The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FREDDY ALFREDO CURIEL,
Defendant and Appellant.
S272238
Fourth Appellate District, Division Three
G058604
Orange County Superior Court
02CF2160
November 27, 2023
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Evans concurred.
PEOPLE v. CURIEL
S272238
Opinion of the Court by Guerrero, C. J.
In 2006, a jury convicted Freddy Alfredo Curiel of first
degree murder (Pen. Code, § 187, subd. (a))1 and found true the
gang-murder special circumstance allegation (§ 190.2,
subd. (a)(22)) and the criminal street gang sentencing
enhancement (§ 186.22, subd. (b)(1)). The jury also found true
two firearm enhancements (§ 12022.53, subds. (d), (e)) and
convicted Curiel of active participation in a criminal street gang
(§ 186.22, subd. (a)). The trial court sentenced Curiel to life
imprisonment without the possibility of parole, consecutive to
an indeterminate term of 25 years to life in prison.
Twelve years later, the Legislature enacted Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which
narrowed or eliminated certain forms of accomplice liability for
murder. (See Stats. 2018, ch. 1015.) Among other things,
Senate Bill 1437 barred the use of the natural and probable
consequences doctrine to obtain a murder conviction. (People v.
Gentile (2020) 10 Cal.5th 830, 851 (Gentile).) Senate Bill 1437
also created “a procedure for convicted murderers who could not
be convicted under the law as amended to retroactively seek
relief.” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
1
Subsequent statutory references are to the Penal Code
unless otherwise specified.
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Curiel petitioned for relief and resentencing under this
new procedure. (Former § 1170.95, subd. (a); now § 1172.6,
subd. (a).) He alleged, among other things, that he had been
convicted of first degree murder under the natural and probable
consequences doctrine and could not currently be convicted of
murder because of changes to the murder statutes enacted by
Senate Bill 1437. After appointing counsel and receiving
briefing, the trial court denied Curiel’s petition for failure to
state a prima facie case. The court believed the jury’s finding
that Curiel “inten[ded] to kill,” which was required for the gang-
murder special circumstance, refuted Curiel’s allegation that he
could not be convicted of murder under current law and
therefore precluded relief under Senate Bill 1437. Curiel
appealed, and the Court of Appeal reversed. It held that the
jury’s intent to kill finding was insufficient, by itself, to establish
that Curiel was liable for murder under current law. For
example, to be convicted as a direct aider and abettor, the
prosecution would have to prove Curiel harbored a culpable
mental state (mens rea) and he committed a culpable act (actus
reus). The Court of Appeal held the jury’s intent to kill finding
did not demonstrate the latter as a matter of law.
We granted review to consider the effect of the jury’s true
finding on the gang-murder special circumstance, specifically its
finding that Curiel intended to kill, on his ability to state a
prima facie case for relief under Senate Bill 1437. As a
threshold matter, we conclude that the jury’s intent to kill
finding was properly given preclusive effect in the resentencing
proceedings below, i.e., Curiel was bound by the jury’s finding
for purposes of assessing his petition. The jury’s finding
satisfied the traditional elements of the doctrine of issue
preclusion, and Curiel has not established any applicable
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exception. (See People v. Strong (2022) 13 Cal.5th 698, 715–716
(Strong).) The trial court was therefore correct to consider
whether Curiel could state a prima facie case for relief
notwithstanding the jury’s finding of intent to kill.
The trial court erred, however, in denying Curiel’s petition
at the prima facie stage based on this finding. The jury’s finding
of intent to kill does not, itself, conclusively establish that Curiel
is ineligible for relief. Curiel’s allegation that he could not
currently be convicted of murder because of the changes in
substantive law enacted by Senate Bill 1437 put at issue all the
elements of murder under current law. Murder liability as an
aider and abettor requires both a sufficient mens rea and a
sufficient actus reus. A finding of intent to kill, viewed in
isolation, establishes neither.
But that conclusion does not end the prima facie inquiry.
The jury necessarily made other findings, which bear on Curiel’s
liability for murder. We discuss those findings below and
conclude that they too are insufficient to rebut Curiel’s
allegation of nonliability and conclusively establish that he is
ineligible for relief. For example, the mens rea required of a
direct aider and abettor includes knowledge of the perpetrator’s
intent to commit an unlawful act constituting the offense and
the intent to aid the perpetrator in its commission. (People v.
Perez (2005) 35 Cal.4th 1219, 1225 (Perez).) The jury’s verdicts,
viewed in light of the court’s jury instructions, do not show the
jury necessarily made factual findings covering these elements.
Thus, the trial court could not reject Curiel’s prima facie
showing on this basis, and it should have proceeded to an
evidentiary hearing on Curiel’s resentencing petition. Because
the Court of Appeal likewise found that the trial court erred,
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albeit on different grounds, we affirm its judgment, which
reversed the trial court’s order denying relief.2
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Evidence
A group of friends, including Cesar Tejada, were
socializing outside of Tejada’s apartment late one night in
August 2002. Two men, later identified as Curiel and Abraham
Hernandez, walked past the group toward a convenience store.
One person in Tejada’s group, Raul R., testified at trial that
Curiel and Hernandez looked at the group “in a bad manner.”
Curiel stipulated that he was a member of O.T.H., a criminal
street gang, at the time. A prosecution gang expert testified that
Hernandez was an O.T.H. member as well.
After visiting the convenience store, Curiel and
Hernandez approached the group. According to recorded
statements that witness Lupe O. made to police, Hernandez
confronted Tejada, asked him “where he was from,” and started
shoving him. Raul came to Tejada’s aid, but Curiel got mad and
said, “this is my neighborhood.” Lupe responded, “it’s not your
neighborhood,” and Curiel became angrier. He started
screaming that it was “his neighborhood” and “OTH.”
Hernandez and Tejada started pushing each other. At some
point, Tejada grabbed Hernandez’s shirt and shoved him over a
shopping cart. Hernandez got up, took out a gun, and shot
Tejada. Curiel and Hernandez ran away.
2
Although Curiel was convicted of first degree murder,
neither party contends the degree of Curiel’s murder conviction
should affect the showing necessary for Curiel to state a prima
facie case or for the Attorney General to rebut it.
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At trial, Lupe claimed she did not remember the events
leading up to the shooting. She eventually agreed that
Hernandez started an argument with Tejada, but Curiel tried to
get them to calm down. Lupe said she had known Curiel for a
long time, Curiel did not have anything to do with the shooting,
and “he didn’t want [the shooting] to happen.”
Raul testified that he remembered Curiel arguing with the
group of friends, telling Tejada “something about gangs or the
barrio,” and asking Tejada where he was from. Tejada
responded, “I am from nowhere.” Raul told Curiel and
Hernandez to leave, and Curiel responded it was none of Raul’s
business, that he should “[s]hut the fuck up” and “get the hell
out of here.” Lupe and Curiel argued and traded insults.
Hernandez pulled out a gun and chased one of the other friends.
The friend ran behind Tejada, and Hernandez shot Tejada in the
chest at close range. On cross-examination, Raul was
confronted with earlier testimony where he stated that
Hernandez, not Curiel, asked Tejada where he was from.
Tejada suffered a single gunshot wound to his upper left
chest. Residue or “stippling” around the wound indicated that
Tejada was shot from approximately 12 to 18 inches away. The
wound was fatal.
The prosecution’s gang expert testified that he had been a
police officer for 24 years and specialized in gang-related crimes.
He had spoken to many gang members over the years about
gang culture, the expectations of gang members, and concepts
like “backup and payback and respect and loyalty” in a gang.
The gang expert testified that gangs can be organized around a
race or ethnicity and they can be “turf-oriented” or “non[-]turf-
oriented.” In his experience, most Hispanic gangs were “turf-
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oriented,” meaning that they held a particular neighborhood or
claimed a particular area. The gang expert explained that
asking “where are you from” is a serious challenge or “hit-up.”
He said, “If it is in your particular gang neighborhood and you
see somebody else there, you are trying to identify them to see
what they are doing . . . .” The gang expert testified that he had
investigated fatal stabbings and shootings that resulted from
statements like “where are you from.”
The gang expert further testified about the importance of
“respect” in gang culture, which in reality means “fear and
intimidation.” For example, “[t]he more violent an individual is,
the more respect he has within the gang and the more fear that
he produces in the community.” If a community member tells a
gang member to leave or says “you don’t live here,” the gang
member will probably react violently. The gang expert
explained that a gang member is expected to provide “backup”
for fellow gang members who commit crimes, and a member may
be punished for not providing sufficient backup. Guns are
important in gang culture, and in the expert’s experience, “if
there is a gun within a group, that it is expected that everybody
knows if there is a gun and who has it.”
The gang expert was familiar with the O.T.H. gang, which
the parties stipulated was a criminal street gang. The expert
had reviewed police reports involving O.T.H., talked with other
detectives about O.T.H., and spoken with O.T.H. members
themselves. The gang expert testified that O.T.H. is a “turf-
oriented” gang, and Tejada’s apartment was within the territory
claimed by the gang. In response to a hypothetical question
based on the facts of this case, the expert testified that Curiel
would have been expected to provide “backup” to Hernandez
during the confrontation with Tejada. Moreover, in the expert’s
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view, Tejada’s shooting was done for the benefit of or in
association with a criminal street gang, and it promoted and
assisted the criminal conduct of a gang. The expert explained,
“[T]hese two individuals doing the hit-up on that other
individual are promoting their particular gang in trying to push
him out of that area by challenging him. You know, ‘where are
you from?’ ” The shooting “elevates their status because they
were willing to work, do the work for the gang, promote the
gang, and act in a violent manner against somebody who would
disrespect that particular gang.” Yelling the name of the gang
during the shooting would “promote that particular gang so that
the witnesses hear that and they know who is doing it. They
know what gang it is and who is responsible for that violent act.”
On cross-examination, the gang expert acknowledged that
gang members commit crimes that are not for the benefit of a
gang, and it is “not uncommon” for them to do so. Every shooting
by a gang member is not necessarily gang related. Moreover,
gang members do not constantly commit crimes. They live in a
neighborhood, they have jobs and families, and they interact
with non-gang members without incident.
