People v. Vizcarra ( 2022 )

Filed 10/19/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078869
Plaintiff and Respondent,
v. (Super. Ct. No. SCD160193)
GERARDO JIMENEZ VIZCARRA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Joan P. Weber, Judge. Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
A. Natasha Cortina, Lynne G. McGinnis, and Alan L. Amann, Deputy
Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In 2001, Gerardo Vizcarra was convicted of the second degree murder of
Richard Holcomb (Pen. Code, § 187, subd. (a)).1 Vizcarra and three
confederates beat, kicked, and stabbed Holcomb to death after he bumped a
mutual companion’s young child into a wall while playing with him.
In 2019, Vizcarra filed a petition to vacate his murder conviction and to
be resentenced under section 1172.6 based on changes to our state’s murder
laws effectuated by Senate Bill No. 1437 (2017–2018 Reg. Sess.) (hereafter,
Senate Bill 1437) and Senate Bill No. 775 (2020–2021 Reg. Sess.) (hereafter,
Senate Bill 775).2 The trial court denied the petition for resentencing,
finding Vizcarra was not entitled to relief because he remained liable for
Holcomb’s murder under a still-valid theory of liability—to wit, he directly
aided and abetted an implied malice murder.
Vizcarra appeals the order denying his petition for resentencing. He
argues direct aiding and abetting of implied malice murder is not a legally-
valid theory of murder liability. Further, he argues he is entitled to
resentencing under Senate Bill No. 1393 (2017–2018 Reg. Sess.) (hereafter,
Senate Bill 1393), which grants courts discretion to strike or dismiss prior
serious felony enhancements in furtherance of justice.
We reject these arguments and affirm the order denying Vizcarra’s
petition for resentencing.
1 Further undesignated statutory references are to the Penal Code.
2 At the time Vizcarra filed his petition for resentencing, section 1170.95
governed the resentencing of murder convictions. Effective June 30, 2022,
section 1170.95 was renumbered section 1172.6, with no change in text
(Stats. 2022, ch. 58, § 10). For the sake of clarity, we will refer to the
resentencing statute in its current renumbered form.
2
II
BACKGROUND
A. Factual Background
The following background comes from this court’s opinion in People v.
Vizcarra (Oct. 26, 2004, D041824) [nonpub. opn.] (hereafter, Vizcarra I).
“On the afternoon of May 6, 2001, Vizcarra, the victim
Richard Holcomb, and John Hedderson were in the living room of
Hedderson’s house. (Vizcarra rented space in Hedderson’s
garage.) Holcomb and Hedderson had been drinking and using
methamphetamine.
“At some point, Holcomb picked up Hedderson’s five-year-
old son and bumped him into a wall while walking or swinging
him around. As soon as the boy hit the wall, Holcomb put him
down. Vizcarra became angry and told Holcomb, ‘You shouldn’t
have done that to a small child.’ Vizcarra told Holcomb he was
going to call some friends to ‘take care of’ Holcomb. Vizcarra
described Holcomb as drunk, argumentative and getting ‘in his
face.’
“Vizcarra left the living room and made a phone call.
Shortly thereafter three men arrived in a blue Mustang. One
man said, ‘Oh, that’s my brother-in-law’ as he walked through
the front door. Vizcarra then grabbed Holcomb around the neck
and dragged him into Hedderson’s bedroom. The three men also
went into the bedroom.
“Hedderson picked up his youngest son, carried him outside
and then returned to the house. In the bedroom, he saw
Holcomb, who appeared to have been beaten, partially rolled up
inside the bedroom’s rug. Holcomb was moaning. Vizcarra and
three men had kicked, ‘stomped,’ and stabbed Holcomb. Vizcarra
told Hedderson, ‘Don't trip,’ meaning Hedderson should not
panic. One of the men said, ‘Don’t let the kids walk past this part
of the house.’ Hedderson responded, ‘Don’t worry. We’re out of
here.’ He left with his sons.
3
“After Hedderson left, Vizcarra helped wrap Holcomb’s
body in a sheet from the bed, plastic garbage bags and the rug.
He then helped move the body into the garage.
