SEE DISSENTING OPINION

Filed 8/25/23 P. v. Raygoza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KAYLA GENEIRENE RAYGOZA,

Defendant and Appellant.

F083282

(Super. Ct. No. PCF380666C)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. 

Boccone, Judge.

Victor Blumenkrantz; Jacquelyn E. Larson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. 

Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

On July 26, 2021, a jury acquitted defendant Kayla Geneirene Raygoza1 of first 

and second degree murder (Pen. Code, §§ 187, subd. (a), 189, count 1),2 but found her 

guilty of the lesser included offense of aiding and abetting Fabian Nilo in the voluntary 

manslaughter (§ 192, subd. (a), count 1)3 of Roman Gomez. Prior to deliberations, the 

jury was instructed with the aiding and abetting instruction (CALCRIM No. 401), which 

four of our sister courts have found to be a flawed instruction, as applied to implied 

malice murder, because it permits a jury to convict a defendant of second degree murder 

without a finding that he or she acted with implied malice.4 Although defendant was not 

convicted of second degree murder, but rather of the lesser included offense of voluntary 

manslaughter, the jury was still required to find she acted with either an intent to kill or a 

conscious disregard for human life, “i.e., the mental state ordinarily sufficient to 

constitute malice aforethought.” (People v. Bryant (2013) 56 Cal.4th 959, 970 (Bryant) 

[“voluntary manslaughter requires either an intent to kill or a conscious disregard for 

life”].)

On appeal, defendant contends the trial court erred when it instructed the jury with 

CALCRIM No. 401 because it permitted the jury to find her guilty of voluntary 

manslaughter: (1) under an invalid implied malice aiding and abetting theory; and 

(2) without a finding she possessed either an intent to kill or a conscious disregard for 

human life. 

1 Defendant is also identified as Kayla Easter throughout the record.

2 All further references are to the Penal Code, unless otherwise stated.

3 As we discuss further below, defendant was also convicted and sentenced to an 

additional offense.

4 People v. Maldonado (2023) 87 Cal.App.5th 1257, 1265‒1269; People v. Glukhoy

(2022) 77 Cal.App.5th 576, 592 (Glukhoy); People v. Langi (2022) 73 Cal.App.5th 972, 

981‒984 (Langi); People v. Powell (2021) 63 Cal.App.5th 689, 714 (Powell).
3.

Although our Supreme Court recently concluded a theory of aiding and abetting 

implied malice murder is still a legally valid theory (People v. Reyes (2023) 14 Cal.5th 

981 (Reyes)), we do find the aiding and abetting instruction (CALCRIM No. 401), as 

applied to imp lied malice murder, is flawed and that defendant was prejudiced as a result 

of the jury being provided this instruction.5 Accordingly, we reverse the voluntary 

manslaughter conviction (count 1), vacate the sentence as to both counts, and remand for 

further proceedings. In all other respects, we affirm the judgment. 

STATEMENT OF CASE

On November 1, 2019, the Tulare County District Attorney filed an information 

charging defendant with first degree murder (§§ 187, subd. (a), 189, count 1) and assault 

with a deadly weapon, to wit, a motor vehicle (§ 245, subd. (a)(1), count 2). 

On July 26, 2021, the jury acquitted defendant of first and second degree murder 

(§§ 187, subd. (a), 189, count 1), but found her guilty of voluntary manslaughter (§ 192, 

subd. (a), count 1) and assault with a deadly weapon (§ 245, subd. (a)(1), count 2). As to 

count 1, the trial court sentenced defendant to the aggravated term of 11 years. As to 

count 2, the trial court sentenced defendant to the aggravated term of four years, but 

stayed the sentence pursuant to section 654. 

5 Defendant further contends the trial court erred “when it imposed the upper term 

sentence on count 1 based solely on [section] 654-stayed count 2” (unnecessary 

capitalization omitted), and that she is entitled to be resentenced consistent with the 

changes made by newly enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) and 

Assembly Bill No. 518 (2021-2022 Reg. Sess.). As we discuss in detail below, defendant 

was prejudiced as a result of the jury being provided with the flawed instruction for 

aiding and abetting implied malice murder (CALCRIM No. 401), and we therefore 

reverse the voluntary manslaughter conviction (count 1). Because defendant is entitled to 

be resentenced and the trial court can readdress its sentencing decisions in light of these 

recent changes, we do not address the merits of defendant’s additional claims. (People v. 

Valenzuela (2019) 7 Cal.5th 415, 424‒425 [“the full resentencing rule allows a court to 

revisit all prior resentencing decisions when resentencing a defendant”]; accord, People 

v. Buycks (2018) 5 Cal.5th 857, 893 [“the full resentencing rule”].) 
4.

SUMMARY OF FACTS

I. Background

In 2019, Angela M.6 and Roman Gomez were in a dating relationship and lived 

together in a house in Tulare.7 Roman would often be jealous and “sometimes he’d just 

try to swing on [her], like put his hands on [her] and stuff like that.” During one specific 

incident, Roman was intoxicated and became aggressive and abusive towards her. 

Angela also lived in the house with her cousin, Fabian N. Fabian and Kayla B.8

were in a dating relationship. Angela, defendant, and defendant’s wife, Aaliyah R., were 

all friends. Defendant and Fabian did not like Roman. 

II. May 20, 2019 Incident

On the night of May 20, 2019, Angela and Roman were at the house when 

defendant and Aaliyah came over. The four of them were together at the house until 

defendant and Aaliyah left after 10:00 p.m. Subsequently, Angela and Roman were in 

their car when they got into a physical confrontation. Roman “started just grabbing 

[Angela’s] arms and he wouldn’t let [her] go until [she] pushed him away.” Angela then 

went into her room and laid on her bed when Roman “started choking [her] again and 

pulling [her] hair.” She told Roman to leave and he then proceeded to leave the house 

with some of his personal belongings. 

Later on defendant and Aaliyah came back to the house. Both defendant and 

Aaliyah observed Roman arguing with Angela, and they told Roman to leave. Defendant 

then “started getting aggressive, like trying to be physical with Roman” and “[s]he was 

6 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their 

first names or initials. No disrespect is intended.

7 Angela testified under a grant of immunity. 

8 Kayla Bernal and Kayla Raygoza share the same first name. Kayla Bernal will be 

referred to as “Kayla” throughout the opinion, whereas Kayla Raygoza will be referred to 

as “Defendant.”
5.

trying to put her hands on him, telling him to hurry up and leave, like pushing him away.” 

Defendant told Roman he was lucky Angela was there “because she wanted to hurt him.” 

Eventually, Roman left the house “[w]ith his stuff, like his clothes.” Angela ended up 

with marks on her arms as a result of this confrontation with Roman. 

