Petitioner could not use Penal Code section 1172.6 proceedings to resurrect a jury instruction claim (based on former CALCRIM No. 400) that should have been raised in his 2013 direct appeal. In 2010, Burns was convicted of a first degree murder based on his participation with a codefendant in a gang-related shooting. The jury in his case was instructed using a former and now-disapproved version of CALCRIM No. 400. At the time of Burns’s direct appeal, opinions warned that the “equally guilty” language of CALCRIM No. 400 might mislead jurors in some circumstances by suggesting that once they decide the direct perpetrator is guilty of a particular crime (e.g., first degree murder), the aider and abettor is necessarily guilty of the same crime, regardless of his or her mental state. However, Burns did not raise this issue in his direct appeal. He later filed a petition for resentencing under section 1172.6, arguing the error in former CALCRIM No. 400 may have led the jury to convict him based on a theory under which malice is imputed to a person based solely on that person’s participation in a crime. The superior court summarily denied his petition. Burns appealed. Held: Affirmed. Burns failed to make a prima facie showing in this case because the problem he raised in his petition has nothing to do with the changes Senate Bill No. 1437 and Senate Bill No. 775 made to California’s murder law. “Use of the ‘equally guilty’ language in the version of CALCRIM No. 400 provided at Burns’s trial created a potential issue of instructional error, but it 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.” His remedy for any alleged instructional error that affected the verdict was his direct appeal and his failure to raise the argument in the direct appeal forfeited the claim.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D080779M.PDF