Filed 2/23/24 P. v. Baker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BOBBY DARREN BAKER,

Defendant and Appellant.

F086191

(Super. Ct. No. VCF295267)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Melinda Myrle 

Reed, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, 

Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine 

Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Detjen, J. and Meehan, J.
2.

Defendant Bobby Darren Baker filed a petition for resentencing pursuant to

former Penal Code1section 1170.95 (now section 1172.6). The trial court denied the 

petition, finding he failed to establish a prima facie claim for relief. On appeal, defendant 

argues “the trial court erred by concluding that [he] had failed to establish a prima facie 

case.” (Capitalization omitted.) Specifically, he contends “the language of the aiding and 

abetting instructions, combined with the second degree murder instruction, permitted the 

jury to find him guilty based on imputing the malice of the shooter rather than finding 

[he] personally harbored malice.” 

We find the jury instructions permitted a conviction based on an impermissible 

theory of imputed malice. Accordingly, we reverse the order.

BACKGROUND

In 2014, defendant was convicted of second degree murder (§ 187, subd. (a) 

[count 1]) and gang conspiracy (§ 182.5 [count 2]). With respect to count 1, the jury 

found true the allegations he committed the offense for the benefit of, at the direction of, 

or in association with a gang (§ 186.22, subd. (b)) and a principal personally and 

intentionally discharged a firearm and proximately caused the victim’s death (§ 12022.53, 

subds. (d), (e)(1)). With respect to counts 1 and 2, the jury found not true the allegation 

defendant personally and intentionally discharged a firearm and proximately caused the 

victim’s death (§ 12022.53, subd. (d)). The trial court imposed an aggregate sentence of 

40 years to life: 15 years to life on count 1 plus 25 years to life for the firearm 

enhancement. The court stayed execution of the gang enhancement on count 1 and

punishment on count 2.2 

1 Unless otherwise indicated, subsequent statutory citations refer to the Penal 

Code.

2 On April 13, 2018, we conditionally reversed the judgment and remanded the 

case to the trial court with instructions to conduct a juvenile transfer hearing. (People v. 

Baker (Apr. 13, 2018, F071120) [nonpub. opn.].) On July 16, 2020, following said 

hearing, the trial court granted the motion to transfer the matter to adult criminal court. 
3.

On December 22, 2022, defendant filed a petition for resentencing pursuant to 

then-section 1170.95. He marked the following checkboxes:

“1. A complaint, information, or indictment was filed against me that

allowed the prosecution to proceed under a theory of felony murder, 

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, or attempted murder under 

the natural and probable consequences doctrine. [Citation.]

“2. I was convicted of murder, attempted murder, or manslaughter

following a trial or I accepted a plea offer in lieu of a trial at which I 

could have been convicted of murder or attempted murder. 

[Citation.]

“3. I could not presently be convicted of murder or attempted murder 

because of changes made to Penal Code §§ 188 and 189, effective 

January 1, 2019. [Citation.]” 

At an April 20, 2023 hearing, the prosecution argued “the jury must have 

convicted the defendant based on intent to kill” because “[t]he jury was not instructed on 

natural and probable consequences, nor felony murder.” Thereafter, the trial court ruled:

“My ruling is to deny the defendant’s petition for resentencing, 

finding lack of a prima facie case.

“Here the jury was not instructed on the natural and probable 

consequences as it applies to either first or second degree murder, nor the 

Felony Murder Rule. The instructions that were given were solely on direct 

aiding and abetting, and that defendant intended to facilitate the murder.

“Furthermore, a review of the prior appellate opinion in this matter 

shows that the Court found the jury was properly instructed on the aiding 

and abetting principles, and the appellate court there found the evidence 

was substantial, that the defendant was aware of the shooter’s purpose and 

intended to encourage and facilitate the shooting.

“Now, I say that because the Court knows that its burden is much 

more than substantial evidence. But in making the finding on a prima facie 

case, the law of the case is such that clearly, there can be no application of a 

natural and probable consequence or Felony Murder Rule.” 
4.

