96 Cal.App.5th 1164
Cal. Ct. App.2023Background
- 2008 high‑speed chase: Flores drove a reported‑stolen car; Paez fired at pursuing CHP officers; CHP returned fire and killed passenger Alexis Melendrez.
- Flores and Paez were tried together; the prosecution presented only the provocative‑act murder theory (CALCRIM Nos. 560 for Paez; 561 for Flores).
- Jury verdicts: Paez convicted of first‑degree murder; Flores convicted of second‑degree murder (Flores acquitted of related counts); Flores’s conviction was later affirmed on direct appeal.
- Postconviction statutory changes (2018–2019 amendments to §§ 188, 189 and the adoption of former § 1170.95, now § 1172.6) allow relief where malice was imputed solely from participation in a crime.
- Flores filed a § 1172.6 petition in 2021; the superior court denied it at the prima facie stage after counsel agreed the conviction rested on provocative‑act murder and was therefore ineligible.
- On appeal Flores argued the trial instructions might have allowed imputation of Paez’s malice to him and that his appointed counsel provided ineffective assistance by failing to amend or advance that theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| §1172.6 eligibility — could Flores show he "could not presently be convicted" because of the 2019 changes? | Flores ineligible: he was convicted under provocative‑act murder, which requires the defendant personally harbor malice. | Flores: instructions may have allowed murder liability by imputing Paez’s malice to Flores, making him eligible for §1172.6 relief. | Affirmed: Flores is ineligible; provocative‑act murder requires personal malice and is not undermined by the 2019 amendments. |
| Whether jury instructions permitted imputed malice (instructional ambiguity) | Instructions for Flores (CALCRIM No. 561) required he personally commit the provocative act and possess the required mental state. | Instructions (including aiding/abetting CALCRIM Nos. 400/401) could have permitted imputation of Paez’s mens rea to Flores. | The instructions were not ambiguous: they separately required Flores’s act and mental state; the jury reasonably applied them and did not impermissibly impute malice. |
| Ineffective assistance of counsel in the §1172.6 proceeding | Counsel not ineffective for failing to raise a meritless/futile claim. | Counsel should have amended the petition and argued the imputed‑malice theory. | No ineffective assistance: counsel was not deficient for failing to press a ground that would not establish eligibility. |
Key Cases Cited
- People v. Concha, 47 Cal.4th 653 (Cal. 2009) (provocative‑act murder requires the defendant personally to act with malice)
- People v. McCoy, 25 Cal.4th 1111 (Cal. 2001) (aider and abettor is liable for own mens rea; cannot have another’s mental state imputed to her)
- People v. Gonzalez, 54 Cal.4th 643 (Cal. 2012) (elements and operation of provocative‑act murder doctrine)
- People v. Cervantes, 26 Cal.4th 860 (Cal. 2001) (discussion of provocative‑act doctrine and implied malice)
- People v. Burns, 95 Cal.App.5th 862 (Cal. Ct. App. 2023) (denying §1172.6 relief where provocative‑act murder required personal malice)
- People v. Lee, 95 Cal.App.5th 1164 (Cal. Ct. App. 2023) (reversed denial where older law allowed imputed malice at time of conviction)
- People v. Langi, 73 Cal.App.5th 972 (Cal. Ct. App. 2022) (addressed jury instruction ambiguity on imputed malice)
- People v. Maldonado, 87 Cal.App.5th 1257 (Cal. Ct. App. 2023) (similar concern about aiding‑and‑abetting instructions potentially allowing imputation)