At or around 1:00 a.m., Angela called Fabian and he told her “he was going to 

come over and [she] told him not to.” Later on, Fabian texted Angela and told her he was 

“OMW, on my way.” Fabian, Kayla, and Caesar L. then drove over to the house in a 

SUV. Fabian then hugged Angela and told her he was sorry, but “he had to do what he 

had to do.”9 Fabian then left with Kayla and Caesar in the SUV. Angela went to the 

bathroom and when she came back out defendant and Aaliyah were also gone. 

Fabian, Kayla, and Caesar searched for Roman. The group located Roman near a 

school, and Fabian and Caesar exited the vehicle and confronted Roman.10 In 

surveillance footage,11 Fabian is observed holding a “shiny object in one of [his] hands” 

while positioned “in a bladed sort of fighting stance.” In the footage, Fabian and Caesar 

are observed “making punching, stabbing motions towards Roman.”12 Subsequently, 

defendant drove up in her gray Nissan Altima and hit Roman, Fabian, and Caesar with 

her car.13 Defendant got out of the vehicle and involved herself in the altercation, and 

ended up pushing and choking Roman, along with hitting him two times. Kayla told law 

9 Before this incident, Fabian had told Angela that if Roman “kept putting hands on 

[her] that he was going to do what he had to do.” 

10 It is unclear in the record whether Kayla also stepped out of the vehicle to 

confront Roman. However, what is clear is the two individuals who initially attack 

Roman were Fabian and Caesar. 

11 The surveillance footage was introduced and admitted as People’s exhibit 10. 

12 It was later determined Roman suffered three stab wounds as a result of Fabian 

stabbing him with a knife. 

13 Defendant testified she “tr[ied] to break up the fight by tapping the two people in 

front” with her car and only “tr[ied] to scare them.” It is unclear how fast defendant was 

driving when she hit Roman, Fabian, and Caesar with her car. 
6.

enforcement defendant was “egging on the fight” and had asked Fabian, “ ‘If that’s all 

you have? That’s all? He doesn’t deserve to be here.’ ” After the fight, Roman was on 

the ground and told the group, “ ‘That’s enough. Stop’ ... ‘I’m sorry.’ ” 

On their way home, Fabian told Kayla he wished he had done more to Roman. 

Fabian then came back to the house and Angela noticed he had something “tucked in his 

pants,” which she believed was a knife. 

III. Subsequent Law Enforcement Investigation

Subsequently, Roman called 911 and law enforcement arrived on scene and 

observed him “wincing in pain, and he told [them] that he had been stabbed.” 

Emergency personnel then transported Roman to the hospital where he died as a result of 

three stab wounds. 

On May 22, 2019, law enforcement located defendant in the City of Cutler in her 

gray Nissan Altima and placed her under arrest. Later on, officers interviewed defendant 

and she admitted to hitting the group with her car and also admitted to getting out of her 

car and hitting Roman twice.14 However, defendant testified she did not intend for 

Roman to be killed and never encouraged anyone to kill him. 

DISCUSSION

I. Error Related to Jury Instruction CALCRIM No. 401

Defendant contends the trial court committed prejudicial error by instructing the 

jury on an invalid implied malice theory of aiding and abetting a homicide, a theory in 

which the prosecutor relied on during his closing argument. Specifically, as it relates to 

homicide, defendant argues “implied malice is not a valid legal theory of aiding and 

abetting a homicide, because it contravenes the requirement that direct aiders and abettors 

14 The prosecutor also admitted evidence of text messages where defendant told a 

friend she had “choked” or “throttled” Roman and a conversation with Angela where she 

laughed about Roman’s condition after the stabbing and said, “ ‘That he would be lucky 

if he got up because she hit him with a car.’ ” 
7.

harbor a specific intent to commit the charged homicide crime.” (Unnecessary 

capitalization and emphasis omitted.) Further, defendant argues the trial court 

“committed [prejudicial] instructional error by giving the standard version of CALCRIM 

No. 401” because “it fail[ed] to inform the jury of all of the requisite aiding and abetting 

elements.” Based on our Supreme Court’s holding in Reyes, we reject defendant’s 

contention an aider and abettor to a homicide must act with express malice, but do agree 

the standard version of CALCRIM No. 401 given to the jury in this case was erroneous 

because it allowed the jury to impute malice to defendant based solely on her 

participation in the crime, and this error was prejudicial under the federal standard of 

Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).15

A. Aiding and Abetting Implied Malice Murder is Still a Valid Theory of 

Murder

Defendant argues the trial court erred because its aiding and abetting instructions 

permitted the jury to convict her even if she aided and abetted the perpetrator (Fabian) 

with an intent to kill (express malice), and did so with implied malice. She argues a 

defendant cannot aid and abet murder based on implied malice. Because our Supreme 

Court recently concluded a direct aiding and abetting theory of implied malice murder is 

still a valid theory of murder (Reyes, supra, 14 Cal.5th at pp. 990‒991), we disagree. 

i. Applicable Law

“A person who aids and abets the commission of a crime is culpable as a principal 

in that crime. (§ 31.) Aiding and abetting is not a separate offense but a form of 

derivative liability for the underlying crime.” (People v. Gentile (2020) 10 Cal.5th 830, 

843 (Gentile).) “[U]nder direct aiding and abetting principles, an accomplice is guilty of 

15 The People do not argue forfeiture in response to defendant’s instructional error 

claims. Under these circumstances, we will assume arguendo defendant’s claims were 

preserved for our review, decide the merits of the claims, and forego addressing 

defendant’s alternative ineffective assistance of counsel claims. 
8.

an offense perpetrated by another 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.’ ” (Ibid.) Aider and abettor liability is “ ‘based on a 

combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own

mental state.’ ” (Powell, supra, 63 Cal.App.5th at p. 710.) In other words, “ ‘[a]n aider 

and abettor must do something and have a certain mental state.’ ” (Id. at p. 712, quoting 

People v. McCoy (2001) 25 Cal.4th 1111, 1117.) 

“In the context of implied malice, the [act] required of the perpetrator is the 

commission of a life-endangering act. For the direct aider and abettor, the [act] includes 

whatever acts constitute aiding the commission of the life endangering act. Thus, to be 

liable for an implied malice murder, the direct aider and abettor must, by words or 

conduct, aid the commission of the life-endangering act, not the result of that act.” 

