Trial court properly denied Penal Code section 1172.6 petition at the prima facie stage where petitioner had been convicted of provocative act murder in 2010 because, at that time, the law required the jury to find that each defendant personally harbored malice. After a high-speed chase and gun battle with CHP, Flores and a codefendant were convicted of the murder of their associate under the provocative act theory in 2010. Flores later filed a section 1172.6 petition arguing that the jury had been instructed in a manner that permitted them to find him guilty based on his aiding of the codefendant’s acts and without malice himself. The trial court found he had not made a prima facie case for relief, and Flores appealed. Held: Affirmed. By 2010, cases had established that provocative act murder required a showing that the defendant personally harbored malice. Thus, Flores could not make the required showing that his claim to relief was based on changes made to murder statutes in 2019. Any claim regarding the jury instructions could have been raised in the direct appeal from the underlying case, and section 1172.6 does not permit relitigation of those instructional claims.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D081200.PDF