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California Supreme Court Reinstates Petition for Resentencing Under SB 1437 Because Trial Court Misapprehended Le-gal Requirements for Proving Aiding and Abetting Implied Malice Murder

by Matt Clarke

The Supreme Court of California reinstated a prisoner’s petition for resentencing pursuant to Senate Bill No. 1437 (2017-2018 Reg. Session) (“SB 1437”) after finding that the trial court had misapprehended the legal requirements for proving aiding and abetting implied malice murder.

When he was 15 years old, Andres Quinonez Reyes was hanging out in a park with a group of males between the ages of 16 and 21. All were members of F-Troop or an associated gang. One member of the group, Francisco Lopez, showed off a revolver.

A few hours later, some of them, including Reyes and Lopez, rode their bicycles to the edge of the territory controlled by another gang. There, they called out to the driver of a car, Pedro Rosario, “Hey, Homey, stop. We want to talk to you.”

Instead of stopping, Rosario sped up. They pursued him, and Lopez fired a fatal gunshot into Rosario’s head. They scattered and fled. About 40 minutes later, Reyes brandished the revolver and used it to threaten a young man who was walking through F-Troop territory.

Reyes was eventually arrested and charged with Rosario’s murder. At trial, the prosecutor conceded that he was not the shooter but “proceeded on two theories of derivative liability” that: (1) Reyes aided and abetted the crime of disturbing the peace or that he conspired with Lopez to commit either disturbing the peace or assault, and that “murder was a natural and probable consequence of one of these target offenses” or (2) he “directly aided and abetted the murder by ‘backing up fellow gang members’ during the killing.” The latter theory depended on the testimony of a police detective that, “when gang members accompany a fellow gang member who commits a murder, ‘[t]hey’re there for backup’” and to support whatever he is doing.

There was no evidence that Reyes had expressly agreed to commit murder. Nonetheless, he was convicted of second-degree murder and street terrorism with enhancements for vicariously discharging a firearm resulting in death and committing a murder for the benefit of a gang. He was sentenced to 40 years to life for the murder with a firearms enhancement and a concurrent two years for street terrorism.

Twelve years later, SB 1437 was enacted. It requires that “in order to be convicted of murder, a principal in a crime shall act with malice aforethought.” This “bars a conviction for second- or first-degree murder under a natural and probable consequences theory.” People v. Gentile, 477 P.3d 539 (Cal. 2020).

Reyes petitioned the trial court for resentencing, arguing he had been convicted under the now-invalid natural and probable consequences theory. The court appointed Reyes counsel and held a hearing at which he argued that the evidence “did not support a murder conviction under any valid theory because it did not show that he committed ‘an act that actually’” helped, encouraged, or facilitated Lopez “in the shooting. The court was ‘guided by the principles that are in [CALCRIM No. 520], specifically implied malice.” It found that “‘the act in this case is that defendant, along with several other gang members, one of which [was] armed, traveled to rival gang territory,’ that the natural and probable consequence of their doing so was dangerous to human life, that Reyes was aware the act was dangerous to human life, and that he deliberately acted with conscious disregard for that danger.”

Reyes timely appealed. The Court of Appeal extensively quoted the trial court’s findings before holding that the evidence was sufficient to establish that Reyes was guilty of second-degree murder. The Supreme Court granted review.

The Court applied a split standard of review, using the substantial evidence framework of People v. Vargas, 84 Cal. App. 5th 943 (2022), for everything except the issue of whether the trial court misunderstood the elements of the applicable offense. Since that issue was a matter of law, the Court reviewed it independently. Crocker National Bank v. City and County of San Francisco, 782 P.2d 278 (Cal. 1989). The Court expressed “no view on the issue of whether a court may deny a § 1172.6 resentencing petition based on a theory of murder not argued by the prosecution.”

Ambiguity in the trial court’s findings made it necessary to address both the direct perpetrator and direct aiding and abetting theories as possibly supporting the conviction. The Court made short work of the direct perpetrator theory, finding no evidence that Reyes’ conduct was a “substantial factor” that contributed to the shooting – as required by People v. Jennings, 237 P.3d 474 (Cal. 2010), for a defendant’s actions to be the proximate cause of the victim’s death. Thus, the lack of proximate causation alone was sufficient to invalidate the direct perpetrator theory.

The Court also rejected the trial court’s conclusion that the natural and probable consequences of travelling to another gang’s territory with other gang members, one of whom was armed, were dangerous to human life. “To suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense it must ‘involve a high probability that it will result in death.’” People v. Knoller, 158 P.3d 731 (Cal. 2007).

Turning to the direct aiding and abetting an implied malice murder theory, the Court noted that it requires that the defendant, “by words or conduct, aid the commission of the life-ending act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act was dangerous to human life, and acting in conscious disregard for human life.” People v. Powell, 63 Cal. App. 5th 689 (2021). “The relevant act is the act that proximately causes death.” People v. Cravens, 267 P.3d 1113 (Cal. 2012). In this case, the act that was dangerous to his life was shooting the pistol at Rosario, not travelling to a rival gang’s territory, the Court explained.

The Court stated that the trial court apparently did not understand that the elements of directly aiding and abetting implied malice murder include “proof of the aider and abettor’s knowledge and intent with regard to the direct perpetrator’s life endangering act.” This error is illustrated by the trial court’s finding that “the act” was travelling to the rival gang’s territory, not firing the pistol. Thus, the Court held that the trial court erred in denying the petition under either of the two theories.

Accordingly, the Court reversed the judgment of the Court of Appeal with instructions to remand the case to the trial court for proceedings consistent with its opinion. See: People v. Reyes, 531 P.3d 357 (Cal. 2023)  

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