“About 4:00 p.m., Hedderson’s sister arrived at the house
because she was planning to take Hedderson’s sons to a birthday
party. The blue Mustang was still in the driveway. She knocked
on the door and the window but received no response. Three men
came from the back of the house, walked past her, got in the
Mustang and drove away. She did not know any of the men nor
was she able to later identify them. She walked to the back door
and called out her brother’s name. Vizcarra ‘came from behind a
wall and jumped out,’ and told her Hedderson was not at home
but would be back shortly. Vizcarra also told her he was getting
ready to take a shower. Vizcarra was wearing a leather jacket
but no shirt.
“After she left, Vizcarra asked to borrow a pair of pants
from a homeless man living on a vacant lot next to Hedderson’s
house. The homeless man described Vizcarra as being ‘hyped up’
about something and having a knife in his hand. The homeless
man gave Vizcarra a pair of pants. Vizcarra gave the homeless
man his own pair of pants, telling him, ‘bury them and bury them
deep.’ The homeless man did not remember seeing any blood on
the pants but did notice they were damp.
“Vizcarra left the house to meet with some other people.
They decided to burn Hedderson’s house to cover up the murder.
Vizcarra, ‘Toker’ (Saul Barrios), Twila Carroll and perhaps
another person went to Hedderson’s house. Vizcarra poured
gasoline on the living room floor. About 5:00 a.m. on May 7, the
house exploded. Vizcarra was burned in the fire.
“When the police responded to the fire, Hedderson’s house
was completely engulfed in flames. They found Holcomb’s body
in the garage. There were two plastic garbage bags over his
head, and the body was wrapped in a sheet and rug from the
bedroom.
“The autopsy revealed Holcomb had suffered a number of
cutting wounds, including a fatal wound on his neck. He also had
4
a number of injuries that were consistent with being kicked or
stomped, including a fatal head injury. Seven of Holcomb’s ribs
had been fractured in a ‘roughly linear pattern, indicating some
broad-surface type impact’ such as a two-by-four or flat portion of
a chair or table. The injuries were inflicted while Holcomb was
still alive. At the time of his death, Holcomb had a blood alcohol
level of .22 and had methamphetamine in his system.
“The forensic pathologist could not determine the order in
which the injuries were inflicted. The neck wound probably
would have resulted in Holcomb losing consciousness within 30 to
40 seconds due to a lack of blood to the brain but Holcomb might
have continued to gasp for air and moan. Within five or ten
minutes, depending upon the amount of Holcomb’s physical
exertion, he would have lost so much blood his heart would have
started to beat irregularly.
“An arson expert testified the fire was deliberately set and
gasoline was used as an accelerant. In the living room, there
were two gasoline containers, a lighter and a gasoline soaked rag.
One of the containers had a paint roller stuffed inside the
opening, probably to be used as a wick so that when the roller
was lit, the fire would go into the container and ignite the vapors.
There was a lighter near this gasoline container. The explosion
probably occurred because gasoline vapors had accumulated in
the living room (due to gasoline poured along a wall and a couch)
at the time the fire was ignited.
“The police interviewed Vizcarra on May 17 at the
University of California, San Diego Burn Center (burn center).
At the outset of the interview, Vizcarra denied knowing anything
about the murder. He also denied knowing how the fire started,
claiming he had been moving boxes for some people or had been
sleeping just before the explosion. Later in the interview,
Vizcarra admitted he knew ‘[m]ore or less’ what happened to
Holcomb, but claimed he had only helped move the body.
Eventually, Vizcarra admitted he had stomped or kicked
Holcomb a couple of times, and helped wrap the body and move it
to the garage. Vizcarra, however, claimed the three other men
took Holcomb into the bedroom, started the beating, and stabbed
5
Holcomb. Vizcarra claimed he kicked or stomped Holcomb
because he was afraid.
“Vizcarra also eventually admitted participating in the
arson, including being present when the decision was made to
burn Hedderson’s house and pouring gasoline on the living room
floor. Vizcarra claimed he did not try to light the gasoline and
that the plan was to light the fire by shooting flares at the house.