DISCUSSION

I. Section 1172.6

“Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [(2017–

2018 Reg. Sess.)] ‘to amend 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.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis), quoting Stats. 2018, 

ch. 1015, § 1, subd. (f).) “Through the passage of Senate Bill [No.] 1437 the Legislature 

effectively eliminated the natural and probable consequences doctrine as it relates to 

murder convictions, and reduced the scope of the felony-murder rule.” (People v. Prado

(2020) 49 Cal.App.5th 480, 487.) “To effectuate these changes, the Legislature amended 

sections 188 and 189 . . . .” (Ibid.; see §§ 188, subd. (a)(3) [“Except 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.”]; 189, subd. (e) [“A participant in the perpetration 

or attempted perpetration of a felony listed in subdivision (a) 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.”].) Senate Bill No. 1437 (2017–

2018 Reg. Sess.) also “added [former] section 1170.95, which provides a procedure for 

convicted murderers who could not be convicted under the law as amended to 

retroactively seek relief.” (Lewis, supra, at p. 959.)
5.

“In 2021, the Legislature passed Senate Bill No. 775 (2021–2022 Reg. Sess.) . . . , 

amending former section 1170.95 effective January 1, 2022. In addition to providing 

relief for those convicted of felony murder or [murder] under the natural probable 

consequences doctrine, the amended statute extended relief to defendants convicted under 

any ‘other theory under which malice is imputed to a person based solely on that person’s 

participation in a crime.’ [Citation.] The amended statute also expanded the categories 

of offenses eligible for relief to include attempted murder and manslaughter as well as 

murder. [Citation.]” (People v. Lee (2023) 95 Cal.App.5th 1164, 1173–1174 (Lee).)

“Effective June 30, 2022, the Legislature renumbered [former] section 1170.95 to 

section 1172.6 with no change in text.” (People v. Gonzalez (2023) 87 Cal.App.5th 869, 

871, fn. 1, citing Stats. 2022, ch. 58, § 10; accord, People v. Saibu (2022) 81 Cal.App.5th 

709, 715, fn. 3.)

A petitioner is entitled to relief under section 1172.6 if three conditions are 

satisfied: (1) the prosecution “proceed[ed] under a theory of felony murder, 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, or attempted 

murder under the natural and probable consequences doctrine” (§ 1172.6, subd. (a)(1)); 

(2) “[t]he petitioner was convicted of murder, attempted murder, or manslaughter 

following a trial or accepted a plea offer in lieu of a trial at which the petitioner could 

have been convicted of murder or attempted murder” (id., subd. (a)(2)); and (3) “[t]he 

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

changes to Section 188 or 189 made effective January 1, 2019” (id., subd. (a)(3)). 

(Accord, People v. Watson (2021) 64 Cal.App.5th 474, 482 [former § 1170.95].)

“After the parties have had an opportunity to submit briefings, the court shall hold 

a hearing to determine whether the petitioner has made a prima facie case for relief.” 

(§ 1172.6, subd. (c).) “If a petitioner makes a prima facie showing of relief under section 

1172.6—that is, a showing that the petitioner was convicted of murder, attempted murder, 
6.

or manslaughter under a theory no longer valid under the amended Penal Code—the 

resentencing court must issue an order to show cause for an evidentiary hearing.” (Lee, 

supra, 95 Cal.App.5th at p. 1174; accord, § 1172.6, subds. (c)–(d).) At the evidentiary 

hearing, “the prosecution must prove beyond a reasonable doubt that the petitioner 

remains guilty of murder or attempted murder despite the amendments to sections 188 

and 189.” (Lee, supra, at p. 1174.)

“[T]he prima facie inquiry under subdivision (c) is limited. 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. . . .” ’ [Citation.]” 

(Lewis, supra, 11 Cal.5th at p. 971.) “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.” (Ibid.) 

“In reviewing any part of the record of conviction at this preliminary juncture, a trial 

court should not engage in ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’ [Citation.]” (Id. at p. 972; see People v. Davenport (2021) 71 

Cal.App.5th 476, 481 [“The court’s authority to summarily deny a petition is thus limited 

to ‘readily ascertainable facts’ taken from the record of conviction . . . .”].) Moreover, 

“ ‘[a] court should not reject the petitioner’s factual allegations on credibility grounds 

without first conducting an evidentiary hearing.’ [Citation.]” (Lewis, supra, at p. 971.) 

“ ‘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.” ’ [Citation.]” (Ibid.)