Curiel testified in his own defense. He said he had only
seen Hernandez twice before the night of the shooting.
Hernandez arrived at the house where Curiel was hanging out,
and about 10 minutes later Curiel said he was going to the
convenience store. Hernandez asked if he could come along. On
the way to the store, Curiel saw Tejada’s group of friends.
Hernandez asked who they were, and Curiel said they lived in
the neighborhood. On the way back, Hernandez walked away
from Curiel and toward the group. Hernandez approached
Tejada and said something that Curiel could not hear. Curiel
followed and started speaking with Lupe. Curiel heard Tejada
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Opinion of the Court by Guerrero, C. J.
tell Hernandez “you are making the area hot” and “you can’t
come around here.” Raul told both Hernandez and Curiel to
leave. Curiel told Raul to calm down. Tejada shoved
Hernandez, who tripped over something behind him.
Hernandez got back up and shot Tejada “real quick.” Curiel was
surprised; he did not know Hernandez was armed. Curiel ran
away.
Curiel said that, after he and Hernandez were arrested
and in custody, he told Hernandez he was mad and angry. But
Curiel did not “want to hold a grudge against him,” and they
started writing back and forth. In one letter, Curiel wrote, “You
are a good dude with a lot of cora and a good head on your
shoulders, but with too much damn [pride].” In another, Curiel
wished Hernandez a happy birthday: “I know it is on the 27th,
but it is all good. I will be the first to congratulate you.” In
closing, Curiel wrote, “And keep your head up all day every day.
Free like O.J. Much respect, F. Curiel.”
In a letter to another friend, Curiel talked about
communicating in code and mentioned Lupe: “Let me know
when you write about Lupe, what she says, but just change her
name to . . . Eva and I will know who you are talking about.”
Later, Curiel reminded the friend, “Please do all the above for
me” and “especially talk to Lupe aka Eva.” Curiel signed the
letter with his gang moniker and wrote “O.T.H.”
Curiel testified, “I wanted [the friend] to go and talk to
[Lupe] because I don’t know if she — if she understood what I
was facing. And considering what she told the police that day,
I — I knew she was lying . . . .” Curiel explained that he wanted
to use the name “Eva” because he did not want the prosecutor to
think he was threatening Lupe if the letter were intercepted.
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Opinion of the Court by Guerrero, C. J.
Curiel denied threatening Lupe or directing anyone else to
threaten her.
Several months before Tejada was killed, Curiel went with
an accomplice nicknamed “Troubles” to steal shoes from a
business. Curiel went inside, took some shoes, and ran away. A
security guard pursued Curiel, and his accomplice slashed at the
guard with a knife. The accomplice fled; Curiel was arrested.
He pleaded guilty to theft and aiding and abetting an assault
with a knife. Curiel claimed he did not know the real name of
his accomplice.
B. Closing Arguments and Jury Instructions
In closing arguments, prior to the court’s jury instructions,
the prosecutor contended that Curiel had instigated the
confrontation with Tejada and his friends. He said Curiel “did
the hit-up and he was there for backup.” The prosecutor
maintained that Curiel directly aided and abetted Tejada’s
murder and was also guilty under the natural and probable
consequences doctrine. He argued that Curiel acted with both
express malice (intent to kill) and implied malice. For the latter,
the prosecutor said Curiel committed acts that were dangerous
to human life, such as confronting Tejada and acting as backup
for Hernandez, and he consciously disregarded the danger to
life. The prosecutor also specifically discussed the gang-murder
special circumstance. He explained, “To prove that this special
circumstance is true, the People must prove that, one, the
defendant intended to kill. [¶] Remember, we talked about for
both special circumstance[s] you can find the defendant guilty
of first degree murder. That doesn’t automatically make the
special circumstance true. You have to also determine if I prove
to you beyond a reasonable doubt that he had the intent to kill.”
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Defense counsel emphasized that Curiel was not the
shooter. He went on, “And it is really important that, you know,
we are clear on what [the prosecutor] has to prove with the
specific intents and all the mental states to go through. And it
is very complicated, because my client is not — you have to crawl
into his head. You have to try to figure out whether or not [the
prosecutor] has proven those mental states beyond a reasonable
doubt.” Among other things, defense counsel noted that Curiel
had “to know that Hernandez . . . intended to commit a crime,
okay? And he has to know and has to be proven that my client
knew Hernandez’s unlawful purpose. And the fact that he is
just simply present does not make him an aider and abettor.”
Defense counsel accused Raul of lying when he said Curiel asked
Tejada, “where are you from?” Defense counsel said Raul had
previously attributed this statement to Hernandez, but he had
changed his testimony for Curiel’s trial. Defense counsel also
criticized the prosecution’s gang expert based on his lack of any
academic qualifications and his “junk expertise.” Defense
counsel disagreed that “all the guys that they think are gang
members . . . all behave the same way.” He attacked as
“nonsense” the idea that “[i]f one gang member has a gun, they
all know he has a gun.”
In its jury instructions, the court identified Hernandez as
the alleged perpetrator of Tejada’s murder. It continued, “A
person is equally guilty of the crime whether he committed it
personally or aided and abetted or conspired with a perpetrator
who committed it. Under some specific circumstances, if the
evidence establishes aiding and abetting of one crime, a person
may also be found guilty of other crimes that occurred during
the commission of the first crime.”
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Opinion of the Court by Guerrero, C. J.
For the theory of direct aiding and abetting, the trial court
instructed the jury as follows: “To prove that the defendant is
guilty of a crime based on aiding and abetting that crime, the
People must prove that: [1] the perpetrator committed the
crime; [2] the defendant knew that the perpetrator intended to
commit the crime; [3] before or during the commission of the
crime, the defendant intended to aid and abet the perpetrator in
committing the crime; and [4] the defendant’s words or conduct
did, in fact, aid and abet the perpetrator’s commission of the
crime. [¶] Someone aids and abets a crime if he knows of the
perpetrator’s unlawful purpose and he specifically intends to
and does, in fact, aid, facilitate, promote, encourage or instigate
the perpetrator’s commission of that crime.”
The trial court also instructed the jury on aiding and
abetting based on the doctrine of natural and probable
consequences: “To prove that the defendant is guilty of murder
under the theory of aiding and abetting [based on] natural and
probable consequences, the People must prove beyond a
reasonable doubt that [1] the defendant is guilty of disturbing
the peace or of carrying a concealed firearm by a gang member;
[2] during the commission of the crime of disturbing the peace
or of the crime of carrying a concealed firearm by a gang member
the crime of murder was committed; and [3] under all the
circumstances a reasonable person in the defendant’s position
would have known that the commission of murder was a natural
and probable consequence of the commission of the crime of
disturbing the peace or of the crime of carrying a concealed
firearm by a gang member.”
The court went on, “A natural and probable consequence
is one that a reasonable person would know is likely to happen
if nothing unusual intervenes. In deciding whether a
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Opinion of the Court by Guerrero, C. J.
consequence is natural and probable, consider all the
circumstances established by the evidence. [¶] If the murder
was committed for a reason independent of the common plan to
commit the crime of disturbing the peace or the crime of carrying
a concealed firearm by a gang member, then the commission of
murder was not a natural and probable consequence of the crime
of disturbing the peace. To decide whether a crime of murder
was committed, please refer to the separate instructions that
will be given to you on that crime.”
The court also instructed the jury on the elements of
disturbing the peace and carrying a concealed firearm by a gang
member, as well as conspiracy liability for murder based on
those crimes. The jury was told, “A member of a conspiracy is
also criminally responsible for any act of any member of the
conspiracy if that act is done to further the conspiracy and that
act is a natural and probable consequence of the common plan
or design of the conspiracy.”
For the gang-murder special circumstance allegation, the
court instructed the jury as follows: “To prove that this special
circumstance is true, the People must prove that: [1] the
defendant intended to kill; [2] at the time of the killing the
defendant was a member in a criminal street gang; and [3] the
murder was carried out to further the activities of the criminal
street gang.”
Following deliberations, the jury convicted Curiel of first
degree murder and found true the gang-murder special
circumstance allegation and the criminal street gang sentencing
enhancement, as described above. The trial court sentenced
Curiel to life imprisonment without the possibility of parole,
consecutive to an indeterminate term of 25 years to life in
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prison. The Court of Appeal affirmed the judgment in an
unpublished opinion. (People v. Curiel (Feb. 21, 2008, G037359)
[nonpub. opn.].)
C. Resentencing Proceedings and Appeal
Following the enactment of Senate Bill 1437, Curiel
petitioned the trial court for resentencing. (§ 1172.6, subd. (a).)
He alleged that he had been convicted of first degree murder
under the natural and probable consequences doctrine and could
not currently be convicted of murder because of changes to the
murder statutes enacted by Senate Bill 1437. In response,
among other arguments, the prosecution contended the jury’s
true finding on the gang-murder special circumstance allegation
rendered Curiel ineligible for relief. In the prosecution’s view,
because the gang-murder special circumstance included an
element of intent to kill, the record of conviction established that
Curiel acted with malice aforethought (specifically express
malice) and thus he was not entitled to resentencing as a matter
of law. The trial court agreed and denied Curiel’s petition.
Curiel appealed, and the Court of Appeal reversed.
(People v. Curiel (Nov. 4, 2021, G058604) [nonpub. opn.].) The
appellate court accepted the jury’s finding of intent to kill, but it
concluded the finding was insufficient to show that Curiel was
ineligible for resentencing as a matter of law. It explained, “to
convict a defendant for first degree murder under the theory of
direct aiding and abetting, the prosecution must prove more
than just murderous intent. In addition to proving the
defendant harbored the intent to kill, the prosecution must also
show the defendant actually ‘aided or encouraged the
commission of the murder[.]’ ” The court continued, “In this
case, the jury’s true finding on the special circumstance
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allegation did not prove this crucial additional requirement.
