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.
1

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.
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

2

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 gangmurder 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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

3

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, 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

4

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.
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

5

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[-]turforiented.” In his experience, most Hispanic gangs were “turf-
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

6

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 “turforiented” 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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

7

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

8

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. 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

9

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.”
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

10

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.”
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

11

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

12

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

13

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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Opinion of the Court by Guerrero, C. J.

14

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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Opinion of the Court by Guerrero, C. J.

15

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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Opinion of the Court by Guerrero, C. J.

16

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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Opinion of the Court by Guerrero, C. J.

17

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

18

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

19

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

20

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.

21

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

22

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.
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

23

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.)
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

24

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. 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

25

(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 specialcircumstance 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 preBanks/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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

26

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

27

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.)
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

28

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

29

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 casespecific 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.) 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

30

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

31

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.
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

32

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

33

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].)
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

34

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.)
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

35

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

36

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

37

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

38

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

39

(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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

40

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

41

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

42

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

43

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.
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

44

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 lifeendangering 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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

45

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.
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

46

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 lifeendangering 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.

47

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

48

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.

49

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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

50

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.)
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

51

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 gangmurder 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 
PEOPLE v. CURIEL

Opinion of the Court by Guerrero, C. J.

52

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.
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