“The contents of the record of conviction defeat a prima facie showing when the 

record shows as a matter of law that the petitioner is not eligible for relief.” (People v. 

Swanson (2020) 57 Cal.App.5th 604, 612.) “A petitioner is ineligible for resentencing as 

a matter of law if the record of conviction conclusively establishes, with no factfinding, 
7.

weighing of evidence, or credibility determinations, that (1) the petitioner was the actual 

killer, or (2) the petitioner 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, [or] (3) the petitioner was a major 

participant in the underlying felony and acted with reckless indifference to human life, or 

(4) the petitioner acted with malice aforethought that was not imputed based solely on 

participation in a crime.” (People v. Lopez (2022) 78 Cal.App.5th 1, 14.)

II. Analysis

a. Standard of review

“We review de novo an order denying a section 1172.6 petition at the prima facie 

review stage.” (People v. Flores (2023) 96 Cal.App.5th 1164, 1170.)

b. Jury instructions

The trial court issued the following instructions (among others):

“[CALCRIM No.] 400. Aiding and Abetting: General Principles

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

directly committed the crime. I will call that person the perpetrator. Two, 

he or she may have aided and abetted a perpetrator, who directly committed 

the crime. A person is guilty of a crime whether he or she committed it 

personally or aided and abetted the perpetrator. 

“[CALCRIM No.] 401. Aiding and Abetting: Intended Crimes

“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
8.

“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 or she knows of the perpetrator’s 

unlawful purpose and he or she specifically intends to, and does in fact, aid, 

facilitate, promote, encourage, or instigate the perpetrator’s commission of 

that crime.

“If all of these requirements are proved, the defendant does not need to 

actually have been present when the crime was committed to be guilty as an 

aider and abettor.

“If you conclude that defendant was present at the scene of the crime or 

failed to prevent the crime, you may consider that fact in determining 

whether the defendant was an aider and abettor. However, the fact that a 

person is present at the scene of a crime or fails to prevent the crime does 

not, by itself, make him or her an aider and abettor. [¶] . . . [¶] 

“[CALCRIM No.] 520. First or Second Degree Murder With Malice 

Aforethought (Pen. Code, § 187)

“The defendant is charged with murder.

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

that:

“1. The defendant committed an act that caused the death of 

another person;

“AND

“2. When the defendant 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 defendant acted with express malice if he unlawfully intended to kill.

“The defendant 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;
9.

“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.

“Malice aforethought does not require hatred or ill will toward the victim. 

It is a mental state that must be formed before the act that causes death is 

committed. It does not require deliberation or the passage of any particular 

period of time.

“If you decide that the defendant committed murder, it is murder of the 

second degree, unless the People have proved beyond a reasonable doubt 

that it is murder of the first degree as defined in CALCRIM No. 521.” 

c. Whether defendant established a prima facie case for relief

“ ‘[D]irect aiding and abetting is based on the combined actus reus of the 

participants and the aider and abettor’s own mens rea. [Citation.] In the context of 

implied malice, the actus reus required of the perpetrator is the commission of a lifeendangering act. For the direct aider and abettor, the actus reus includes whatever acts 

constitute aiding the commission of the life-endangering act. Thus, 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 the 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.’ [Citations.]” (People v. Reyes (2023) 14 Cal.5th 981, 990–

991, italics omitted.) “Direct aiding and abetting an implied malice murder remains a 

valid theory after the amendments of Senate Bill[ Nos.] 1437 and 775.” (People v. 

Maldonado (2023) 87 Cal.App.5th 1257, 1263 (Maldonado).) 

Defendant asserts “[t]he combination of CALCRIM No[s]. 401 and 520 . . . 

permit[ted] the jury to find [him] guilty of second degree murder if he intended to aid and 

abet an act that could cause death despite [him] not personally harboring the intent of 
10.

implied malice.” We agree. Under CALCRIM No. 401, a person “aids and abets a crime 

if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends 

to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s 

commission of that crime.” (Italics omitted; accord, Maldonado, supra, 87 Cal.App.5th 

at p. 1266.) However, under CALCRIM No. 520, a direct perpetrator of second degree 

murder “need not act with the unlawful intent of causing death.” (People v. Langi (2022) 