Rather, it only satisfied the intent requirement for aiding and
abetting a murder. . . . While the jury established Curiel had
the mindset of a murderer, they did not prove he committed the
necessary acts to subject him to murder liability under that
theory of culpability.” The court reversed the order denying
Curiel’s petition and remanded the matter for an evidentiary
hearing.
The Attorney General petitioned for review, which we
granted. We now address whether and under what
circumstances a jury’s finding of intent to kill renders a
defendant who seeks relief under Senate Bill 1437 ineligible for
resentencing as a matter of law.
II. DISCUSSION
A. Senate Bill 1437
The Legislature enacted Senate Bill 1437 “to more
equitably sentence offenders in accordance with their
involvement in homicides.” (Stats. 2018, ch. 1015, § 1(b).) The
Legislature recognized, “It is a bedrock principle of the law and
of equity that a person should be punished for his or her actions
according to his or her own level of individual culpability.” (Id.,
§ 1(d).) With this purpose in mind, Senate Bill 1437 “amend[ed]
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 felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1(f).)
Outside of the felony-murder rule, “a conviction for murder
requires that a person act with malice aforethought. A person’s
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culpability for murder must be premised upon that person’s own
actions and subjective mens rea.” (Id., § 1(g).)
Senate Bill 1437 altered the substantive law of murder in
two areas. First, with certain exceptions, it narrowed the
application of the felony-murder rule by adding section 189,
subdivision (e) to the Penal Code. Under that provision, “A
participant in the perpetration or attempted perpetration of a
[specified felony] 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 Section 190.2.” (§ 189, subd. (e).)
Second, Senate Bill 1437 imposed a new requirement that,
except in cases of felony murder, “a principal in a crime shall act
with malice aforethought” to be convicted of murder. (§ 188,
subd. (a)(3).) “Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (Ibid.) One effect
of this requirement was to eliminate liability for murder as an
aider and abettor under the natural and probable consequences
doctrine. (Gentile, supra, 10 Cal.5th at p. 846.) “[U]nder the
natural and probable consequences doctrine, an accomplice is
guilty not only of the offense he or she directly aided or abetted
(i.e., the target offense), but also of any other offense committed
by the direct perpetrator that was the ‘natural and probable
consequence’ of the crime the accomplice aided and abetted (i.e.,
the nontarget offense). [Citation.] A nontarget offense is the
natural and probable consequence of a target offense ‘if, judged
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objectively, the [nontarget] offense was reasonably foreseeable.’
[Citation.] The accomplice need not actually foresee the
nontarget offense. ‘Rather, 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.’ ” ’ ” (Id.
at pp. 843–844.) Thus, under prior law, a defendant who aided
and abetted an intended assault could be liable for murder, if
the murder was the natural and probable consequence of the
intended assault. (Id. at p. 844.) The defendant need not have
intended the murder or even subjectively appreciated the
natural and probable consequences of the intended crime. (Id.
at pp. 843–844.) Senate Bill 1437 ended this form of liability for
murder. (Gentile, at p. 846.)
Senate Bill 1437 also enacted former section 1170.95,
which created a procedural mechanism “for those convicted of
felony murder or murder under the natural and probable
consequences doctrine to seek relief” where the two substantive
changes described above affect a defendant’s conviction.
(Gentile, supra, 10 Cal.5th at p. 843.) Curiel’s petition for
resentencing was adjudicated under this former section. Two
years later, the Legislature amended the statute to expand the
population of eligible offenders, codify certain aspects of our
decision in Lewis, and clarify the procedure and burden of proof
at the evidentiary hearing stage of proceedings. (Stats. 2021,
ch. 551, § 1.) One year after that, former section 1170.95 was
renumbered as section 1172.6 without substantive change.
(Stats. 2022, ch. 58, § 10.) Because these statutory changes do
not affect our consideration of the issues raised in this appeal,
we refer to the current statute throughout the rest of this
opinion.
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Under section 1172.6, “A person convicted of felony
murder or 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,
attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with
the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts . . . .” (§ 1172.6,
subd. (a).)
“[T]he process begins with the filing of a petition
containing a declaration that all requirements for eligibility are
met ([§ 1172.6], subd. (b)(1)(A)), including that ‘[t]he petitioner
could not presently be convicted of murder or attempted murder
because of changes to [Penal Code] Section 188 or 189 made
effective January 1, 2019,’ the effective date of Senate Bill 1437
(§ 1172.6, subd. (a)(3)).” (Strong, supra, 13 Cal.5th at p. 708.)
“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.’ (§ 1172.6, subd. (c);
[citation].) If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial
court may dismiss the petition. (See § 1172.6, subd. (c);
[citation].) If, instead, the defendant has made a prima facie
showing of entitlement to relief, ‘the court shall issue an order
to show cause.’ (§ 1172.6, subd. (c).)” (Strong, at p. 708.)
“Within 60 days after the order to show cause has issued,
the court shall hold a hearing to determine whether to vacate
the murder, attempted murder, or manslaughter conviction and
to recall the sentence and resentence the petitioner on any
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Opinion of the Court by Guerrero, C. J.
remaining counts in the same manner as if the petitioner had
not previously been sentenced, provided that the new sentence,
if any, is not greater than the initial sentence.” (§ 1172.6,
subd. (d)(1).) “At the hearing to determine whether the
petitioner is entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (Id., subd. (d)(3).)
B. Issue Preclusion
As noted, the trial court denied Curiel’s petition at the
prima facie stage based on the jury’s intent to kill finding. The
Court of Appeal disagreed that the intent to kill finding
precluded relief, but it still treated the finding as conclusive on
the issue of Curiel’s intent. In this court, however, Curiel raises
a more basic question: Should the jury’s intent to kill finding be
considered at all? Curiel believes it should not. He relies on
general principles of issue preclusion to argue that the jury’s
finding should not impact a court’s assessment of his
resentencing petition, either because the traditional elements of
issue preclusion have not been satisfied or, alternatively,
because an equitable exception to preclusion should be applied.
Curiel’s argument is unpersuasive.
We recently examined the preclusive effect of a different
jury finding in Strong, supra, 13 Cal.5th 698. There, we rejected
the argument that section 1172.6 categorically prohibited the
consideration of factual findings made by a jury in the
defendant’s underlying trial. (Strong, at p. 714.) We reasoned
that “the structure of the statute — which permits trial courts
to consult the record of conviction to determine whether the
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PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
defendant has made out a prima facie case of eligibility
[citation], and which notably does not open resentencing to
every previously convicted murder defendant — strongly
suggests the Legislature contemplated that many, and perhaps
most, such findings would be given effect on resentencing. Had
the Legislature intended to permit wholesale relitigation of
findings supporting murder convictions in the context of
section 1172.6 resentencing, we expect it would have said so
more plainly.” (Id. at p. 715.)
Because the resentencing statute itself does not prohibit
the consideration of jury findings — and in fact affirmatively
contemplates it — we determined that general principles of
issue preclusion informed our consideration of the effect of prior
jury findings in a resentencing proceeding under section 1172.6.
(Strong, supra, 13 Cal.5th at pp. 715–716.) Curiel therefore
frames his argument in terms of issue preclusion, as does the
Attorney General in response. Without deciding whether this
doctrine applies wholesale to criminal resentencing proceedings
generally, or even section 1172.6 proceedings specifically, we
continue to believe its contours are informative in this context
and rely on them again here.
“In general, whether a prior finding will be given
conclusive effect in a later proceeding is governed by the
doctrine of issue preclusion, also known as collateral estoppel.”
(Strong, supra, 13 Cal.5th at p. 715.) “The doctrine of collateral
estoppel, or issue preclusion, is firmly embedded in both federal
and California common law. It is grounded on the premise that
‘once an issue has been resolved in a prior proceeding, there is
no further factfinding function to be performed.’ [Citation.]
‘Collateral estoppel . . . has the dual purpose of protecting
litigants from the burden of relitigating an identical issue with
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PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
the same party or his privy and of promoting judicial economy
by preventing needless litigation.’ ” (Murray v. Alaska
Airlines, Inc. (2010) 50 Cal.4th 860, 864, fn. omitted (Murray).)
“As traditionally understood and applied, issue preclusion
bars relitigation of issues earlier decided ‘only if several
threshold requirements are fulfilled. First, the issue sought to
be precluded from relitigation must be identical to that decided
in a former proceeding. Second, this issue must have been
actually litigated in the former proceeding. Third, it must have
been necessarily decided in the former proceeding. Fourth, the
decision in the former proceeding must be final and on the
merits. Finally, the party against whom preclusion is sought
must be the same as, or in privity with, the party to the former
proceeding.’ ” (Strong, supra, 13 Cal.5th at p. 716.) “The party
asserting collateral estoppel bears the burden of establishing
these requirements.” (Lucido v. Superior Court (1990) 51 Cal.3d
335, 341 (Lucido).)
Curiel argues two of these requirements are missing:
first, whether the intent to kill finding was actually litigated,
and second, whether it was necessarily decided. “An issue is
actually litigated ‘[w]hen [it] is properly raised, by the pleadings
or otherwise, and is submitted for determination, and is
determined . . . .’ ” (People v. Sims (1982) 32 Cal.3d 468, 484
(Sims), quoting Rest.2d Judgments (1982) § 27, com. d, p. 255.)
An issue is necessarily decided so long as it was not “ ‘entirely
unnecessary’ to the judgment in the initial proceeding.” (Lucido,
supra, 51 Cal.3d at p. 342.) “In considering whether these
criteria have been met, courts look carefully at the entire record
from the prior proceeding, including the pleadings, the evidence,
the jury instructions, and any special jury findings or verdicts.”
(Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.)
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Opinion of the Court by Guerrero, C. J.
The record here shows that Curiel’s intent to kill was
actually litigated and necessarily decided. The prosecution
alleged the gang-murder special circumstance, which included
an intent to kill element, and Curiel put all elements of the
special circumstance at issue by pleading not guilty. (See People
v. Jones (2011) 51 Cal.4th 346, 372.) The court instructed the
jury it could not find the special circumstance allegation true
unless it determined Curiel “intended to kill.” By finding the
special circumstance allegation true, the jury necessarily found
beyond a reasonable doubt that Curiel intended to kill.
