Filed 3/6/24 P. v. Son CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DOEUR MICHAEL SON,

Defendant and Appellant.

 D081583

 (Super. Ct. No. SCD131901)

APPEAL from an order of the Superior Court of San Diego County, 

David L. Berry, Judge. Affirmed in part, reversed in part, and remanded 

with directions.

Sally Patrone, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Charles C. Ragland, Assistant Attorney General, Lynne G. 

McGinnis and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

In 1998, Doeur Michael Son was convicted of the first degree murder of 

Sisouphanh Kamphila and the second degree murder of Chang Lee. She now 

appeals the trial court’s summary denial of her petition for resentencing 

under Penal Code section 1172.6.1 Son argues that the trial court’s jury 

instructions on direct aiding and abetting liability (CALJIC No. 3.01) and 

conspirator joint liability (CALJIC No. 6.11) provided the jury with the 

opportunity to convict her of the crimes without finding she personally had 

the intent to kill the two murder victims, precluding the trial court from 

denying her resentencing petition at this early stage.

In response, the Attorney General argues that the jury instructions did 

not permit the jury to convict Son under a theory of imputed malice and the 

record of conviction conclusively establishes Son was convicted as a direct 

aider and abettor, who personally harbored intent to kill. Further, the 

Attorney General argues that the jury’s true finding on the multiple-murder 

special circumstance allegation makes her ineligible for resentencing on the 

first degree murder conviction as a matter of law.

As we shall explain, we agree with Son that the limited record of 

conviction available to the trial court at this initial stage of the proceeding 

did not establish Son’s ineligibility for resentencing with respect to the 

second degree murder conviction. However, we agree with the Attorney 

General that the record, specifically the multiple-murder special 

circumstance instructions, conclusively shows Son’s ineligibility with respect 

to the first degree murder conviction. Accordingly, the trial court’s order 

denying the petition is reversed only with respect to Son’s second degree 

murder conviction and remanded to the trial court with directions to issue an 

1 Subsequent undesignated statutory references are to the Penal Code.
3

order to show cause and hold an evidentiary hearing in accordance with 

section 1172.6, subdivision (d)(3).

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The following is taken from this court’s opinion in People v. Son (2000) 

79 Cal.App.4th 224 (Son)2:

“A. The Killings

“Son and Mon Smann were friends and fellow members of the 

Crazy Oriental Crips gang.

“On the night of February 1, 1992, Son and Smann invited Chang 

Lee and Sisouphanh Kamphila (Nick) to go out with them 

purportedly to pick up females. After Son and Smann got into 

the backseat of Lee’s black Toyota Supra, Smann directed Lee 

and Nick to Skyline Drive in San Diego to pick up the girls.

“Eventually, Smann told Lee and Nick to pull over beside Morse 

High School. However, no girls were there. Instead, Smann took 

out a Titan semiautomatic .25-caliber handgun and made Lee lie 

facedown on the school lawn. Smann shot Lee four times. Lee 

was also strangled before he died. Son then took Nick from the 

car and held Nick on the ground while Smann shot Nick four 

times. The killings were retaliatory in that Smann believed that 

Lee and Nick had robbed Smann’s house on the previous 

Halloween.

“B. Son’s Girlfriend’s Brother Learns Details of Killings 

and Tells Police

“After the killings, Smann returned to Cambodia and escaped 

arrest. However, Son made inculpatory statements about the 

killings to Soeun Ricky Sim (Ricky), the brother of Son’s 

girlfriend Kim Sim (Kim). Ricky had also overheard some of the 

2 This factual summary is included solely as background in order to 

provide context to the opinion. At the time of the trial, Son used male 

pronouns, but now uses female pronouns. 
4

details of the killings when Smann was talking to Son about 

fleeing because police were looking for him. In October 1995 and 

December 1996, Ricky gave Detective Gallivan statements 

detailing Son’s admissions about [her] participation in the 

killings.[3] Police also found Son’s fingerprint on Lee’s car.

“C. Son’s Postarrest Inculpatory Statements to Police

“On October 9, 1997, at 5:45 a.m., Detective Gallivan arrested 

Son. Half an hour later, Gallivan began a four-hour interview 

with Son. Son denied having been present when the killings 

occurred. At 12:27 p.m., after Gallivan told Son’s girlfriend Kim 

he believed Son was involved in the killings, Kim was taken into 

the interview room. Kim told Son she had told district attorney 

investigator Marquez some things about the killings. After 

speaking to Son, Kim was taken home by Gallivan and Marquez. 

Gallivan told Kim to contact him if Son contacted her and said 

[she] wanted to talk to police.

“A few hours later at 4:20 p.m., Kim paged Detective Gallivan 

and said she had Son on the line, Son admitted being present 

when Lee and Nick were killed, and Son wanted to talk to 

Gallivan. Gallivan taped his three-way conversation with Son

and Kim. During that three-way conversation, Gallivan told Son 

there were no guarantees about what would happen if Son

talked. Gallivan also asked Son to tell him what happened. Son

stated: Smann killed the two victims because they had robbed 

Smann’s house; Smann telephoned the two victims and invited 

them to go out with Son and Smann to pick up some girls; when 

the victims arrived in a black Toyota Supra, Son and Smann got 

into the car; Smann directed Lee and Nick to Skyline Drive to 

pick up the girls and told them to pull over by Morse High School; 

both victims were shot outside the car; Son held one of the 

victims while Smann shot such victim; Son held the victim 

because Smann told [her] to do so; Son feared Smann would also 

[3] “Ricky told Detective Gallivan that the killings were a setup; Son and 

Smann picked up the victims; Smann pulled out a gun; the victims started 

running; Son grabbed and held the victims while Smann shot them; Smann 

used a .25-caliber handgun; and the shots were to the back of the head, neck 

and body.”
5

shoot Son if Son let the victim go instead of holding him; and 

when Son and Smann had first entered the Toyota, Smann 

showed his gun to Son causing Son to believe that Smann was 

going to carry out his prior plan to kill Lee and Nick for having 

robbed Smann’s house.

