Filed 12/6/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RYAN BERRY-VIERWINDEN,

Defendant and Appellant.

 D081861

 (Super. Ct. No. RIF121073)

APPEAL from an order of the Superior Court of Riverside County,

John D. Molloy, Judge. Affirmed.

Eric R. Larson, 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, Junichi 

P. Semitsu, Alan Amann and Eric A. Swenson, Deputy Attorneys General, for 

Plaintiff and Respondent.

Ryan Berry-Vierwinden appeals from an order denying his petition for 

resentencing on a 2010 first degree murder conviction under Penal Code 
2

section 1172.6.1 Relying on the holding of People v. Maldonado (2023) 87 

Cal.App.5th 1257 (Maldonado), he argues that he is eligible for relief because 

the instructions given at trial permitted the jury to convict him of first 

degree, lying-in-wait murder by imputing malice to him “based solely on [his] 

participation in a crime.” (§ 1172.6, subd. (a).) Under our more recent 

decisions in People v. Burns (2023) 95 Cal.App.5th 862 (Burns) and People v. 

Flores (2023) 96 Cal.App.5th 1164 (Flores), we conclude that the trial court 

correctly denied relief at the prima facie stage because Berry-Vierwinden’s 

claim of instructional error fails to establish that he “could not presently be 

convicted of murder or attempted murder because of changes to Section 188 

or 189 made effective January 1, 2019” by Senate Bill No. 1437 (2017–2018 

Reg. Sess.) (Senate Bill No. 1437). (§ 1172.6, subd. (a)(3), italics added.) 

Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND2

The Killing

In early December 2004, the victim Krishana F. was staying at a 

Comfort Inn hotel with several friends and acquaintances, including Berry1 Penal Code section 1172.6 was originally enacted as Penal Code section 

1170.95, but then renumbered as section 1172.6 on June 30, 2022. (See 

Stats. 2022, ch. 58, § 10 (Assem. Bill No. 200).) We refer to the subject 

statute by its current number throughout this opinion. All further statutory 

references are to the Penal Code.

2 We previously granted appellant’s unopposed request for judicial notice 

of the appellate record from his direct appeal. (People v. Berry-Vierwinden

(Nov. 27, 2012, D059670) [nonpub. opn.]) On our own motion, we also take 

judicial notice of the opinion from the direct appeal. (Evid. Code, §§ 452, 

459.) We take our factual summary of the trial evidence from our prior 

opinion on direct appeal, but we have independently confirmed that it is an 

accurate summary of the record.
3

Vierwinden and Benjamin Medina. Medina was a gang member who was 

known to carry a gun. Krishana asked Medina for permission to use a stolen 

Lincoln Navigator in the group’s possession, but Medina refused. Krishana

decided to use the vehicle anyway. 

Medina was upset with Krishana and felt she had been “disrespectful.” 

He told Berry-Vierwinden that he wanted to “just do her or blast her,” which 

meant to kill her. Medina and Berry-Vierwinden agreed that when Krishana

returned to the hotel, Berry-Vierwinden would go to her room to retrieve the 

Navigator keys. Berry-Vierwinden was friends with Krishana, and they 

believed she would hand over the keys more easily to him. Their plan was for 

Berry-Vierwinden to “chirp” Medina on a two-way radio to come to Krishana’s

hotel room after he retrieved the keys. Berry-Vierwinden later told the police 

that he expected Medina to “tune her up or hit her or something” and he 

“brushed” off Medina’s earlier statement that he wanted to kill Krishana as 

“small talk.” 

Around 3:00 a.m. on December 3, Krishana returned to the hotel in the 

stolen vehicle and went to her room. Berry-Vierwinden went to Krishana’s 

room and retrieved the Navigator keys from a nightstand. Medina then 

received a “chirp” and joined Berry-Vierwinden in Krishana’s room. After 

arguing with Krishana, Medina hit her on the head with a handgun, causing 

her to fall onto the bed. Medina then sat on her stomach and strangled her 

for about three minutes until she was dead. At Medina’s direction,

Berry-Vierwinden placed Krishana’s body into some garbage bags, then they 

disposed of her body in an orange grove. Several days later, Medina and 

Berry-Vierwinden returned to the orange grove and burned Krishana’s body. 