(Powell, supra, 63 Cal.App.5th at p. 713, fn. omitted.) As it relates to intent, “the aider 

and abettor of implied malice murder need not intend the commission of the crime of 

murder. Rather ... he or she need only 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.” (Id. 

at p. 714.) The requisite intent is a subjective one – the defendant must have “actually 

appreciated the risk involved” (People v. Contreras (1994) 26 Cal.App.4th 944, 954), 

and implied malice may be proven by circumstantial evidence. (People v. Klvana (1992) 

11 Cal.App.4th 1679, 1704.) 

ii. Discussion

Defendant argues an implied malice theory of aiding and abetting a homicide is no 

longer legally valid. Prior to Reyes, this court and four of our sister courts held that a 

defendant may still directly aid and abet an implied malice murder. (People v. Werntz

(2023) 90 Cal.App.5th 1093, 1111‒1113; People v. Silva (2023) 87 Cal.App.5th 632, 

640; Glukhoy, supra, 77 Cal.App.5th at p. 591; Langi, supra, 73 Cal.App.5th at p. 978; 
9.

Powell, supra, 63 Cal.App.5th at pp. 713‒714.) Although it was unclear, prior to Reyes, 

whether our Supreme Court still sanctioned the theory of aiding and abetting implied 

malice murder (see Glukhoy, at p. 589, citing to Gentile, at p. 850), the high court in 

Reyes resolved this uncertainty when it stated that “[c]ase law has recognized and applied 

this theory, and we see no basis to abrogate it.” (Reyes, supra,14 Cal.5th at p. 990, citing 

to Gentile, at p. 850.) Therefore, consistent with Reyes, we hold “an aider and abettor 

who does not expressly intend to aid a killing can still be convicted of second degree 

murder if the person knows that his or her conduct endangers the life of another and acts 

with conscious disregard for life.” (Reyes, at p. 990, italics added.) Accordingly, we 

reject defendant’s contention an aider and abettor to a homicide must act with express 

malice.

B. CALCRIM No. 401 and Imputed Implied Malice

Defendant further contends that “even if Powell was correct in concluding that a 

defendant can be found guilty of a homicide as an aider and abettor under an implied 

malice theory – the particular aiding and abetting instruction given by the trial court in 

this case was erroneous for the reasons identified by Powell when it found an identical 

instruction erroneous.” We agree with Powell the aiding and abetting instruction 

(CALCRIM No. 401) provided in this case was erroneous, and further conclude this error 

was prejudicial. 

i. Additional Factual Background

As to aiding and abetting liability, the trial court instructed the jury with 

CALCRIM No. 400 as follows:

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

may have directly committed the crime. I will call that person the 

perpetrator. Two, he or she may have aided and abetted a perpetrator, who 

directly committed the crime. 

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

personally or aided and abetted the perpetrator.” 
10.

The trial court also instructed the jury with CALCRIM No. 401 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 she knows of the perpetrator’s 

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

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

that crime.

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

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

an aider and abettor. 

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

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

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

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

not, by itself, make her an aider and abettor.

“A person who aids and abets a crime is not guilty of that crime if 

she withdraws before the crime is committed. To withdraw, a person must 

do two things:

“1. She must notify everyone else she knows is involved 

in the commission of the crime that she is no longer participating. 

The notification must be made early enough to prevent the 

commission of the crime.

“AND
11.

“2. She must do everything reasonably within her power 

to prevent the crime from being committed. She does not have to 

actually prevent the crime.

“The People have the burden of proving beyond a reasonable doubt 

that the defendant did not withdraw. If the People have not met this 

burden, you may not find the defendant guilty under an aiding and abetting 

theory.” (Italics omitted.) 

The trial court then instructed the jury regarding the principles of homicide and 

informed the jury defendant was charged with both murder and the lesser included 

offense of voluntary manslaughter. As to murder, the jury was instructed with 

CALCRIM No. 520 as follows:

“The defendant is charged in Count 1 with murder in violation of 

Penal Code section 187. To prove that the defendant is guilty of this crime, 

the People must prove that:

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

of another person

“AND

“2. When the defendant acted, she had a state of mind 

called malice aforethought.

“There are two kinds of malice aforethought, express malice and 

implied malice. Proof of either is sufficient to establish the state of mind 

required for murder.

“The defendant had express malice if she unlawfully intended to kill.

“The defendant had implied malice if:

“1. She intentionally committed the act;

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

dangerous to human life;

“3. At the time she acted, she knew her act was dangerous 

to human life;

“AND
12.

“4. She deliberately acted with conscious disregard for 

human life.

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

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

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

particular period of time.

“An act causes death if the death is the direct, natural, and probable 

consequence of the act and the death would not have happened without the 

act. 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 consequence is natural and probable, consider all of the 

circumstances established by the evidence.

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

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

doubt that it is murder of the first degree as defined in CALCRIM 521.” 

(Italics omitted.) 

The jury was then instructed on the elements regarding first and second degree 

murder. Lastly, the jury was instructed “[p]rovocation may reduce a murder from first 

degree to second degree and may reduce a murder to manslaughter.” Specifically, the 

jury was instructed with CALCRIM No. 570 regarding voluntary manslaughter as 

follows:

“A killing that would otherwise be murder is reduced to voluntary 

manslaughter if the defendant killed someone because of a sudden quarrel 

or in the heat of passion.

“The defendant killed someone because of a sudden quarrel or in the 

heat of passion if:

“1. The defendant was provoked;

“2. As a result of the provocation, the defendant acted 

rashly and under the influence of intense emotion that obscured her 

reasoning or judgment;

“AND
13.

“3. The provocation would have caused a person of 

average disposition to act rashly and without due deliberation, that 

is, from passion rather than from judgment.

“Heat of passion does not require anger, rage, or any specific 

emotion. It can be any violent or intense emotion that causes a person to 

act without due deliberation and reflection.

“In order for heat of passion to reduce a murder to voluntary 

manslaughter, the defendant must have acted under the direct and 

immediate influence of provocation as [the trial court] define[s] it. While 

no specific type of provocation is required, slight or remote provocation is 

not sufficient. Sufficient provocation may occur over a short or long period 

of time.

“It is not enough that the defendant simply was provoked. The 

defendant is not allowed to set up her own standard of conduct. You must 

decide whether the defendant was provoked and whether the provocation 

was sufficient. In deciding whether the provocation was sufficient, 

consider whether a person of average disposition, in the same situation and 

knowing the same facts, would have reacted from passion rather than from 

judgment.

“If enough time passed between the provocation and the killing for a 

person of average disposition to ‘cool off’ and regain his or her clear 

reasoning and judgment, then the killing is not reduced to voluntary 

manslaughter on this basis.