“After the three-way phone conversation, Detective Gallivan went 

to the jail and interviewed Son further. The interview was taperecorded. During the interview Son stated: Smann told Son that 

Lee and Nick robbed Smann’s house on Halloween when Smann 

was not home but Smann’s parents were; either on that day or a 

week after the robbery, Smann told Son that Smann wanted to 

kill Lee and Nick because they had robbed Smann’s house; 

Smann telephoned Nick and talked about picking up some girls; 

when Lee and Nick arrived, Son and Smann got into the backseat 

of the Toyota where Smann showed his .25-caliber handgun to 

Son; Smann told driver Lee to stop at Morse High School and 

then pulled the gun from his (Smann’s) waistband; Smann took a 

rope out of his pocket and put it around Lee’s neck; however, 

because Smann was unable to kill Lee with the rope, Smann shot 

Lee; meanwhile, Son and Nick stayed in the car; Smann told Son

that if Nick escaped, Smann would shoot Son; and after Smann 

finished killing Lee, Smann had Son take Nick from the car and 

hold Nick while Smann shot Nick. Son also told Gallivan that 

Son had brought the rope and put it around the neck of one of the 

victims.

[¶] . . . [¶]

“In December 1997 by information, the People charged Son with 

two counts of murder while armed with a handgun. (§§ 187, 

subd. (a), 12022, subd. (a)(1).) The information also alleged Son 

committed multiple murders within the meaning of section 190.2, 

subdivision (a)(3).

“In October 1998 the matter came on for jury trial. Ricky 

testified he had given Detective Gallivan extensive statements 

about Son’s admitting [her] involvement in the killings, but Ricky 

claimed his statements had been a lie since Ricky was mad at 

Son for impregnating Ricky’s 13-year-old sister Kim and for 

cheating on Kim by also seeing other girls. However, Ricky was 

unable to explain why the details of the killings he gave Gallivan 
6

closely matched the physical evidence and Son’s later postarrest 

admissions. The People introduced into evidence Son’s taped 

interviews with police and the transcripts of those interviews.

“Asserting an alibi defense, Son testified [s]he was with [her] 

girlfriend Tina when the killings occurred. In that vein, Son 

asserted [s]he was sure [s]he had gone to see a movie and cruise 

around Mission Beach with Tina on the night of the killings. 

However, on cross-examination Son testified [s]he did not know 

Tina’s last name or where she could be found and had never told 

police or anyone else about Tina. Further, although initially 

testifying the movie started at 5:00 or 5:30 p.m., Son later 

testified [s]he could not remember if Smann and the two victims 

had left the front of [her] apartment about 6:00 or 7:00 p.m., 

testimony indicating that Son had not left for the movies by that 

time.

“Additionally, Son testified that [s]he made the inculpatory taped 

statements to Detective Gallivan because Gallivan promised Son 

and Kim that Son would serve only one year in county jail if Son 

admitted [her] involvement in the killings. Son also testified 

[s]he knew certain details about the killings because Gallivan 

had shown [her] photos of the victims. However, Son later 

acknowledged [s]he gave specific details about the killings during 

[her] three-way conversation with Gallivan and Kim, a 

conversation that occurred an hour before Son was taken to jail 

where, according to Son, Gallivan showed [her] the photos of the 

killings and told Son details.

“In rebuttal, Detective Gallivan and investigator Marquez 

testified they had not promised Son or Kim that Son would serve 

only one year in county jail if [s]he admitted participating in the 

killings. Marquez also testified that although Son said [s]he had 

been in Texas at the time of the killings, Marquez’s investigation 

revealed Son was not in Texas at that time.” (Son, supra, 79 

Cal.App.4th at pp. 227–230, fn. omitted.)

As stated, a jury convicted Son of the first degree murder of Kamphila

(§ 187, subd. (a)) and the second degree murder of Lee, and found true the 

allegation that Son was armed with a firearm during the commission of the 
7

murders (§ 12022, subd. (a)(1)) and the multiple-murder special circumstance 

allegation (§ 190.2, subd. (a)(3)). Thereafter, the trial court sentenced Son to 

prison for life without the possibility of parole for the first degree murder

conviction, plus one year on the firearm enhancement, and 15-years to life for 

the second degree murder conviction plus one year on the firearm 

enhancement. The court ordered the sentences to run concurrently. 

Son appealed the convictions, arguing the trial court erred by denying 

his request for an involuntary manslaughter instruction based on the defense 

of “imperfect duress” and by preventing him from presenting expert 

testimony on coerced confessions. (Son, supra, 79 Cal.App.4th at p. 227.) 

This court rejected Son’s arguments. We concluded the involuntary 

manslaughter instruction was not required because California law did not 

support the defense of imperfect duress and the defense did not operate to 

negate Son’s specific intent to aid and abet murder. (Id. at pp. 232–240.) In 

addition, we concluded the trial court’s refusal to allow Son’s expert on false

confessions was not error because there was no evidence before the trial court 

that police used any coercive tactics to obtain Son’s confession. (Id. at 

pp. 240–241.)

B. Petition for Resentencing

In 2021, after the enactment of Senate Bill No. 1437 (2017–2018 Reg. 