On December 14, a worker found Krishana’s burned body in the orange 

grove.
4

Trial and Conviction

Berry-Vierwinden was charged with murder on the theory that he 

aided and abetted Medina in the killing, and that the murder was first degree 

because it was committed by means of lying in wait. (§§ 187, 189.) He was 

tried separately from Medina. At his trial, the prosecution’s theory was that 

he and Medina formulated and put into action a plan to murder Krishana by 

means of lying in wait. The defense theory was that the only plan was for 

Berry-Vierwinden to retrieve the Navigator keys from Krishana, and that 

Medina on his own decided to kill Krishana. 

 The trial court instructed the jury with CALCRIM Nos. 400 and 401 

on direct aiding and abetting liability, but did not give CALCRIM Nos. 402 or 

403 on the natural and probable consequences theory of aiding and abetting.3 

CALCRIM No. 400 stated:

“A person may be guilty of a crime in two ways. One, he 

may have directly committed the crime. I will call that 

person the perpetrator. Two, he may have aided and 

abetted a perpetrator, who directly committed the crime. A 

person is equally guilty of the crime whether he committed 

it personally or aided and abetted the 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.”

3 California law recognizes two forms of liability for aiders and abettors: 

(1) directly aiding and abetting the perpetrator’s commission of a target 

offense; or (2) the natural and probable consequences doctrine, which imposes 

liability on a defendant for a nontarget offense committed by an accomplice 

as a natural and probable consequence of the target offense the defendant 

directly aided and abetted. (People v. Gentile (2020) 10 Cal.5th 830, 843–844 

(Gentile).) Senate Bill No. 1437 eliminated the latter theory of liability for 

murder, but not the former. (Gentile, at pp. 846–848.) 
5

CALCRIM No. 401 stated in relevant part:

“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 court also gave a modified version of CALCRIM No. 520 on murder 

with malice aforethought. The modifications revised the opening paragraph 

to refer to aiding and abetting liability and substituted generic language 

referring to “a person” or “the person who killed” in place of “the defendant” 

in subsequent paragraphs. As so modified, the instruction stated in relevant 

part:

“The defendant is charged in Count 1 with murder in 

violation of Penal Code section 187. 

“To prove that the defendant is guilty of this crime, the 

People must prove that he aided and abetted:
6

“1. A person who committed an act that caused the death 

of another person;

“AND

“2. When that person acted, he had a state of mind called 

malice aforethought.

“There are two kinds of malice aforethought, express malice 

and implied malice. Proof of either is sufficient to establish 

the state of mind required for murder.

“The person who killed acted with express malice if he 

unlawfully intended to kill.

“The person who killed acted with implied malice if:

“1. He intentionally committed an act;

“2. The natural and probable consequences of the act were 

dangerous to human life.

“3. At the time he acted, he knew his act was dangerous to 

human life;

“AND

“4. He deliberately acted with conscious disregard for 

human life.”

The court further instructed the jury with a modified version of 

CALCRIM No. 521 on first degree murder by lying in wait. The court did not 

instruct on any other theory of first degree murder. The modifications to 

CALCRIM No. 521 similarly revised the instruction to refer to aiding and 

abetting liability and substituted “a person” for “the defendant.” As modified, 

the instruction stated in relevant part:
7

“If you decide that the defendant has committed murder, 

you must decide whether it is murder of the first or second 

degree.

“The defendant is guilty of first degree murder if the People 

proved that the defendant aided and abetted the murder of 

Krishana [F.] while lying in wait or immediately thereafter. 

A murder is committed by lying in wait if:

“1. A person concealed his purpose from the person killed;

“2. A person waited and watched for an opportunity to act;

“AND

“3. Then, from a position of advantage, a person who killed 

intended to and did make a surprise attack on the person 

killed.

“[¶] . . . [¶]

“All other murders are of the second degree.”

The jury convicted Berry-Vierwinden of first degree murder. The court 

sentenced him to 25 years to life in prison. 

Direct Appeal

We affirmed the judgment on direct appeal. (People v.

