Filed 8/18/23 P. v. Hernandez CA4/2 Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077943
v. (Super. Ct. No. FSB053198)
BENJAMIN HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan Foster,
Judge. Affirmed.
Savannah Montanez, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance from Plaintiff and Respondent.
1 I.
INTRODUCTION 1 Defendant and appellant Benjamin Hernandez (Benjamin) appeals the trial court’s
order denying his petition to vacate his second degree murder conviction in which he 2 aided and abetted one or more codefendants and for resentencing under Penal Code 3 section 1172.6 (formerly section 1170.95). He argues the trial court erred in denying his
petition without issuing an order to show cause and holding an evidentiary hearing
because (1) the record of conviction does not conclusively show he is ineligible for relief
as a matter of law; (2) the court engaged in impermissible factfinding; (3) the court
incorrectly denied the petition by recalling the evidence presented at trial, rather than
examining the record of conviction; (4) the court applied the wrong standard in denying
the petition; and (5) the jury instructions given on aiding and abetting were ambiguous
and allowed the jury to find him guilty of second degree murder without finding he
personally harbored malice. Because defendant is ineligible for relief as a matter of law,
we affirm the trial court’s order denying his section 1172.6 petition.
1 To avoid confusion because of shared last names, we will refer to defendant Benjamin Hernandez, the victim Jerry Ramirez, and some witnesses by their first names. Because codefendants Edward Vincent Hernandez and Edward Hernandez, Sr., share both first and last names, we will refer to them as Vinny and Edward, respectively. Lastly, we will refer to codefendant Alfred Ray Rodriguez by his last name. 2 All future statutory references are to the Penal Code.
[footnote continued on next page]
2 II. 4 FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Tina Lopez testified that she had spent the night of November 17, 2005, with Jerry
Ramirez (Jerry), her boyfriend, at a motel. Tina telephoned her father, Benjamin, and
asked for a ride. Edward Vincent Hernandez (Vinny) and Rodriguez, her cousins, picked
her and Jerry up. No one seemed tense or angry.
The group went to the home of Tina’s aunt, where Jerry’s brother, Eric Ramirez,
lived. Eric testified he had been keeping a .22-caliber semiautomatic and a .22-caliber
revolver, as well as a .25-caliber clip, for Jerry. Eric retrieved the guns and gave them to
Jerry; Jerry unloaded the guns and gave them and the clip to Vinny, who owned one of
the guns. Tina’s aunt testified that about a year earlier, there had been problems between
Vinny and Jerry.
The group then proceeded to a house on East Pumalo Street (the Pumalo house)
where other extended family members lived. Tina’s mother, Stella Lopez; Tina’s aunt
and uncle, Ruth and Edward Hernandez, Sr. (Edward); and Benjamin were all at the
Pumalo house. Tina bickered with Benjamin while Rodriguez, Vinny, and Jerry were
3 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section 1172.6 for ease of reference unless otherwise indicated. 4 The factual background is taken from this court’s prior nonpublished opinion in Benjamin’s prior direct appeal, case No. E046636. (People v. Rodriguez (Sept. 28, 2010, E046636) [nonpub. opn.] (Rodriguez).)
3 outside. Tina heard “loudness” in the backyard, and Benjamin went outside. Benjamin
told Tina to stay in the house and told Stella to keep her there.
Curtis Hawkins, who lived behind the Pumalo house, heard a commotion.
Through his bathroom window, he saw several men, including all four defendants,
surrounding Jerry on the ground near the carport. Jerry was trying to escape but the
others were blocking him. Hawkins heard Benjamin say, “You been fucking with my
family. I’m going to kill you.” Benjamin hit Jerry with a pointed-edge shovel about 20
times in the head and torso while Jerry cried and pleaded for him to stop. Hawkins saw a
pool of blood form around Jerry’s head, and he heard Benjamin say, “Hurry up. Get my
gun.” Hawkins also heard someone say to get blankets. Vinny and Rodriguez rolled
Jerry’s motionless body up in blankets. Vinny backed a car up the driveway into the
carport, and Vinny and Rodriguez loaded Jerry into the trunk and drove off. Hawkins
then saw Edward put some dirt over the blood and hose down the driveway and a car in
the carport. A few minutes later, Hawkins heard Benjamin say to his daughter and
another woman, “The same thing may happen to you.” Hawkins did not contact the
police because he feared for his own safety.