Sess.) (Senate Bill 1437), Son filed the underlying petition for resentencing

asserting that she was not the actual killer and did not intend to kill or assist 

the actual killer in the commission of the murders. The People filed an initial 

response to the petition asserting that Son had failed to make a prima facie 

case for relief because the record of conviction showed Son was convicted as a 

direct aider and abettor of both murders. Thereafter, the trial court 

appointed counsel for Son. 
8

At a hearing on the petition, Son’s counsel acknowledged that Son’s 

jury was not instructed on felony murder or “explicitly” on the natural and 

probable consequences doctrine. Counsel argued, however, that the 

conspiracy instruction, CALJIC No. 6.11, told “the jury that a coconspirator 

could be liable for the natural and probable consequence of any act by a 

coconspirator.” Therefore, this instruction allowed Son to be convicted of 

implied malice murder under a natural and probable consequence theory.

Son’s counsel conceded that the argument was stronger for the second degree 

murder conviction than for the first degree murder conviction. The District 

Attorney responded that Son’s jury could not have found her guilty of either 

murder based on a now-invalid theory of liability because a jury today would 

be instructed no differently under current law. 

After the conclusion of the argument, the trial court denied the 

petition. The court found that even though the conspiracy instruction 

referenced natural and probable consequences, because the only crimes at 

issue in the case were murders, there was no possibility the jury imputed 

malice to Son for some other act the consequence of which was a killing. The 

court concluded that the jury instructions and the jury’s verdict established 

as a matter of law that Son was convicted of both murders as a direct aider 

and abettor, and that Son intended to kill or directly aid the killings. 

Son timely appealed from the court’s order denying her resentencing 

petition. 

DISCUSSION

I

Senate Bill 1437

“The Legislature enacted Senate Bill 1437 ‘to more equitably sentence 

offenders in accordance with their involvement in homicides.’ (Stats. 2018, 
9

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 

culpability for murder must be premised upon that person’s own actions and 

subjective mens rea.’ (Id., § 1(g).)” (People v. Curiel (2023) 15 Cal.5th 433, 

448 (Curiel).)

“Senate Bill 1437 altered the substantive law of murder in two areas. 

First, with certain exceptions, it narrowed the application of the felonymurder 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).)” (Curiel, supra, 15 Cal.5th at p. 448.)

“Second, Senate Bill 1437 imposed a new requirement that, except in 

cases of felony murder, ‘a principal in a crime shall act with malice 
10

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. 

([People v. ]Gentile [(2020)] 10 Cal.5th [830,] 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 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.” (Curiel, 

supra, 15 Cal.5th at p. 449.)

“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.” (Curiel, 
11

supra, 15 Cal.5th at p. 449.) Two years later, by the passage of Senate Bill 

No. 775 on October 5, 2021, the Legislature expanded the scope of the law “to 

encompass, among other things, murder convictions ‘under the natural 

probable consequences doctrine or other theory under which malice is 

imputed to a person based solely on that person’s participation in a crime.’ ” 

(People v. Langi (2022) 73 Cal.App.5th 972, 978 (Langi).) Senate Bill No. 775 

also expanded the law to include those convicted of attempted murder under

a theory of liability abrogated by Senate Bill 1437, codified “certain aspects of 

[the Supreme Court’s] decision in [People v. Lewis (2021) 11 Cal.5th 952

(Lewis)], and clarif[ied] the procedure and burden of proof at the evidentiary 

hearing stage of proceedings. (Stats. 2021, ch. 551, § 1.)” (Curiel, at p. 449.) 

Senate Bill No. 775 became effective on January 1, 2022. (Stats. 2021, ch. 

551.) The following year, the Legislature renumbered section 1170.95 to 

section 1172.6 without substantive change.4 (Stats. 2022, ch. 58, § 10.) 

The resentencing “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 Section 188 

or 189 made effective January 1, 2019,’ the effective date of Senate Bill 1437 

(§ 1172.6, subd. (a)(3)).” (People v. Strong (2022) 13 Cal.5th 698, 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 

4 For clarity, we refer to the renumbered statute, section 1172.6, 

throughout the rest of this opinion.
12

dismiss the petition. (See § 1172.6, subd. (c); [citation].)” (Strong, at p. 708.)

If the petitioner states a prima facie case for relief, the court must issue an 

order to show cause and, in most cases, set an evidentiary hearing to 

determine whether to vacate the conviction, recall the sentence, and 

resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c), 

(d)(1).) 

“In determining whether the petitioner has carried the burden of 

making the requisite prima facie showing he falls within the provisions of 

section 1172.6 and is entitled to relief, the superior court properly examines 

the record of conviction, ‘allowing the court to distinguish petitions with 

potential merit from those that are clearly meritless.’ (Lewis, supra, 11 

Cal.5th at p. 971.) However, ‘the prima facie inquiry under [section 1172.6,] 

subdivision (c) is limited. Like the analogous prima facie inquiry in habeas 

corpus proceedings, “ ‘the court takes petitioner’s factual allegations as true 

and makes a preliminary assessment regarding whether the petitioner would 

be entitled to relief if his or her factual allegations were proved. If so, the 

court must issue an order to show cause.’ ” ... “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.’ ” ’ ” (People v. Patton (2023) 89 

Cal.App.5th 649, 655–656, fn. omitted, review granted June 28, 2023, 

S279670.) 

“We independently review a trial court’s determination on whether a 

petitioner has made a prima facie showing.” (People v. Harden (2022) 81 

Cal.App.5th 45, 52.)
13

II

Analysis

Son contends that the trial court erred by denying her resentencing 

petition because the jury instructions allowed her to be convicted on a theory 

under which malice was imputed to her based solely on her participation in a 

crime other than murder. Specifically, Son points to the aiding and abetting 

instruction, CALJIC No. 3.01, and the conspirator joint liability instruction, 

CALJIC No. 6.11. 

