Implied Malice in Directly Aiding and Abetting a Murder is a Valid Theory
THE PEOPLE, Plaintiff and Respondent, v. CYNTHIA M. VARGAS, Defendant and Appellant. (Cal. Ct. App., Oct. 28, 2022, No. B313853) 2022 WL 15635424, at *2–3
Summary: Vargas was convicted of first degree murder (§ 187, subd. (a)) with use of a firearm (§ 12022.53, subds. (d), (e)(1)) and the jury also found that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Following the California Supreme Court’s decision in People v. Chiu (2014) 59 Cal.4th 155, Vargas filed a petition for writ of habeas corpus in the superior court on the ground that she could not be convicted of murder in the first degree under the natural and probable consequences doctrine. The People then agreed to accept resentencing for second degree murder. The superior court vacated Vargas’s first degree murder sentence and imposed a term of 40 years to life, consisting of 15 years to life for second degree murder plus 25 years to life for the firearm enhancement.
After Senate Bill No. 1437 became effective, Vargas filed her petition for resentencing pursuant to section 1172.6.5 The superior court summarily denied the petition without appointing counsel. The Court of Appeal reversed and remanded the matter to the superior court for further proceedings, including the appointment of counsel for Vargas and briefing by the parties in accordance with section 1172.6, subdivision (c).
On remand, the trial court issued an order to show cause and held an evidentiary hearing. Neither party presented new evidence, submitting on the record of conviction. Defense counsel argued that the prosecution’s case was built entirely on a natural and probable consequences theory supported by unreliable eyewitness statements identifying Vargas as one of the participants who called for the shooting.
After reviewing the trial transcripts and hearing argument by defense counsel, the trial court denied the petition, finding that “the People have met their burden of proving beyond a reasonable doubt that Ms. Vargas aided and abetted the first degree premeditated murder of John Barbosa.” The court explained, that there was no reasonable doubt that it was Vargas who said, ‘Shoot him.’ Those words, together with an accomplice’s plea of ‘shoot him,’ led another gang to pull out his gun and fatally shoot John Barbosa.
Vargas’ Ineligibility for Relief Under Section 1172.6 Is Supported by Substantial Evidence
A reviewing court applies the substantial evidence standard to the superior court’s findings. (People v. Garrison (2021) 73 Cal.App.5th 735, 745, 747 (Garrison).) A court reviews the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Substantial evidence also includes circumstantial evidence and any reasonable inferences drawn from that evidence.
The trial court denied the petition for resentencing because it found Vargas aided and abetted a first degree premeditated murder. To find Vargas ineligible for relief under section 1172.6, the court needed only find appellant acted with implied malice in directly aiding and abetting the killing.
At an evidentiary hearing under section 1172.6, subdivision (d)(3), the trial judge is charged with determining, beyond a reasonable doubt, if the petitioner is guilty of murder under a theory that remains valid after the amendments to the substantive definition of murder.
Murder and Malice
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) “Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151.) Malice may be express or implied. (§ 188, subd. (a).) It is express when there is manifested an intent to kill. Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses.
Before the Legislature amended section 188, the natural and probable consequences doctrine constituted an exception to the requirement of either express or implied malice for a murder conviction. (People v. Rivera (2021) 62 Cal.App.5th 217, 231 (Rivera).) Now,the natural and probable consequences doctrine can no longer support a murder conviction, but the change did not “alter the law regarding the criminal liability of direct aiders and abettors of murder …. One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law.” (People v. Offley (2020) 48 Cal.App.5th 588, 595–596; 932 [“The direct aider and abettor of murder, like the direct perpetrator, must act with malice”].)
“[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea—knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime.” (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
“In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life endangering act. Thus, 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.” (People v. Powell (2021) 63 Cal.App.5th 689, 713)
The California Supreme Court has explained that “an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.” (Gentile, supra, 10 Cal.5th at p. 850.) The aider and abettor “need only intend the commission of the perpetrator’s act, the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life.” (Powell, supra, 63 Cal.App.5th at p. 714.)
Senate Bill No. 1437 and its amendment to Penal Code section 188 eliminated potential aider and abettor liability for first or second degree murder under the natural and probable consequences doctrine by requiring that a principal “act with malice aforethought” in order to be convicted of murder; there is no exception for accomplices. Section 188 (a)(3) permits a second degree murder conviction only if the prosecution can prove the defendant acted with the accompanying mental state of mind of malice aforethought. The prosecution cannot impute malice to a person based solely on his or her participation in a crime.
Implied Malice and Natural and Probable Consequences
Although implied malice also incorporates the idea of “natural and probable consequences,” the two concepts are distinct. Under the natural and probable consequences doctrine, an aider and abettor’s intent with regard to the nontarget offense is irrelevant: Liability results entirely from the direct perpetrator’s acts and intent in committing the nontarget crime—including an unintended murder—as long as the accomplice intended to commit the target offense and the nontarget offense was reasonably foreseeable. (People v. Smith (2014) 60 Cal.4th 603, 611 [“ ‘liability “ ‘is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted’ ” ’ ”]; Rivera, supra, 62 Cal.App.5th at pp. 231–232.) Implied malice, on the other hand, is based upon the natural and probable consequences of a defendant’s own act committed with knowledge of and disregard for the risk of death the act carries. (People v. Knoller, supra, 41 Cal.4th at pp. 151–152; Rivera, at p. 231.)
Here, substantial evidence supports the trial court’s finding that appellant acted with implied malice to directly aid and abet the murder. (See People v. Garcia (2008) 168 Cal.App.4th 261, 273 [“Factors to be considered by the trier of fact in determining ‘whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime’ ”].)
The essence of aiding and abetting a murder under an implied malice theory is the accomplice’s act of aiding, by words or conduct, the commission of a life-endangering act with knowledge of the danger to life that the act poses.
The trial court’s order denying Vargas’s petition for resentencing under Penal Code section 1172.6 was affirmed.
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