Another next-door neighbor, Vivian Jackson, heard screams. Jackson looked 5 through the chain-link fence to see Vinny beat a man on the ground with a shovel at least
five times, while three or four other men beat, stomped, and kicked the victim. She could
5 Although Jackson testified that the man with the shovel was Vinny, she had identified a photograph of Benjamin as the man who had used the shovel.
4 see blood on the ground. She heard the man she identified as Vinny say, “I told you not
to play with me,” and she heard the victim screaming “[N]o.” Jackson then walked away.
Fifteen or 20 minutes later, she saw Edward hosing down what looked like blood from
the carport area.
Alberta Hechtl, a security guard at a credit union adjacent to the Pumalo house,
heard yelling, and although her view was partially obstructed, she saw an object like a
shovel being driven up and down while a man screamed. She heard a woman yelling
“leave him alone,” and a man reply, “Get in the house.”
Tina told a detective and testified at the preliminary hearing that Benjamin came
back inside and yelled to Vinny and Rodriguez to “[g]et him out of here” or to “[g]et rid
of him.” She then saw Vinny and Rodriguez push Jerry into the car, and she saw Vinny
driving the car away.
Deputy Mark Addy of the San Bernardino County Sheriff’s Department responded
to a report of a domestic disturbance at the Pumalo house. He observed that Benjamin
had what appeared to be fresh blood on his T-shirt and a fresh laceration above his eye.
The deputy also saw someone washing a car in the carport.
Jerry’s body was discovered in a ravine in Waterman Canyon on November 20,
2005. He had suffered numerous blunt and sharp force injuries, including defensive
wounds on his arms, but the cause of death was seven close-range gunshot wounds to the
head. Some of the blunt-force injuries on his back and buttocks area were consistent with
5 kicking. The seven bullets were all .25-caliber and could only have been fired from a
.25-caliber weapon.
Neither a gun nor the shovel was ever found.
B. Procedural Background 6 The jury found Benjamin guilty of second degree murder as an aider and abettor.
(Rodriguez, supra, E046636; § 187, subd. (a).) The jury also found that Benjamin had
used a deadly weapon, a shovel, in the commission of the crime. (§ 12022, subd. (b)(1).)
The trial court sentenced Benjamin to 15 years to life in prison and imposed a
consecutive one-year enhancement for the weapon use.
On September 28, 2010, this court rejected Benjamin’s contention that the
evidence was insufficient to show he aided and abetted a codefendant in killing the victim
and affirmed the judgment. (See Rodriguez, supra, E046636.)
On January 7, 2019, Benjamin in pro. per. filed a petition to vacate his second
degree murder conviction and for resentencing pursuant to section 1172.6.
6 Codefendant Rodriguez was also found guilty of second degree murder as an aider and abettor. Benjamin and codefendants Rodriguez, Vinny, and Edward were all charged with first degree murder and conspiracy to commit murder with various weapon use allegations. Vinny’s trial was severed from that of the others. The jury was unable to reach a verdict on the murder charge as to Edward and a mistrial was declared as to him. Vinny and Edward were subsequently tried together. Vinny was found guilty of first degree murder and conspiracy to commit murder (§§ 187, subd. (a), 182, subd. (a)(1)), and the jury found true firearm use allegations as to him under section 12022.53, subdivisions (b), (c), (d). The jury was again unable to reach a verdict as to the murder charge against Edward, and another mistrial was declared. Edward thereafter entered a plea of guilty to acting as an accessory to a felony (§ 32), and the murder charge against him was dismissed. (Rodriguez, supra, E046636.)
6 On April 19, 2019, the trial court granted the People’s motion to strike the
petition, finding Senate Bill No. 1437 unconstitutional. We reversed the trial court’s
order in a nonpublished opinion on June 10, 2020, and remanded the matter for further
proceedings under section 1170.95. (See People v. Hernandez (June 10, 2020, E072594)
[nonpub. opn.].)
Following remand, the People filed a written informal response and opposition to
Benjamin’s petition. In support, the People attached our nonpublished opinion from
Benjamin’s direct appeal, case No. E046636, and the information. The People also
requested that the trial court take judicial notice of the decision and files and records in
the underlying trial, including the abstract of judgment and the jury instructions and 7 verdict forms. Benjamin did not file a brief in response to the People’s informal
response and opposition.