A

Jury Instructions

The limited record of conviction in this case suggests that Son was 

prosecuted on the theory that she was a direct aider and abettor in the 

premeditated and deliberate murders of two victims.5 The court instructed 

the jury as to the specific intent required for the murder charges using 

CALJIC No. 8.10, which defines murder. This instruction stated that 

“[e]very person who unlawfully kills a [human being] [with malice 

aforethought] is guilty of the crime of murder in violation of section 187 of the 

Penal Code. ... In order to prove this crime, each of the following elements 

must be proved: [¶] 1. A human being was killed; [¶] 2. The killing was 

unlawful; and [¶] 3. The killing [was done with malice aforethought.]” 

5 The record of conviction before the trial court consists of the felony 

complaint filed against Son; the subsequent information, which removed the 

personal use firearm enhancement under section 12022.5, subdivision (a)

contained in the complaint; the jury’s verdicts finding Son guilty of the first 

degree murder of Kamphila, not guilty of the first degree murder of Lee, 

guilty of the second degree murder of Lee, and finding true the multiplemurder special circumstance allegation; minute orders from the verdict 

reading and sentencing hearing; the abstract of judgment; this court’s opinion 

affirming the judgment; and the jury instructions.
14

Using CALJIC No. 8.11, which defined “malice aforethought,” the court 

also instructed the jury on express and implied malice. The instruction told 

the jury that “[[m]alice is express when there is manifested an intention 

unlawfully to kill a human being.] [Malice is implied when: [¶] 1. The killing 

resulted from an intentional act; [¶] 2. The natural consequences of the act 

are dangerous to human life, and [¶] 3. The act was deliberately performed 

with knowledge of the danger to, and with conscious disregard for human 

life].” 

The jury was also instructed on first and second degree murder, with 

CALJIC Nos. 8.20 and 8.30. CALJIC No. 8.20, titled “Deliberate and 

Premeditated Murder,” told the jury: “All murder which is perpetrated by 

any kind of willful, deliberate and premeditated killing with express malice

aforethought is murder of the first degree. [¶] The word ‘willful,’ as used in 

this instruction, means intentional. [¶] The word ‘deliberate’ means formed 

or arrived at or determined upon as a result of careful thought and weighing 

of consideration for and against the proposed course of action. [¶] The word 

‘premeditated’ means considered beforehand. [¶] If you find that the killing 

was preceded and accompanied by a clear, deliberate intent on the part of the 

defendant to kill, which was the result of deliberation and premeditation, so 

that it must have been formed upon pre-existing reflection and not under a 

sudden heat of passion or other condition precluding the idea of deliberation, 

it is murder of the first degree.” (Italics added.) The second degree murder 

instruction given to the jury, CALJIC No. 8.30, provided: “Murder of the 

second degree is [also] the unlawful killing of a human being with malice 

aforethought when the perpetrator intended unlawfully to kill a human being 

but the evidence is insufficient to prove deliberation and premeditation.” 

(Italics added.)
15

With respect to aiding and abetting, Son’s jury was instructed with 

CALJIC No. 3.01 that “A person aids and abets the commission of a crime 

when he or she: [¶] (1) With knowledge of the unlawful purpose of the 

perpetrator and [¶] (2) With the intent or purpose of committing or 

encouraging or facilitating the commission of the crime, and [¶] (3) By act or 

advice aids, promotes, encourages or instigates the commission of the crime.

[¶] Mere presence at the scene of a crime which does not itself assist the 

commission of the crime does not amount to aiding and abetting. [¶] Mere 

knowledge that a crime is being committed and the failure to prevent it does 

not amount to aiding and abetting.”

With respect to conspiracy, the jury was instructed with CALJIC 

Nos. 6.10.5 and 6.11. CALJIC No. 6.10.5 told the jury: “[a] conspiracy is an 

agreement between two or more persons with the specific intent to agree to 

commit the crime of murder, and with the further specific intent to commit 

that crime, followed by an overt act committed in this state by one or more of 

the parties for the purpose of accomplishing the object of the agreement. 

Conspiracy is a crime but is not charged as such in this case.”6 

6 The instruction further stated: “In order to find a defendant to be a 

member of a conspiracy, in addition to proof of the unlawful agreement and 

specific intent, there must be proof of the commission of at least one overt act. 

It is not necessary to such a finding as to any particular defendant that 

defendant personally committed the overt act [, if [he] was one of the 

conspirators when the alleged overt act was committed]. [¶] The term ‘overt 

act’ means any step taken or act committed by one or more of the 

conspirators which goes beyond mere planning or agreement to commit a 

crime and which step or act is done in furtherance of the accomplishment of 

the object of the conspiracy. [¶] To be an ‘overt act,’ the step taken or act 

committed need not, in and of itself, constitute the crime or even an attempt 

to commit the crime which is the ultimate object of the conspiracy. Nor is it 

required that the step or act, in and of itself, be a criminal or unlawful act.”
16

The jury also was instructed with CALJIC No. 6.11 that “[e]ach 

member of a criminal conspiracy is liable for each act and bound by each 

declaration of every other member of the conspiracy if that act or such 

declaration is in furtherance of the object of the conspiracy. [¶] The act of one 

conspirator pursuant to or in furtherance of the common design of the 

conspiracy is the act of all conspirators. [¶] A member of a conspiracy is not 

only guilty of the particular crime that to [her] knowledge [her] confederates 

agreed to and did commit, but is also liable for the natural and probable 

consequences of any act of a coconspirator to further the object of the 

conspiracy, even though that act was not intended as a part of the agreed 

upon objective and even though [she] was not present at the time of the 

commission of that act. [¶] You must determine whether the defendant is 

guilty as a member of a conspiracy to commit the originally agreed upon 

crime or crimes.” (Italics added.) 