He believed someone had wanted him to die in the fire.
“On November 19, 2002, Hedderson, while in custody and
in a holding cell waiting to testify in Vizcarra’s case, became
aware Vizcarra was in another holding cell. Vizcarra told
Hedderson not to testify and said, ‘If you do testify, don’t say that
I was there. Don’t say you know me. Don’t say I had anything to
do with it.’ Vizcarra also made a comment that Hedderson
understood to mean that if Hedderson testified against Vizcarra,
Hedderson would be killed in prison. Later that day, Hedderson
had another conversation with Vizcarra in which Vizcarra again
told Hedderson to testify Vizcarra was not involved in the murder
or arson. Hedderson agreed because he was afraid.
Subsequently, Hedderson called his sister and asked her to
contact the district attorney’s office about the threat.”
(Vizcarra I, supra, D041824, footnotes omitted.)
The district attorney charged Vizcarra with Holcomb’s murder and
arson of an inhabited structure (§ 451, subd. (d)). It advanced alternative
theories of murder liability, arguing: (1) he was liable for murder as a direct
aider and abettor; and (2) he was liable for murder under the natural and
probable consequences doctrine because he aided and abetted the commission
of a target crime (assault by a deadly weapon or by means of force likely to
produce great bodily injury) and murder was the natural and probable
6
consequence of the target crime.3 Vizcarra was not prosecuted for murder
under a felony-murder theory of liability.
After a trial, a jury acquitted Vizcarra of first degree murder, but found
him guilty of second degree murder and arson of an inhabited structure. The
trial court found true allegations that he had one prison prior (§§ 667.5,
subd. (b), 668), two serious felony priors (§§ 667, subd. (a)(1), 668, 1192.7,
subd. (c)), and two prior strikes within the meaning of the Three Strikes Law
(§§ 667, subds. (b)–(i), 668, 1170.12), and sentenced him to an aggregate term
of 60 years to life in state prison.
On direct appeal, our court affirmed the judgment of conviction.
(Vizcarra I, supra, D041824.) The Supreme Court denied review.
B. Resentencing Proceedings
In 2019, Vizcarra filed a petition to vacate his murder conviction and to
be resentenced. He averred he was entitled to resentencing because a
charging document was filed against him permitting the prosecution to
proceed under a theory of felony murder or the natural and probable
consequences doctrine; at trial, he was convicted of murder under a theory of
felony murder or the natural and probable consequences doctrine; and he
3 “[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).” (People v. Gentile
(2020) 10 Cal.5th 830, 843 (Gentile).) “Unlike direct aiding and abetting
liability, culpability under the natural and probable consequences theory
does not require an accomplice to share the direct perpetrator’s intent.
Instead, ‘[a]ider and abettor culpability under the natural and probable
consequences doctrine is vicarious in nature’ and ‘ “is not premised upon the
intention of the aider and abettor to commit the nontarget offense because
the nontarget offense” ’ may not be intended at all.” (Id. at p. 844.)
7
could not now be convicted of murder based on recent legislative changes to
sections 188 and 189 (i.e., our state’s murder laws).
The trial court appointed counsel for Vizcarra, issued an order to show
cause, and set the matter for an evidentiary hearing.
The district attorney filed a return in which she argued the trial court
should deny Vizcarra’s petition for resentencing because he directly aided
and abetted implied malice murder—a still-valid theory of murder liability.
At the evidentiary hearing, the court accepted the district attorney’s
argument, found Vizcarra was guilty of directly aiding and abetting implied
malice murder, and denied the petition for resentencing.
III
DISCUSSION
A. Senate Bill 1437 and Senate Bill 775
“In 2017, the Legislature adopted a concurrent resolution declaring a
need to reform the state’s homicide law ‘to more equitably sentence offenders
in accordance with their involvement in the crime.’ [Citation.] The next
year, the Legislature followed through with Senate Bill 1437, which made
significant changes to the scope of murder liability for those who were neither
the actual killers nor intended to kill anyone.” (People v. Strong (2022) 13
Cal.5th 698, 707 (Strong).)