(See Rest.2d Judgments, supra, § 27, com. g, pp. 257–258 [“If
several issues are litigated in an action, and a judgment cannot
properly be rendered in favor of one party unless all of the issues
are decided in his favor, and judgment is given for him, the
judgment is conclusive with respect to all the issues”].)
Curiel contends his intent to kill was not actually litigated
because his counsel did not specifically address the special
circumstance in closing argument. But this element of issue
preclusion requires only “ ‘the opportunity to litigate . . . not
whether the litigant availed himself or herself of the
opportunity.’ ” (Murray, supra, 50 Cal.4th at p. 869; accord,
Sims, supra, 32 Cal.3d at p. 484 [a party’s “failure to present
evidence at the hearing did not preclude the . . . issue from being
‘submitted’ to and ‘determined’ ” by the trier of fact].) Curiel
cites Hardy v. America’s Best Home Loans (2014)
232 Cal.App.4th 795, 806, for the proposition that the parties in
the underlying action must have “ ‘disputed the issue’ ” for it to
have been actually litigated. But here, Curiel did dispute the
issue by pleading not guilty, and the dispute was submitted to
the jury for decision. As the authority quoted by Hardy itself
currently goes on to explain, “The rule that collateral estoppel
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Opinion of the Court by Guerrero, C. J.
applies only to those issues that were actually or fully litigated
in the prior proceeding does not refer to the quality or quantity
of argument or evidence addressed to an issue. . . . Issue
preclusion because of a prior adjudication results from the
resolution of a question in issue, not from the litigation of
specific arguments directed to the issue.” (50 C.J.S. (2023)
Judgments, § 1014, fns. omitted.) The decision by Curiel’s
counsel not to specifically address the special circumstance was
a matter of trial strategy, which “would no more defeat the plea
of collateral estoppel than the failure of a litigant to introduce
relevant available evidence in any other situation.” (Teitelbaum
Furs, Inc. v. Dominion Insurance Co., Ltd. (1962) 58 Cal.2d 601,
607.)3
Separately, Curiel contends the issue of his intent to kill
was not necessarily decided. He points to the trial court’s jury
instructions on conspiracy, which told the jury that a member of
a conspiracy is “criminally responsible,” under certain
circumstances, for the acts and statements of other members of
the conspiracy. (CALCRIM former Nos. 416, 417.) But the
instructions went on to explain the requirements for Curiel to
3
Curiel relies on People v. Gonzalez (2021) 65 Cal.App.5th
420, 433, which found no actual litigation under similar
circumstances. Gonzalez failed to appreciate that the
dispositive question is a litigant’s opportunity to litigate, not the
litigant’s actual conduct at trial. (Murray, supra, 50 Cal.4th at
p. 869.) It was therefore incorrect to reject issue preclusion on
this basis. Gonzalez also reasoned that issue preclusion is
unavailable where the resentencing statute does not specifically
identify the relevant special circumstance finding as
disqualifying. (Gonzalez, at p. 434.) This conclusion, too, is
incorrect. (See Strong, supra, 13 Cal.5th at pp. 714–715.) We
disapprove of People v. Gonzalez, supra, 65 Cal.App.5th 420 on
these points.
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PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
be liable for murder as a co-conspirator, not any special
circumstance. The special circumstance instructions separately
required the jury to find that Curiel intended to kill, and the
prosecutor explained this requirement to the jury in closing
arguments. He stated, “Remember, we talked about for both
special circumstance[s] you can find the defendant guilty of first
degree murder. That doesn’t automatically make the special
circumstance true. You have to also determine if I prove to you
beyond a reasonable doubt that he had the intent to kill.” By
finding the special circumstance allegation true, the jury
necessarily decided that Curiel intended to kill.
We therefore conclude the jury’s intent to kill finding
meets the traditional threshold requirements for issue
preclusion. This conclusion is consistent with our observation
in Strong that a relevant jury finding is generally preclusive in
section 1172.6 proceedings, i.e., it “ordinarily establish[es] a
defendant’s ineligibility for resentencing under Senate Bill 1437
and thus preclude[s] the defendant from making a prima facie
case for relief.” (Strong, supra, 13 Cal.5th at p. 710.) Indeed, it
is difficult to foresee a situation in which a relevant jury finding,
embodied in a final criminal judgment, would not meet the
traditional elements of issue preclusion.
However, this conclusion does not end our inquiry.
“[W]hile these threshold requirements are necessary, they are
not always sufficient: ‘Even if the[] threshold requirements are
satisfied, the doctrine will not be applied if such application
would not serve its underlying fundamental principles’ of
promoting efficiency while ensuring fairness to the parties.”
(Strong, supra, 13 Cal.5th at p. 716.)
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PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
In Strong, we applied “one well-settled equitable exception
to the general rule” of issue preclusion, which “holds that
preclusion does not apply when there has been a significant
change in the law since the factual findings were rendered that
warrants reexamination of the issue.” (Strong, supra,
13 Cal.5th at p. 716.) “This exception ensures basic fairness by
allowing for relitigation where ‘the change in the law [is] such
that preclusion would result in a manifestly inequitable
administration of the laws.’ [Citation.] It also reflects a
recognition that in the face of this sort of legal change, the
equitable policies that underlie the doctrine of issue
preclusion — ‘preservation of the integrity of the judicial
system, promotion of judicial economy, and protection of
litigants from harassment by vexatious litigation’ [citation] —
are at an ebb.” (Id. at p. 717.)
The significant change in the law identified in Strong
concerned the felony-murder special circumstance, specifically
its requirement that an aider and abettor act “with reckless
indifference to human life and as a major participant” in the
underlying felony to be liable. (§ 190.2, subd. (d); Strong, supra,
13 Cal.5th at p. 703.) These terms were “ ‘derive[d] verbatim’
from United States Supreme Court precedent concerning the
permissible scope of capital punishment for felony murder.
[Citation.] But for the next quarter century, neither the United
States Supreme Court nor California courts offered much
guidance about the major participant or reckless indifference
standards . . . .” (Strong, at p. 705.) After this court provided
guidance in People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522, we recognized that certain
defendants may have been found liable for the special
circumstance based on conduct that was later found insufficient.
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PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
(In re Scoggins (2020) 9 Cal.5th 667, 676.) We held that such
defendants were entitled to relief in habeas corpus
notwithstanding the finality of their convictions. (Ibid.)
Because a jury’s felony-murder special-circumstance
finding made before Banks and Clark carries with it a
significant risk that it does not reflect a determination under
the correct legal standard, Strong held that those decisions
“represent the sort of significant change that has traditionally
been thought to warrant reexamination of an earlier-litigated
issue.” (Strong, supra, 13 Cal.5th at p. 717.) “There are many
petitioners with pre-Banks and Clark felony-murder special-
circumstance findings who nevertheless could not be convicted
of murder today.” (Ibid.) It would therefore be inequitable to
give preclusive effect to those findings in later resentencing
proceedings under section 1172.6. “For petitioners with pre-
Banks/Clark findings, no judge or jury has ever found the
currently required degree of culpability for a first time.
Allowing reexamination of the issue under these circumstances
does not permit ‘a second bite of the apple’ because the changes
in the law mean there is now ‘a different apple.’ ” (Strong, at
p. 718.)
Curiel has not identified any similar change in the law
that would justify a departure from the general rule of issue
preclusion. The intent to kill finding that was required at the
time of Curiel’s trial was governed by the same standards that
exist today. There has been no intervening change in the law
akin to Banks and Clark.
Sidestepping the substantive law governing the finding
itself, Curiel argues that other changes in the law, specifically
those governing the admissibility of expert testimony, provide
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Opinion of the Court by Guerrero, C. J.
sufficient support for an equitable exception to issue preclusion.
He attempts to link these changes to the jury’s finding of intent
to kill by arguing that the jury would not have made the finding
if the expert testimony at his trial had not been admitted. It
does not appear that this court or any lower California court has
addressed whether a change in the law governing the
admissibility of evidence is sufficient to invoke an equitable
exception to issue preclusion. However, even assuming that
such a change could be sufficient under certain circumstances,
Curiel has not justified the application of an equitable exception
under the circumstances here. He has not shown there has been
a significant change in the law that would have resulted in a
different factual finding under the law as it exists today.
(See Strong, supra, 13 Cal.5th at p. 716.)
Curiel correctly points out that this court narrowed the
permissible scope of expert testimony in People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez). Unlike lay witnesses, experts
are allowed as a matter of necessity to testify to certain matters
that would otherwise be excluded as hearsay: “In addition to
matters within their own personal knowledge, experts may
relate information acquired through their training and
experience, even though that information may have been
derived from conversations with others, lectures, study of
learned treatises, etc.” (Id. at p. 675.) “The hearsay rule has
traditionally not barred an expert’s testimony regarding his
general knowledge in his field of expertise. ‘[T]he common law
recognized that experts frequently acquired their knowledge
from hearsay, and that “to reject a professional physician or
mathematician because the fact or some facts to which he
testifies are known to him only upon the authority of others
would be to ignore the accepted methods of professional work
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PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
and to insist on . . . impossible standards.” Thus, the common
law accepted that an expert’s general knowledge often came
from inadmissible evidence.’ ” (Id. at p. 676.)
“By contrast, an expert has traditionally been precluded
from relating case-specific facts about which the expert has no
independent knowledge. Case-specific facts are those relating
to the particular events and participants alleged to have been
involved in the case being tried. Generally, parties try to
establish the facts on which their theory of the case depends by
calling witnesses with personal knowledge of those case-specific
facts. An expert may then testify about more generalized
information to help jurors understand the significance of those
case-specific facts. An expert is also allowed to give an opinion
about what those facts may mean. The expert is generally not
permitted, however, to supply case-specific facts about which he
has no personal knowledge.” (Sanchez, supra, 63 Cal.4th at
p. 676.)