Finally, the jury was instructed on the multiple-murder special 

circumstance with CALJIC No. 8.80.1 that: “If you find [the] defendant in 

this case guilty of murder of the first degree, you must then determine if the 

following special circumstance [is] true or not true. The defendant has in this 

case been convicted of at least one crime of murder of the first degree and one 

or more crimes of murder of the first or second degree. [¶] The People have 

the burden of proving the truth of a special circumstance. If you have a 

reasonable doubt as to whether a special circumstance is true, you must find 

it to be not true. [¶] [If you find that a defendant was not the actual killer of 

a human being, or if you are unable to decide whether the defendant was the 

actual killer or [an aider and abettor] [or] [coconspirator], you cannot find the 

special circumstance to be true [as to that defendant] unless you are satisfied 

beyond a reasonable doubt that such defendant with the intent to kill [aided]
17

or [abetted] or [counseled] or [commanded] or [induced] or [solicited] or 

[requested] or [assisted] any actor in the commission of the murder in the first 

degree.” (Italics added.)

B

Langi & Maldonado

Based on these instructions—particularly CALJIC No. 3.01 and the 

sentence in CALJIC No. 6.11 that “[a] member of a conspiracy is not only 

guilty of the particular crime that to [his] knowledge [his] confederates 

agreed to and did commit, but is also liable for the natural and probable 

consequences of any act of a coconspirator to further the object of the 

conspiracy, even though that act was not intended as a part of the agreed 

upon objective”— Son argues the jury was permitted to find she was an aider 

and abettor in the murders without finding she intended to assist in the 

killings. (Italics added.) She argues the jury could have concluded that she

only intended to assist Smann with a separate criminal act, but still 

convicted her of the murders if the killings were the consequence of that act. 

She asserts, “if another conspirator expressed the intent to kill, the jury could 

have imputed their intent to kill to [Son] as a coconspirator. If a 

coconspirator acted to kill the victim, the jury could have imputed that act to 

[Son] as well, even if murder was ‘not intended as part of the agreed upon 

objective.’ ” 

In support of her argument, Son relies on Langi, supra, 73 Cal.App.5th 

972, and People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado), both 

cases that reversed the trial court’s orders summarily denying section 1172.6 

resentencing petitions. The Attorney General responds that unlike the 

instructions in Langi and Maldonado, the jury instructions provided in Son’s 

trial foreclosed the possibility the jury imputed malice to Son based on her 
18

intent to assist Smann with another criminal act because the instructions 

made clear that the only criminal acts at issue in the case were the two 

murders. Thus, the Attorney General argues, the record of conviction 

establishes Son’s own intent to kill as a matter of law, precluding an 

evidentiary hearing.

Both Langi and Maldonado bear similarities to Son’s case. The 

appellant in Langi was one of four men who beat and robbed another group of 

men that resulted in a death. (Langi, supra, 73 Cal.App.5th at p. 975.) One 

of the four perpetrators punched one of the victims, who then fell “and hit his 

head, leading to his death.” (Ibid.) In 2007, Langi was convicted of the 

second degree murder of the victim on the theory that he was the perpetrator 

who threw the arguably fatal punch or that he aided and abetted the killing.7 

(Ibid.) Langi filed a petition for resentencing, asserting that another 

perpetrator threw the punch that led to the victim’s death, and that he was 

eligible for relief under section 1172.6. (Ibid.) The trial court summarily 

denied Langi’s petition, finding that the record of conviction, specifically the 

appellate court decision that affirmed Langi’s conviction, established that 

Langi was the actual killer as a matter of law, precluding relief under 

section 1172.6. (Langi, at p. 977.)

On appeal, Langi argued that the trial court erred by relying on 

statements in the appellate opinion to conclude he was the actual killer. The 

First District agreed with Langi on this issue, holding that the jury’s verdict

left open the possibility that Langi was convicted as an aider and abettor of 

7 The prosecutor also argued that the victim was killed during the 

robbery and that Langi should be convicted of first degree felony murder. 

(Langi, supra, 73 Cal.App.5th at p. 977.) The jury, however, rejected this 

theory and found Langi not guilty of felony murder, but guilty of second 

degree murder, robbery, and battery. (Ibid.)
19

the killing, despite language in the appellate opinion suggesting Langi threw 

the deadly punch. (Langi, supra, 73 Cal.App.5th at p. 980.) The court then 

turned to the question—the same one presented in this case—of whether the 

jury could have convicted Langi as an aider and abettor “ ‘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.’ ” 

(Ibid.) 

Langi noted two instructions were of central importance to the issue, 

CALJIC Nos. 8.31, on second degree murder liability, and 3.01, the same 

aiding and abetting instruction given to Son’s jury. (Langi, supra, 73 

Cal.App.5th at p. 981.) CALJIC No. 8.31 was substantially similar to the 

implied malice instruction, CALJIC No. 8.11, given in this case. The 

instruction told Langi’s jury “that a killing is a second degree murder if 

‘1. The killing resulted from an intentional act, [¶] 2. The natural 

consequences of the act are dangerous to human life, and [¶] 3. The act was 

deliberately performed with knowledge of the danger to, and with conscious 

disregard for, human life. [¶] When the killing is the direct result of such an 

act, it is not necessary to prove that the defendant intended that the act 

would result in the death of a human being.” (Langi, at p. 981.)

Langi argued that these “instructions permitted the jury to find him 

guilty of murder if it found that (1) the killing resulted from the actual 

killer’s intentional act; (2) appellant aided and abetted that intentional act; 

and (3) the killer ‘deliberately performed [the act] with knowledge of the 

danger to, and with conscious disregard for, human life’—whether or not 

appellant knew of or consciously disregarded the danger to human life. The 

instructions thus permitted the jury to impute malice to appellant based 
20

solely on his participation in a crime, without having to find that he 

personally acted with malice.” (Langi, supra, 73 Cal.App.5th at p. 981.) 

