California Court of Appeal Apr 10, 2025 No. E083342Unpublished
Filed 4/10/25 P. v. Majied CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083342
v. (Super.Ct.No. RIF1411978)
DAVID MALARCHER MAJIED, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Daniel J. Kessler, 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, Arlene A. Sevidal, James M.
Toohey and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant David Malarcher Majied appeals the trial court’s denial of his
postjudgment petition for resentencing under former Penal Code1 section 1170.95
(renumbered section 1172.6 by Stats. 2022, ch. 58, effective June 30, 2022)2 at the prima
Defendant and another man tried to rob a marijuana dispensary on May 2, 2014.
Both men were armed. A dispensary employee was also armed, and when he drew his
gun, one of the intruders shot at the employee, and he returned fire. The intruders and the
employee continued to exchange gunfire until the intruders fled in a vehicle.
On January 30, 2015, a jury found defendant guilty of attempted murder (§§ 664,
187, subd. (a), count 1), assault with a firearm (§ 245, subd. (a)(2), count 2), attempted
robbery (§§ 664, 211, count 3), and burglary (§ 459, count 4). Defendant admitted he had
served four prior prison terms. (§ 667.5, subd. (b).) On September 18, 2015, a trial court
sentenced him to a total term of 13 years in state prison.4
1 All further statutory references will be to the Penal Code, unless otherwise indicated. 2 To avoid confusion, we will refer to the statute as section 1172.6 in this opinion. 3 This brief factual summary and part of the procedural background are taken from our prior unpublished opinion. (See People v. Majied (June 16, 2022, E074375) [nonpub. opn.].) We took judicial notice of this opinion, as well as the unpublished opinion in defendant’s other appeal, People v. Majied (Jan. 23, 2017, E064830, pursuant to defendant’s request. 4 The total sentence included a nine-year term on count 1, which was subsequently reduced to six years. 2
Defendant appealed, and this court affirmed the judgment. (People v.
Majied, supra, E064830.)
On March 13, 2019, defendant filed a petition for resentencing under section
1172.6, in propria persona, alleging that he was convicted of attempted second degree
murder pursuant to the felony murder rule or the natural and probable consequences
doctrine, and that he could not now be convicted of attempted second degree murder
because of the amendments to sections 188 and 189. The trial court granted the People’s
request to dismiss the petition, finding that a defendant convicted of attempted murder
was not entitled to relief. (People v. Majied, supra, E074375.) This court affirmed.
(Ibid.)
The Supreme Court granted review, and while review was pending, the
Legislature enacted Senate Bill No. 775. The matter was remanded back to this court
with directions to vacate our opinion and reconsider the matter in light of Senate Bill No.
775. This court then reversed the order denying defendant’s petition and remanded the
matter for the trial court to reconsider his petition at the prima facie stage. (People v.
Majied, supra, E074375.)
On February 16, 2024, the court held a prima facie hearing. The court heard
arguments from counsel, thoroughly examined and discussed the jury instructions that
were given at trial and took the matter under submission. The court held another hearing
on February 23, 2024, and denied defendant’s petition, noting “[n]atural and probable
consequences was never described in any of the instructions.” The court concluded there
3
was no “instructional pathway” for the jury to impute malice under the jury instructions
that were given.
DISCUSSION
The Trial Court Properly Denied Defendant’s Petition
Defendant contends the trial court erred in denying his resentencing petition at the
prima facie stage because the record does not conclusively establish that he is ineligible
for relief under section 1172.6 as a matter of law. He claims there was “natural and
probable consequences language in the CALCRIM No. 400 instruction” which allowed
the jurors to “impute malice to [him] for attempted murder based on his willing
participation in the commission of the other charged crimes.” The People argue the
record establishes that defendant was convicted of attempted murder as a direct
perpetrator or an aider and abettor, and acted with the intent to kill; therefore, he is
ineligible for resentencing under section 1172.6. We agree with the People.
A. Resentencing Law
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess., Stats.
2018, ch. 1015 (Senate Bill 1437)) was enacted “‘to amend the felony murder rule and
the natural and probable consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.’” (People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).) Senate Bill 1437 “substantially modified the law relating to vicarious liability
4
for murder by eliminating the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder [Citation] and by narrowing the scope of felony
murder [Citation].” (People v. Lopez (2022) 78 Cal.App.5th 1, 11 (Lopez).) It
“eliminated the natural and probable consequences doctrine by adding the following
language to section 188: ‘Except as stated in subdivision (e) of Section 189, in order to
be convicted of murder, a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her participation in a crime.’”