On September 3, 2021, the trial court (the same court that heard the underlying
trial) held a prima facie hearing on the petition. Benjamin was not present, but
represented by appointed counsel (the same counsel that had represented Benjamin at
trial) and waived Benjamin’s presence. After recalling the facts of the case, the trial
court denied the petition because Benjamin “made an insufficient prima facie showing”
he is entitled to relief pursuant to section 1172.6 and issued a written order on September
30, 2021. In its written order, after reciting the factual background, in pertinent part, the
7 There is no indication in the record the trial court granted the People’s motion to take judicial notice of the record of conviction.
7 court explained: “This Court finds substantial evidence was presented at trial that
Benjamin Hernandez instigated the assault, was a major participant in the assault and
acted with reckless indifference to human life, and aided and abetted in the murder of
Jerry Ramirez.” Benjamin timely appealed.
On January 18, 2022, Benjamin’s prior appellate counsel filed a brief raising no
arguable issues pursuant to Anders v. California (1967) 386 U.S. 738 and People v.
Wende (1979) 25 Cal.3d 436. Benjamin did not file a supplemental brief. As Benjamin
had failed to file a supplemental brief raising any issues for our review, we dismissed the
appeal as abandoned without independently reviewing the record in a nonpublished
opinion filed on March 15, 2022.
Benjamin’s current appellate counsel was appointed on March 24, 2022. Current
counsel thereafter filed a petition for review with the California Supreme Court. The
Supreme Court granted Benjamin’s petition for review and transferred the case back to us
with directions to vacate our prior decision and reconsider the matter in light of People v.
Delgadillo (2022) 14 Cal.5th 216. We vacated our decision and provided the parties an
opportunity to file a supplemental brief. We granted Benjamin’s current appellate
counsel’s unopposed motion to file a supplemental brief and to take judicial notice of the
jury instruction from Benjamin’s trial. Because current appointed counsel had
determined appealable issues existed and had filed a supplemental brief arguing those
issues, we vacated our order filed April 5, 2023, granting Benjamin permission to file a
personal supplemental brief. The People did not file a brief in response.
8 III.
DISCUSSION
Benjamin contends the trial court erred in denying his petition at the prima facie
stage by “recalling the evidence presented at trial and deciding substantial evidence
supported [his] murder conviction,” rather than examining the record of conviction to
determine whether he was ineligible for relief. He further asserts that the court applied
the wrong standard, i.e., substantial evidence, in denying his petition and inappropriately
engaged in factfinding at the prima facie stage. Benjamin also argues (1) Senate Bill No.
775 applies retroactively; (2) even though the jury was not instructed on the felony
murder or natural and probable consequences doctrines, he may nonetheless have been
convicted on a theory under which malice was imputed to him based solely on his
participation in a crime because the instructions given on aiding and abetting were
ambiguous and allowed the jury to find him guilty of second degree murder without
finding he personally harbored malice; and (3) he is entitled to an evidentiary hearing
because the record of conviction does not conclusively show he is ineligible for relief as a
matter of law.
A. Legal Background
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “‘to amend
the felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the underlying
9 felony who acted with reckless indifference to human life.’” (People v. Gentile (2020) 10
Cal.5th 830, 846-847 (Gentile); see Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature
accomplished this by amending sections 188 and 189.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of [s]ection 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.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e), now limits the circumstances under which a person
may be convicted of felony murder: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) [defining first degree murder] 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 [s]ection 190.2.” (Stats.
2018, ch. 1015, § 3.)
Effective January 1, 2022, Senate Bill No. 775 expanded eligibility for relief to
include individuals convicted of “attempted 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. (§ 1172.6, subd. (a), as amended by
10 Stats. 2021, ch. 551, § 2; Legis. Counsel’s Dig., Sen. Bill No. 775 (2020-2021 Reg.
Sess.).) Appellate courts have held the new amendments in Senate Bill No. 775 apply
retroactively to appeals from the denial of petitions not yet final as of January 1, 2022.