The Attorney General argued that, under these instructions, the “jury 

could have found appellant guilty as an aider and abettor of second degree 

murder only if it found that he ‘ “kn[e]w and share[d] the murderous intent of 

the actual perpetrator” ’ ” and not under an imputed malice theory “ ‘based 

solely on that person’s participation in a crime’ because it was ‘instructed 

that to convict appellant of murder it had to find that he acted with implied 

malice.’ ” (Langi, supra, 73 Cal.App.5th at p. 981.) In support of the 

argument, the Attorney General quoted “the part of the aiding-and-abetting 

instruction stating that an accomplice must act with ‘the intent or purpose of 

committing or encouraging or facilitating the commission of the crime.’ 

(CALJIC No. 3.01.)” (Id. at p. 982.) Langi rejected this analysis, holding the 

“language does not state that the aider and abettor must himself have known 

that the act he aided was life-threatening, or that he must himself have acted 

with indifference to human life.” (Ibid.)

The Langi court concluded that “under the instructions that were 

given, the jury was entitled to conclude that, to be guilty as an aider and 

abettor of second degree murder, appellant need only have intended to 

encourage the perpetrator’s intentional act—in this case, punching [the 

victim]—whether or not appellant intended to aid or encourage [the] killing, 

and whether or not he personally knew of and disregarded the risk of such a 

killing.” (Langi, supra, 73 Cal.App.5th at p. 983.) The court explained that 

the instructions were insufficient under current law because they did not 

explain that “to be guilty as a direct aider and abettor of second degree 

murder, an accomplice must have acted with the mental state of implied 

malice.” (Ibid.) The court noted that “the standard aiding and abetting 
21

instructions are ill suited to the crime of second-degree murder.” (Id. at 

p. 982.) If “a trial court uses such an instruction without tailoring it to the 

specifics of [the crime of murder], the instruction creates an ambiguity under 

which the jury may find the defendant guilty ... without finding that he 

personally acted with malice.” (Ibid.; see also People v. Powell (2021) 63 

Cal.App.5th 689, 712–714 [clarifying the elements of directly aiding and 

abetting a second degree implied malice murder and explaining the standard 

aiding and abetting instruction fails to convey the elements].)

In Maldonado, the appellant was arrested for murder after police 

investigators discovered Maldonado told someone he stabbed the victim with 

the help of a friend, and “told another person the killing was a friend’s idea 

and the friend stabbed the victim with appellant’s help.” (Maldonado, supra, 

87 Cal.App.5th at p. 1259.) Maldonado was eventually convicted of first 

degree murder based on a theory of lying in wait, though the jury found not 

true a lying-in-wait special circumstance allegation. (Id. at p. 1260.) The 

jury was instructed on both premeditated murder and lying-in-wait murder. 

(Ibid.) Like here, the jury was not instructed on felony murder or the natural 

and probable consequences doctrine. (Ibid.) Also like here, the jury was 

instructed on both express and implied malice and on direct aiding and 
22

abetting liability with CALCRIM No. 401, an instruction substantially the 

same as the version of CALJIC No. 3.01 given in Son’s and Langi’s trials.8 

As in Langi, the Maldonado court noted that the aiding and abetting 

instruction was “ ‘not tailored for’ aiding and abetting an implied malice 

murder” because it “refers to an intent to aid and abet a ‘crime,’ ” when “the 

aider and abettor in fact needs to ‘intend the commission of the perpetrator’s 

act, the natural and probable consequences of which are dangerous to human 

life, intentionally aid in the commission of that act and do so with conscious 

disregard for human life.’ ” (Maldonado, supra, 87 Cal.App.5th at p. 1265, 

italics added.) Maldonado held that the instruction permitted the jury to 

conclude that the appellant aided and abetted a murder without finding that 

the aider and abettor himself harbored an intent, either express or implied, 

to kill: “[T]he jury was instructed that a person aids and abets a crime if ‘he 

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

intends to and does in fact aid, facilitate, promote, encourage or instigate the 

perpetrator’s commission of that crime.’ The murder by lying in wait 

instruction did not instruct the jury that the perpetrator needed to intend to 

8 The version of CALCRIM No. 401 given to Maldonado’s jury stated: 

“To prove that the defendant is guilty of a crime based on aiding and abetting 

that crime, the People must prove that: [¶] Number One, the perpetrator 

committed the crime; [¶] Two, the defendant knew the perpetrator intended 

to commit the crime; [¶] Three, before or during the commission of the crime 

the defendant intended to aid and abet the perpetrator in committing the 

crime; [¶] And, Four, the defendant’s words or conduct did in fact aid and 

abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a 

crime if he or she knows the perpetrator’s unlawful purpose and he or she 

specifically intends to and does in fact aid, facilitate, promote, encourage or 

instigate the perpetrator’s commission of that crime. If all of these 

requirements are proved the defendant does not need to actually have been 

present when the crime was committed to be guilty as an aider and abettor.”

(Maldonado, supra, 87 Cal.App.5th at p. 1264.)
23

cause death. While the perpetrator must have concealed his purpose from 

the victim, waited and watched for an opportunity to act, intentionally made 

a surprise attack from a position of advantage, and have lain in wait for a 

substantial enough duration to show a state of mind equivalent to 

deliberation or premeditation, the jury may have found the perpetrator’s 

purpose was only to injure or intimidate the victim in a surprise attack. 