“To further that purpose, Senate Bill 1437 added three separate
provisions to the Penal Code. First, to amend the felony murder rule, Senate
Bill 1437 added section 189, subdivision (e): ‘A participant in the
perpetration or attempted perpetration of [qualifying felonies] 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,
8
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.’ ” (Gentile, supra, 10 Cal.5th at
p. 842.)
“Second, to amend the natural and probable consequences doctrine,
Senate Bill 1437 added section 188, subdivision (a)(3) … : ‘Except [for felony
murder liability] as stated in subdivision (e) of Section 189, in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or
her participation in a crime.’ ” (Gentile, supra, 10 Cal.5th at pp. 842–843.)
New section 188, subdivision (a)(3) precludes a conviction for “second degree
murder under a theory that the defendant aided and abetted a crime, the
natural and probable consequence of which was murder.”4 (Id. at p. 843.)
Third, Senate Bill 1437 added a statutory provision that would later
become section 1172.6, which established “a procedure for those convicted of
felony murder or murder under the natural and probable consequences
doctrine to seek relief under the two ameliorative provisions above.” (Gentile,
supra, 10 Cal.5th at p. 843.) “Under newly enacted section 1172.6, the
process begins with the filing of a petition containing a declaration that all
requirements for eligibility are met [citation], including that ‘[t]he petitioner
could not presently be convicted of murder … because of changes to …
Section 188 or 189 made effective January 1, 2019,’ the effective date of
Senate Bill 1437 [citation].” (Strong, supra, 13 Cal.5th at p. 708.) “When the
4 Supreme Court precedent predating the enactment of Senate Bill 1437
already precluded a defendant from being found guilty of first degree
premeditated murder under the natural and probable consequences doctrine.
(People v. Chiu (2014) 59 Cal.4th 155, 158–159.)
9
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.’ ” (Ibid.) If the
defendant makes “a prima facie showing of entitlement to relief, ‘the court
shall issue an order to show cause.’ ” (Ibid.) In general, the court must then
“hold an evidentiary hearing at which the prosecution bears the burden of
proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder
…’ under state law as amended by Senate Bill 1437.” (Id. at p. 709.)
While this appeal was pending, the Governor signed into law Senate
Bill 775, which went into effect January 1, 2022. Prior to Senate Bill 775,
only “persons convicted of murder under a felony murder or natural and
probable consequences theory” could file a petition for resentencing. (Former
§ 1170.95, subd. (a).) Senate Bill 775 ostensibly broadened the pool of eligible
petitioners by allowing a resentencing petition to be filed by any 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.”5 (Former
§ 1170.95, subd. (a), as amended by Sen. Bill 775.)
B. Aiding and Abetting Implied Malice Murder Is a Permissible Theory of
Murder Liability
Vizcarra’s principal argument on appeal is that his petition for
resentencing should be granted because aiding and abetting implied malice
murder is not a valid theory of murder liability. We disagree.
“Murder, whether in the first or second degree, requires malice
aforethought. (§ 187.) Malice can be express or implied. It is express when
there is a manifest intent to kill (§ 188, subd. (a)(1)); it is implied if someone
5 Senate Bill 775 amended the resentencing process in several other
ways not pertinent to this appeal.
10
kills with ‘no considerable provocation ... or when the circumstances
attending the killing show an abandoned and malignant heart’ (§ 188,
subd. (a)(2)).” (Gentile, supra, 10 Cal.5th at p. 844.)
“ ‘The statutory definition of implied malice, a killing by one with an
“abandoned and malignant heart” (§ 188), is far from clear in its meaning.’ ”
(People v. Superior Court of San Diego County (2021) 73 Cal.App.5th 485, 500
(Valenzuela).) “ ‘Two lines of decisions developed, reflecting judicial attempts
to “translate this amorphous anatomical characterization of implied malice
into a tangible standard a jury can apply.” ’ ” (Ibid.) One line of cases
“state[s] that malice is implied when ‘the defendant for a base, antisocial
motive and with wanton disregard for human life, does an act that involves a
high ... probability that it will result in death.’ ” (Ibid.) Another decisional
line “states malice is implied when the killing is proximately caused by ‘ “an
act, the natural consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct endangers
the life of another and who acts with conscious disregard for life.” ’ ” (Ibid.)