Sanchez explained, “At common law, the treatment of an
expert’s testimony as to general background information and
case-specific hearsay differed significantly. However, the line
between the two has now become blurred.” (Sanchez, supra,
63 Cal.4th at p. 678.) Under the modern approach, “in support
of his opinion, an expert is entitled to explain to the jury the
‘matter’ upon which he relied, even if that matter would
ordinarily be inadmissible.” (Id. at p. 679; see Evid. Code,
§§ 801, 802.) “When that matter is hearsay, there is a question
as to how much substantive detail may be given by the expert
and how the jury may consider the evidence in evaluating the
expert’s opinion. It has long been the rule that an expert may
not ‘ “under the guise of reasons [for an opinion] bring before the
jury incompetent hearsay evidence.” ’ ” (Sanchez, at p. 678.)
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PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
Prior to Sanchez, courts sought to avoid this hearsay issue
by instructing the jury that an expert’s testimony regarding the
matters on which his or her opinion were based should be used
only to evaluate the opinion and “ ‘should not be considered for
their truth.’ ” (Sanchez, supra, 63 Cal.4th at p. 679, quoting
People v. Montiel (1993) 5 Cal.4th 877, 919.) Sanchez found this
practice untenable with respect to case-specific facts. “When an
expert relies on hearsay to provide case-specific facts, considers
the statements as true, and relates them to the jury as a reliable
basis for the expert’s opinion, it cannot logically be asserted that
the hearsay content is not offered for its truth. In such a case,
‘the validity of [the expert’s] opinion ultimately turn[s] on the
truth’ [citation] of the hearsay statement.” (Sanchez, at
pp. 682–683.) Thus, under Sanchez, “If an expert testifies to
case-specific out-of-court statements to explain the bases for his
opinion, those statements are necessarily considered by the jury
for their truth, thus rendering them hearsay. Like any other
hearsay evidence, it must be properly admitted through an
applicable hearsay exception. Alternatively, the evidence can be
admitted through an appropriate witness and the expert may
assume its truth in a properly worded hypothetical question in
the traditional manner.” (Id. at p. 684, fn. omitted.) A limiting
instruction no longer provides justification for such case-specific
hearsay testimony.
Nonetheless, an “expert may still rely on hearsay in
forming an opinion, and may tell the jury in general terms that
he did so. Because the jury must independently evaluate the
probative value of an expert’s testimony, Evidence Code
section 802 properly allows an expert to relate generally the
kind and source of the ‘matter’ upon which his opinion rests. . . .
There is a distinction to be made between allowing an expert to
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PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
describe the type or source of the matter relied upon as opposed
to presenting, as fact, case-specific hearsay that does not
otherwise fall under a statutory exception.” (Sanchez, supra,
63 Cal.4th at pp. 685–686.)
Thus, although Sanchez narrowed the scope of permissible
expert testimony, it did not impact the ability of an expert to
rely on hearsay evidence to reach his or her opinions, relate
those opinions to the jury, and explain in general terms their
bases. Nor did Sanchez foreclose the introduction of case-
specific evidence through other means. Given this limited scope,
we see no reasonable likelihood that the jury’s substantive
finding in this case would have been different if Sanchez had
been the law during Curiel’s trial. The change in the law
effected by Sanchez does not support Curiel’s claim that the
finding should not be given preclusive effect.
Resisting this conclusion, Curiel focuses on the specific
circumstances of his trial and the testimony of the prosecution’s
gang expert. But even assuming it is proper to consider these
circumstances, Curiel has not shown it would be inequitable to
give preclusive effect to the jury’s intent to kill finding. To begin,
Curiel appears to misunderstand the import of Sanchez, and he
fails to substantiate his assertion that large portions of the gang
expert’s testimony would be inadmissible under current law. He
repeatedly attacks the expert’s opinion testimony as being
“based on hearsay” or “founded in hearsay.” But it is not
improper under Sanchez for an expert to consider and rely on
case-specific hearsay in forming his or her opinions. (Sanchez,
supra, 63 Cal.4th at p. 685.) “The limitations that Sanchez
placed on expert testimony concern case-specific information
that an expert relates to a jury, not materials upon which the
expert relies.” (People v. Camacho (2022) 14 Cal.5th 77, 128.)
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Opinion of the Court by Guerrero, C. J.
Curiel also cites the expert’s testimony about the characteristics
of Curiel’s gang, O.T.H., and the culture of criminal street gangs
in general. But “general testimony about a gang’s behavior,
history, territory, and general operations is usually admissible.
[Citation.] The same is true of the gang’s name, symbols, and
colors. All this background information can be admitted
through an expert’s testimony, even if hearsay, if there is
evidence that it is considered reliable and accurate by experts
on the gang.” (People v. Valencia (2021) 11 Cal.5th 818, 838.)
Finally, to the extent Curiel identifies case-specific hearsay that
was provided to the jury, he has not shown its inclusion justifies
an equitable exception to issue preclusion. For example, the
expert identified and described a letter written by Hernandez as
a basis for his opinion that Hernandez was an O.T.H. gang
member. But Hernandez was found to be an O.T.H. gang
member following an earlier trial, where he was also found to
have murdered Tejada specifically for the benefit of O.T.H. The
expert therefore had ample grounds for his opinion that
Hernandez was an O.T.H. gang member. His use of
Hernandez’s letter as additional support, even if improper under
Sanchez, does not bear strongly on the preclusive effect of the
jury’s eventual verdict. The expert’s opinion regarding
Hernandez’s gang membership would have been presented to
the jury regardless of the specific admissibility of the letter, and
Hernandez’s gang membership was only one of many
circumstances bearing on Curiel’s state of mind and intent to
kill. In sum, Curiel has not shown the jury would have reached
a different conclusion regarding that intent if the expert’s
testimony about the letter had not been admitted. Put
differently, the change in the law resulting from Sanchez would
not have changed the outcome of Curiel’s trial on that issue. It
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Opinion of the Court by Guerrero, C. J.
is not a change “that warrants reexamination” (Strong, supra,
13 Cal.5th at p. 716) of the jury’s intent to kill finding, even
considering the specific circumstances of his underlying trial.4
Curiel also contends the intent to kill finding should not
be given preclusive effect because he did not have an adequate
incentive to litigate the issue at trial. We have recognized the
relevance of “the opportunity and incentive” of a party to present
4
The State Public Defender, as amicus curiae, cites Sargon
Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747 as another potential change in the law justifying
an equitable exception to issue preclusion. We disagree. While
Sargon emphasized the role of the trial court “as a gatekeeper
to exclude speculative or irrelevant expert opinion” (id. at
p. 770), neither the State Public Defender nor Curiel has shown
Sargon meaningfully expanded Curiel’s ability to object to the
gang expert’s testimony. (See People v. Tran (2022) 13 Cal.5th
1169, 1213–1214 [challenges to reliability and foundation for
expert testimony forfeited because they were available before
Sargon]; see also People v. Lucas (2014) 60 Cal.4th 153, 245,
fn. 36, disapproved on other grounds in People v. Romero and
Self (2015) 62 Cal.4th 1, 53, fn. 19.) Moreover, even looking at
the specific circumstances of Curiel’s trial, their criticism of the
prosecution’s gang expert (primarily his reliance on his general
training and experience) is unpersuasive. For example, they
have pointed to no evidence in the record that the expert was
asked to provide more specificity regarding the bases for his
opinions but could not do so.
The State Public Defender also cites changes to the
substantive definition of a criminal street gang. (See § 186.22,
subd. (g), as amended by Stats. 2021, ch. 699, § 4.) Whether
that change applies to the gang-murder special circumstance is
currently under review by this court. (See People v. Rojas (2022)
80 Cal.App.5th 542, 554, review granted Oct. 19, 2022,
S275835.) But even assuming it applies to the definition of a
criminal street gang in this context, it does not affect the
substantive definition of intent to kill, so it has no bearing on
the preclusive effect of the latter finding.
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Opinion of the Court by Guerrero, C. J.
its position in the prior action. (Sims, supra, 32 Cal.3d at
p. 481.) Assuming without deciding that a lack of incentive to
litigate could justify an equitable exception to issue preclusion
in certain situations (see, e.g., Parklane Hosiery Co. v. Shore
(1979) 439 U.S. 322, 326), Curiel has not justified any such
exception here.
Curiel had more than adequate incentive to litigate his
intent to kill because, under one theory pursued by the
prosecution, it was an element of the crime of murder itself. The
jury was instructed that Curiel could be liable for murder as a
direct perpetrator if he caused the victim’s death and harbored
an intent to kill. The prosecutor maintained in closing
arguments that Curiel was liable under this theory because his
actions — precipitating the confrontation and providing backup
to Hernandez — were a substantial factor in causing the murder
and because Curiel intended to kill. Curiel therefore had an
incentive to litigate the issue of his intent to kill regardless of
the significance of the special circumstance.
Moreover, the special circumstance finding would have
collateral consequences in any future appeal or petition for writ
of habeas corpus (e.g., by demonstrating the harmlessness of
any trial error, see People v. Samaniego (2009) 172 Cal.App.4th
1148, 1165) and could impact a future request for pardon or
commutation from the Governor. We therefore disagree with
Curiel that the significance of the special circumstance finding
was “minimal” and it should not be given preclusive effect.5
5
Curiel suggests that contesting the intent to kill element
would somehow have been inconsistent with his primary
defense, which was that he was not guilty of murder because he
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Opinion of the Court by Guerrero, C. J.