(Ibid.; § 188, subd. (a)(3).) Senate Bill 775 amended section 1172.6 to clarify, among
other things, that persons convicted of attempted murder under the natural and
probable consequences doctrine are eligible for resentencing under the statute. (Stats.
2021, ch. 551, §§ 1-2.)
Senate Bill 1437 added section 1172.6, which provides a procedure for individuals
convicted of attempted murder who could not be convicted under the law as amended to
retroactively seek relief. (Lewis, supra, 11 Cal.5th at p. 957.) Under section 1172.6, the
relief process begins with the filing of a petition containing a declaration that all
requirements for eligibility are met (§ 1172.6, subd. (b)(1)(A)), “including that ‘[t]he
petitioner could not presently be convicted of murder or attempted murder because of
changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,’ the
effective date of Senate Bill 1437 (§ 1172.6, subd. (a)(3)).” (People v. Strong (2022) 13
Cal.5th 698, 708 (Strong).)
5
When the trial court receives a petition containing the necessary declaration and
other required information, the court must “hold a hearing to determine whether the
petitioner has made a prima facie case for relief.” (§ 1172.6, subd. (c).) “If the court
finds the petitioner has made a prima facie case, the court must issue an order to show
cause.” (Lopez, supra, 78 Cal.App.5th at p. 12; § 1172.6, subds. (c).) However, “[i]f the
petition and record in the case establish conclusively that the defendant is ineligible for
relief, the trial court may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.)
The record of conviction includes the charging document, verdict forms, closing
arguments, and jury instructions. (People v. Jenkins (2021) 70 Cal.App.5th 924,
935.) “A petitioner is ineligible for resentencing as a matter of law if the record of
conviction conclusively establishes, with no factfinding, weighing of evidence, or
credibility determinations, that (1) the petitioner was the actual killer, or (2) the petitioner
was not the actual killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree, (3) the petitioner was a major participant in the
underlying felony and acted with reckless indifference to human life, or (4) the petitioner
]acted with malice aforethought that was not imputed based solely on participation in a
crime.” (Lopez, supra, 78 Cal.App.5th at p. 14.)
The trial court here denied defendant’s resentencing petition on the ground that he
had failed to make a prima facie case for resentencing relief. “‘“A denial at that stage is
appropriate only if the record of conviction demonstrates that ‘the petitioner is ineligible
6
for relief as a matter of law.’ [Citations.] This is a purely legal conclusion, which we
review de novo.”’” (Lopez, supra, 78 Cal.App.5th at p. 14.)
B. Jury Instructions
The court here instructed the jury with CALCRIM No. 252, stating that the
charged crimes require “proof of the union, or joint operation, of act and wrongful
intent.” The instruction further stated that the charged crime of attempted murder
“require[s] a specific intent or mental state” and that, to find a person guilty, “that person
must not only intentionally commit the prohibited act, but must do so with a specific
intent,” and “[t]he act and the specific intent … required are explained in the instruction
for that crime.”
The court instructed the jury on attempted murder with CALCRIM No. 600, in
part, as follows:
“The defendant is charged in Count 1 with attempted murder.
To prove that the defendant is guilty of attempted murder, the People must prove
that:
1. The defendant took at least one direct but ineffective step toward killing another
person; AND
2. The defendant intended to kill that person.”
The court also instructed the jury on aiding and abetting principles with
CALCRIM Nos. 400 and 401. CALCRIM No. 400 stated:
7
“A person may be guilty of a crime in two ways. One, he may have directly
committed the crime. I will call that person the perpetrator. Two, he may have aided and
abetted a perpetrator, who directly committed the crime. ¶ A person is guilty of a crime
whether he committed it personally or aided and abetted the perpetrator. ¶ Under some
specific circumstances, if the evidence establishes aiding and abetting of one crime, a
person may also be found guilty of other crimes that occurred during the commission of
the first crime.”
CALCRIM No. 401 stated: “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.”
C. Defendant is Ineligible for Relief As a Matter of Law
Defendant claims the record “does not conclusively foreclose the possibility” that
he may have been convicted of attempted murder under a natural and probable
consequences theory. We disagree.