“Under both tests, ‘the ultimate inquiry involves a determination of
probability: Although an act that will certainly lead to death is not required,
the probability of death from the act must be more than remote or merely
possible.’ ” (Ibid.; accord People v. Nieto Benitez (1992) 4 Cal.4th 91, 104 [“the
two definitions of implied malice … articulated one and the same standard”].)
The district attorney prosecuted Vizcarra as an aider and abettor of
Holcomb’s murder. “All persons concerned in the commission of a crime …
whether they directly commit the act constituting the offense, or aid and abet
in its commission … are principals in any crime so committed.” (§ 31; see
Valenzuela, supra, 73 Cal.App.5th at p. 500 [“ ‘A person who aids and abets
the commission of a crime is culpable as a principal in that crime.’ ”].) “When
11
a person directly perpetrates a killing, it is the perpetrator who must possess
… malice. [Citations.] Similarly, when a person directly aids and abets a
murder, the aider and abettor must possess malice aforethought.” (Gentile,
supra, 10 Cal.5th at pp. 844–845.) Therefore, “[g]uilt as an aider and abettor
is guilt ‘based on a combination of the direct perpetrator’s acts and the aider
and abettor’s own acts and own mental state.’ ” People v. Powell (2021) 63
Cal.App.5th 689, 710 (Powell); see People v. Vaughn (2022) 77 Cal.App.5th
609, 625 [“ ‘[T]he aider/abettor’s guilt is based on the combined acts of all the
principals and on the aider/abettor’s own knowledge and intent.’ ”].)
As noted, Vizcarra claims that the order denying his petition for
resentencing must be reversed because aiding and abetting implied malice
murder is not a legally-valid form of murder liability. He asserts: (1) an
accomplice can be found guilty of aiding and abetting murder only if he or she
specifically intends to kill the victim, yet (2) one who specifically intends to
kill necessarily harbors express malice—not implied malice, which focuses on
the “unintended result” of the perpetrator’s conduct.
In Powell, supra, 63 Cal.App.5th 689, our colleagues from the Third
District Court of Appeal rejected the argument Vizcarra raises here. As the
Powell court explained, there “is no authority for the proposition that an
aider and abettor of second degree implied malice murder must intend to
kill.” (Id. at p. 711.) Rather, “to be liable for an implied malice murder, the
direct aider and abettor must, by words or conduct, aid the commission of the
life endangering act, not the result of that act. The mens rea, which must be
personally harbored by the direct aider and abettor, is knowledge that the
perpetrator intended to commit the act, intent to aid the perpetrator in the
commission of the act, knowledge that the act is dangerous to human life, and
acting in conscious disregard for human life.” (Id. at p. 713.)
12
The Powell court drew support for this proposition from Gentile, supra,
10 Cal.5th at page 850. (Powell, supra, 63 Cal.App.5th at p. 713.) In Gentile,
the Supreme Court determined that Senate Bill 1437 eliminated second
degree murder convictions under the natural and probable consequences
doctrine. (Gentile, at p. 848.) In reaching this conclusion, the Supreme Court
reasoned that “[t]he natural and probable consequences doctrine [was]
incompatible with [Senate Bill 1437] because an aider and abettor need not
personally possess malice, express or implied, to be convicted of second
degree murder under a natural and probable consequences theory.” (Gentile,
at p. 847, italics added.) According to the Powell court, “[t]his language
clearly suggests an aider and abettor can be liable for implied malice murder
as a theory independent of the natural and probable consequences doctrine.”
(Powell, at p. 713.)
