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Name: People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921
Case #: D081861
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/06/2023
Subsequent History: Modified 12/26/2023

A Penal Code section 1172.6 petitioner cannot establish a prima facie case for relief by asserting that the jury instructions permitted conviction on a theory of imputed malice that was already prohibited even before the enactment of Senate Bill No. 1437. In 2010, defendant was convicted of first degree murder by means of lying in wait. In 2022, he filed a section 1172.6 petition alleging that he was eligible for relief under amendments to the law made by Senate Bill No. 775, in that the instructions given at trial allowed the jury to convict him of murder by imputing malice to him based solely on his participation in a crime. The trial court denied relief at the prima facie stage. Defendant appealed. Held: Affirmed. One of the requirements for a prima facie showing for relief under section 1172.6 is that the defendant “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189” made by SB 1437. (§ 1172.6, subd. (a)(3).) Accordingly, the trial court may deny relief at the prima facie stage if the record of conviction conclusively establishes that the petitioner was convicted on a theory not affected by SB 1437. Relying on People v. Maldonado (2023) 87 Cal.App.5th 1257, defendant argued he is eligible for relief because the jury instructions given at trial permitted the jury to convict him of aiding and abetting a lying-in-wait murder by imputing malice to him based solely on his participation in a crime. The problem with this argument is that at the time of defendant’s trial, California law was already clear that a direct aider and abettor could not be convicted of lying-in-wait murder on an imputed malice theory. Thus, defendant’s argument has nothing to do with the changes made by SB 1437. Rather, it is a routine instructional argument that could have been raised on defendant’s direct appeal, and defendant cannot use section 1172.6 to resurrect the claim now. (People v. Flores (2023) 96 Cal.App.5th 1164, 1173; People v. Burns (2023) 95 Cal.App.5th 862, 865.) The petition was properly denied.