by David Kim

In a unanimous decision, the Supreme Court of California held that Penal Code § 1172.6, subdivision (a)(3), which requires resentencing petitioners to allege 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 render categorically ineligible those petitioners who could have raised challenges to ambiguous imputed-malice jury instructions in a prior direct appeal. The Court disapproved the appellate decisions in People v. Krueger, 115 Cal. App. 5th 431 (2025); People v. Warner, 115 Cal. App. 5th 416 (2025); People v. Superior Court (White), 107 Cal. App. 5th 1268 (2025); People v. Berry-Vierwinden, 97 Cal. App. 5th 921 (2023); People v. Flores, 96 Cal. App. 5th 1164 (2023); and People v. Burns, 95 Cal. App. 5th 862 (2023), to the extent they had imported a Dixon-like procedural forfeiture bar into the § 1172.6 resentencing framework. The Court reasoned that the statute’s text contains no reference to any procedural bar based on arguments raised or not raised on direct appeal, that such a bar contradicts the express ameliorative purpose of Senate Bill 1437, and that neither issue preclusion principles nor the habeas corpus analogy drawn by the lower courts supports categorical ineligibility in these circumstances.

Background

In 2004, Robert Lopez, then 16 years old, accompanied 24-year-old Manuel Hernandez and two others in a confrontation with perceived rival gang members outside a taco truck in Modesto, California. The encounter ended with the fatal shooting of Daniel Morales. At trial, the prosecution argued that Hernandez originally possessed the firearm but passed it to Lopez, who then shot Morales. Hernandez testified in his own defense that Lopez was the shooter and that he was unaware Lopez was armed. Lopez mounted an alibi defense.

The jury was instructed on both perpetrator and accomplice liability theories. Regarding accomplice liability, the court instructed under the former version of CALCRIM No. 400 that “[a] person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.” The jury also received the standard aiding-and-abetting instruction under CALCRIM No. 401, which required proof that the defendant knew of the perpetrator’s intent to commit the crime, intended to aid the perpetrator in committing it, and in fact did so by words or conduct. The jury convicted Lopez of murder, assault with a deadly weapon, and participation in a criminal street gang, along with gang and firearm enhancements.

In 2019, Lopez filed a pro per petition for resentencing under what is now § 1172.6, alleging he could not presently be convicted of murder because of the changes to §§ 188 and 189. The People conceded that Lopez had stated a prima facie case. Following an evidentiary hearing, the trial court denied the petition on the ground that Lopez was guilty as the actual killer or a direct aider and abettor but notably declined defense counsel’s request to identify which of these two factually inconsistent theories it was relying upon.

On appeal, the Court of Appeal affirmed on a different ground from the one relied on by the trial court. Sua sponte requesting supplemental briefing on the issue, the appellate court held that Lopez was categorically ineligible for resentencing relief because the instructional ambiguity underlying his petition could have been raised on direct appeal from his 2007 conviction. Relying on Burns, Flores, and Berry-Vierwinden, the Court of Appeal reasoned that Lopez’s claim was “not cognizable” under section 1172.6 because its basis was not “‘because of’” the substantive changes enacted in 2019. The California Supreme Court granted review.

Analysis

The Court began by discussing the interpretive principles governing § 1172.6. Because the resentencing scheme constitutes remedial legislation, it “must be liberally construed in a manner that serves its remedial purposes.” Frlekin v. Apple Inc., 457 P.3d 526 (Cal. 2020). The Court observed that § 1172.6 makes eligible for resentencing those convicted of murder pursuant to “any ‘theory under which malice is imputed to a person based solely on that person’s participation in a crime’” and that the prima facie bar was “intentionally and correctly set very low.” People v. Lewis, 491 P.3d 309 (Cal. 2021). At this preliminary stage, denial is proper only when the petition and record “establish conclusively that the defendant is ineligible for relief.” People v. Strong, 514 P.3d 265 (Cal. 2022).

The Appellate Split and
the Burns Line of Cases

The Court traced the conflict among the Courts of Appeal at length. In People v. Langi, 73 Cal. App. 5th 972 (2022), the Court of Appeal concluded that standard aiding-and-abetting instructions, when combined with second degree murder instructions and not tailored to the specifics of the case, created an ambiguity permitting the jury to convict the defendant of aiding and abetting second degree murder without finding that he personally acted with malice. In People v. Maldonado, 87 Cal. App. 5th 1257 (2023), the Court of Appeal reached a similar conclusion based on aiding-and-abetting, implied-malice, and lying-in-wait murder instructions, reasoning that the “unlawful purpose” and “crime” language of CALCRIM No. 401, combined with the absence of an intent-to-kill requirement in CALCRIM No. 521, left open the possibility that the jury found the defendant intended only to encourage a surprise attack rather than the victim’s killing. These courts allowed § 1172.6 petitions to proceed. In contrast, Burns, Flores, and Berry-Vierwinden held that even assuming such instructional ambiguity existed, petitioners were categorically ineligible because the claimed error had nothing to do with the 2019 legislative changes and could have been raised on direct appeal. These courts analogized to the procedural bar in In re Dixon, 264 P.2d 513 (Cal. 1953), governing habeas corpus petitions, treating the failure to raise the instructional challenge on direct appeal as a forfeiture of any resentencing claim.

