California Court of Appeal Oct 21, 2025 No. A171137Published
Filed 10/21/25 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, A171137 v. SARA LYNN KRUEGER, (Napa County Super. Ct. No. CR169462) Defendant and Appellant.
Defendant Sara Lynn Krueger appeals from the trial court’s order denying her petition for resentencing under Penal Code section 1172.6 at the prima facie stage. We conclude the record conclusively establishes Krueger is ineligible for relief under section 1172.6, and we therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND Underlying Murder Conviction In November 2015, the Napa County District Attorney filed an information charging Krueger and codefendant Ryan Scott Warner1 with the murder of Krueger’s daughter, Kayleigh S., with the special circumstance of torture (Pen. Code,2 §§ 187, subd. (a), 190.2, subd. (a)(18); count 1), and
1 We address Warner’s appeal of the denial of his petition for
resentencing in an opinion issued this day. (People v. Warner (Oct. 21, 2025, A171126).) 2 Undesignated statutory references are to the Penal Code.
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assault resulting in death of a child under eight years old (§ 273ab, subd. (a); count 2). “The case was prosecuted under the theory that the murder was by torture and that Krueger directly committed the crimes, or aided and abetted Warner in committing them. The cases against Krueger and Warner were tried to separate juries in the spring of 2017.” (People v. Krueger (Jan. 20, 2021, A152087) 2021 WL 194189 [nonpub. opn.].) The prosecution did not proceed under theories of either felony murder or natural and probable consequences, and the jury received no instructions on either theory. The only theory of first degree murder presented to the jury was murder by torture. In May 2017, the jury found Krueger guilty of first degree murder, found the special circumstance of torture true, and found Krueger guilty of assault causing death of a child. In Krueger’s direct appeal, we reversed the torture special circumstance finding, concluding there was insufficient evidence that Krueger acted with specific intent to kill, and otherwise affirmed the judgment. We rejected Krueger’s claim of insufficiency of the evidence as to the first degree murder conviction, concluding there was “ample evidence of the circumstances under which Kayleigh suffered the injuries to support the verdict against Krueger, including evidence of deliberate and premeditated intent to cause extreme pain for a sadistic purpose.” On remand after the appeal, the trial court sentenced Krueger to 25 years to life for count 1 (first degree murder) and 25 years to life for count 2 (assault causing death of a child), staying the sentence for count 2 pursuant to section 654.
Petition for Resentencing Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) amended the murder statutes at sections 188 and 189 to “eliminate[ ] natural and probable consequences liability for murder as it applies to aiding and abetting, and limit[ ] the scope of the felony-murder rule.” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Section 188, which defines malice required for murder, was amended to provide, “Except as stated in subdivision (e) of Section 189 [on felony murder], in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Senate Bill 1437 also created a procedure for those convicted of murder under the former law to seek retroactive relief. (Lewis, supra, 11 Cal.5th at p. 957.) This procedure, now codified at section 1172.6, permits “[a] person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime” to petition the court to have the murder “conviction vacated and to be resentenced on any remaining counts.” (§ 1172.6, subd. (a).) To make a prima facie showing of eligibility for relief under section 1172.6, a petitioner must meet the condition that he or she “could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019” (§ 1172.6, subd. (a)(3)), that is, changes made by Senate Bill 1437. (People v. Curiel (2023) 15 Cal.5th 433, 461 (Curiel).) In May 2023, Krueger filed a petition for resentencing under section 1172.6, and the court appointed counsel to represent her. In July 2024, the prosecution filed a response, arguing Krueger was ineligible for relief as a
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matter of law because she was not convicted under any theory of murder liability affected by Senate Bill 1437. Krueger filed a reply, arguing she made a prima facie case for relief because the “jury instructions permitted the jury to impute malice based solely on [her] ‘participation’ . . . in a crime, specifically torture.” On July 26, 2024, the trial court held a hearing on Krueger’s petition. The trial court determined that Krueger did not make a prima facie case for relief, stating, “If there is aiding and abetting[] malice murder and . . . the conviction is based on direct aiding and abetting, then the defendant is ineligible for resentencing . . . . [¶] Ms. Krueger is ineligible for relief as a matter of law because she was not convicted under any theory of liability affected by [Senate Bill] 1437[’s] amendment to the law of murder.” Krueger timely appealed. DISCUSSION A. Relevant Legal Principles 1. The Elements of Murder and Liability for Aiders and Abettors Murder is an “unlawful killing . . . with malice aforethought.” (§ 187, subd. (a).) The requisite malice for murder may be express or implied. (§ 188, subd. (a).) “Implied malice requires proof of both a physical act and a mental state.” (In re Ferrell (2023) 14 Cal.5th 593, 600.) The requisite physical act is one “whose natural consequences are dangerous to life,” and the mental state required is “deliberately perform[ing] the act with a conscious disregard for life, knowing the act endangers another’s life.” (Ibid.) Murder is of the second degree unless the offense meets the statutory requirements for first degree murder specified in section 189. (§ 189, subd. (b).) Murder “perpetrated by . . . torture . . . is murder of the first degree.” (§ 189, subd. (a).)