“The People have the burden of proving beyond a reasonable doubt 

that the defendant did not kill as the result of a sudden quarrel or in the heat 

of passion. If the People have not met this burden, you must find the 

defendant not guilty of murder.” 

ii. Standard of Review

“A claim of instructional error is reviewed de novo. [Citation.] An appellate court 

reviews the wording of a jury instruction de novo and assesses whether the instruction 

accurately states the law. [Citation.] In reviewing a claim of instructional error, the court 

must consider whether there is a reasonable likelihood that the trial court’s instructions 

caused the jury to misapply the law in violation of the Constitution. [Citations.] The 

challenged instruction is viewed ‘in the context of the instructions as a whole and the trial 
14.

record to determine whether there is a reasonable likelihood the jury misapplied the 

instruction in an impermissible manner.’ ” (People v. Mitchell (2019) 7 Cal.5th 561, 

579.) 

As it relates to whether a flawed jury instruction is prejudicial, “[t]he Watson[16]

standard of prejudice (i.e., the error is reversible when there is a reasonable probability 

defendant would have obtained a more favorable result in the absence of the error) 

applies to an instruction that misdirects the jury, including incorrect, ambiguous, 

conflicting, or wrongly omitted instructions. In contrast, the Chapman standard of 

review (i.e., error is harmless only when it appears beyond a reasonable doubt that the 

error did not contribute to the verdict obtained) applies when an instruction improperly 

describes or omits an element of the offense.” (People v. Campbell (2020) 

51 Cal.App.5th 463, 493, fn. omitted.) 

iii. Applicable Law

In Powell, codefendant Langlois argued the language of CALCRIM No. 401 

“couches direct aiding and abetting liability in terms of the aider and abettor knowing the 

perpetrator intended to commit the crime, the aider and abettor intending to aid and abet 

the perpetrator in committing the crime, and that, by words or conduct, the aider and 

abettor in fact aided the perpetrator’s commission of the crime.” (Powell, supra, 

63 Cal.App.5th at p. 714.) Recognizing the term “ ‘the crime’ ” referred to murder, the 

court then held “the aider and abettor of implied malice murder need not intend the 

commission of the crime of murder,” but rather, “relative to the aider and abettor’s intent, 

he or she need only 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.” (Ibid.) The 

court concluded that because “the aiding and abetting instructions here [CALCRIM 

16 People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
15.

No. 401] were not tailored for implied malice murder, the instructions were erroneous” 

(ibid), but concluded the error was harmless beyond a reasonable doubt because “the 

prosecutor advanced two theories of liability as to Langlois: (1) direct aiding and 

abetting express malice murder, and (2) indirect or extended liability for the natural and 

probable consequences of the assault Langlois aided and abetted. The prosecutor did not

advance an implied malice theory as to Langolis.” (Id. at pp. 708, 715, italics added.)

Further, in Langi, the court relied on Powell to conclude that “[i]f, as here, a trial 

court uses such an instruction without tailoring it to the specifics of that crime, the 

instruction [CALCRIM No. 401] creates an ambiguity under which the jury may find the 

defendant guilty of aiding and abetting second degree murder without finding that he 

personally acted with malice.”17 (Langi, supra, 73 Cal.App.5th at p. 982.)

Langi focused on two instructions given to the jury: CALJIC Nos. 3.01 (aiding 

and abetting) and 8.31 (second degree murder). (Langi, supra, 73 Cal.App.5th at p. 981.) 

“CALJIC No. 8.31, as given to the jury, stated 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.’ ” (Ibid.) Further, 

“CALJIC No. 3.01, as given to the jury, stated 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, ... [¶] (3) By act or advice aids, 

promotes, encourages or instigates the commission of the crime.’ ” (Ibid.) 

17 Langi was an appeal from a denial of a petition for resentencing pursuant to 

section 1172.6. (Langi, supra, 73 Cal.App.5th at p. 975.) 
16.

The court reasoned these combined instructions permitted the jury to “find the 

defendant guilty of aiding and abetting second degree murder without finding that he [or 

she] personally acted with malice.” (Langi, supra, 73 Cal.App.5th at p. 982.) The court 

explained that “[t]he aiding-and-abetting instruction stated that a person aids and abets a 

crime if he or she acts ‘with knowledge of the unlawful purpose of the perpetrator, and ...

with the intent or purpose of committing or encouraging or facilitating the commission of 

the crime.’ (CALJIC No. 3.01, italics added.) However, as noted above, the second

degree-murder instruction specified that the direct perpetrator of that crime need not act 

with the unlawful intent of causing death. Thus, while the perpetrator must have 

deliberately performed the fatal act ‘with knowledge of the danger to, and with conscious 

disregard for, human life’ (CALJIC No. 8.31), his purpose may have been only to strike 

or to injure, or conceivably only to embarrass, the victim. Since the perpetrator’s purpose 

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

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

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

have had such an intent.” (Id. at pp. 982‒983.) 

Langi concluded the aiding and abetting instructions should have explained an 

accomplice must have acted with the mental state of implied malice. (Langi, supra, 

73 Cal.App.5th at p. 983.) “The standard aiding-and-abetting instruction given in Powell, 

a CALCRIM instruction [CALCRIM No. 401] in relevant substance to the CALJIC 

instruction used here [citation], was inadequate as applied to the crime of second degree 

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

state of implied malice. [Citation.] Similarly, nothing in the standard aiding-andabetting instruction given here states that the accomplice himself must have acted with 

such knowledge and conscious disregard.” (Ibid.) Accordingly, the court remanded the 

case “[b]ecause the record of conviction d[id] not conclusively negate the possibility that 

the jury found [the defendant] guilty of second degree murder by imputing to him the 
17.

implied malice of the actual killer, without finding that he personally acted ‘with 

knowledge of the danger to, and with conscious disregard for, human life.’ ” (Id. at 

p. 984.)

iv. Discussion

Here, as both parties acknowledge, defendant’s homicide culpability was 

predicated on a direct aiding and abetting theory based on implied malice18 and the 

aiding and abetting instruction (CALCRIM No. 401) given in this case “contained the 

language that Powell identified as problematic.” Defendant argues “the trial court in the 

present case, just like the trial court in Powell, committed [prejudicial] instructional error 

by giving the standard version of CALCRIM No. 401,” whereas the People respond that 

“given the implied malice instruction explicitly required the jury to find that [defendant] 

personally acted with conscious disregard for life, it is not reasonably probable that the 

jury would have found [defendant] guilty merely by finding that she aided a lifeendangering act without any additional mental state, which was the concern of the courts 

in Powell and [Langi].” Similar to the instructions provided in Powell and Langi, the 

standard aiding and abetting instruction given here (CALCRIM No. 401) was not tailored 

to address direct aiding and abetting liability for voluntary manslaughter.19 (Powell, 

18 It is undisputed that Fabian stabbed Roman and Roman’s death was the result of 

three stab wounds. 