Elsewhere in Gentile, the Supreme Court rejected an amicus curiae
argument that natural and probable consequences murder should continue to
be recognized as a valid form of murder liability, notwithstanding Senate Bill
1437; otherwise, certain criminal defendants who engage in dangerous
conduct resulting in death might, in some factual circumstances, get “ ‘away
with murder.’ ” (Gentile, supra, 10 Cal.5th at p. 850.) The Supreme Court
tamped down these concerns, noting that prosecutors can still pursue murder
convictions under a direct aiding and abetting theory, even without the
natural and probable consequences doctrine. (Ibid.) It observed that,
“notwithstanding Senate Bill 1437’s elimination of natural and probable
consequences liability for second degree murder, an aider and abettor who
does not expressly intend to aid a killing can still be convicted of second
degree murder if the person knows that his or her conduct endangers the life
of another and acts with conscious disregard for life.” (Ibid.) Based in part
13
on these observations, the Powell court rejected the exact argument Vizcarra
raises here—“that direct aiding and abetting implied malice murder is an
invalid legal theory.” (Powell, supra, 63 Cal.App.5th at p. 714.)
Vizcarra argues Powell is incorrect because it “simply repackage[s]
natural and probable consequence murder,” which is no longer a valid theory
of liability. But we rejected this argument in Valenzuela, a case in which we
“agree[d] with Powell’s analysis.” (Valenzuela, supra, 73 Cal.App.5th at
p. 499.) As we stated in Valenzuela, “Powell carefully explains that direct
aiding and abetting of an implied malice murder is based on ‘the aider and
abettor’s own mens rea.’ … [T]he requisite intent ‘must be personally
harbored by the direct aider and abettor’ and consists of ‘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.’ ” (Id. at p. 499.) Thus, we
determined that “Powell is entirely consistent with Gentile in basing murder
liability on the aider and abettor’s own state of mind—conscious disregard for
life.” (Ibid.; see also People v. Glukhoy (2022) 77 Cal.App.5th 576, 590
(Glukhoy) [rejecting claim that aiding and abetting implied malice murder is
merely a repackaged version of natural and probable consequences murder].)
We reach the same conclusion here.
Vizcarra asks us to reject Valenzuela because it “fails to address”
Senate Bill 775—namely, the new law’s expansion of the pool of eligible
resentencing petitioners to include any person convicted of murder pursuant
to any “theory under which malice is imputed to [the] person based solely on
that person’s participation in a crime.” (Former § 1170.95, subd. (a), as
amended by Sen. Bill 775.) Senate Bill 775 does not undermine Valenzuela,
nor does it affect our conclusion that direct aiding and abetting implied
14
malice murder remains a valid form of murder liability, because a person
convicted of aiding and abetting implied malice murder is not a person
convicted of murder pursuant to a theory under which malice is imputed
based solely on the person’s participation in a crime.
“[F]or second degree murder based on implied malice, there is no
imputation of malice because, as we have explained, the direct aider and
abettor must have the same mental state as the actual perpetrator of the
charged crime: the direct aider and abettor must act with knowledge that the
act is dangerous to human life and with conscious disregard for human life.
Given the mens rea requirements for aiding and abetting implied malice, not
only is malice not ‘imputed’ on this direct aiding and abetting theory, but
liability is not grounded ‘solely’ upon participation in the crime …. Liability
for murder is grounded upon the requirement that the aider and abettor
personally harbor malice.” (Glukhoy, supra, 77 Cal.App.5th at pp. 590–591;
see also id. at p. 591 [“nothing in Senate Bill 775 or its legislative history
indicates a rejection of our high court’s observation concerning the
availability of direct aiding and abetting implied malice murder as a theory of
accomplice liability, nor is there any legislative history indicating
disagreement with … Powell”].)
In short, we join the chorus of appellate authorities—from the Supreme
Court, our own court, and other Courts of Appeal—which have uniformly
upheld aiding and abetting implied malice murder as a viable form of murder
liability, notwithstanding the legislative changes effectuated by Senate Bill
1437 and Senate Bill 775. (Gentile, supra, 10 Cal.5th at p. 850; Glukhoy,
supra, 77 Cal.App.5th at pp. 589–591; Valenzuela, supra, 73 Cal.App.5th at
p. 499; Powell, supra, 63 Cal.App.5th at pp. 706–714; see also People v. Langi
(2022) 73 Cal.App.5th 972, 983 [citing approvingly to the mens rea standard
15
articulated in Powell]; People v. Cortes (2022) 75 Cal.App.5th 198, 205 [“the
evidence presented and arguments made might support that [the defendant]
aided and abetted a shooting and acted with implied malice—a theory of
murder that is still valid”].)
