The Court of Appeal reversed the denial of appellant’s Penal Code section 1172.6 petition at the prima facie stage because there is a reasonable possibility the jury could have convicted petitioner of second-degree murder without finding he personally harbored any malice. The court noted that although it may be highly likely the jury found appellant to have personally acted with implied malice given the facts of the case, this strays into factfinding and weighing the evidence, which is not permitted at the prima facie stage. In assessing prejudice, the court assumed, without deciding, that the reasonable likelihood standard applies in this context.

Section 1172.6(a)(3), which states that a petitioner must show that they could not presently be convicted of murder or attempted murder “because of changes to Section 188 or 189 made effective January 1, 2019,” does not mean that appellant is barred from relief because his petition is based on an error that could have, but was not, raised on direct appeal. The “‘because of’ language [in section 1172.6(a)(3)] does not require a showing that a claim to relief under Senate Bill 1437 arises from no other cause—only that the 2019 changes [to the law] supply a basis for the claim and so are a cause.” (People v. Strong (2022) 13 Cal.5th 698, 712.)

The court remanded the matter with directions to issue an order to show cause and hold an evidentiary hearing.