Berry-Vierwinden, supra, D059670.) We agreed with Berry-Vierwinden that 

the trial court should not have given the “equally guilty” language of 

CALCRIM No. 400 or the last sentence of this instruction stating that 

“[u]nder some specific circumstances,” an aider and abetter of one crime “may 

also be found guilty of other crimes that occurred during the commission of 
8

the first crime.”4 However, we concluded that when considered as a whole, 

the instructions correctly informed the jury that to convict Berry-Vierwinden 

of first degree murder, it had to find he knew about and intended to assist 

Medina’s intent to commit a murder by lying in wait. (Id. at **6–10.) We 

also found that the trial court’s modifications of CALCRIM Nos. 520 and 521 

did not “allow[] the jury to find [Berry-Vierwinden] guilty based on Medina’s 

state of mind and/or conduct rather than his own” because “the jury was 

properly instructed in a manner that told them that defendant was guilty of 

murder committed by Medina only if defendant knew about, wanted to assist, 

and did assist Medina’s murderous conduct.” (Id. at *10.)

Section 1172.6 Petition and Ruling

In December 2022, Berry-Vierwinden filed a pro per petition for 

resentencing under section 1172.6, alleging that he was eligible for relief 

under amendments to the law made by Senate Bill No. 775 (2021-2022 Reg. 

Sess.). Specifically, he asserted that “[a]lthough [he] was not tried under 

felony murder or the natural and probable consequences doctrine, he was 

4 This “equally guilty” language has since been eliminated from 

CALCRIM No. 400. The last bracketed sentence of CALCRIM No. 400 is 

designed to be given only when the court also gives CALCRIM No. 402 or 403 

on the natural and probable consequences doctrine. (See People v. Estrada 

(2022) 77 Cal.App.5th 941, 945–949 [section 1172.6 petitioner ineligible for 

relief as a matter of law even though trial court gave last sentence of 

CALCRIM No. 400 at trial because court did not give CALCRIM No. 402 or 

403 and the instructions taken as a whole did not permit conviction on 

natural and probable consequences theory].)
9

convicted under a theory of aiding and abetting, and malice was imputed 

based solely on his participation in a crime.”5

On February 24, 2023, the trial court relieved the public defender and 

appointed counsel for Berry-Vierwinden. At a hearing held the same day, 

counsel on both sides agreed that the trial judge gave no jury instructions on 

either felony murder or the natural and probable consequences doctrine at 

trial. Based on this agreement, the court denied the petition at the prima 

facie stage. 

DISCUSSION

The sole issue before us is whether the trial court erred by denying the

section 1172.6 petition at the prima facie stage. We independently review an 

order denying section 1172.6 relief at the prima facie stage. (People v. Patton 

(2023) 89 Cal.App.5th 649, 656.) 

A. Governing Law

Effective January 1, 2019, Senate Bill No. 1437 significantly limited 

the scope of California’s felony murder rule and eliminated liability for 

murder under the natural and probable consequences doctrine through two 

key provisions. (Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Strong 

(2022) 13 Cal.5th 698, 707–708 (Strong).) First, Senate Bill No. 1437 

amended section 189 so that “[d]efendants who were neither actual killers 

nor acted with the intent to kill can be held liable for [felony] murder only if 

5 Berry-Vierwinden filed a prior section 1172.6 petition in 2019, before 

the statute was expanded to cover not only felony murder and the natural 

and probable consequences doctrine, but also any “other theory under which 

malice is imputed to a person based solely on that person’s participation in a 

crime.” (§ 1172.6, subd. (a).) After the trial court summarily denied his first 

petition because he was not convicted on either a felony murder or natural 

and probable consequences theory, we affirmed. (People v. Berry-Vierwinden

(July 15, 2020, D077327) [nonpub. opn.].)
10

they were ‘major participant[s] in the underlying felony and acted with 

reckless indifference to human life[.]’ ” (Strong, at p. 708, quoting § 189, 

subd. (e)(3).) Second, it amended section 188 to provide that, when the 

felony-murder rule does not apply, a principal in the crime of murder can 

only be convicted where he or she acted “with malice aforethought,” and 

“[m]alice shall not be imputed to a person based solely on his or her 

participation in a crime.” (§ 188, subd. (a)(3); see Gentile, supra, 10 Cal.5th 

at pp. 842–843.) 

Senate Bill No. 1437 also established a new procedure to allow 

defendants who could not have been convicted under current law to petition 

the sentencing court to vacate their murder conviction and resentence them 

on any remaining counts. (See § 1172.6, subd. (a); Strong, supra, 13 Cal.5th 

at p. 708.) The process begins with the filing of a petition containing a 

declaration that all requirements for eligibility are met. (See § 1172.6,

subd. (b)(1); Strong, at p. 708.) If the defendant’s petition is facially valid, the 

trial court is permitted to examine the record of conviction after appointing 

counsel to assess whether it refutes the petitioner’s claim of eligibility. 