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“All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed.” (§ 31.) An aider an abettor’s “guilt is based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117, italics omitted.) Senate Bill 1437 “narrowed or eliminated certain forms of accomplice liability for murder” (Curiel, supra, 15 Cal.5th at p. 440), but direct aiding and abetting of implied malice murder remains a valid theory of murder liability. (See People v. Reyes (2023) 14 Cal.5th 981, 990 [citing cases holding “a defendant may directly aid and abet an implied malice murder”]; People v. Gentile (2020) 10 Cal.5th 830, 848, 850 [“notwithstanding Senate Bill 1437’s elimination of natural and probable consequences liability for second degree murder, 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”].) 2. The Prima Facie Showing Under Section 1172.6 The Legislature’s purpose in enacting Senate Bill 1437 was “to limit murder liability to established theories that incorporated the requisite intent” of malice aforethought and “to provide the opportunity to petition for relief to defendants who were convicted under an invalid theory,” that is, a theory of murder liability eliminated by Senate Bill 1437. (Curiel, supra, 15 Cal.5th at pp. 462–463.) Under section 1172.6, the process for a defendant seeking retroactive relief “begins with the filing of a petition containing a declaration that all requirements for eligibility are met ([§ 1172.6], subd. (b)(1)(A)), including
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that ‘[t]he petitioner could not presently be convicted of 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)). [¶] When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition ‘to determine whether the petitioner has made a prima facie case for relief.’ (§ 1172.6, subd. (c); [citation].) If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. [Citation.] If, instead, the defendant has made a prima facie showing of entitlement to relief, ‘the court shall issue an order to show cause.’ (§ 1172.6, subd. (c).)” (People v. Strong (2022) 13 Cal.5th 698, 708.) If the record demonstrates the jury necessarily found the petitioner guilty of murder under a still-valid theory, the petitioner does not satisfy the condition that he or she “could not presently be convicted of murder . . . because of changes to Section 188 or 189 made” by Senate Bill 1437 (§ 1172.6, subd. (a)(3)); under this circumstance, the petition fails at the prima facie stage, and the petitioner is ineligible for relief under section 1172.6 as a matter of law. (See Curiel, supra, 15 Cal.5th at pp. 464–465 [if the verdicts and jury instructions reflect that the jury made “all of the factual findings necessary to support a murder conviction under current law,” this would conclusively establish ineligibility for relief]; People v. Harden (2022) 81 Cal.App.5th 45, 59–60 [where the jury instructions and verdicts demonstrated the jury necessarily found the petitioner was the actual killer and therefore was not eligible for relief, the trial court correctly denied the petition at the prima facie stage].)
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3. Standard of Review We independently review the trial court’s determination that Krueger failed to make a prima facie showing for relief under section 1172.6. (People v. Morales (2024) 102 Cal.App.5th 1120, 1131.) “[W]e may look to the jury’s verdicts, and the factual findings they necessarily reflect, to determine whether the record of conviction refutes the factual allegations in [Krueger]’s petition.” (Curiel, supra, 15 Cal.5th at p. 465.) B. The Jury Instructions Given We examine the jury instructions because eligibility for relief under section 1172.6 “ ‘turn[s] on an examination of both the governing law at the time of trial and the record of conviction, including the jury instructions.’ ” (People v. Antonelli (2025) 17 Cal.5th 719, 731.) In this case, the jury was instructed on aiding and abetting, the elements of murder, first degree murder based on murder by torture, and special circumstance murder by torture. The jury was given a modified version of CALCRIM No. 401 on aiding and abetting. It stated that, to prove a defendant is guilty as an aider and abettor, the People must show the defendant “knew that the perpetrator intended to commit the crime,” “intended to aid and abet the perpetrator in committing the crime,” and, by “words or conduct, or failure to act in those situations where the defendant was under a legal duty to act, did in fact aid and abet the perpetrator’s commission of the crime.” The instruction further explained, “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.” (Italics omitted.)
