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Direct Aiding And Abetting of Implied Malice Murder Is a Valid Theory Of Murder

People v. Vizcarra (Cal. Ct. App., Oct. 19, 2022, No. D078869) 2022 WL 10869162, at *1

Summary:Vizcarra was convicted of the second degree murder he committed with three co-defendants.

The district attorney charged Vizcarra with  murder and arson of an inhabited structure and argued alternative theories of murder liability:  (1) he was liable for murder as a direct aider and abettor; and (2) he was liable for murder under the natural and probable consequences doctrine because he aided and abetted the commission of a target crime (assault by a deadly weapon or by means of force likely to produce great bodily injury) and murder was the natural and probable consequence of the target crime. Vizcarra was not prosecuted for murder under a felony-murder theory of liability.

Viz area was found guilty of second degree murder and arson of an inhabited structure. The trial court found true allegations that he had one prison prior,  two serious felony priors, and two prior strikes within the meaning of the Three Strikes Law,  and sentenced him to an aggregate term of 60 years to life in state prison.

In 2019, He  filed a petition to vacate his murder conviction and to be resentenced under section 1172.6 based on changes to  murder laws under Senate Bill No. 1437 The trial court denied the petition for resentencing, finding Vizcarra was not entitled to relief because he remained liable for murder under a still-valid theory of liability—he directly aided and abetted an implied malice murder.

Vizcarra appealed  the order arguing that direct aiding and abetting of implied malice murder is not a legally-valid theory of murder liability. He also argued that he is entitled to resentencing under Senate Bill No. 1393, which grants courts discretion to strike or dismiss prior serious felony enhancements in furtherance of justice.

The Court of Appeal affirmed the order denying Vizcarra’s petition for resentencing.

Senate Bill 1437 and Senate Bill 775

Senate Bill 1437 changed to the scope of murder liability for those who were neither the actual killers nor intended to kill anyone.

Senate Bill 1437 added three separate provisions to the Penal Code.

  1. Section 189, subdivision (e): ‘A participant in the perpetration or attempted perpetration of [qualifying felonies] 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 the 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 subdivision (d) of Section 190.2.’
  2. Section 188, subdivision (a)(3) …: ‘Except [for felony murder liability] as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.’ Section 188, subdivision (a)(3) precludes a conviction for “second degree murder under a theory that the defendant aided and abetted a crime, the natural and probable consequence of which was murder.
  3. Section 1172.6, which established a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief.,

Senate Bill 775 went into effect January 1, 2022 and allowed a resentencing petition to be filed by any person “convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Aiding and Abetting Implied Malice Murder Is a Permissible Theory of Murder Liability

Vizcarra’s argument on appeal is that his petition for resentencing should be granted because aiding and abetting implied malice murder is not a valid theory of murder liability.

“ ‘The statutory definition of implied malice, a killing by one with an “abandoned and malignant heart” (§ 188). One line of cases “state[s] that malice is implied when ‘the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high … probability that it will result in death.’ ” Another decisional line “states malice is implied when the killing is proximately caused by ‘ “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”  “Under both tests, ‘the ultimate inquiry involves a determination of probability: Although an act that will certainly lead to death is not required, the probability of death from the act must be more than remote or merely possible.’

The district attorney prosecuted Vizcarra as an aider and abettor of murder. Guilt as an aider and abettor is guilt ‘based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.’ ” People v. Powell (2021) 63 Cal.App.5th 689, 710.  (Powell)

The Powell court explained, there “is no authority for the proposition that an aider and abettor of second degree implied malice murder must intend to kill.” Rather, “to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life endangering 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 is dangerous to human life, and acting in conscious disregard for human life.”

Direct aiding and abetting implied malice murder remains a valid form of murder liability, because a person convicted of aiding and abetting implied malice murder is not a person convicted of murder pursuant to a theory under which malice is imputed based solely on the person’s participation in a crime.

“[F]or second degree murder based on implied malice, there is no imputation of malice because, as we have explained, the direct aider and abettor must have the same mental state as the actual perpetrator of the charged crime: the direct aider and abettor must act with knowledge that the act is dangerous to human life and with conscious disregard for human life. Given the mens rea requirements for aiding and abetting implied malice, not only is malice not ‘imputed’ on this direct aiding and abetting theory, but liability is not grounded ‘solely’ upon participation in the crime …. Liability for murder is grounded upon the requirement that the aider and abettor personally harbor malice.” (Glukhoy, supra, 77 Cal.App.5th at pp. 590–591

Senate Bill 1393 Does Not Apply Because the Judgment is Final

When Vizcarra was originally sentenced, the sentencing laws in effect at the time required courts to enhance sentences imposed for serious felony convictions by five years for each qualifying prior serious felony conviction. The sentencing court enhanced Vizcarra’s sentence by ten years for his two serious felony priors. Senate Bill 1393 (effective January 1, 2019), amending sections 667, subdivision (a) and 1385, subdivision (b)  to permit a trial court to exercise discretion to strike or dismiss prior serious felony enhancements ‘in the furtherance of justice.Senate Bill 1393 applies retroactively to cases with non-final judgments.

Vizcarra’s judgment became final long before the effective date of Senate Bill 1393.

Because Vizcarra’s judgment is final, he is not entitled to the retroactive application of Senate Bill 1393. (People v. Alexander (2020) 45 Cal.App.5th 341, 344–347, 258 Cal.Rptr.3d 665 [Senate Bill 1393 does not apply retroactively to final judgments of conviction].)

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