(People v. Lewis (2021) 11 Cal.5th 952, 970–972 (Lewis).) Under section 

1172.6, subdivision (c), the court may deny the petition at the prima facie 

stage if the record of conviction discloses that the petitioner is ineligible for 

relief as a matter of law. (Lewis, at pp. 960, 971.) Otherwise, the court must 

issue an order to show cause and hold an evidentiary hearing under

section 1172.6, subdivision (d) to determine whether to vacate the murder 

conviction, recall the sentence, and resentence the petitioner on any 

remaining counts. (Id. at p. 960.)
11

One of the requirements for the prima facie showing is that the 

petitioner “could not presently be convicted of murder or attempted murder 

because of changes to Section 188 or 189” made by Senate Bill No. 1437.

(§ 1172.6, subd. (a)(3).) Accordingly, a court may deny the petition at the 

prima facie stage if the record of conviction conclusively establishes that the 

petitioner was convicted on a theory not affected by Senate Bill No. 1437. 

(See, e.g., People v. Williams (2022) 86 Cal.App.5th 1244, 1257–1258; People 

v. Harden (2022) 81 Cal.App.5th 45, 47–48, 59–60.)

Effective January 1, 2022, Senate Bill No. 775 (2020–2021 Reg. Sess.) 

(Senate Bill No. 775) amended section 1172.6. As relevant here, the 

amendment expanded eligibility for resentencing to include not only those 

convicted of felony murder or murder under the natural and probable 

consequences doctrine, but also those convicted of murder under any “other 

theory under which malice is imputed to a person based solely on that 

person’s participation in a crime.” (§ 1172.6, subd. (a).) 

Senate Bill No. 775 further clarified the governing procedures for the 

prima facie hearing under section 1172.6, subdivision (c) and the evidentiary 

hearing under subdivision (d). For a petition satisfying the basic pleading 

requirements, the court must appoint counsel, permit briefing, and conduct 

an initial hearing under subdivision (c) to determine whether the petitioner 

has made a prima facie case for relief, and if so, issue an order to show cause. 

(§ 1172.6, subds. (b)(3), (c).) After issuance of an order to show cause, the 

court must conduct an evidentiary hearing under subdivision (d) to determine 

whether the petitioner is entitled to relief. At the evidentiary hearing, the 

burden is “on the prosecution to prove, beyond a reasonable doubt, that the 

petitioner is guilty of murder” under California law as amended by Senate 

Bill No. 1437. (§ 1172.6, subd. (d).)
12

B. The Record Establishes as a Matter of Law that Berry-Vierwinden is 

Ineligible for Relief

The trial court denied Berry-Vierwinden’s petition at the prima facie 

stage. In his petition, Berry-Vierwinden conceded he was “not tried under 

felony murder or the natural and probable consequences doctrine.” However, 

Berry-Vierwinden argues that he is eligible for relief because the instructions 

given at trial permitted the jury to convict him of first degree murder by 

imputing malice to him “based solely on [his] participation in a crime.”

(§ 1172.6, subd. (a).) In support, Berry-Vierwinden relies on the First 

District’s decision in Maldonado. Based on our subsequent decisions in 

Burns and Flores, we conclude that Berry-Vierwinden is ineligible for relief 

as a matter of law under section 1172.6, subdivision (a)(3).

In Maldonado, as in this case, the defendant was convicted of first 

degree murder by means of lying in wait. After the trial court denied his 

petition for relief under section 1172.6 at the prima facie stage, the Court of 

Appeal reversed. Based on the standard CALCRIM instructions given at 

trial on aiding and abetting (CALCRIM No. 401), implied malice (CALCRIM 

No. 520), and lying-in-wait murder (CALCRIM No. 521), the court concluded 

that the jury instructions were ambiguous and permitted a conviction of 

murder based on a theory of imputed malice. (Maldonado, supra,

87 Cal.App.5th at pp. 1264–1267.) Although the court acknowledged that 

“the jury was not required to construe the instructions in this manner,” it 

concluded that Maldonado was eligible for relief because the jury could 

reasonably have done so. (Id. at pp. 1266–1267.)