19 In response to Powell and Langi, the Judicial Council of California issued an 

invitation to comment regarding a new proposed instruction (CALCRIM No. 526) that 

would address the concerns outlined in these two opinions. (Jud. Council of Cal., 

Criminal Jury Instructions: Revisions and Additions, Invitation to Comment, Comments 

submitted by June 30, 2023, pp. 50-54.) Proposed instruction CALCRIM No. 526 states, 

in relevant part, the following:

“526. Implied Malice Murder: Aiding and Abetting

“To prove that the defendant is guilty of aiding and abetting murder by 

acting with implied malice, the People must prove that:
18.

supra, 63 Cal.App.5th at p. 715; Langi, supra, 73 Cal.App.5th at p. 982 [“As explained in 

[Powell], the standard aiding-and-abetting instructions are ill suited to the crime of 

“1. The perpetrator committed [an] act[s] that (was/were) 

dangerous to human life;

“2. The perpetrator’s act[s] caused the death of (another person/ 

[or] a fetus);

“3. The defendant knew that the perpetrator intended to commit 

the act[s] that (was/were) dangerous to human life;

“4. Before or during the commission of the act[s], the defendant 

intended to aid and abet the perpetrator in committing the 

act[s];

“5. Before or during the commission of the act[s], the defendant 

knew the perpetrator’s act[s] (was/were) dangerous to human 

life, and the defendant deliberately acted with conscious 

disregard for human life;

“AND

“6. By words or conduct, the defendant did in fact aid and abet 

the perpetrator’s commission of the act[s].

“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.

“Someone aids and abets a crime if he or she knows of the perpetrator’s 

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

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

that crime. [¶] ... [¶]

“[An act causes death if the death is the direct, natural, and probable 

consequence of the act and the death would not have happened without the 

act. 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 consequence is natural and probable, consider all of the 

circumstances established by the evidence.]” (Criminal Jury Instructions: 

Revisions and Additions, at pp. 50-51, italics in original.)
19.

second degree murder,” and if “a trial court uses such an instruction without tailoring it to 

the specifics of that crime, the instruction creates an ambiguity under which the jury may 

find the defendant guilty of aiding and abetting second degree murder without finding 

that he personally acted with malice”].) The instruction should have explained to the jury 

that to be guilty as a direct aider and abettor of voluntary manslaughter, defendant as an 

aider and abettor must have acted with the mental state of either an intent to kill or a 

conscious disregard for human life, “i.e., the mental state ordinarily sufficient to 

constitute malice aforethought.” (Bryant, supra, 56 Cal.4th at p. 970.) Therefore, 

because we conclude the jury was not properly instructed regarding the necessary mental 

state for defendant’s voluntary manslaughter conviction, we evaluate the prejudice of this 

error under Chapman review. (People v. Aledamat (2019) 8 Cal.5th 1, 7‒8 (Aledamat) 

[holding that legal errors require a more stringent standard for prejudice, whereas factual 

errors are less likely to be prejudicial].) 

v. Prejudice20

Under Chapman review, “[t]he reviewing court must reverse the conviction 

unless, after examining the entire cause, including the evidence, and considering all 

relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” 

(Aledamat, supra, 8 Cal.5th at p. 3.) The People must show “beyond a reasonable doubt 

that the error complained of did not contribute to the verdict obtained.” (Chapman, 

supra, 386 U.S. at p. 24.) “ ‘To say that an error did not contribute to the ensuing verdict 

is ... to find that error unimportant in relation to everything else the jury considered on 

the issue in question, as revealed in the record.’ ” (People v. Neal (2003) 31 Cal.4th 63, 

20 As it relates to prejudice, we discuss defendant’s further contention “the trial 

court’s answer [to the jury question], telling the jurors it was up to them to decide what 

the defendant intended to aid and abet, effectively instructed the jury that the prosecution 

could satisfy the requirement of sentence number 2 in CALCRIM No. 401 by proving 

that [the defendant] knew that the perpetrator, [Fabian], intended to commit the crime of 

assault on [Roman,]” which we conclude was improper. 
20.

86.) In other words, the Chapman harmless error inquiry asks: “ ‘Is it clear beyond a 

reasonable doubt that a rational jury would have found the defendant guilty absent the 

error?’ ” (People v. Geier (2007) 41 Cal.4th 555, 608 (Geier), quoting Neder v. United 

States (1999) 527 U.S. 1, 18.) Since Chapman, our high court has “ ‘repeatedly 

reaffirmed the principle that an otherwise valid conviction should not be set aside if the 

reviewing court may confidently say, on the whole record, that the constitutional error 

was harmless beyond a reasonable doubt.’ ” (Geier, at p. 608.)

Here, we are unable to “ ‘confidently say, on the whole record, that the 

constitutional error was harmless beyond a reasonable doubt.’ ” (Geier, supra, 

41 Cal.4th at p. 608.) As noted above, “[t]he mens rea, which must be personally 

harbored by the direct aider and abettor, is knowledge that the perpetrator intended to 

commit the act, intent to aid the perpetrator in the commission of the act, knowledge that 

the act is dangerous to human life, and acting in conscious disregard for human life.” 

(Powell, supra, 63 Cal.App.5th at p. 713; accord, Langi, supra, 73 Cal.App.5th at p. 983.) 

In this case, the act of stabbing is the voluntary manslaughter. Further, as we discuss in 

detail below regarding intent, there is a reasonable possibility the jury found defendant 

guilty without making a finding of intent because evidence of an intent to kill or a 

conscious disregard for human life in aiding and abetting the stabbing (i.e., voluntary 

manslaughter) is lacking. (See In re Lopez (2023) 14 Cal.5th 562, 589 [“The proper 

analysis under Aledamat[, supra, 8 Cal.5th 1] does not rest on ‘ “the likelihood that the 

jurors would have applied the erroneous instruction,” ’ but whether the jury could have 

found what it did find without also making the findings necessary for a valid theory.”], 

italics added.) 

In this case, the aiding and abetting instruction did not negate the possibility the 

jury found her guilty of voluntary manslaughter without finding she personally possessed 

either an intent to kill or conscious disregard for human life. (Bryant, supra, 56 Cal.4th 

at p. 970.) The evidence establishes defendant did not like Roman and “wanted to hurt 
21.

[Roman]” after observing him abuse Angela. Thereafter, defendant drove up in her car, 

hit Roman, Fabian, and Caesar with the car, and proceeded to involve herself in the 

altercation by pushing and choking Roman, along with hitting him two times. During the 

altercation, defendant “egg[ed] on the fight” and told Fabian, “ ‘If that’s all you have? 