In addition to arguing that aiding and abetting implied malice murder
is not a valid theory of murder liability, Vizcarra claims that there was
insufficient evidence to establish that he knew the direct perpetrator “was
going to cut Holcomb’s throat or kill him, and acted to assist the actual killer
with that act.” However, as just discussed, the prosecution was under no
obligation to make such an evidentiary showing. Rather, to establish
Vizcarra’s guilt, it needed to prove that Vizcarra, by words or conduct, aided
the commission of a life endangering act, knew the perpetrator intended to
commit the act, intended to aid the perpetrator in the commission of the act,
knew the act was dangerous to human life, and acted in conscious disregard
for human life. (See Powell, supra, 63 Cal.App.5th at p. 713.)
Substantial evidence established these essential elements. (See People
v. Clements (2022) 75 Cal.App.5th 276, 298, 301 [an appellate court reviews
factual findings in a resentencing proceeding for substantial evidence, even if
the trial court did not oversee the murder trial and issued its findings based
on a “cold record”].) Indeed, the court had before it ample evidence that
Vizcarra angrily stated he would “take care of” the victim; sought assistance
from his brother-in-law, who appeared on the scene with confederates in tow;
grabbed the victim by the neck and placed him in a chokehold; dragged him
into a bedroom with his confederates; stomped on him as he lay dying on the
floor; wrapped him in a rug as he clung to life; placed a bag over his head;
and poured gasoline all over the home where the victim’s body was found.
16
This evidence was sufficient to prove that Vizcarra aided the
commission of a life-threatening act, knew of the perpetrator’s intent,
intended to aid the perpetrator, knew his conduct endangered Holcomb’s life,
and acted with conscious disregard for human life. Thus, the court properly
found that Vizcarra aided and abetted implied malice murder—a finding that
precluded Vizcarra from prevailing on his petition for resentencing.
C. Senate Bill 1393 Does Not Apply Because the Judgment is Final
When Vizcarra was originally sentenced, the sentencing laws in effect
at the time required courts to enhance sentences imposed for serious felony
convictions by five years for each qualifying prior serious felony conviction.
(Former § 667, subd. (a)(1); former § 1385, subd. (b) [prohibiting a court from
striking a prior serious felony enhancement under section 667].) Consistent
with these laws, the sentencing court enhanced Vizcarra’s sentence by ten
years to account for his two serious felony priors.
“On September 30, 2018, the Governor signed Senate Bill [] 1393
(effective January 1, 2019), amending sections 667, subdivision (a) and 1385,
subdivision (b) (Stats. 2018, ch. 1013, §§ 1, 2) to permit a trial court to
exercise discretion to strike or dismiss prior serious felony enhancements ‘in
the furtherance of justice.’ (§ 1385, subd. (b)(1), as amended by Stats. 2018,
ch. 1013, § 2.)” (People v. Morelos (2022) 13 Cal.5th 722, 847.) Senate Bill
1393 applies retroactively to cases with non-final judgments. (People v.
Stamps (2020) 9 Cal.5th 685, 699; People v. Garcia (2018) 28 Cal.App.5th
961, 973.)
Vizcarra’s judgment became final long before the effective date of
Senate Bill 1393. Still, he argues Senate Bill 1393 should apply to him
because his judgment would no longer be final if the trial court were to grant
his petition for resentencing and vacate his murder conviction.
17
As we have discussed, the trial court properly denied Vizcarra’s petition
for resentencing because he directly aided and abetted implied malice
murder—a still-viable theory of murder liability. Thus, Vizcarra’s murder
conviction stands and his judgment remains final. Because Vizcarra’s
judgment is final, he is not entitled to the retroactive application of Senate
Bill 1393. (People v. Alexander (2020) 45 Cal.App.5th 341, 344–347 [Senate
Bill 1393 does not apply retroactively to final judgments of conviction].)
IV
DISPOSITION
The order is affirmed.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
IRION, J.
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