73 Cal.App.5th 972, 982 (Langi); accord, Maldonado, supra, at p. 1265.) While the 

direct perpetrator must have “intentionally committed an act,” “kn[own] his act was 

dangerous to human life,” and “deliberately acted with conscious disregard for human 

life” (CALCRIM No. 520), “his [unlawful] purpose may have been only to strike or to 

injure . . . the victim” (Langi, supra, 73 Cal.App.5th at p. 982). “Since the perpetrator’s 

purpose need not have been to kill the victim, the aider and abettor’s knowledge of that 

purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the 

perpetrator need not have had ‘murderous intent,’ certainly the aider and abettor need not 

have had such an intent.” (Langi, supra, at pp. 982–983.) Moreover, although 

CALCRIM No. 520 states that the perpetrator must have acted with conscious disregard 

for human life, CALCRIM No. 401 does not include the same requirement. (Cf. Langi, 

at p. 983.) Therefore, the jury could have construed these instructions so as “to conclude 

that, to be guilty as an aider and abettor of second degree murder, [defendant] need only 

have intended to encourage the perpetrator’s intentional act . . . whether or not [he] 

intended to aid or encourage [the victim’s] killing, and whether or not he personally knew 

of and disregarded the risk of such a killing.” (Ibid., fn. omitted.)

“The instructions should have explained that, to be guilty as a direct aider and 

abettor of second degree murder, an accomplice must have acted with the mental state of 

implied malice. [Citation.] More precisely, . . . the accomplice must have aided the 

perpetrator’s commission of the life-endangering act while ‘personally harbor[ing]’ the 

mental state of implied malice. [Citation.]” (Langi, supra, 73 Cal.App.5th at p. 983.) 
11.

CALCRIM No. 401, however, “was inadequate as applied to the crime of second degree 

murder because it did not clarify that an accomplice must personally harbor that mental 

state of implied malice.” (Langi, at p. 983; see Maldonado, supra, 87 Cal.App.5th at 

p. 1265 [CALCRIM No. 401 “ ‘not tailored for’ ” aiding and abetting implied malice 

murder].)3

“We emphasize the jury was not required to construe the instructions in [the 

aforementioned] manner.” (Maldonado, supra, 87 Cal.App.5th at p. 1266, italics 

omitted.) Nonetheless, “[t]he ultimate question before us is whether ‘ “the record, 

including the court’s own documents, ‘contain[s] facts refuting the allegations made in 

the [section 1172.6] petition.’ ” ’ [Citation.] Only ‘[i]f the petition and record in the case 

establish conclusively that the defendant is ineligible for relief’ may the trial court 

dismiss the petition. [Citation.]” (Id. at p. 1269, italics omitted.)4 Here, given the 

ambiguity of the jury instructions, we cannot say the record before us conclusively 

establishes defendant is ineligible for relief.

We conclude defendant made a prima facie showing of relief under section 1172.6, 

i.e., he was convicted of murder based on a theory under which malice was imputed to 

him based solely on his participation in a crime. “Accordingly, ‘an evidentiary hearing is 

required. At that hearing, the court may find that [defendant] was . . . an aider and abettor 

who facilitated the killing with personal disregard for human life, in which case his 

3 The Attorney General cites People v. Flores, supra, 96 Cal.App.5th 1164 for the 

proposition we “should not entertain [defendant’s] instructional error claim in the section 

1172.6 context.” That case is inapposite because it involved provocative act murder 

instructions, which—in contrast to the instructions in Langi and Maldonado—“presented 

no such possibility for imputing malice.” (Id. at p. 1174.)

4 By contrast, the Attorney General maintains “the appropriate standard asks 

whether there is a reasonable likelihood the jury understood the instructions as allowing a 

conviction under the prohibited theory.” This argument, which was raised for the first 

time in a petition for rehearing, is forfeited. (Maldonado, supra, 87 Cal.App.5th at 

p. 1268.)
12.

petition will be denied. If the prosecution fails to prove [this], he will be entitled to 

relief.’ [Citation.]” (Maldonado, supra, 87 Cal.App.5th at p. 1269.)

DISPOSITION

The order denying defendant’s petition for resentencing is reversed. The matter is 

remanded with directions to issue an order to show cause and hold an evidentiary 

hearing.