The Statute’s Text and Purpose Foreclose the Procedural Bar

The Court agreed with the Attorney General’s concession that the Court of Appeal erred and disapproved the Burns-Flores-Berry-Vierwinden line of cases. Its analysis proceeded on three independent grounds.

First, the Court held that the text and purpose of § 1172.6 do not support the procedural bar. Subdivision (a)(3) “makes no mention of prior appeals or explicit reference to any form of procedural bar,” the Court observed. Its textual focus is whether a defendant could be convicted under current law, not an inquiry into which appellate issues might have been raised in the past. The Court stated that the statute specifically describes the narrow relevance of prior appeals only in the context of the evidentiary hearing, not the prima facie case. Drawing on established canons of statutory construction, the Court reasoned that had the Legislature intended a procedural bar based on failure to raise claims in a prior appeal, “it likely would have done so more directly.” The Court concluded that imposing such a bar “contradicts the express intent of Senate Bill 1437,” whose codified findings establish that “a conviction for murder requires that a person act with malice aforethought” and that “[a] person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.”

The Court also rejected the lower courts’ reliance on the “because of” language of subdivision (a)(3). Those courts had reasoned that because People v. McCoy, 24 P.3d 1210 (Cal. 2001), had already established that a perpetrator’s mental state could not be imputed to an aider and abettor, petitioners’ claims of imputed malice were attributable to instructional error predating Senate Bill 1437, not to the 2019 changes. The Court determined that this analysis was flawed in multiple respects. Lopez’s petition did not invoke McCoy. Rather, it relied on the instructions given at his trial and on later appellate decisions interpreting similar or identical instructions, including People v. Powell, 63 Cal. App. 5th 689 (2021), Langi, and Maldonado, decisions that postdated his 2007 trial by more than a decade. Additionally, the Supreme Court recently explained in People v. Antonelli, 567 P.3d 690 (Cal. 2025), that while McCoy was an “important building block” in the evolution of decisional law, it did not represent a definitive statement foreclosing juries from ever imputing malice to an accomplice. Most fundamentally, the Court’s prior decision in Strong established that the “because of” language “does not require a showing that a claim to relief under Senate Bill 1437 arises from no other cause – only that the 2019 changes supply a basis for the claim and so are a cause.”

The Court separately rejected the argument advanced by the Sacramento County District Attorney as amicus curiae, who proposed that the phrase “other theory under which malice is imputed” in § 1172.6, subdivision (a)(1), added by Senate Bill 775, was intended to encompass only judicially recognized theories of imputed malice such as provocative act murder. The Court found this narrow construction unpersuasive, noting that the Legislature chose broad language rather than specifically referencing any particular theory. Legislative history described the added phrase as “a catchall provision,” and the Court concluded the phrase encompasses “any theory of criminal liability that could lead to conviction based on imputed malice, as defined by argument, evidence, and instructions.”

Issue Preclusion Does Not Support Categorical Ineligibility

Second, the Court determined that general principles of issue preclusion, which inform the analysis of prior jury findings in § 1172.6 proceedings, do not support the procedural bar. It explained that issue preclusion “does not apply to ‘issues that could have been raised and decided in the prior proceeding but were not.’” Rather than looking to what facts a jury was supposed to have found under abstract legal principles, courts must apply preclusive effect only to findings on factual issues necessarily made, examining the entire record including the actual jury instructions provided, according to the Court. Though the Legislature did not open resentencing to every previously convicted murder defendant, and jury findings that facially supply all elements of a still-valid murder theory “ordinarily do foreclose section 1172.6 resentencing,” this does not mean that potentially ambiguous instructions should be ignored merely because their flaws were not raised in a prior appeal, the Court stated.

The Dixon Habeas Corpus
Analogy Is Inapt

Third, the Court rejected the analogy to the Dixon procedural bar from habeas corpus proceedings. While acknowledging that certain aspects of the § 1172.6 prima facie inquiry are “analogous” to habeas corpus procedures, the Court cautioned that habeas corpus process “does not seamlessly map onto the section 1172.6 process.” People v. Patton, 564 P.3d 596 (Cal. 2025). The Dixon bar serves to speed resolution of claims, avoid delay, and encourage finality of judgments, but the Court found no affirmative evidence the Legislature intended to incorporate such a bar into § 1172.6. To the contrary, the entire premise of the resentencing scheme is that “traditional concerns regarding finality of judgments would have to yield, at least in cases like the one at hand, in which instructions may have allowed imputation of malice,” the Court explained. In addition, it noted that because most petitioners’ trials and appeals had concluded before Senate Bill 1437 was enacted, adopting a Dixon-like bar “could have no impact in encouraging litigants to present claims at an earlier juncture.”

Notably, the Court declined to decide one additional question raised by the Attorney General. For the first time in the Supreme Court, the Attorney General argued that a petitioner alleging instructional ambiguity should have to satisfy the reasonable-likelihood standard governing ambiguous instructional-error claims under Boyde v. California, 494 U.S. 370 (1990). The Court determined that whether the Boyde standard is necessary to establish prima facie eligibility under § 1172.6 was outside the scope of the question presented and therefore left that issue unresolved.

Conclusion

Accordingly, the Court reversed the judgment of the Court of Appeal and remanded for that court to address on the merits Lopez’s claim that the jury instructions permitted conviction on a now-invalid theory of imputed malice, as well as any other claims regarding the propriety of the trial court’s ruling. See: People v. Lopez, 19 Cal. 5th 639 (2026).  

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