Maldonado relied on the prior decisions in People v. Powell (2021) 63 

Cal.App.5th 689 (Powell) and People v. Langi (2022) 73 Cal.App.5th 972 

(Langi). In Powell, a direct appeal, the court ruled that CALCRIM No. 401 
13

on direct aiding and abetting liability was “not tailored” for aiding and 

abetting a second degree implied malice murder, because it did not make 

clear that the aider and abettor must “intend the commission of the 

perpetrator’s act, the natural and probable consequences of which are 

dangerous to human life, intentionally aid in the commission of that act and 

do so with conscious disregard for human life.” (Powell, at p. 714.) In Langi, 

the court extended this holding to a section 1172.6 proceeding and concluded 

that the instructional error identified in Powell permitted the jury to convict 

the defendant of aiding and abetting a second degree murder on a theory of 

imputed malice, making him eligible for relief under the statute as amended 

by Senate Bill No. 775. (Langi, at pp. 978–984.) Maldonado in turn found

that, because first degree murder by lying in wait may also be based on

implied malice, the reasoning of Langi similarly applied to a conviction of 

aiding and abetting first degree murder by lying in wait under CALCRIM 

Nos. 401, 520, and 521. (Maldonado, supra, 87 Cal.App.5th at p. 1266.)

Berry-Vierwinden argues that Maldonado applies here because the 

trial court gave the same combination of jury instructions on aiding and 

abetting a lying-in-wait murder. He asserts that, as in Maldonado, these 

instructions permitted the jury to convict him of aiding and abetting a

lying-in-wait murder by imputing malice to him based solely on his 

participation in a crime. He further argues that this error was exacerbated 

by the alleged instructional errors he previously raised on direct appeal: (1) 

the court’s modifications of CALCRIM Nos. 520 and 521 to cover aiding and 

abetting liability; (2) the “equally guilty” language of CALCRIM No. 400; and 

(3) the last sentence of CALCRIM No. 400. 
14

After the court’s decision in Maldonado, we issued our decision in 

Burns.6 In Burns, a section 1172.6 petitioner convicted of murder argued 

that he was entitled to relief because the “equally guilty” language of former 

CALCRIM No. 400 given at his trial allegedly allowed the jury to convict him 

as an aider and abettor on a theory of imputed malice. (Burns, supra, 95 

Cal.App.5th at pp. 865–866.) We found that even if Burns was correct about 

the flaw in this instruction, he was still not eligible for relief because “the 

alleged error he identifies has nothing to do with the 2018 and 2021 

legislative changes that gave rise to section 1172.6’s petition process.” (Id. at 

p. 865.) We based our decision on subdivision (a)(3) of the statute, which 

requires the petitioner to establish that he “ ‘could not presently be convicted 

of murder or attempted murder because of changes to Section 188 or 189 

made effective January 1, 2019.’ ” (Burns, at p. 867 [quoting § 1172.6,

subd. (a)(3)].) We concluded that the statute “was designed to permit the 

resentencing of defendants who were properly convicted under the law that 

applied at the time, but ‘could no longer be convicted of murder’ because of 

recent legislative changes.” (Ibid.) “A [section 1172.6] petition thus 

supplements a defendant’s traditional direct appeal by providing an 

opportunity to make arguments that did not exist at the time of the appeal, 

but have arisen since 2019 as a result of recent statutory amendments.” 

(Ibid.)

We further concluded that the instructional error identified by Burns 

had “nothing to do with the legislative changes to California’s murder law 

effected by Senate Bill No. 1437 . . . and Senate Bill No. 775.” (Burns, supra, 

95 Cal.App.5th at p. 867.) In fact, the case law Burns relied on to challenge 

6 We requested and received supplemental briefing from the parties on 

the effect of our decision in Burns.
15

CALCRIM No. 400 “was decided well before the jury verdict in his trial.” 

(Burns, at p. 867.) “The problem with the ‘equally guilty’ language in former 

CALCRIM No. 400 was not that it permitted the jury to rely on a now-invalid 

theory of criminal liability, but that it may have misled the jury as to what 

was then required to convict Burns.” (Id. at p. 868.) This “created a potential 

issue of instructional error, but it did not operate to offer the jury a theory of 

legal liability that can no longer support a conviction for murder as a result of 

the recent statutory changes.” (Id. at pp. 868–869.) Burns “had every basis 

and opportunity to raise that issue on his direct appeal.” (Id. at p. 869.)