8
The record demonstrates that the jury instructions ensured the jury would only find
defendant guilty of attempted murder, even as an aider and abettor, if it concluded he
acted with the intent to kill. A conviction of attempted murder as a direct perpetrator
“‘requires the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.’” (People v. Smith (2005) 37 Cal.4th 733,
739 (Smith).) “‘[T]o be guilty of attempted murder as an aider and abettor, a person must
give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and
with the purpose of facilitating the direct perpetrator’s accomplishment of the intended
killing — which means that the person guilty of attempted murder as an aider and abettor
must intend to kill.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).) “An
intent to kill is the equivalent of express malice.” (People v. Coley (2022)
77 Cal.App.5th 539, 547 (Coley).)
Section 1172.6 applies by its terms only to attempted murders based on the natural
and probable consequences doctrine. (§ 1172.6, subd. (a) [“A person convicted of . . .
attempted murder under the natural and probable consequences doctrine … may file a
petition”].) Significantly, the trial court here never instructed the jury with CALCRIM
Nos. 402 or 403, which contain the natural and probable consequences doctrine. (People
v. Estrada (2022) 77 Cal.App.5th 941, 946 (Estrada).) In other words, the jurors were
not instructed on the natural and probable consequences doctrine. Rather, they were
given CALCRIM Nos. 400 and 401, as well as CALCRIM No. 600, which specifically
advised them that an attempted murder conviction required a finding that “the defendant
9
intended to kill [the victim].” Accordingly, to find defendant guilty of attempted murder,
which the jury did here, it necessarily found that he acted with the intent to kill. (Coley,
supra, 77 Cal.App.5th at p. 547 [“by finding appellant guilty of attempted murder, the
jury necessarily found he had personally harbored intent to kill”]; see also, Smith, supra,
37 Cal.4th at p. 739 [a conviction of attempted murder as a direct perpetrator “‘requires
the specific intent to kill’”]; Nguyen, supra, 61 Cal.4th at p. 1054 [“‘the person guilty of
attempted murder as an aider and abettor must intend to kill’”].) We further note the
prosecutor argued that defendant was either the direct perpetrator or an aider and abettor
to the shooter, and that he had the intent to kill.
Therefore, because the record of conviction shows there were no instructions
given on the natural and probable consequences doctrine and that the jury found
defendant acted with the intent to kill, the court properly found that he was ineligible for
relief under section 1172.6. (Estrada, supra, 77 Cal.App.5th at pp. 945-946; Coley,
supra, 77 Cal.App.5th at pp. 547-548.)
Defendant claims he stated a prima facie case of resentencing based on the
following paragraph in CALCRIM No. 400: “Under some specific circumstances, if the
evidence establishes aiding and abetting of one crime, a person may also be found guilty
of other crimes that occurred during the commission of the first crime.” (hereinafter, the
bracketed paragraph) He contends that the “natural and probable consequences
language” in the bracketed paragraph allowed the jury to impute malice to him for
attempted murder “based on his willing participation in the commission of the other
10
charged crimes.” Defendant cites the Bench Notes for this instruction, which state,
“‘When the prosecution is relying on aiding and abetting, give this instruction before
other instructions on aiding and abetting to introduce this theory of culpability to the
jury.’ It goes on to state: ‘If the prosecution is also relying on the natural and probable
consequences doctrine, the court should also instruct with the last bracketed paragraph.’”
(Estrada, supra, 77 Cal.App.5th at p. 946.)
However, the Bench Notes to CALCRIM No. 400 “further instruct that after
CALCRIM No. 400 is given, ‘[d]epending on which theories are relied on by the
prosecution, the court should then instruct’ the jury on either (1) ‘CALCRIM No. 401,
Aiding and Abetting: Intended Crimes’ for ‘Target Crimes,’ or (2) CALCRIM Nos. 402
or 403 for ‘Natural & Probable Consequences Doctrine (Non-Target Crimes),’ and that
the latter is appropriate when ‘the prosecution's theory is that any of the crimes charged
were committed as a natural and probable consequence of the target crime . . . .’”
(Estrada, supra, 77 Cal.App.5th at p. 947.) Here, only CALCRIM No. 401 was given to
the jury, indicating the prosecution relied on a theory of aiding and abetting, not on the
natural and probable consequences doctrine. Defendant concedes that the jury was not
given CALCRIM Nos. 402 and 403.