That’s all? He doesn’t deserve to be here.’ ” Although the jury found defendant guilty of 

assault with a deadly weapon by using her car, and this could have been some evidence 

she herself harbored either an intent to kill or conscious disregard for human life against 

Roman (see generally People v. Cook (1940) 15 Cal.2d 507, 518 [“ ‘[t]he wil[l]ful use of 

a deadly weapon without excuse or provocation, in such a manner as to imperil life, 

generally indicates a felonious intent’ ”]), the prosecutor did not focus defendant’s 

homicide culpability on this specific act, but rather focused on the act of her aiding and 

abetting Fabian in the stabbing of Roman.21 (People v. Napoles (2002) 104 Cal.App.4th 

108, 114 [“ ‘either the prosecution must elect the specific act relied upon to prove the 

charge to the jury, or the court must instruct the jury that it must unanimously agree that 

the defendant committed the same specific criminal act’ ”], italics omitted.) Specifically, 

the prosecutor argued during his closing argument:

“[Defendant] was upset. What she claims to have seen at Angela’s 

house, which given her testimony now is even more muddled about what 

she actually saw and perceived, but she wanted Roman attacked. And she 

made that clear when she was out at the scene while he’s being attacked.

“So you have this group attack, this group assault going on and 

that’s dangerous to him, right? You know that that’s dangerous when 

you’re out there doing that, someone is getting stabbed, someone is getting 

beat on. And she didn’t care. ‘That’s all you’re going to do to him? He 

doesn’t deserve to be here.’ She wanted more happening to him than what 

she was even seeing. That’s what—that’s what’s important about that.” 

21 In his closing argument, the prosecutor only referred to defendant hitting Roman 

with her car as evidence to negate her “necessity” defense and as the basis for the assault 

with a deadly weapon charge (count 2). 
22.

As it specifically related to aiding and abetting, the prosecutor argued:

“Now, you may be saying, we just went over these, there’s an act, 

expressed intent to kill. How is [defendant] going to be responsible if we 

know that Fabian was the killer.... [¶] Now, aiding and abetting. So to 

prove that a defendant, I know you can all read it, but I’ll read along with 

you, there’s no red at this time. So to prove that a defendant is guilty of a 

crime based on aiding and abetting, I have to prove that the direct 

perpetrator, right? Committed that crime. We watched Fabian, you could 

see the shiny pointy object in his hand and we know that Roman died from 

stab wounds. The defendant, meaning Ms. Raygoza in this case, knew the 

perpetrator intended to commit the crime. Before or during the commission 

of the crime, she intended to aid and abet the perpetrator in committing the 

crime. And the defendant’s words or conduct did in fact aid and abet the 

perpetrator’s commission of the crime. [¶] ... [¶]

“And your instructions tell you, someone aids and abets a crime if 

they know of the unlawful purpose and specifically intend to and do aid, 

facilitate, promote, encourage or instigate that act. Right? So you’re 

helping in some way. Maybe you’ve knocked them down after you hit 

them, maybe you’re out there and you throw some punches, maybe try to 

strangle someone while this is going on, maybe you’re out there saying, 

‘Get him, get him, he doesn’t deserve to be here. Is that all you’re going to 

do to him?’ Wanting more done. Pushing it, egging it on. We see those, 

right? You see those elements, they’re clear. Promoting. Encouraging. 

Instigating.

“Now aiding and abetting right? I’ve said, it’s really about intent. 

And express mali[ce], first degree murder, you have to have a specific 

intent to kill and the aider and abettor has to share that intent.

“Implied mali[ce]. It’s the intent to aid the acts, right? Because 

that’s what we’re talking about. That manifestation, that express mali[ce], 

is there for first degree murder. So implied mali[ce] is second degree 

murder. So the reckless and [in]difference to someone’s life. That’s doing 

the acts that are dangerous and knowing that you’re doing that, knowing 

you’re participating that and you just don’t care, you just don’t give a damn 

about that person or what happens to them. Like maybe leaving Roman out 

there to die in the street with minutes to plead for his own life.” 

The prosecutor continued:

“So, [defendant] is charged with murder. She’s an aider and abettor 

in Roman Gomez’s murder. She’s charged with assault with a deadly 
23.

weapon. And each time we’ve seen that video I’ve been talking about that 

in terms of murder and what’s happened. Well, let’s watch it one more 

time, because it’s not only evidence of intent, it’s not only evidence of the 

actions that happened—it’s going to start up in a second—but it’s also itself 

a separate crime and a separate action, right? Because she put hands on 

Roman at the house beforehand, she got out of the car, continued her 

assault.” 

Finally, during the prosecutor’s rebuttal, he stated the following:

“They’re also wanting you to blame everybody else and say she’s 

completely innocent. The problem with that is, yes, Fabian did the 

stabbing, right? I’m not saying any different. I’m saying she’s 

encouraging, promoting and instigating that action. That’s the aiding and 

abetting aspect of this and that she admitted[] to the officers once she’s 

caught and once she’s stuck at the end of her interview says, ‘Yeah, I put 

hands on him.’ Right? That’s at the end and she admits, ‘Yeah, I was 

texting my friend and I said I strangled him,’ and she seemed—you know, 

that seemed like a great text to send. Is everything okay? I strangled him. 

Just like she’s talking to Angela afterwards laughing. ‘We’ll see if he can 

even get up because I hit him with the car.’ Those things tend to fit and 

that’s what we’re talking about.” 

Because defendant’s culpability rested on her aiding and abetting Fabian in the 

stabbing (People v. Napoles, supra, 104 Cal.App.4th at p. 114), we must determine what 

evidence exists to support a conclusion she possessed either an intent to kill or conscious 

disregard for human life. We again find Reyes instructive. Our Supreme Court 

concluded the “[trial] court committed reversible error by misunderstanding the legal 

requirements of direct aiding and abetting implied malice murder.” (Reyes, supra, 

14 Cal.5th at p. 992.) The trial court found that “ ‘the defendant, along with several other 

gang members, one of which [was] armed, traveled to rival gang territory’ and then 

considered whether that act was done with the mental state required for implied malice.” 

(Id. at p. 991.) The court concluded that because “implied malice murder requires 

attention to the aider and abettor’s mental state concerning the life endangering act 

committed by the direct perpetrator, such as shooting at the victim[,] ... the trial court 

should have asked whether [the defendant] knew that [the perpetrator] intended to shoot 
24.

at the victim, intended to aid him in the shooting, knew that the shooting was dangerous 

to life, and acted in conscious disregard for life.” (Id. at p. 992.) 

