Trial court did not err in denying petitioner’s Penal Code section 1172.6 resentencing petition because substantial evidence supported the court’s finding that petitioner was guilty of second degree murder for failing to protect her child. In 2019, Werntz filed a section 1172.6 resentencing petition for her second degree murder conviction (the victim was her infant daughter). The trial court ultimately denied the petition after a (d)(3) hearing, finding that Werntz was guilty of implied malice murder as a direct aider and abettor for failing to protect her daughter from her partner’s abuse. On appeal, Werntz raised a number of issues, including that there was insufficient evidence to support the trial court’s findings. Held: Affirmed. Aiding and abetting liability, and liability for implied malice murder, can be premised on a parent’s failure to fulfill her common law duty to protect her child from attack. Werntz failed to protect her daughter and this satisfied the actus reus component of implied malice murder. Additionally, there was ample evidence from which the trial court could reasonable infer that Werntz knew her inaction (including the failure to provide medical treatment) endangered her daughter in conscious disregard for her daughter’s life. Werntz’s partner had a history of child abuse (which led to the brutal death of their first child), there was evidence her daughter suffered serious, painful injuries from abuse weeks before her death, and they had hidden the bodies of the dead children. [Editor’s Notes: (1) The Court of Appeal also concluded that the proper standard of review is substantial evidence. (2) The court agreed with other Courts of Appeal that aiding and abetting implied malice murder is a permissible theory of liability.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D079771.PDF