Relatedly, Curiel argues that the enactment of Senate
Bill 1437 itself was such a significant and unforeseeable change
in the law that it would be inequitable to apply issue preclusion
to jury findings in his underlying trial. This argument is plainly
foreclosed by our opinion in Strong: “[T]he structure of the
statute — which permits trial courts to consult the record of
conviction to determine whether the defendant has made out a
prima facie case of eligibility [citation], and which notably does
not open resentencing to every previously convicted murder
defendant — strongly suggests the Legislature contemplated
that many, and perhaps most, such findings would be given
effect on resentencing.” (Strong, supra, 13 Cal.5th at p. 715;
accord, Lewis, supra, 11 Cal.5th at p. 971 [“ ‘if the record,
including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified
in making a credibility determination adverse to the
petitioner” ’ ”].) Indeed, it was undisputed in Strong that jury
findings made under the current governing substantive legal
standard (i.e., post-Banks and Clark) would “ordinarily
establish a defendant’s ineligibility for resentencing under
Senate Bill 1437 and thus preclude the defendant from making
did not (1) aid and abet the underlying felonies of disturbing the
peace or carrying a concealed firearm by a gang member or
(2) aid and abet the murder itself. Even assuming any alleged
inconsistency is relevant, Curiel is incorrect. Neither of these
underlying theories involved intent to kill, so Curiel could have
argued both that he was not guilty of murder and that he did
not intend to kill Tejada. The tactical decision by Curiel’s
counsel to focus on the former does not create an exception to
the doctrine of issue preclusion. (See Sims, supra, 32 Cal.3d at
p. 484 [preclusion applied despite party’s failure to present
evidence].)
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Opinion of the Court by Guerrero, C. J.
a prima facie case for relief.” (Strong, at p. 710.) Senate
Bill 1437 does not itself support an equitable exception to issue
preclusion. To the contrary, issue preclusion will “ordinarily”
apply in such proceedings. (Strong, at p. 710.)
C. The Jury’s Intent to Kill Finding
Although we conclude the jury’s intent to kill finding
should be given preclusive effect, it remains to be determined
what that effect should be, i.e., how a trial court should apply
the intent to kill finding in resentencing proceedings under
section 1172.6. It is certainly relevant to the trial court’s
consideration of a petitioner’s prima facie showing. “The record
of conviction will necessarily inform the trial court’s prima facie
inquiry . . . , allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) “Like the analogous prima facie
inquiry in habeas corpus proceedings, ‘ “the 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.” ’ [Citation.] ‘[A] court
should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary
hearing.’ [Citation.] ‘However, if the record, including the
court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.” ’ ” (Ibid.)
Consequently, “[i]f the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial
court may dismiss the petition.” (Strong, supra, 13 Cal.5th at
p. 708.)
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The Attorney General contends the intent to kill finding is
not only relevant, but dispositive, based on section 1172.6,
subdivision (a)(3). That provision requires an otherwise-eligible
petitioner to allege that he or she could not be convicted of the
relevant homicide offense (here, murder) “because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (a)(3).) The Attorney General argues that the jury’s intent
to kill finding precludes a petitioner from making that
allegation. We disagree. For reasons we explain, an intent to
kill finding does not itself conclusively establish that a
petitioner is ineligible for relief.
The Attorney General is correct that the allegation under
section 1172.6, subdivision (a)(3) is part of the prima facie
showing a petitioner must make in order to proceed to an
evidentiary hearing. (§ 1172.6, subd. (c); Lewis, supra,
11 Cal.5th at p. 962.) While we have recognized this
requirement, we have not previously explored its meaning.
(Lewis, at p. 972, fn. 6 [“We are not asked to resolve what is
substantively required under subdivision (a)(3)”].)
Our standard of review in this context is well-settled: “The
proper interpretation of a statute is a question of law we review
de novo. [Citations.] ‘ “ ‘ “As in any case involving statutory
interpretation, our fundamental task here is to determine the
Legislature’s intent so as to effectuate the law’s purpose.
[Citation.] We begin by examining the statute’s words, giving
them a plain and commonsense meaning.” ’ ” ’ [Citation.]
‘ “[W]e look to ‘the entire substance of the statute . . . in order to
determine the scope and purpose of the provision . . . .
[Citation.]’ [Citation.] That is, we construe the words in
question ‘ “in context, keeping in mind the nature and obvious
purpose of the statute . . . .” [Citation.]’ [Citation.] We must
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Opinion of the Court by Guerrero, C. J.
harmonize ‘the various parts of a statutory enactment . . . by
considering the particular clause or section in the context of the
statutory framework as a whole.’ ” ’ ” (Lewis, supra, 11 Cal.5th
at p. 961.)
The “changes” described in section 1172.6,
subdivision (a)(3) plainly refer to the substantive amendments
to sections 188 and 189 that were enacted along with the
resentencing provisions in Senate Bill 1437. The amendments
to section 189, concerning the felony-murder rule, are
inapplicable here. But the amendments to section 188,
concerning malice, form the basis for Curiel’s resentencing
petition. As noted, Senate Bill 1437 amended section 188 to
include the requirement that, except in cases of felony murder,
“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), added by Stats. 2018, ch. 1015, § 2.)
Because the amendment to section 188 specifically
concerns malice, the Attorney General argues that the jury’s
finding of intent to kill (i.e., express malice) conclusively refutes
Curiel’s allegation that he could not currently be convicted of
murder “because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a)(3).) The Attorney
General relies on the legislative history of Senate Bill 1437,
which reflects the Legislature’s concern with the perceived
inequity of imposing murder liability on defendants who did not
intend to kill. (See, e.g., Assem. Com. on Public Safety, Analysis
of Sen. Bill No. 1437 (2017–2018 Reg. Sess.) as amended
May 25, 2018, pp. 4–5.) He also cites the uncodified preamble to
Senate Bill 1437, which explains, “It is necessary to amend the
felony murder rule and the natural and probable consequences
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Opinion of the Court by Guerrero, C. J.
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 felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1(f).)
The Attorney General’s position is unpersuasive. It reads
section 188, subdivision (a)(3) in isolation, and it ignores the
provision’s broader effect on murder liability in California. That
subdivision did not simply “add the element of malice
aforethought” to existing theories of murder liability. (Gentile,
supra, 10 Cal.5th at p. 849.) It eliminated the doctrine of
natural and probable consequences in its entirety: “By limiting
murder liability to those principals who personally acted with
malice aforethought, section 188(a)(3) eliminates what was the
core feature of natural and probable consequences murder
liability: the absence of a requirement that the defendant
personally possess malice aforethought. As a result, the most
natural reading of Senate Bill 1437’s operative language is that
it eliminates natural and probable consequences liability for
first and second degree murder.” (Ibid.)
Thus, after the enactment of Senate Bill 1437, a defendant
cannot be convicted of murder based on the doctrine of natural
and probable consequences, even with a showing of malice
aforethought. (Gentile, supra, 10 Cal.5th at p. 849.) It is an
invalid theory. Murder liability requires a different, valid
theory, such as direct aiding and abetting. (Id. at p. 850.) And
it requires a different, valid theory because of the changes to
section 188 in Senate Bill 1437. It was those changes that
persuaded this court that the doctrine of natural and probable
consequences could no longer support murder liability, with or
without malice. (Gentile, at p. 849.) Consequently, a petitioner
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Opinion of the Court by Guerrero, C. J.
who alleges that he or she could not currently be convicted of a
homicide offense “because of changes to Section 188 or 189 made
effective January 1, 2019” (§ 1172.6, subd. (a)(3)) puts at issue
all elements of the offense under a valid theory.
The Legislature’s focus on intent does not compel a
different result. As discussed, the amendments to section 188
concerning malice had broader effects on the substantive law of
murder than a narrow reading would suggest. The Legislature
sought to limit murder liability to established theories that
incorporated the requisite intent; it did not intend to impose an
intent requirement untethered from existing theories of
liability. (Gentile, supra, 10 Cal.5th at pp. 850–851.) And it
sought to provide the opportunity to petition for relief to
defendants who were convicted under an invalid theory like the
natural and probable consequences doctrine at issue here.
(See § 1172.6, subd. (a)(1).)
At the prima facie stage, a court must accept as true a
petitioner’s allegation that he or she could not currently be
convicted of a homicide offense because of changes to
Section 188 or 189 made effective January 1, 2019, unless the
allegation is refuted by the record. (Lewis, supra, 11 Cal.5th at
p. 971.) And this allegation is not refuted by the record unless
the record conclusively establishes every element of the offense.
If only one element of the offense is established by the record,
the petitioner could still be correct that he or she could not
currently be convicted of the relevant offense based on the
absence of other elements.
This general principle applies to a finding of intent to kill.
It is only one element. It does not by itself establish any valid
theory of liability. (See In re Lopez (2023) 14 Cal.5th 562, 587
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Opinion of the Court by Guerrero, C. J.
(Lopez).) For example, “under direct aiding and abetting
principles, an accomplice is guilty of an offense perpetrated by
another [e.g., murder] if the accomplice aids the commission of
that offense with ‘knowledge of the direct perpetrator’s unlawful
intent and [with] an intent to assist in achieving those unlawful
ends.’ ” (Gentile, supra, 10 Cal.5th at p. 843.) Similarly, to be
liable for murder under a theory of implied malice, an aider and
abettor must aid in the commission of a life-endangering act,
with “ ‘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. Reyes (2023)
14 Cal.5th 981, 991 (Reyes), italics omitted.) A finding of intent
to kill does not, standing alone, cover all of the required
elements. It does not itself show that a petitioner like Curiel is
liable for murder under any valid theory.
D. The Jury’s Other Findings
While a finding of intent to kill does not, itself, suffice to
refute a petitioner’s allegation under section 1172.6,
subdivision (a)(3), a trial court does not end its prima facie
inquiry there. Other aspects of the record, such as additional
jury findings, might be relevant to the remaining elements of
the relevant homicide offense and conclusively refute a
petitioner’s allegation that he or she could not be convicted of
murder under current law. “The record of conviction will
necessarily inform the trial court’s prima facie inquiry under
section [1172.6], allowing the court to distinguish petitions with
potential merit from those that are clearly meritless. This is
consistent with the statute’s overall purpose: to ensure that
murder culpability is commensurate with a person’s actions,
while also ensuring that clearly meritless petitions can be
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Opinion of the Court by Guerrero, C. J.
efficiently addressed as part of a single-step prima facie review
process.” (Lewis, supra, 11 Cal.5th at p. 971.) “ ‘[I]f the record,
including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified
in making a credibility determination adverse to the
petitioner.” ’ ” (Ibid.) “In sum, the parties can, and should, use
the record of conviction to aid the trial court in reliably assessing
whether a petitioner has made a prima facie case for relief . . . .”