(People v. Porter (2022) 73 Cal.App.5th 644, 652 [“[T]he trial court’s order denying the
petition is not yet final and Senate Bill No. 775 has already taken effect. Therefore, the
revisions set forth in Senate Bill No. 775 apply to the instant petition.”]; People v. Montes
(2021) 71 Cal.App.5th 1001, 1006 [“New legislation generally applies to all judgments
which are not final as of the effective date of the new statute.”].) The amendments in
Senate Bill No. 775 thus apply to Benjamin’s appeal. (People v. Maldonado (2023) 87
Cal.App.5th 1257, 1261.)
However, Senate Bill Nos. 1437 and 775 did not expand eligibility for relief
pursuant to section 1172.6 to one who directly aids and abets another who commits
murder or attempted murder. (People v. Offley (2020) 48 Cal.App.5th 588, 595-596.)
Such persons who by act or advice aid, promote, encourage or instigate the commission
of murder, with knowledge of the direct perpetrator’s criminal purpose and with intent to
commit, encourage, or facilitate the commission of murder, remain criminally liable for
murder. (Ibid.)
Senate Bill No. 1437 also created a procedure for offenders previously convicted
of felony murder or murder under the natural and probable consequences doctrine to seek
retroactive relief if they could no longer be convicted of murder under the new law.
(§ 1172.6, subd. (a); Gentile, supra, 10 Cal.5th at p. 843; People v. Lewis (2021) 11
11 Cal.5th 952, 959 (Lewis); People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) “[T]he
process begins with the filing of a petition containing a declaration that all requirements
for eligibility are met [citation], including that ‘[t]he petitioner could not presently be
convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189
made effective January 1, 2019 . . . .’” (Strong, supra, at p. 708, fn. omitted.) “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.’ [Citations.] If the petition and record in the case
establish conclusively that the defendant is ineligible for relief, the trial court may
dismiss the petition.” (Ibid.)
Petitioners who request counsel “are entitled to the appointment of counsel upon
the filing of a facially sufficient petition . . . .” (Lewis, supra, 11 Cal.5th at p. 957.)
“[O]nly after the appointment of counsel and the opportunity for briefing may the
superior court consider the record of conviction to determine whether ‘the petitioner
makes a prima facie showing that he or she is entitled to relief.’” (Ibid., italics omitted;
see id. at p. 966.) The court’s “prima facie inquiry . . . is limited. . . . ‘“[T]he court takes
petitioner’s factual allegations as true and makes a preliminary assessment regarding
whether the petitioner would be entitled to relief if his or her factual allegations were
proved. If so, the court must issue an order to show cause.”’ [Citations.] ‘[A] court
should not reject the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’” (Id. at p. 971.) A trial court’s failure to follow the
12 procedures enacted in section 1172.6 is analyzed for prejudice under the state law
standard of People v. Watson (1956) 46 Cal.2d 818, 836. (Lewis, supra, at pp. 973-974.)
Under this standard, we ask whether it is reasonably probable defendant would have
obtained a more favorable outcome if proper procedures had been followed. (Id. at p.
974.)
If a petitioner has made a prima facie showing of entitlement to relief, “‘the court
shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.) Once the
court determines that a defendant has made a prima facie showing, it “must [then] hold an
evidentiary hearing at which the prosecution bears the burden of proving, ‘beyond a
reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under state
law as amended by Senate Bill [No.] 1437. [Citation.] ‘A finding that there is substantial
evidence to support a conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.’ [Citation.] ‘If the prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to the conviction, shall be
vacated and the petitioner shall be resentenced on the remaining charges.’” (Strong,
supra, at p. 709; accord, Lewis, supra, 11 Cal.5th at p. 960; § 1172.6, subd. (d)(3).)
In Senate Bill No. 775, the Legislature amended the language of section 1172.6,
codifying Lewis, supra, 11 Cal.5th 952, expanding the scope of the petitioning process,
and clarifying some of the procedural requirements. (Stats. 2021, ch. 551, § 2.) Section
1172.6, subdivision (d)(3) now provides the admission of evidence at the hearing “shall
13 be governed by the Evidence Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters judicially noticed.” The
statute continues, “The court may also consider the procedural history of the case recited
in any prior appellate opinion.” Further, “The prosecutor and the petitioner also may
offer new or additional evidence to meet their respective burdens. A finding that there is
substantial evidence to support a conviction for murder . . . is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6,
subd. (d)(3).)