In a footnote, we also addressed Burns’s reliance on Maldonado and 

Langi. We distinguished those cases on two grounds. First, in both cases, 

“the defendant’s trial and direct appeal took place before there was any 

suggestion in the case law that there was a problem with the applicable jury 

instructions.” (Burns, supra, 95 Cal.App.5th at p. 868, fn. 7.) Second, there 

was no “indication the opinions considered the effect of the language in 

subdivision (a)(3) of section 1172.6 requiring that defendant show they can no 

longer be convicted ‘because of’ the recent legislative changes.” (Ibid.)

In a separate footnote, we also distinguished the section 1172.6 holding 

of People v. Lee (2023) 95 Cal.App.5th 1164, which involved a prior conviction 

of murder under the provocative act doctrine. We noted that in Lee, “the law 

in effect at the time of the defendant’s conviction in 1994 ‘did not require the 

jury to find that [he] personally acted with malice’ ” and “it was not until a 

Supreme Court decision 15 years later that the law was clarified. . . . Thus, 

the defendant had no reasonable opportunity on direct appeal to raise any 

claim of error.” (Burns, supra, 95 Cal.App.5th at p. 868, fn. 8.)

We later applied the holding of Burns in Flores. In Flores, the

petitioner argued that the jury instructions given at his 2010 trial allowed 
16

the jury to convict him of provocative act murder based on a theory of 

imputed malice, namely, that he aided and abetted his accomplice’s 

provocative act without himself acting with malice. (Flores, supra, 96

Cal.App.5th at p. 1170.) We concluded that when Flores was convicted in 

2010, the law already required that an aider and abettor of a provocative act 

murder must personally harbor malice. (Id. at pp. 1173–1174 & fn. 4.) 

Flores’s claim that he could have been convicted on a theory of imputed 

malice was therefore “a routine claim of instructional error” that “could have 

been asserted on appeal from the judgment of conviction.” (Id. at p. 1173.) 

Relying on Burns, we concluded that Flores therefore failed to satisfy the 

prima facie requirement that he “could not presently be convicted of murder 

or attempted murder because of changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (a)(3), italics added.)

Notwithstanding Maldonado, we conclude that the holdings of Burns

and Flores apply here. To establish a prima facie case for relief,

Berry-Vierwinden was required to demonstrate that he could not presently be 

convicted of murder “because of” the “changes” made by Senate Bill No. 1437. 

(§ 1172.6, subd. (a)(3).) “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.” (People v. Curiel (Nov. 17, 2023) ___ Cal.5th ___, 2023 Cal. LEXIS 

6622, at *48; see also Strong, supra, 13 Cal.5th at p. 712 [construing “because 

of changes” language of subdivision (a)(3) to require “that the 2019 changes 

supply a basis for the claim”].)

As in Burns and Flores, the instructional errors Berry-Vierwinden

asserts have nothing to do with these 2019 legislative changes. What he is 

really arguing is that the instructions “may have misled the jury as to what 
17

was then required to convict [him].” (Burns, supra, 95 Cal.App.5th at p. 868.) 

By the time of his trial in 2010, California law was already clear that a direct

aider and abettor could not be convicted of lying-in-wait murder on an 

imputed malice theory. Specifically, the Supreme Court had ruled that:

(1) the perpetrator of a first degree murder by means of lying in wait must 

act with malice aforethought (People v. Dillon (1983) 34 Cal.3d 441, 465; 

People v. Mattison (1971) 4 Cal.3d 177, 182); and (2) a direct aider and 

abettor of murder must at a minimum “know and share the murderous intent 

of the actual perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118

(McCoy); see also ibid. [“outside of the natural and probable consequences 

doctrine, an aider and abettor’s mental state must be at least that required of 

the direct perpetrator”]; Gentile, supra, 10 Cal.5th at pp. 844–845 [citing 

McCoy for the principle that “when a person directly aids and abets a murder, 

the aider and abettor must possess malice aforethought”]). 

