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California Supreme Court: Jury’s Finding of Intent to Kill for Gang Enhancement, Standing Alone, Insufficient to Find Prisoner Failed to State a Prima Facie Case in § 1172.6 Petition for Resentencing on First-Degree Murder Conviction

by Douglas Ankney

The Supreme Court of California held that a jury’s finding that Freddy Alfredo Curiel harbored the requisite intent to kill to find true a gang-murder special circumstance, standing alone, was insufficient for a trial court to find that Curiel had failed to state a prima facie case in his § 1172.6 petition for resentencing on his first-degree murder conviction. (Note: All undesignated statutory section references are to the California Penal Code.)

Curiel was with Abraham Hernandez when Hernandez shot and killed Cesar Tejada. In 2006, a jury convicted Curiel of first-degree murder in violation of § 187(a) after being instructed on two theories: (1) direct aiding and abetting and (2) aiding and abetting based on natural and probable consequences. The jury’s verdict did not specify upon which theory the verdict rested. The jury also found true, inter alia, a § 190.2(a)(22) gang-murder special circumstance allegation that required the jury to find that Curiel harbored “an intent to kill.” Curiel was sentenced to life imprisonment without the possibility of parole, consecutive to an indeterminate term of 25 years to life in prison. His judgment was affirmed on appeal in 2008.

In 2020, Curiel petitioned for resentencing under § 1172.6, arguing that he had been convicted of first-degree murder under the natural and probable consequences doctrine and could not now be convicted of murder under the statutes as amended by Senate Bill 1437 (2017-2018 Reg. Sess.) (“SB 1437”). (Note: Section 1172.6 was numbered § 1170.95(a) at the time of Curiel’s petition. Stats. 2022, ch. 58, section 10.) The trial court denied the petition for failure to state a prima facie case based upon its belief that the jury’s finding that Curiel “intend[ed] to kill” for purposes of the gang-murder enhancement refuted Curiel’s claim that he could not currently be convicted of murder and foreclosed relief under SB 1437.

Curiel timely appealed. The Court of Appeal (“COA”) reversed. The COA “held that the jury’s intent to kill finding was insufficient, by itself, to establish that Curiel was liable for murder under current law.” The COA reasoned that to convict Curiel, there had to be an additional finding of actus reus, i.e., that he committed a culpable act. The California Supreme Court “granted review to consider the effect of the jury’s true finding on the gang-murder special circumstance, specifically its finding that Curiel intended to kill, on his ability to state a prima facie case for relief under Senate Bill 1437.”

The Court observed that SB 1437 added § 189(e) to the Penal Code, which provides that: “A participant in the perpetration or attempted perpetration of a [specified felony] in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in [§ 190.2(d)].”

SB 1437 also “imposed a new requirement that, except in cases of felony murder, ‘a principal in a crime shall act with malice aforethought’ to be convicted of murder.” § 188(a)(3). “Malice shall not be imputed to a person based solely on his or her participation in a crime.” Id. One effect of § 188(a)(3) “was to eliminate liability for murder as an aider and abettor under the natural and probable consequences doctrine.” People v. Gentile, 477 P.3d 539 (Cal. 2020).

A person convicted of murder under the natural and probable consequences doctrine may petition the court that sentenced him or her to have the murder conviction vacated and to be resentenced on any remaining counts. § 1172.6(a). The petitioner must declare, inter alia, that he or she could not presently be convicted of murder or attempted murder because of changes to Penal Code §§ 188 or 189 made effective January 1, 2019—the effective date of SB 1437. People v. Strong, 514 P.3d 265 (Cal. 2022). “When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition to determine whether the petitioner has made a prima facie case for relief. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. If, instead, the defendant has made a prima facie showing of entitlement to relief, the court shall issue an order to show cause.” Id. (Internal quotations and citations omitted.)

The Court explained: “At the prima facie stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to Section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. [People v. Lewis, 491 P.3d 309 (Cal. 2021).] And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense. If only one element of the offense is established by the record, the petitioner could still be correct that he or she could not currently be convicted of the relevant offense based on the absence of other elements.”

Pertinent to the instant case, “to be liable for murder under any theory of implied malice, an aider and abettor must aid in the commission of a life-endangering act with ‘knowledge that the perpetrator intended to commit the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.’” People v. Reyes, 531 P.3d 357 (Cal. 2023). Alternatively, the requisite mens rea or “culpable guilty mind” for direct aiding and abetting is “knowledge of the direct perpetrator’s unlawful intent and intent to assist in achieving those ends.” People v. Perez, 113 P.3d 100 (Cal. 2005).

Because Curiel’s jury was instructed on the natural and probable consequences doctrine, it needed only find that Curiel knew that Hernandez intended to commit the underlying crimes of either disturbing the peace or carrying a concealed firearm by a gang member, the Court stated. Consequently, the jury made no finding as to whether Curiel possessed the requisite mens rea, i.e., that he knew Hernandez intended to commit murder or a life-endangering act and intended to aid Hernandez in its commission. See Perez. Thus, the Court ruled that the findings of the jury—including the finding of intent to kill—were “insufficient to rebut Curiel’s allegation that he could not be convicted of murder under current law, and the trial court erred by denying Curiel’s petition for resentencing at the prima facie stage.”

Accordingly, the Court affirmed the judgment of the COA. See: People v. Curiel, 538 P.3d 993 (Cal. 2023).


Writer’s note: This decision also provides a detailed explanation of issue preclusion or “collateral estoppel” and why Curiel was precluded from relitigating the issue of his intent to kill, so anyone interested in that topic is encouraged to read the full opinion.  

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