Further, defendant’s claim that the bracketed paragraph in CALCRIM No. 400
provided an “instructional pathway” for the jury to impute malice to him was specifically
rejected in Estrada, supra, 77 Cal.App.5th 941. The Estrada court found that “the
bracketed language alone [was not] sufficient to find that the jury was instructed on a
11
natural and probable consequences theory” because of the court’s prior holding that “the
jury instructions, taken as a whole, required the jury to find that [the defendant] acted
with intent to kill in order to find him guilty of first degree murder, even under an aider
and abettor theory.” (Id. at p. 947; see also, People v. Rushing (2025)___Cal.App.5th___
regarding a prior version of CALCRIM No. 400 and its interplay with CALCRIM No.
401 is determinative here. In . . . Johnson, . . . , the jury was instructed on an old version
of CALCRIM No. 400 providing that: ‘“A person may be guilty of a crime in two ways.
One, he may have directly committed the crime. I will call that person the perpetrator.
Two, he may have aided and abetted the perpetrator, who directly committed the crime.
A person is equally guilty of the crime whether he committed it personally or aided and
abetted the perpetrator who committed it.”’ [Citation.] The court held that where
CALCRIM No. 401 is also provided, ‘there was no reasonable likelihood the jurors
would have understood the “equally guilty” language in former CALCRIM No. 400 to
allow them to base defendant’s liability for first degree murder from the mental state of
the actual shooter, rather than on defendant’s own mental state in aiding and abetting the
killing.’5 [Citation.] Here, where the ‘equally guilty’ language was no longer present in
the version of CALCRIM No. 400 provided to the jury, there is even less of a possibility
that the jury could have imputed [defendant’s] liability for first degree murder from the
mental state of the actual shooter. Applying Johnson, [defendant] is ineligible for
5 CALCRIM No. 401 explained that, to find a defendant guilty of a crime as an aider and abettor, the People had to prove that he “knew that the perpetrator intended to commit the crime” and that “[b]efore or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime.” 13
resentencing as a matter of law because the jury was instructed on CALCRIM No. 401.”
(Estrada, supra, 77 Cal.App.5th at pp. 947-948.) The same reasoning applies here.
Defendant attempts to distinguish Estrada, supra, by pointing out that the
bracketed paragraph from CALCRIM No. 400 was given only once, whereas the jury in
the instant case was given that paragraph twice, since the court re-read it when
responding to the jury’s request for clarification about the meaning of aiding and
abetting. However, this is a distinction without a difference.
Finally, in support of defendant’s claim that the jury could have imputed malice to
him, he points out that the jury found he did not personally discharge a firearm during the
incident, and that he was not guilty of criminal threats.6 However, just because the jury
did not find the firearm enhancement true does not mean it imputed malice to him for
attempted murder based on his commission of the other charged crimes. Regarding the
criminal threats charge, defense counsel made the same argument at the prima facie
hearing, noting the prosecutor argued the basis of that charge was that defendant told the
actual shooter to “kill that person.” However, the court responded that a not guilty
finding on the criminal threats charge was immaterial, since the jury could have rationally
believed defendant’s statement was not intended as a threat, but as a command to his
cohort, made with the intent that the victim be killed.
6 The information charged defendant with threatening the victim, with the specific intent that his statements be taken as a threat (§ 422, count 5), and alleged that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). However, the jury found him not guilty of count 5 and did not find true the firearm enhancement. 14
In sum, defendant’s record of conviction demonstrates that he was not convicted
of attempted murder under the natural and probable consequences doctrine. Rather, in
finding him guilty, the jury necessarily found that he acted with the intent to kill. As
such, he is ineligible for section 1172.6 relief as a matter of law.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.
15
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Holding. The court held that the defendant was ineligible for resentencing under Penal Code section 1172.6 as a matter of law because the jury instructions required a finding of intent to kill for an attempted murder conviction, and the natural and probable consequences doctrine was not presented to the jury.
Issues
Whether the trial court erred in denying a petition for resentencing under Penal Code section 1172.6 at the prima facie stage.
Whether the record of conviction conclusively establishes that the defendant is ineligible for relief as a matter of law.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The record demonstrates that the jury instructions ensured the jury would only find defendant guilty of attempted murder, even as an aider and abettor, if it concluded he acted with the intent to kill.”
“The trial court here never instructed the jury with CALCRIM Nos. 402 or 403, which contain the natural and probable consequences doctrine.”
“In sum, defendant’s record of conviction demonstrates that he was not convicted of attempted murder under the natural and probable consequences doctrine.”