Does substantial evidence support the superior court’s finding that petitioner is ineligible for relief under Penal Code section 1170.95?

On 10/29/2021, the court limited the issues to be briefed and argued to the following: (1) Does substantial evidence support the conclusion that petitioner acted with implied malice? (2) Does substantial evidence support the conclusion that petitioner’s actions constituted murder or aided and abetted murder?

Trial court’s conclusion that Penal Code section 1170.95 (now 1172.6) petitioner’s second degree murder conviction was sustainable on a direct perpetrator theory was not supported by substantial evidence. After traveling with fellow gang members on bikes to rival gang territory, Reyes was present when Lopez shot and killed a person. Reyes was convicted of second degree murder with gang and firearm enhancements. He later filed a petition for resentencing under section 1172.6, arguing that he was convicted of murder under the now-invalid natural and probable consequences theory. After a (d)(3) hearing, the trial court denied the petition. The Court of Appeal affirmed, and the California Supreme Court granted review to consider whether substantial evidence supported the trial court’s conclusion that Reyes committed murder. Held: Reversed with directions to remand the matter to the trial court. On the question of whether there was substantial evidence to support the conclusion that Reyes was the direct perpetrator of implied malice murder, the Supreme Court concluded it could not be said that Reyes committed an act that “proximately caused” the victim’s death. “To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical.” (People v. Jennings (2010) 50 Cal.4th 616, 643.) The prosecution’s theory was that Lopez shot the victim, and no evidence was presented that Reyes’s conduct was a “substantial factor” that contributed to the shooting. “[A]cts that merely create a dangerous situation in which death is possible depending on how circumstances unfold do not, without more, satisfy this causation requirement.” Reyes’s acts of bicycling into rival gang territory and chasing after the victim’s car with Lopez and other gang members “were too attenuated in the chain of events to have proximately caused the killing.”

To the extent the trial court sustained petitioner’s conviction on a theory of directly aiding and abetting implied malice murder, the findings rested on an error of law. The Supreme Court also addressed the trial court’s consideration of Reyes’s resentencing petition under a direct aiding and abetting theory. The court agreed with Court of Appeal decisions recognizing the validity of a direct aiding and abetting theory of second degree (implied malice) murder and quoted People v. Powell (2021) 63 Cal.App.5th 689, 712-713, to explain the elements. When the trial court denied Reyes’s resentencing petition, it said it was “guided by the principles” of implied malice murder in CALCRIM No. 520. However, this instruction alone does not encompass the elements of aiding and abetting implied malice murder as set out in Powell. Based on the trial court’s factual findings, it did not appear to recognize that implied malice murder requires proof of the aider and abettor’s knowledge and intent with regard to the direct perpetrator’s life-endangering act. The trial court found that Reyes traveled with several other gang members (one armed) to rival gang territory and then considered whether that act was done with the mental state required for implied malice. This was not correct. “[A]ssuming the life-endangering act was the shooting, the trial court should have asked whether Reyes knew that Lopez intended to shoot at the victim, intended to aid him in the shooting, knew that the shooting was dangerous to life, and acted in conscious disregard for life.” The trial court did not conduct the correct analysis and its decision was based on an error of law. [Editor’s Note: The trial court may have denied the section 1172.6 petition based on a theory of murder not argued by the prosecution at trial. The Supreme Court did not express a view on whether this was proper.]

This case was decided on 6/29/2023. Justice Liu authored the opinion of the court, in which Chief Justice Guerrero and Justices Corrigan, Kruger, Groban, Jenkins, and Evans concurred.

Review on this issue was granted with briefing deferred in:

• People v. Lopez (H047254) [nonpub. opn.], review granted 6/22/2022 (S274160)
• People v. Mejico (B311150) [nonpub. opn.], review granted 10/19/2022 (S276225)
• People v. Garcia (E077916) [nonpub. opn.], review granted 2/22/2023 (S278132)
• People v. Bryant (B319417) [nonpub. opn.], review granted 3/29/2023 (S278248)
• People v. Garcia (G060701) [nonpub. opn.], review granted 3/29/2023 (S278608)
• People v. Mendez (B318512) [nonpub. opn.], review granted 6/21/2023 (S279762)
• People v. Didyavong (2023) 90 Cal.App.5th 85, review granted 6/28/2023 (S280047/D079712)
• People v. Fleming (B315836) [nonpub. opn.], review granted 7/12/2023 (S280148)
• People v. Lozano (B316659) [nonpub. opn.], review granted 7/19/2023 (S280530)