As we noted in Flores, the Supreme Court’s 2001 decision in McCoy

made “clear . . . that ‘when guilt does not depend on the natural and probable 

consequences doctrine, . . . the aider and abettor must know and share the 

murderous intent of the actual perpetrator.’ ” (Flores, supra, 96 Cal.App.5th

at p. 1173 & fn. 4 [quoting McCoy, supra, 25 Cal.4th at p. 1118]; see also

Burns, supra, 95 Cal.App.5th at p. 868 [“The Supreme Court’s McCoy

decision . . . made clear that the direct perpetrator’s mental state could not be 

imputed to an aider and abettor, whose mental state had to be independently 

evaluated.”].) After the Supreme Court’s 2001 decision in McCoy, it was 

unmistakable that a direct aider and abettor’s “mental state is her own; she 

is liable for her mens rea, not the other person’s.” (McCoy, supra, 25 Cal.4th

at p. 1118.) 
18

By arguing that the jury instructions allowed the jury to convict him as 

a direct aider and abettor of murder on an imputed malice theory, BerryVierwinden is necessarily asserting that they were erroneous under the law 

in effect at the time of his 2010 trial and subsequent direct appeal. Under

Burns and Flores, however, a section 1172.6 petitioner cannot establish a 

prima facie case for relief by asserting that the jury instructions permitted 

conviction on a theory of imputed malice that was already prohibited even 

before the enactment of Senate Bill No. 1437. This amounts to “a routine 

claim of instructional error” that “could have been raised on appeal from the 

judgment of conviction.” (Flores, supra, 96 Cal.App.5th at p. 1173.) “Section 

1172.6 does not create a right to a second appeal, and [Berry-Vierwinden] 

cannot use it to resurrect a claim that should have been raised in his [direct]

appeal.” (Burns, supra, 95 Cal.App.5th at p. 865; see also People v. Farfan 

(2021) 71 Cal.App.5th 942, 947 [section 1172.6 “does not afford the petitioner 

a new opportunity to raise claims of trial error”].) 

To the extent Maldonado and Langi can be read to suggest that such 

an instructional error may be asserted as a basis for section 1172.6 relief—

even if the alleged error could have been raised on direct appeal under thenexisting law not changed by Senate Bill No. 1437—we disagree for two 

reasons. First, such a result would be inconsistent with our decisions in 

Burns and Flores. Second, as we noted in those cases, the courts in

Maldonado and Langi did not consider the language of section 1172.6, 

subdivision (a)(3) requiring that defendants show they can no longer be 
19

convicted of murder “because of changes” made by Senate Bill No. 1437.7 

(Burns, supra, 95 Cal.App.5th at p. 868, fn. 7; Flores, supra, 96 Cal.App.5th

at p. 1174.) 

In sum, Senate Bill No. 1437 did not change the law to prohibit direct 

aider and abettor liability on an imputed malice theory—this was already 

settled California law by the time of Berry-Vierwinden’s 2010 trial. Under 

Burns and Flores, Berry-Vierwinden cannot establish that he “could not 

presently be convicted of murder or attempted murder because of changes to 

Section 188 or 189” made by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3), 

italics added; see also People v. Antonelli (2023) 93 Cal.App.5th 712, 720–721, 

review granted Oct. 18, 2023 (S281599) [irrespective of any instructional 

error in allowing the jury to convict petitioner of provocative act murder on 

an imputed malice theory, petitioner was ineligible for relief under section 

1172.6, subdivision (a)(3) because the law in effect before Senate Bill

No. 1437 already required that the defendant personally harbor malice for a 

provocative act murder and Senate Bill No. 1437 “did not change the law” on 

the issue].) The trial court correctly denied the petition because

Berry-Vierwinden “did not satisfy the section 1172.6, subdivision (a)(3) 

condition as part of his required prima facie showing.” (Burns, supra, 95 

Cal.App.5th at p. 867.)

7 In its background discussion of the applicable law, Maldonado quoted 

from a Supreme Court case quoting section 1172.6, subdivision (a)(3) (People 

v. Strong (2022) 13 Cal.5th 698, 708), but Maldonado did not discuss or refer 

to this subdivision in its subsequent legal analysis. (Maldonado, supra, 87 

Cal.App.5th at pp. 1260–1267.) Likewise, Langi indirectly referred to

subdivision (a)(3) only in quoting part of the petitioner’s section 1172.6 

petition alleging that he “ ‘could not be convicted of . . . 2nd degree murder 

because of changes made’ by Senate Bill No. 1437.” (Langi, supra, 73 

Cal.App.5th at p. 977.)
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DISPOSITION

The order denying the petition is affirmed.

BUCHANAN, J.

WE CONCUR:

McCONNELL, P. J.

KELETY, J.