Similarly, here, any evidence of an intent to kill or conscious disregard for human 

life in aiding and abetting in the act of stabbing Roman is lacking. (Powell, supra, 

63 Cal.App.5th at p. 713, fn. 27 [“The relevant act is the act that proximately causes 

death.”].) The prosecutor repeatedly argued defendant was aware Fabian had a knife and 

had used the knife to stab Roman, but other than defendant physically being present at the 

altercation, there is no evidence she was aware Fabian possessed a knife or knew Fabian 

planned to stab Roman. Rather, the evidence establishes the only people aware of the 

knife were Aaliyah and Angela, and although the prosecutor argued defendant could see 

Fabian based on the vehicle’s headlights being turned on, the crime still occurred late at 

night after 1:00 a.m. The surveillance footage corroborates this inability to see because 

all that is observed is a “shiny object” in Fabian’s hand, making it unlikely defendant 

personally observed the knife and was aware Fabian was going to stab Roman. 

Second, and most importantly, the jury’s question during its deliberations 

regarding the aiding and abetting instruction (CALCRIM No. 401) suggested it was 

contemplating guilt without making a finding defendant possessed the requisite intent for 

voluntary manslaughter. (See People v. Canizales (2019) 7 Cal.5th 591, 617 [when 

evaluating prejudice, “[t]he jury’s questions during deliberations are also instructive”].) 

Specifically, the jury asked the trial court: 

“Can you clarify if the question on page 40 (401 Aiding and [Ab]etting: 

Unintended Crimes) question 2 ‘the defendant knew that the perp[etrator] 

intended to commit the crime?’ Is it knowing perp[etrator] was going to 

murder or assault the victim?” (Italics added.) 

The trial court responded, “It is up to you to decide what the defendant intended to aid 

and abet based on all evidence in the trial on that issue.” 
25.

We find In re Martinez (2017) 3 Cal.5th 1216 (Martinez) instructive. In Martinez, 

our Supreme Court found the jury’s question highly relevant in evaluating prejudice.22 

(Id. at p. 1227.) “The jury sent the court a note that said: ‘Clarification request on 

description of #401 Aiding and Abetting: [¶] Point #2 says: “The defendant knew that 

the perpetrator intended to commit the crime,” [¶] What is meant by “the crime”? Did 

aider and abett[or] have to know or even expect the possibility that it will be murder (for 

count #1)? Or does it mean any crime?’ The court replied, ‘This is what the jury has to 

decide. Refer to instructions 400, 401 and 403, read together.’ The court added, ‘ “[A]ny 

crime” means any crime the defendants are on trial for.’ ” (Ibid.) The Martinez court 

concluded, “the Attorney General ha[d] not shown beyond a reasonable doubt that the 

jury relied on a legally valid theory in convicting [the defendant] of first degree murder” 

because:

“The jury’s query and the trial court’s response, with its reference to the 

natural and probable consequences instruction (CALCRIM No. 403), 

suggest that some of the jurors’ ambivalence about convicting [the 

defendant] on a direct aiding and abetting theory may have been resolved 

by relying on the theory that the murder was a natural and probable 

consequence of the assaults committed by [the defendant] and his 

codefendant.” (Martinez, supra, 3 Cal.5th at p. 1227.) 

Similarly, here, the question suggests the jury believed it could convict defendant 

of voluntary manslaughter, even if it concluded the perpetrator (Fabian) only intended to 

assault Roman. This conclusion is supported by the fact the trial court responded that 

“[i]t is up to you to decide what the defendant intended to aid and abet based on all 

evidence in the trial on that issue” (italics added), which could have been reasonably 

interpreted by the jury as an instruction that defendant’s aiding and abetting culpability 

22 The Martinez court dealt with an alleged error pursuant to People v. Chiu (2014) 

59 Cal.4th 155, wherein it concluded the defendant was prejudiced because the jury may 

have improperly relied “on the theory that the murder was a natural and probable 

consequence of the assaults committed by [the defendant] and his codefendant.” 

(Martinez, supra, 3 Cal.5th at p. 1227.) 
26.

for voluntary manslaughter could have been based either on an intent to kill and/or a 

conscious disregard for human life or an intent to commit an assault. Although the jury 

could have concluded defendant was aware Fabian had the intent to kill and, thus, aided 

and abetted in Roman’s murder, the jury’s question makes it just as likely the jury 

concluded that defendant was only aware Fabian intended to assault Roman and, thus, 

aimed only to aid in an assault. Therefore, a reasonable possibility exists the jury found 

defendant guilty of voluntary manslaughter without finding she possessed the requisite 

intent of either an intent to kill or conscious disregard for human life. (People v. Lewis

(2006) 139 Cal.App.4th 874, 887 [“The [Chapman] test is not whether a hypothetical 

jury, no matter how reasonable or rational, would render the same verdict in the absence 

of the error, but whether there is any reasonable possibility that the error might have 

contributed to the conviction in this case. If such a possibility exists, reversal is 

required.”].) 

Nonetheless, the People contend that “given the implied malice instruction 

explicitly required the jury to find that [defendant] personally acted with conscious 

disregard for life, it is not reasonably probable that the jury would have found [defendant] 

guilty merely by finding that she aided a life-endangering act without any additional 

mental state, which was the concern of the courts in Powell and [ ] Langi.” The People 

argue that even assuming the instructions “suffer from the same ambiguity as the 

instructions in Powell and Langi, it is not reasonably likely that the jury interpreted the 

instructions to allow it to convict [defendant] under a prohibited theory of imputed 

malice” because the “only charged ‘crime’ was murder” and, thus, “there could have 

been no possible confusion that the perpetrator’s ‘unlawful purpose’ meant something 

less than the mens rea required for murder,” and CALCRIM No. 520 required the jury to 

find “that each defendant must harbor the required intent or mental state set forth in the 

instruction for the crime of murder.” We disagree.
27.

Although we presume the jury understood the instructions and properly followed 

the law, this presumption can be rebutted. (People v. Merriman (2014) 60 Cal.4th 1, 48‒

49 [“Absent some showing to the contrary, we presume the jury followed the court’s 

instructions.”].) The People argue defendant was not prejudiced by this instructional 

error because she was only charged with murder and the CALCRIM No. 520 instruction 

required the jury to find defendant harbored malice. However, to survive Chapman

review, we must “ ‘find that error unimportant in relation to everything else the jury 

considered on the issue in question, as revealed in the record.’ ” (People v. Neal, supra, 

31 Cal.4th at p. 86.) Although clarifying instructions were provided to the jury and 

murder was the only charged offense as to this specific act, the record is clear the jury 

struggled with intent and believed it could convict defendant of voluntary manslaughter, 

even if it concluded she only intended to aid and abet Fabian in an assault. Accordingly, 

because the jury was provided a flawed instruction (CALCRIM No. 401), as it related to 

implied malice, and its inquiry established a possibility it convicted defendant of 

voluntary manslaughter without ever finding she possessed either an intent to kill or 

conscious disregard for human life, the People are unable to show “beyond a reasonable 

doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, 

supra, 386 U.S. at p. 24.)