Thus, using Langi’s reasoning, the jury could have construed the instructions 

such that, ‘to be guilty as an aider and abettor of [lying in wait first degree] 

murder, appellant need only have intended to encourage the perpetrator’s 

intentional act—in this case, [a surprise attack on the victim]—whether or 

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

or not he personally knew of and disregarded the risk of such a killing.’ ”9 

(Maldonado, supra, 87 Cal.App.5th at p. 1266.)

As in Langi and Maldonado, the same aiding and abetting instruction 

in combination with the malice instruction left open a slim possibility that 

Son could have been convicted as an aider and abettor of the murder of Lee 

without finding he personally acted with malice. Because the instruction was 

not tailored to the crime of murder, depending on how the case was 

prosecuted and defended, the jury could have found that Son intended to 

assist Smann with another crime, for example assault or threat, and then 

9 Maldonado held that the fact that the appellant was convicted of first 

degree murder, rather than second degree murder as in Langi, was 

“immaterial because ... first degree lying-in-wait murder can be based on a 

theory that the perpetrator acted with implied malice rather than an intent 

to kill,” thus Langi’s “analysis of the standard instructions for aiding and 

abetting an implied malice murder” applied. (Maldonado, supra, 87 

Cal.App.5th at p. 1267.)
24

imputed malice from Smann to Son to find him guilty of second degree 

murder.10 

Like the First District in Maldonado, “[w]e emphasize the jury was not 

required to construe the instructions in this manner. The jury could have[, 

and perhaps did,] construe[] the instructions as requiring the aider and 

abettor know the perpetrator intended to commit the act and know the 

perpetrator acted with implied malice—in other words, know the perpetrator 

knew the act was dangerous to human life and deliberately disregarded the 

risk to life. Thus, the jury could have construed the instructions as requiring 

that, to be guilty of aiding and abetting an implied malice [second degree] 

murder, appellant must have intended to encourage both the act and the 

perpetrator’s deliberate disregard that the act was dangerous to human life 

and, in so doing, appellant acted with implied malice.” (Maldonado, supra,

87 Cal.App.5th at pp. 1266–1267.) However, at this stage of the proceedings 

on this limited record, Son must be afforded the opportunity to litigate the 

issue at an evidentiary hearing. 

The Attorney General asserts Langi does not support reversal of the 

trial court’s decision because, “unlike the jury in Langi, [Son]’s jury was not 

instructed on second degree implied-malice murder. Rather, [Son]’s jury was 

instructed that ‘[m]urder of the second degree is also the unlawful killing of a 

10 Although we cannot reach the issue at the prima facie stage on the 

limited record before this court, our prior opinion confirming the conviction 

casts doubt on such a theory. The opinion suggests Son’s only defense to the 

crime, which she confessed to and then recanted at trial, was imperfect 

duress, i.e., that she participated in the murders because she believed that 

Smann would harm her if she did not go along with his plans. (Son, supra, 

79 Cal.App.4th at p. 231.) If there was no evidence of other crimes 

contemplated by Son and Smann—something unclear in the current record—

it appears likely that the prosecutor on remand could prove Son harbored the 

requisite intent to kill. 
25

human being with malice aforethought when the perpetrator intended 

unlawfully to kill a human being but the evidence is insufficient to prove 

deliberation and premeditation.’ ” The Attorney General then argues that 

because this instruction, CALJIC No. 8.30, specified an intent to kill was 

required, there was no possibility Son’s jury would find her guilty without 

finding she acted with malice. This argument, however, misconstrues the 

instruction when it is given in combination with the aiding and abetting 

instructions. 

The flaw identified in Langi and Maldonado, that an aider and abettor 

can be convicted of murder based on imputed malice under the aiding and 

abetting instruction, is not nullified by CALJIC No. 8.30. Rather, that 

instruction states only that the perpetrator must act with intent to kill. If 

Son’s jury convicted her on a theory of aiding and abetting by imputing 

Smann’s implied malice to her, CALJIC No. 8.30 would not have corrected 

that insufficiency. The Attorney General’s attempt to distinguish Maldonado

fails for the same reason. Like these two cases, summary denial of Son’s 

petition for resentencing of her conviction for second degree murder must be 
26

reversed.11 The limited record in this case does not establish as a matter of 

law that she is ineligible for relief under section 1172.6 for this conviction. 

11 In People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921 (BerryVierwinden), this court affirmed the denial of a resentencing petition under 

section 1172.6 at the prima facie stage that was based on a similar 

instructional problem to the one presented here. Our decision relied on the 

requirement in section 1172.6, subdivision (a)(3) that the petitioner must 

“establish that he ‘ “could not presently be convicted of murder or attempted 

murder because of changes to Section 188 or 189 made effective January 1, 

2019.” ’ ” (Id. at p. 933, italics in the original.) We concluded the alleged 

infirmity in the jury instructions could have been raised at the time of the 

petitioner’s conviction and direct appeal under People v. McCoy (2001) 25 

Cal.4th 1111 (McCoy), which held that “ ‘ “when guilt does not depend on the 

natural and probable consequences doctrine, ... the aider and abettor must 

know and share the murderous intent of the actual perpetrator.” ’ ” (BerryVierwinden, supra, at p. 935.) Thus, the petitioner’s argument did not 

support reversal of the trial court’s denial of her resentencing petition at the 

prima facie stage because any infirmity in the conviction was not created by 

Senate Bill 1437. (See also People v. Burns (2023) 95 Cal.App.5th 862, 868 

[“The Supreme Court’s McCoy decision ... made clear that the direct 

perpetrator’s mental state could not be imputed to an aider and abettor, 

whose mental state had to be independently evaluated”]; and People v. Flores

(2023) 96 Cal.App.5th 1164, 1173 [“When Flores was convicted in 2010, a 

provocative act murder conviction required the defendant personally harbor 

malice, whether it was the defendant or an accomplice who committed the 

provocative act that caused the death.”].) 

