95 Cal.App.5th 862
Cal. Ct. App.2023Background
- In 2010 Brandon Parks Burns was convicted of first degree murder in a gang-related shooting; his jury was instructed with the then-current CALCRIM No. 400 that included the now-disapproved phrase that a person is "equally guilty" whether they committed the crime or aided and abetted.
- Burns’s codefendant, Todd Tibbs, pleaded to voluntary manslaughter; Burns’s direct appeal was decided in 2013 and the conviction was affirmed.
- In 2022 Burns petitioned for resentencing under Penal Code §1172.6 (former §1170.95), arguing that the old CALCRIM No. 400 language may have allowed the jury to impute the perpetrator’s malice to him and that changes to §§188/189 (effective 2019) mean he "could not presently be convicted of murder."
- The trial court summarily denied the §1172.6 petition for failure to make a prima facie showing, concluding the alleged instructional error was unrelated to the statutory changes that §1172.6 addresses and that the claim should have been raised on direct appeal.
- The Court of Appeal affirmed: it held that the problem with the CALCRIM instruction was an alleged instructional error (forfeitable on direct appeal) and not an "other theory" of imputed malice created or eliminated by the 2019/2021 statutory changes; §1172.6 does not provide a vehicle to resurrect such forfeited claims.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Burns) | Held |
|---|---|---|---|
| Whether Burns made a prima facie showing under §1172.6 that he "could not presently be convicted of murder" because of post-2019 changes to §§188/189 | Petition fails §1172.6(a)(3); Burns cannot show he "could not presently be convicted" due to statutory amendments because his claim rests on preexisting instructional error | The CALCRIM No. 400 "equally guilty" language may have led to an imputation theory that is inconsistent with post-2019 law, so he meets §1172.6(a)(3) and is entitled to a hearing | Denied; Burns did not satisfy §1172.6(a)(3). The instructional issue is unrelated to the 2019/2021 statutory changes and thus not cognizable under §1172.6 |
| Whether the former CALCRIM No. 400 "equally guilty" language constitutes an "other theory under which malice is imputed to a person based solely on that person’s participation in a crime" for purposes of §1172.6(a)(1) | The instruction may have been misleading but it did not create a new or now-invalid theory of murder liability covered by §1172.6; statutory amendments did not change direct aider/abettor liability | The instruction effectively allowed imputation of the principal’s malice; thus §1172.6 should apply | Rejected; the instruction was an arguable instructional error but did not create an "other theory" swept by §1172.6; direct aiding-and-abetting liability remains governed by preexisting principles requiring independent proof of the aider’s mens rea |
| Whether Burns’s claim is forfeited because he did not raise it on direct appeal | The claim was forfeited—remedy was to raise instructional error on direct appeal; §1172.6 is not a second appeal to revive forfeited issues unrelated to statutory changes | Post-enactment statutory reforms alter the analysis of prejudice from the instruction, so the issue may be reconsidered under §1172.6 | Court held claim forfeited; statutory reforms did not change the law on direct aider/abettor liability in a way that resurrects a forfeited instructional claim |
Key Cases Cited
- People v. McCoy, 25 Cal.4th 1111 (establishes that codefendants may have different culpability based on differing mental states)
- People v. Samaniego, 172 Cal.App.4th 1148 (criticized CALCRIM No. 400 "equally guilty" language as potentially misleading)
- People v. Nero, 181 Cal.App.4th 504 (similar critique of "equally guilty" instruction; emphasized need to evaluate aider/abettor mens rea independently)
- People v. Lewis, 11 Cal.5th 952 (discussed §1172.6 procedural standards and what may be considered on a prima facie review)
- People v. Vargas, 84 Cal.App.5th 943 (explained §1172.6 is intended to afford relief to those who "could no longer be convicted" due to statutory changes)
- People v. Gentile, 10 Cal.5th 830 (held accomplice liability for murder under direct aiding-and-abetting principles was not altered by SB 1437)