On remand, the People may elect to retry defendant on that charge, although with 

a properly instructed jury. (People v. Hallock (1989) 208 Cal.App.3d 595, 607 [“[i]f 

reversal is predicated on instructional error, ... double jeopardy principles do not come 

into play”]; see Burks v. United States (1978) 437 U.S. 1, 14‒15 [reversal for trial error, 

as distinguished from evidentiary insufficiency, does not trigger double jeopardy 

concerns]; accord, Tibbs v. Florida (1982) 457 U.S. 31, 39‒41.)

DISPOSITION

Defendant’s conviction for voluntary manslaughter in count 1 is reversed, and the 

sentence on that count is vacated. The People may elect to retry defendant on that 
28.

charge. The sentence is also vacated as to count 2, and the matter remanded for a full 

resentencing consistent with this opinion. Following resentencing, the trial court is 

directed to prepare an amended abstract of judgment and forward it to the Department of 

Corrections and Rehabilitation. In all other respects, the judgment is affirmed. 

 

 DE SANTOS, J.

I CONCUR:

SNAUFFER, J.
POOCHIGIAN, Acting P. J., Dissenting.

I respectfully dissent from the majority’s conclusion that the trial court’s 

instructions did not require the jury to find defendant acted with, at least, conscious 

disregard for human life. 

The instructions required that, in order to have committed an unlawful killing with 

implied malice, the actual perpetrator must have acted with conscious disregard for 

human life. Then, to determine whether defendant was liable for that killing as an aider 

and abettor, the jury instructions required that she have “specifically intend[ed]” to aid 

the perpetrator’s crime. 

By requiring that defendant have specifically intended to aid the crime of killing 

with conscious disregard for human life, the instructions thereby required a finding 

defendant herself acted with conscious disregard for human life. One cannot specifically 

intend to aid and abet a person’s crime of killing with conscious disregard for human life 

without themselves also acting with conscious disregard for human life. (See People v. 

McCoy (2001) 25 Cal.4th 1111, 1123 [“Absent some circumstance negating malice one 

cannot knowingly and intentionally help another commit an unlawful killing without

acting with malice”].)

In arriving at a contrary conclusion, the majority cites People v. Powell (2021) 

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

However, neither is persuasive. 

Powell reasoned:

“[Defendant] points out the language of the standard aiding and 

abetting instruction given here, CALCRIM No. 401. He emphasizes that 

this instruction couches direct aiding and abetting liability in terms of the 

aider and abettor knowing the perpetrator intended to commit the crime, the 

aider and abettor intending to aid and abet the perpetrator in committing the 

crime, and that, by words or conduct, the aider and abettor in fact aided the 

perpetrator’s commission of the crime. As relevant here, ‘the crime’ would 

be murder. But as we have discussed, the aider and abettor of implied 
2.

malice murder need not intend the commission of the crime of murder. 

Rather, relative to the aider and abettor’s intent, he or she need only intend 

the commission of the perpetrator’s act, the natural and probable 

consequences of which are dangerous to human life, intentionally aid in the 

commission of that act and do so with conscious disregard for human life.” 

(Powell, supra, 63 Cal.App.5th at p. 714.)

This is not persuasive, as it relies on an illusory distinction. Specifically, that 

there is a substantive difference between what the instructions said – i.e., aiding and 

intending the commission of the crime of implied malice murder – versus what the law 

actually requires – i.e., intending “the commission of the perpetrator’s act, the natural and 

probable consequences of which are dangerous to human life [and] intentionally aid[ing] 

in the commission of that act and do so with conscious disregard for human life.” 

(Powell, supra, 63 Cal.App.5th at p. 714.) However, there is no meaningful distinction 

between those two concepts. Aiding and intending the commission of implied malice 

murder means intending for the perpetrator to commit the dangerous act, aiding in the 

commission of the act, and doing so with conscious disregard for human life.

Langi is even less persuasive. There, the court faulted the instruction for requiring 

the aider and abettor to have acted “ ‘with knowledge of the unlawful purpose of the 

perpetrator,’ ” whereas the law does not require “knowledge that the perpetrator aimed to 

kill.” (Langi, supra, 73 Cal.App.5th at p. 982.) But “unlawful purpose” in the context of 

implied malice is not “aim[ing] to kill” but rather acting with “conscious disregard for 

human life.” Thus, requiring the aider and abettor to act with knowledge of the 

perpetrator’s “unlawful purpose” in no way conflicts with the law.

Langi goes on to reason that while the second degree murder instruction required 

the perpetrator to have acted with conscious disregard for human life, the aider and 

abettor instruction does not include the same requirement. Not so, as it is conveyed by 

the instruction’s requirement that the defendant have the intent or purpose of aiding the 
3.

commission of the perpetrator’s crime1 – which in this context would be a consciousdisregard-for-human-life killing. One cannot specifically intend to aid a consciousdisregard-for-human-life killing without also consciously disregarding human life 

themself. The instructions simply do not permit the jury to convict a defendant as an 

aider and abettor without the minimally required mental state.2

A helpful exercise to illustrate this point would be to imagine that a hypothetical 

jury concluded the defendant did not harbor a conscious disregard for human life and see 

if the instructions would nonetheless permit them to convict that defendant as an aider 

and abettor. Under the instructions given in this case, the answer is no. The impassable 

roadblock would come when the jury got to the instructions’ requirement that the 

defendant have “specifically intend[ed] to ... aid ... the perpetrator’s” crime of killing 

someone with a conscious disregard for human life. (CALCRIM No. 401.) They would 

have to conclude this requirement was unsatisfied and acquit. This demonstrates the 

instructions adequately ensured defendant could not be convicted without the jury finding 

he harbored the requisite mental state.

For these reasons, I would affirm and respectfully dissent. 

POOCHIGIAN, Acting P. J.

1 Similar to the instruction in Langi, the instructions in the present case required 

that defendant knew the perpetrator’s unlawful purpose and “specifically intend[ed] to ... 

aid ... the perpetrator’s commission of that crime.”

2 This is not to say the instructions are as clear as theoretically possible. Proposed 

instruction CALCRIM No. 526 (Jud. Council of Cal., Criminal Jury Instructions: 

Revisions and Additions, Invitation to Comment, Comments submitted by June 30, 2023, 

pp. 50–54) is likely to be an improvement over the existing instructions. But the question 

before us is not whether an instruction could be improved in terms of clarity, but instead 

whether it accurately conveyed the law. (See People v. Wardwell (1959) 167 Cal.App.2d 

560, 565–566 [just because instruction is not a “model of clarity” does not mean jury was 

misled by it.]; accord Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 676.) 

Even assuming there was room for improvement in terms of clarity, the instructions given 

in this case were sufficient to convey the required mental state.