrator,
and thus convict petitioner of murder by imputing the implied malice of the perpetrator to
the petitioner as an aider and abettor.
       Under the facts of this particular case, we recognize the unlikely juxtaposition that
a jury would conclude the shooter subjectively understood, but consciously disregarded,
the danger to life of confronting the victim at loaded gunpoint and shooting such that
there would be implied malice to impute to others, while simultaneously being unsure

                                             29.
whether the others who accompanied the shooter to the victim’s apartment subjectively
understood that danger. However, evaluating the instruction in light of the evidence the
jury considered strays into weighing the facts and circumstances surrounding this
particular shooting, which is not appropriate at the prima facie stage. (Lewis, supra, 11
Cal.5th at p. 972.)
       Without anything in the record of conviction that conclusively negates the
reasonable possibility the jury misconstrued the aiding and abetting instruction by
imputing malice to the petitioner, the petitioner cannot be deemed ineligible for
resentencing as a matter of law at the prima facie stage.
                                     DISPOSITION
       The trial court’s order denying the petition is reversed. The matter is remanded
with directions to issue an order to show cause and hold an evidentiary hearing.




                                            30.