(Id. at p. 972.)
For example, in Strong, we concluded that pre-Banks and
Clark special circumstance findings did not have preclusive
effect in resentencing proceedings under section 1172.6.
(Strong, supra, 13 Cal.5th at pp. 717–718.) But suppose the jury
in such a case made findings on all of the other elements
supporting felony murder under section 189 as amended,
including (1) the commission or attempted commission of a
felony enumerated in that statute and (2) the death of a person
during the commission or attempted commission of the
enumerated felony. In that case, if the jury additionally found
intent to kill, it would “ordinarily be dispositive” because the
jury’s findings would conclusively establish all of the elements
of felony murder under current law. (Strong, at p. 715;
see § 189, subd. (e)(2).) Considered together, the jury’s findings
would completely refute a petitioner’s allegation that he or she
could not currently be convicted of murder because of changes
to sections 188 and 189.
The Attorney General argues the same line of reasoning
applies to this case. Curiel was not prosecuted under a theory
of felony murder, and the underlying offenses here (disturbing
the peace and carrying a concealed firearm by a gang member)
are not among those enumerated in section 189. But, assuming
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Opinion of the Court by Guerrero, C. J.
the jury relied on the then-available doctrine of natural and
probable consequences to convict Curiel of murder as an aider
and abettor, it necessarily made certain factual findings in order
to reach its verdict of guilt. The Attorney General contends that
those factual findings — combined with the jury’s finding of
intent to kill — cover all of the elements of murder under the
theory of direct aiding and abetting and therefore preclude relief
under section 1172.6.
As framed, this argument is analogous to one we
considered recently in Lopez, supra, 14 Cal.5th 562. There, a
defendant filed a petition for writ of habeas corpus alleging his
jury was improperly instructed on the natural and probable
consequences theory of aiding and abetting first degree murder.
(Id. at p. 578; see People v. Chiu (2014) 59 Cal.4th 155, 158–159
(Chiu).) The Attorney General conceded the error but contended
that it was harmless beyond a reasonable doubt based in part
on the jury’s factual findings, including its true finding on a
gang-murder special circumstance. (Lopez, at pp. 579, 585.)
The Attorney General argued these findings encompassed all of
the elements of first degree murder under a valid theory of direct
aiding and abetting. (Id. at p. 587.) To assess the Attorney
General’s contention, we examined the language of the court’s
jury instructions and compared them to the elements of murder
under a valid theory. Following that examination, we concluded
that “the relevant language evokes similar concepts” but “it does
not cover all of the elements of direct aiding and abetting.”
(Ibid.)
Unlike Lopez, this matter is not governed by principles of
harmless error. But, similar to Lopez, we may look to the jury’s
verdicts, and the factual findings they necessarily reflect, to
determine whether the record of conviction refutes the factual
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Opinion of the Court by Guerrero, C. J.
allegations in Curiel’s petition. (See Lewis, supra, 11 Cal.5th at
p. 971.) If the jury has made a factual finding, and it is issue
preclusive under the principles described above, a court must
give effect to that finding. (See ibid.) A court giving effect to
such a finding does not engage in “ ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ” (Id. at
p. 972.) It is simply “distinguish[ing] petitions with potential
merit from those that are clearly meritless” based on findings
already made by the jury. (Id. at p. 971; see Strong, supra,
13 Cal.5th at p. 710.)
Although the framework evoked by the Attorney General
is valid, we cannot agree with his ultimate conclusion. For
reasons we explain, the jury’s verdicts do not reflect all of the
factual findings necessary to support a murder conviction under
current law. Thus, they do not refute Curiel’s allegation that he
could not be convicted of murder under sections 188 and 189 as
amended, and they do not establish conclusively that Curiel is
ineligible for relief.6
6
In the harmless error context, “ ‘the reviewing court is not
limited to a review of the verdict itself.’ ” (Lopez, supra,
14 Cal.5th at p. 588.) The court “may look to ‘the entire cause,
including the evidence.’ ” (Id. at p. 592.) “[T]his further
harmlessness inquiry requires a reviewing court to ‘examine[]
what the jury necessarily did find and ask[] whether it would be
impossible, on the evidence, for the jury to find that without also
finding the missing fact as well.’ [Citation.] In other words, a
reviewing court must be persuaded that, in light of the jury’s
findings and the evidence at trial, any rational juror who made
those findings would have made the additional findings
necessary for a valid theory of liability, beyond a reasonable
doubt, if the jury had been properly instructed. [Citation.] If
the reviewing court determines beyond a reasonable doubt that
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As noted, “under the natural and probable consequences
doctrine, an accomplice is guilty not only of the offense he or she
directly aided or abetted (i.e., the target offense), but also of any
other offense committed by the direct perpetrator that was the
‘natural and probable consequence’ of the crime the accomplice
aided and abetted (i.e., the nontarget offense).” (Gentile, supra,
10 Cal.5th at p. 843.) The jury here was instructed on two
underlying “target” offenses, disturbing the peace and carrying
a concealed firearm by a gang member. To convict Curiel of
murder under the natural and probable consequences doctrine,
the jury was required to find that Curiel knew that the
perpetrator (here, Hernandez) intended to commit the
underlying crime; that Curiel intended to aid and abet the
perpetrator in committing the crime; and that Curiel, by words
or conduct, did, in fact, aid and abet the perpetrator’s
commission of the crime. In other words, Curiel must have
known of the perpetrator’s unlawful purpose and specifically
intended to and did, in fact, “aid, facilitate, promote, encourage
or instigate the perpetrator’s commission of that crime.”
Additionally, the jury was required to find that Hernandez
committed murder during the commission of the crime of
disturbing the peace or the crime of carrying a concealed firearm
by a gang member, and that “under all the circumstances a
any rational juror would have made the additional findings,
based on the jury’s actual verdict and the evidence at trial, the
error is harmless because the presentation of the invalid theory
to the jury made no difference. The error did not contribute to
the verdict.” (Id. at p. 589.) Because neither party attempts to
apply these principles here, we have no occasion in this matter
to examine how, or even whether, these principles might apply
in the context of a section 1172.6 resentencing petition.
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Opinion of the Court by Guerrero, C. J.
reasonable person in [Curiel’s] position would have known that
the commission of murder was a natural and probable
consequence of the commission of the crime of disturbing the
peace or of the crime of carrying a concealed firearm by a gang
member.” The jury was told, “A natural and probable
consequence is one that a reasonable person would know is
likely to happen if nothing unusual intervenes.”
The scope of criminal liability is defined by statute: “All
persons concerned in the commission of a crime, whether it be
felony or misdemeanor, and whether they directly commit the
act constituting the offense, or aid and abet in its commission,
or, not being present, have advised and encouraged its
commission, . . . are principals in any crime so committed.”
(§ 31.)
In general, to establish liability for murder under the
theory of direct aiding and abetting, “the prosecution must show
that the defendant aided or encouraged the commission of the
murder with knowledge of the unlawful purpose of the
perpetrator and with the intent or purpose of committing,
encouraging, or facilitating its commission.” (Chiu, supra,
59 Cal.4th at p. 167.) In addition, as noted, an aider and abettor
may be liable for murder under a theory of implied malice where
the aider and abettor aids in the commission of a life-
endangering act, with “ ‘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.’ ”
(Reyes, supra, 14 Cal.5th at p. 991, italics omitted.) “Thus, proof
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
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Opinion of the Court by Guerrero, C. J.
mens rea” — which here includes knowledge that the direct
perpetrator intends to commit the crime or life-endangering act,
“and (c) the aider and abettor’s actus reus — conduct by the
aider and abettor that in fact assists the achievement of the
crime.” (Perez, supra, 35 Cal.4th at p. 1225.)
The jury found Curiel guilty of first degree murder and
found true the gang-murder special circumstance, but it was not
required to identify which theory it found persuasive. Assuming
the jury relied on the then-available natural and probable
consequences doctrine to convict Curiel of murder, the Court of
Appeal below found the jury’s factual findings insufficient under
current law based on the absence of the last element of direct
aiding and abetting, the aider and abettor’s actus reus. The
Attorney General responds that the jury must have found the
requisite actus reus by Curiel based on his aiding one of the
underlying target crimes (either disturbing the peace or
carrying a concealed firearm by a gang member), of which
murder was both an actual and a natural and probable
consequence. In the Attorney General’s view, based on the close
causal relationship between the underlying crime and the
murder, any act that aided or encouraged the underlying target
crime must also as a factual matter have aided or encouraged
the murder as well. He contends, “The actus reus under each
theory entails, at a minimum, encouragement of, or
participation in, some activity that foreseeably results in a
homicide . . . .” For example, an aider and abettor who
purchases a gun for a direct perpetrator could, by that act, be
found to aid both the underlying offense of carrying a concealed
firearm by a gang member and the offense of murder that
results.
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Opinion of the Court by Guerrero, C. J.
However, in order to find this element satisfied at the
prima facie stage of section 1172.6 proceedings, we must be
confident the jury necessarily found the actus reus required for
direct aiding and abetting murder. That is, regardless of the
facts, the jury must have made the required finding based on
the instructions provided by the trial court. Although in many
factual scenarios the Attorney General may be correct that the
same act would satisfy the actus reus of aiding and abetting the
underlying target crime and aiding and abetting the murder
that results, we are unsure that the same act must necessarily
satisfy each as a matter of law. Nonetheless, we need not decide
whether the jury necessarily found the requisite actus reus
because we conclude the jury did not necessarily find the
requisite mens rea for direct aiding and abetting liability.
We have generally described the requisite mens rea for
direct aiding and abetting as “knowledge of the direct
perpetrator’s unlawful intent and an intent to assist in
achieving those unlawful ends.” (Perez, supra, 35 Cal.4th at
p. 1225.) In other words, the aider and abettor must have
“knowledge of the unlawful purpose of the perpetrator” and “the
intent or purpose of committing, encouraging, or facilitating” the
commission of the offense. (Chiu, supra, 59 Cal.4th at p. 167.)