Although not raised by the parties, we note that unlike BerryVierwinden, the timeline at issue in this case does not establish the law 

foreclosed Son’s jury from convicting her of second degree murder without 

finding she shared the murderous intent of the perpetrator. She was 

convicted in 1998 and this court issued its opinion affirming that conviction 

in 2000 (Son, supra, 79 Cal.App.4th at p. 230), the year before McCoy made 

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

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

p. 1118.)” (Berry-Vierwinden, supra, 97 Cal.App.5th at p. 935.) 
27

C

Conspiracy Instructions

We do agree with the Attorney General that the conspiracy instructions 

given to the jury did not create the same risk that Son would be convicted of 

murder on a conspiracy theory without the jury finding Son herself had the 

requisite intent to kill. As the Attorney General points out, the conspiracy 

instruction was specifically tailored to the crime of murder. CALJIC 

No. 6.10.5 told the jury: “[a] conspiracy is an agreement between two or more 

persons with the specific intent to agree to commit the crime of murder, and 

with the further specific intent to commit that crime, followed by an overt act 

committed in this state by one or more of the parties for the purpose of 

accomplishing the object of the agreement. Conspiracy is a crime but is not 

charged as such in this case.” (Italics added.) This instruction made clear to 

the jury that to convict Son of murder on the conspiracy theory, it was 

required to find she specifically intended to agree to commit the murders.

Son points to the language in CALJIC No. 6.11 that “[a] member of a 

conspiracy is not only guilty of the particular crime that to [his] knowledge 

[his] confederates agreed to and did commit, but is also liable for the natural 

and probable consequences of any act of a coconspirator to further the object of 

the conspiracy ....” (Italics added.) She asserts this statement allowed the 

jury to convict her of murder under a conspiracy theory without malice. 

However, when read in conjunction with the tailored version of CALJIC 

No. 6.10.5, that possibility was foreclosed. If the jury convicted Son of the 

murders based on a conspiracy, a fact not knowable based on the present 

record of conviction, the jury necessarily found Son agreed with Smann to kill 

the victims. However, because the limited record of conviction does not 

establish on what theory Son was convicted, this conspiracy instruction does 
28

not establish Son’s ineligibility for relief as to the killing of Lee as a matter of 

law. (See Lewis, supra, 11 Cal.5th at p. 972 [“In reviewing any part of the 

record of conviction at this preliminary juncture, a trial court should not 

engage in ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ ... [T]he ‘prima facie bar was intentionally and correctly set very 

low.’ ”].)

D

Multiple Murder Special Circumstance

Finally, as stated at the outset of this opinion, we agree with the 

Attorney General that the multiple-murder special circumstance jury 

instructions foreclose Son’s resentencing petition with respect to the first 

degree murder conviction as a matter of law. Son asserts the jury’s true 

finding on the special circumstance allegation does not preclude her petition 

on either conviction because the jury could have interpreted CALJIC 

No. 8.81.3 “to mean that to find the multiple murder special circumstances 

true, it must be proven the defendant had been convicted of one crime of first 

degree murder, and at least one murder of the first or second degree, without 

requiring any specific intent or the intent to commit a murder.” 

This assertion lacks merit. As discussed, the primary instruction on 

the multiple-murder special circumstance allegation given to the jury, 

CALJIC No. 8.80.1, specifically addressed the intent of the defendant, not the 

perpetrator. It stated, “If you find that a defendant was not the actual killer 

of a human being, or if you are unable to decide whether the defendant was 

the actual killer or an aider and abettor or coconspirator, you cannot find the 

special circumstance to be true as to that defendant unless you are satisfied 

beyond a reasonable doubt that such defendant with the intent to kill aided or 

abetted or counseled or commanded or induced or solicited or requested or 
29

assisted any actor in the commission of the murder in the first degree.” 

(Internal brackets omitted and italics added.) This instruction, as the 

Attorney General notes, “does not address the defendant’s requisite intent for 

second degree murder.” However, the instruction specifically required the 

jury to find Son was either the actual killer, or if not, that she intended to aid 

and abet a first degree murder. (See, e.g., People v. Nunez and Satele (2013) 

57 Cal.4th 1, 45 [“When there is evidence from which a jury could base its 

convictions for multiple counts of murder on the theory that the defendant 

was guilty as an aider and abettor, and not as the actual perpetrator, the 

trial court must instruct the jury that to find true a multiple-murder specialcircumstance allegation as to that defendant, it must find that the defendant 

intended to kill the murder victims.”].) The jury’s true finding on this 

allegation, therefore, shows the jury found that Son had the requisite intent 

to aid and abet the first degree murder of Kamphila.

CALJIC No. 8.81.3, which Son relies on, states: “To find the special 

circumstances, referred to in these instructions as multiple murder 

convictions, is true, it must be proved: [¶] [The: defendant has in this case 

been convicted of at least one crime of murder of the first degree and one or 

more crimes of murder of the first or second degree.” This general instruction 

does not negate the jury’s necessary finding under CALJIC No. 8.80.1 that 

Son intended to kill or intended to aid and abet the killing of Kamphila in 

order to find true the multiple-murder special circumstance allegation. 

DISPOSITION

The order denying Son’s petition for resentencing is reversed as to the 

second degree murder conviction and affirmed as to the first degree murder 

conviction. The matter is remanded to the trial court with directions to issue 
30

an order to show cause and hold an evidentiary hearing on the petition as it 

relates to the second degree murder conviction.

McCONNELL, P. J.

WE CONCUR:

IRION, J.

DO, J.