Whether a petitioner has made the requisite prima facie showing is a
predominantly legal question. We thus review de novo whether the trial court properly
denied Benjamin’s petition without issuing an order to show cause. (People v. Coley
(2022) 77 Cal.App.5th 539, 545.)
B. Analysis
Benjamin contends we must reverse the order denying his petition because the
court did not examine the record of conviction but relied on its recollection of the facts,
applied the wrong standard in denying his petition, and inappropriately engaged in
factfinding at the prima facie stage. We reject these contentions. The specific evidence
presented at trial regarding the facts and circumstances of the killing is immaterial to the
analysis of whether Benjamin made a prima facie case for relief under section 1172.6.
The jury instructions and verdict demonstrate Benjamin is ineligible for relief under
14 section 1172.6 as a matter of law because he was prosecuted as a direct aider and abettor
to murder, and the jury found he intended to aid and abet a second degree murder. The
jury was instructed on direct aiding and abetting via CALCRIM Nos. 400 and 401.
Senate Bill No. 1437 did not eliminate direct aiding and abetting liability for murder or
attempted murder. (Gentile, supra, 10 Cal.5th at p. 848; People v. Cortes (2022) 75
Cal.App.5th 198, 204-205 [petitioner convicted of murder and attempted murder either as
perpetrator or direct aider and abettor ineligible for § 1172.6 relief].)
“[T]o 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.” (People v. Powell (2021) 63 Cal.App.5th 689,
713; see also People v. Reyes (2023) 14 Cal.5th 981, 991.) Aiding and abetting implied
malice murder is a theory of murder based on the aider and abettor’s own mental state; it
does not rely on imputed malice. (People v. Silva (2023) 87 Cal.App.5th 632, 639;
People v. Schell (2022) 84 Cal.App.5th 437, 443-444; People v. Vizcarra (2022) 84
Cal.App.5th 377, 390-391.)
As given to Benjamin’s jury, CALCRIM Nos. 400 and 401 stated that an aider and
abettor’s guilt is based on the direct perpetrator’s acts and the aider and abettor’s own
acts and own mental state. (See generally People v. McCoy (2001) 25 Cal.4th 1111,
15 1117.) CALCRIM No. 401 told the jury that to prove a defendant was guilty of a crime
as an aider and abettor, the People had to prove (1) the perpetrator committed the crime;
(2) the defendant knew that the perpetrator intended to commit the crime; (3) before or
during the crime’s commission, the defendant intended to aid and abet the perpetrator in
committing the crime; and (4) the defendant’s words or conduct in fact aided and abetted
the perpetrator’s commission of the crime. The instruction further stated that the aider
and abettor must know “of the perpetrator’s unlawful purpose” and specifically intend to
“aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that
crime.” (CALCRIM No. 401; see generally People v. Perez (2005) 35 Cal.4th 1219,
1225.)
The jury therefore did not convict Benjamin under the natural and probable and
consequences doctrine or other theory under which malice was merely imputed to him.
(Compare People v. Whitson (2022) 79 Cal.App.5th 22, 27, 33 [jury was instructed on
natural and probable consequences theory of liability].) He was instead convicted as a
direct aider and abettor who had malice aforethought. As such, he was ineligible for
section 1172.6 relief.
Relying on People v. Langi (2022) 73 Cal.App.5th 972 (Langi), Benjamin
acknowledges the jury was not instructed on the felony murder rule or the natural and
probable consequences doctrine, but claims the aiding and abetting instructions were
ambiguous and allowed the jury to find him guilty of second degree murder without
finding he personally harbored malice, i.e., by imputing malice to him. He thus believes,
16 as in Langi, an evidentiary hearing is required here.
In Langi, the petitioner was convicted of second degree murder as one of four men
who had beaten the victim to death. (Langi, supra, 73 Cal.App.5th at p. 975.) The trial
court summarily denied Langi’s petition for resentencing under former section 1170.95 at
the prima facie stage. (Langi, supra, at p. 976.) The record did not conclusively
establish, without factfinding, that Langi had thrown the fatal punch, and the jury
instructions failed to explain that “to be guilty as a direct aider and abettor of second
degree murder, an accomplice must have acted with the mental state of implied malice.”
(Id. at p. 983.)