Alternatively, in the context of implied malice murder, the aider
and abettor must know the perpetrator intends to commit a life-
endangering act, intend to aid the perpetrator in the commission
of that act, know the act is dangerous to human life, and act in
conscious disregard for human life. (Reyes, supra, 14 Cal.5th at
p. 991.)
Under the court’s instructions, the jury was not required
to make these findings. Because the jury was instructed on the
natural and probable consequences doctrine, the jury was
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Opinion of the Court by Guerrero, C. J.
required to find only that Curiel knew that Hernandez intended
to commit one of the underlying target offenses and that Curiel
intended to aid him in that offense, not murder. Nor was the
jury required to find that the underlying target offenses,
themselves, were dangerous to human life. While the jury
separately found Curiel intended to kill, such an intent standing
alone is insufficient to establish the requisite mens rea for
aiding and abetting murder. The essence of aiding and abetting
is involvement in the crime of another. The aider and abettor
must become “concerned” with the crime itself. (§ 31.) “[A]
person ‘chooses to become a part of the criminal activity of
another’ ” and “ ‘says in essence, “your acts are my acts.” ’ ”
(People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy).)
Although intent to kill is certainly blameworthy, it is
insufficient standing alone to render a person culpable for
another’s acts. The aider and abettor must know the direct
perpetrator intends to commit the murder or life-endangering
act and intend to aid the direct perpetrator in its commission. It
is this mental relationship to the perpetrator’s acts that confers
liability on the aider and abettor. (See Chiu, supra, 59 Cal.4th
at p. 167; Perez, supra, 35 Cal.4th at p. 1225; see also Reyes,
supra, 14 Cal.5th at pp. 991–992.) Indeed, even as it found the
actus reus element lacking, the Court of Appeal below appears
to have noted this shortcoming, explaining that the intent to kill
finding “shed no light on whether Curiel actually encouraged or
assisted the perpetrator in carrying out the murder.” (Italics
added.)
The Attorney General relies heavily on McCoy in this
context, but it does not support a contrary conclusion. McCoy
considered “whether an aider and abettor may be guilty of
greater homicide-related offenses than those the actual
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Opinion of the Court by Guerrero, C. J.
perpetrator committed.” (McCoy, supra, 25 Cal.4th at p. 1114.)
We determined that an aider and abettor could be liable for a
greater offense, based on a more culpable mens rea. “Aider and
abettor liability is premised on the combined acts of all the
principals, but on the aider and abettor’s own mens rea. If the
mens rea of the aider and abettor is more culpable than the
actual perpetrator’s, the aider and abettor may be guilty of a
more serious crime than the actual perpetrator.” (Id. at
p. 1120.)
This recognition, however, did not entail dispensing with
the traditional mens rea required for aiding and abetting
murder. We explained, “[W]hen a person, with the mental state
necessary for an aider and abettor, helps or induces another to
kill, that person’s guilt is determined by the combined acts of all
the participants as well as that person’s own mens rea. If that
person’s mens rea is more culpable than another’s, that person’s
guilt may be greater even if the other might be deemed the
actual perpetrator.” (McCoy, supra, 25 Cal.4th at p. 1122,
italics added.)
McCoy discussed two examples, which figure prominently
in the Attorney General’s argument. First, we explained, “ ‘it is
possible for a primary party negligently to kill another (and,
thus, be guilty of involuntary manslaughter), while the
secondary party is guilty of murder, because he encouraged the
primary actor’s negligent conduct, with the intent that it result
in the victim’s death.’ ” (McCoy, supra, 25 Cal.4th at p. 1119.)
Second, we called to mind a well-known tragedy: “[A]ssume
someone, let us call him Iago, falsely tells another person, whom
we will call Othello, that Othello’s wife, Desdemona, was having
an affair, hoping that Othello would kill her in a fit of jealousy.
Othello does so without Iago’s further involvement. In that case,
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Opinion of the Court by Guerrero, C. J.
depending on the exact circumstances of the killing, Othello
might be guilty of manslaughter, rather than murder, on a heat
of passion theory. Othello’s guilt of manslaughter, however,
should not limit Iago’s guilt if his own culpability were greater.
Iago should be liable for his own acts as well Othello’s, which he
induced and encouraged. But Iago’s criminal liability, as
Othello’s, would be based on his own personal mens rea. If, as
our hypothetical suggests, Iago acted with malice, he would be
guilty of murder even if Othello, who did the actual killing, was
not.” (Id. at pp. 1121–1122.)
Critical to these examples is not only an intent to kill but
knowledge and intent regarding the direct perpetrator’s
homicidal or life-endangering acts. The aider and abettor in the
first example “ ‘encouraged the primary actor’s negligent
conduct.’ ” (McCoy, supra, 25 Cal.4th at p. 1119.) And Iago
“induced and encouraged” Othello’s murderous rage. (Id. at
p. 1122.) Indeed, in applying our holding, we recognized in
McCoy that the jury found the aider and abettor had “acted with
the necessary mental state of an aider and abettor” and “knew
of [the direct perpetrator’s] unlawful purpose and intended to
commit, encourage, or facilitate that purpose.” (Id. at pp. 1122–
1123.) The jury here was not required to make any similar
findings encompassing Curiel’s knowledge and intent regarding
Hernandez’s conduct.
As noted, the jury here must have found, under the
natural and probable consequences doctrine, that Curiel knew
that Hernandez intended to commit one of the underlying target
offenses and also intended to aid him in that offense. The
Attorney General argues this finding is sufficient because the
underlying target offenses “foreseeably resulted in a homicide,”
thus closing the loop on Curiel’s intent. But, as the Attorney
49
PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
General elsewhere recognizes, McCoy requires the aider and
abettor to actually foresee the homicidal or life-endangering
consequences of the perpetrator’s actions in this context.
(McCoy, supra, 25 Cal.4th at p. 1118.) An aider and abettor who
knows and intends to aid the direct perpetrator in certain
conduct, but does not subjectively appreciate that the conduct is
dangerous to human life, is not liable for the murder that results
because the aider and abettor has not sufficiently concerned
himself with that murder. This conclusion holds even if the
aider and abettor separately intends to kill. Intent to kill itself
does not establish a sufficient mens rea regarding a murder or
life-endangering conduct that the aider and abettor has no
intent to aid or encourage — and that the aider and abettor does
not even subjectively know will occur. Indeed, a defendant could
act with intent to kill but at the same time believe the actual
perpetrator could never risk harm to another human being —
and be genuinely surprised when the actual perpetrator
commits a life-endangering act. 7
We have characterized this scenario — where a defendant
is liable for murder under the natural and probable
consequences doctrine, and acts with malice aforethought, but
is not liable as a direct aider and abettor — as “quite narrow”
and relevant only to a “very small set of cases.” (Gentile, supra,
10 Cal.5th at p. 850.) But the question is not whether it is likely
a defendant could have felt and acted in such a way, but whether
the court’s jury instructions foreclose that possibility as a matter
7
We emphasize that our discussion of the requisite mental
state applies to the direct aiding and abetting theory of murder.
The mental state required for felony murder is materially
different, and we do not consider it here. (Cf. Strong, supra,
13 Cal.5th at pp. 704–705.)
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PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
of law. Only in the latter scenario would a trial court be
permitted to deny a defendant’s section 1172.6 petition at the
prima facie stage. (Lewis, supra, 11 Cal.5th at p. 971.) In other
words, only in that scenario would the record of conviction
“establish conclusively that the defendant is ineligible for relief.”
(Strong, supra, 13 Cal.5th at p. 708.)
Contrary to the Attorney General’s contention, this
conclusion does not involve “litigat[ing] anew” any trial issues
or allowing “a petitioner to challenge any aspect of the
factfinding from the original trial that he or she wishes to
revisit.” We have already determined that the jury’s factual
findings should be given preclusive effect. The point here is to
identify what those factual findings are and how they relate to
the elements of murder under a valid theory.
Finally, we note that our holding today does not
necessarily apply to other cases where the jury found intent to
kill, or even other cases where the jury found true the gang-
murder special circumstance. The jury instructions in other
cases might be materially different, and they might therefore
have required different factual findings by the jury. We hold
only that under the jury instructions here, the findings the jury
must have made are insufficient to conclusively establish that
Curiel is liable for murder under current law. The jury could
have relied on the natural and probable consequences doctrine
to convict Curiel of murder, and the findings required under that
theory — even when combined with the finding of intent to kill
required by the gang-murder special circumstance — do not
encompass all of the elements of any theory of murder under
current law. These findings were therefore insufficient to rebut
Curiel’s allegation that he could not be convicted of murder
under current law, and the trial court erred by denying Curiel’s
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PEOPLE v. CURIEL
Opinion of the Court by Guerrero, C. J.
petition for resentencing at the prima facie stage. Although we
do not consider the precise reasoning of the Court of Appeal, it
was nonetheless correct to reverse the trial court’s order.
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
52
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Curiel
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 11/4/21 – 4th
Dist., Div. 3
Rehearing Granted
__________________________________________________________
Opinion No. S272238
Date Filed: November 27, 2023
__________________________________________________________
Court: Superior
County: Orange
Judge: Julian W. Bailey
__________________________________________________________
Counsel:
Nancy J. King, under appointment by the Court of Appeal, and
Michelle May Peterson, under appointment by the Supreme Court, for
Defendant and Appellant.
Mary K. McComb, State Public Defender, AJ Kutchins and Craig
Buckser, Deputy State Public Defenders, for the Office of the State
Public Defender as Amicus Curiae on behalf of Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland and Charles C.
Ragland, Assistant Attorneys General, Michael Pulos, Seth M.
Freidman, A. Natasha Cortina, Alan L. Amann and Lynne G.
McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Michelle May Peterson
Attorney at Law
P.O. Box 387
Salem, MA 01970
(978) 594-1925
Lynne G. McGinnis
Deputy Attorney General
600 West Broadway
San Diego, CA 92101
(619) 738-9217