84 Cal.App.5th 437
Cal. Ct. App.2022Background:
- In 1999, William Zara was fatally beaten by a group of at least eight Ventura Avenue Gang members; attackers used a baseball bat and shovel, Zara was also stabbed multiple times.
- Terry Paul Schell participated in the assault using his fists and feet; Zara’s blood stained Schell’s clothing and Schell told a friend he had “shanked” Zara, though the prosecution could not prove he used a knife at trial.
- Schell was convicted in 2001 of second degree murder. In 2020 he petitioned under Penal Code § 1172.6 (former § 1170.95) seeking resentencing.
- The trial court held an evidentiary hearing under § 1172.6(d); no new evidence was offered. The prosecution argued Schell was guilty of second degree implied malice murder as an aider and abettor who acted with conscious disregard for life.
- The court found beyond a reasonable doubt that Schell’s active participation (standing shoulder-to-shoulder, battering with hands/feet, preventing escape) and surrounding circumstances supported aiding-and-abetting implied malice murder and denied the petition, expressly stating the ruling did not depend on a knife allegation.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to deny § 1172.6 relief (implied malice aiding & abetting) | Evidence shows Schell actively participated in violent group assault, knew life was endangered, acted with conscious disregard | Evidence insufficient to prove he acted with conscious disregard or stabbed victim; original sentencing judge doubted knife use | Denied: substantial evidence supports implied malice aiding & abetting; court may infer conscious disregard from participation, proximity, blood on clothing, and surrounding facts |
| Reliance on stabbing allegation / estoppel from asserting knife use | People may rely on other facts; implied malice finding does not depend on knife allegation | Prosecution previously conceded insufficient evidence of knife; should be estopped from relying on stabbing | Rejected: court clarified its decision did not depend on knife and prosecution may proceed on different theory at § 1172.6 hearing |
| Effect of SB 1437 / SB 775 on implied malice aiding & abetting theory | SB 775/1437 do not eliminate direct aiding & abetting implied malice liability | SB 775/1437 preclude theories that impute malice solely from participation | Rejected defendant’s view: implied malice aiding & abetting remains valid and is not a theory of imputed malice |
| Presentation of new theories at § 1172.6 hearing and constitutional/double jeopardy concerns | Allowing new theories at the hearing violates due process / canon of constitutional doubt | § 1172.6 hearing is lenitive, not a trial; parties may present new evidence/theories; no jury right or double jeopardy issue | Rejected: claim forfeited and meritless; courts may consider different theories at the evidentiary hearing; no Sixth Amendment or double jeopardy violation |
Key Cases Cited
- People v. Gentile, 10 Cal.5th 830 (2020) (aider-and-abettor can be convicted of second-degree implied malice murder if conduct knowingly endangers life and shows conscious disregard)
- People v. Zamudio, 43 Cal.4th 327 (2008) (standard for substantial-evidence review; infer facts in support of judgment)
- People v. Owens, 78 Cal.App.5th 1015 (2022) (after an order to show cause, trial court acts as trier of fact on § 1172.6 petition; review for substantial evidence)
- People v. Glukhoy, 77 Cal.App.5th 576 (2022) (SB 775 does not abolish aiding-and-abetting implied malice theory)
- People v. Powell, 63 Cal.App.5th 689 (2021) (recognizes continued viability of implied malice theory post-SB 1437)
- People v. Clements, 75 Cal.App.5th 276 (2022) (supports continued availability of implied malice aiding-and-abetting)
- People v. Langi, 73 Cal.App.5th 972 (2022) (same)
- People v. Mancilla, 67 Cal.App.5th 854 (2021) (distinguishes provocative act murder from aiding-and-abetting implied malice; provocative-act requires personal malice)
- People v. Johnson, 57 Cal.App.5th 257 (2020) (same point on provocative act doctrine)
- People v. James, 63 Cal.App.5th 604 (2021) (§ 1172.6 is an act of lenity; petitioner has no Sixth Amendment right to jury at hearing)
- People v. Flint, 75 Cal.App.5th 607 (2022) (allowing new theories at § 1172.6 hearing does not implicate double jeopardy)
- People v. Gutierrez, 58 Cal.4th 1354 (2014) (explains the canon of constitutional doubt)