The appellate court reversed the trial court’s denial of Langi’s petition, finding
that the pattern instructions on aiding and abetting (CALJIC Nos. 8.31 & 3.01) “create[d]
an ambiguity under which the jury may find the defendant guilty of aiding and abetting
second degree murder without finding that he personally acted with malice.” (Langi,
supra, at 73 Cal.App.5th at p. 982.) The appellate court agreed with Langi, that the
instructions permitted the jury to find him guilty of murder based on his codefendant’s
act regardless of his personal knowledge or disregard of danger to human life. (Id. at p.
981.) The court explained that “under the instructions that were given, the jury was
entitled to conclude that, to be guilty as an aider and abettor of second degree murder,
[Langi] need only have intended to encourage the perpetrator’s intentional act—in this
case, punching [the victim]—whether or not [Langi] intended to aid or encourage [the
victim’s] killing, and whether or not he personally knew of and disregarded the risk of
17 such a killing.” (Id. at p. 983.) In other words, the jury could have convicted Langi of
murder as an aider and abettor without finding that he had personally acted with express
or implied malice. The court emphasized that the instructions “should have explained
that, to be guilty as a direct aider and abettor of second degree murder, an accomplice
must have acted with the mental state of implied malice.” (Ibid.) Because they did not,
the record of conviction did not “conclusively negate” the possibility that Langi was
convicted on an invalid theory, and an evidentiary hearing was required under section
1172.6. (Id. at p. 984.)
Langi is distinguishable from the present matter. In Langi, the victim fell and
struck his head after someone in a group that included the defendant punched him, and
the trial court concluded he was the actual killer based on language in the direct appellate
opinion suggesting that the defendant threw the fatal punch. (Langi, supra, 73
Cal.App.5th at p. 975.) Here, Benjamin struck the victim up to 20 times in the head and
torso with a metal shovel, verbalized his intent to kill the victim, and commanded others
to get his gun and get rid of the victim. Benjamin was convicted of murder based on
directly aiding and abetting his cohorts and not based solely on his participation in the
crime. In other words, the jury could not have convicted Benjamin of murder as an aider
and abettor without finding that he had personally acted with express or implied malice.
Langi is analogous only to the extent that Benjamin, like the defendant there, may
have been convicted either as the actual killer or as an aider and abettor. That fact alone
does not entitle him to relief, however, as “Senate Bill 1437 does not eliminate direct
18 aiding and abetting liability for murder.” (Gentile, supra, 10 Cal.5th at p. 848.) The jury
here was instructed with CALCRIM No. 520, which explained express and implied
malice aforethought, and CALCRIM No. 401, which, in part, instructed the jury that an
aider and abettor had to know the unlawful purpose of the perpetrator and intended to aid
and abet the perpetrator in committing the crime. The jury here could not have convicted
Benjamin under an imputed aiding and abetting theory.
As to the aiding and abetting instructions, Benjamin apparently relies on the
phrase “equally guilty” that was used in CALCRIM No. 400, as implicating imputed
malice. The inclusion of this phrase, however, did not result in Benjamin being
convicted based on imputed malice because the jury was also instructed with CALCRIM
No. 401, that an aider and abettor had to know the unlawful purpose of the perpetrator,
that the defendant intended to aid and abet the perpetrator, intended to encourage or
facilitate the commission of the crime, and by act or advice, aided or encouraged the
commission of the crime. By giving CALCRIM No. 401, the instructional language
would have cleared up any ambiguity arguably presented by former CALCRIM No.
400’s reference to principals being equally guilty. (People v. Johnson (2016) 62 Cal.4th
600, 641.)
Benjamin could be prosecuted for murder under the same direct aiding and
abetting theory today. “Senate Bill 1437 does not eliminate direct aiding and abetting
liability for murder because a direct aider and abettor to murder must possess malice
aforethought.” (Gentile, supra, 10 Cal.5th at p. 848.) The amendments to sections 188
19 and 189 are not relevant to Benjamin’s case. Thus, he cannot show he “could not
presently be convicted of murder . . . because of changes to [s]ection 188 or 189 made
effective January 1, 2019,” a statutorily mandated prerequisite for a section 1172.6
petition. (§ 1172.6, subd. (a).) He is ineligible for relief under section 1172.6 as a matter
of law.
IV.
DISPOSITION
The order denying Benjamin’s section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.