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Under CALCRIM No. 520, first or second degree murder with malice aforethought, the jury was instructed in relevant part: “The defendants are charged in Count 1 with murder. [¶] To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he or 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 acted with express malice if he or she unlawfully intended to kill. “The defendant acted with implied malice if: [¶] 1. He or she intentionally committed an act, or intentionally failed to act in those situations where he or she is under legal duty to act; [¶] 2 The natural and probable consequences of the act or omission or failure to act were dangerous to human life; [¶] 3. At the time he or she acted, he or she knew his or her act was dangerous to human life; [¶] AND [¶] 4. He or she deliberately acted with conscious disregard for human life.” “If you decide that the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in CALCRIM No. 521.” CALCRIM No. 521, first degree murder, provided in relevant part: “A defendant is guilty of first degree murder if the People have proved that the defendant murdered by torture. The defendant murdered by torture if: [¶] 1. He or she willfully, deliberately, and with premeditation intended to inflict extreme and prolonged pain on the person killed while that person was alive; [¶] 2. He or she intended to inflict such pain on the person killed for the calculated purpose of revenge, extortion, persuasion, or any other sadistic
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reason; [¶] 3. The acts causing death involved a high degree of probability of death; [¶] AND [¶] 4. The torture was a cause of death.” CALCRIM No. 733, special circumstance murder by torture required the People to prove, among other things, that the “defendant intended to kill” the victim, Kayleigh. The jury was also instructed that murder as charged in count 1 “requires a specific intent or mental state,” and, “to find a person guilty of this crime, that person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the specific intent required are explained in the instruction for that crime.” C. Krueger is Ineligible for Relief Under Section 1172.6 Because the Jury Found Her Guilty of Murder Under a Currently Valid Theory As we have seen, section 1172.6 provides a procedure for seeking retroactive relief for “defendants who were convicted under an invalid theory.” (Curiel, supra, 15 Cal.5th at p. 463, italics added.) But Krueger was prosecuted exclusively under theories of murder liability that are currently valid. The jury was not given the option of finding her guilty under an invalid theory (that is, felony murder without meeting the requirements of section 189, subdivision (e), murder under the natural and probable consequences doctrine, or any other theory imputing malice solely based on her participation in a crime). The jury found Krueger guilty of first degree murder by torture, and Senate Bill 1437 did not eliminate or alter this theory of murder liability. The jury verdicts and jury instructions in this case conclusively demonstrate Krueger is ineligible for resentencing relief because she does not meet the condition that she “could not presently be convicted of murder . . . because of changes to Section 188 or 189 made” by Senate Bill 1437 (§ 1172.6, subd. (a)(3)). It follows that her petition for resentencing was properly denied
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at the prima facie stage. (See Curiel, supra, 15 Cal.5th at pp. 464–465; People v. Harden, supra, 81 Cal.App.5th at pp. 59–60.) Krueger first suggests the trial court erred in its ruling by engaging in impermissible factual findings at the prima facie stage. While Krueger is correct that a trial court should not engage in fact finding that involves weighing evidence at this juncture (Lewis, supra, 11 Cal.5th at p. 971–972), we review whether the challenged ruling is correct, not the analysis the court used to reach it. (In re Baraka H. (1992) 6 Cal.App.4th 1039, 1045.) The trial court’s conclusion that Krueger did not make a prima facie case for relief is correct, regardless of the court’s stated reasons for reaching its conclusion. (See As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 447 [a “ ‘ “decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason” ’ ”].) Krueger’s primary argument is that the absence of instructions on felony murder or the natural probable consequences doctrine in this case does not defeat her prima facie showing. She relies on People v. Langi (2022) 73 Cal.App.5th 972 (Langi), and People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado). In Langi, the Court of Appeal held the petitioner made a prima facie case for relief under Senate Bill 1437 even though the jury that found him guilty of second degree murder had received no instructions on any currently invalid theory of murder liability; the jury had not been instructed on pre- Senate Bill 1437 felony murder, murder under the natural and probable consequences doctrine, or any other theory imputing malice solely based on his participation in a crime. (73 Cal.App.5th at pp. 975–976.) The Langi court concluded that, when a jury is given a standard aiding and abetting instruction “without tailoring it to the specifics of th[e] crime [of implied
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malice murder], 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.” (Id. at p. 982.) Maldonado followed the reasoning of Langi. There, defendant Maldonado was convicted of first degree murder; the jury was not instructed on any invalid theory of murder, and it was instructed on aiding and abetting, implied malice, and lying-in-wait first degree murder. (Maldonado, supra, 87 Cal.App.5th at p. 1259.) When Maldonado subsequently filed a petition for resentencing under section 1172.6, the Court of Appeal held he made a prima facie case for relief, 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, [Maldonado] need only have intended to encourage the perpetrator’s intentional act—in this case, [a surprise attack on the victim]—whether or not [Maldonado] 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.’ ” (Id. at p. 1266.) Thus, in Langi and Maldonado, a petitioner who was prosecuted and convicted exclusively under currently valid theories of murder was nonetheless deemed to have made a prima facie case for resentencing relief based on asserted error or ambiguity in the aiding and abetting jury instructions given at the petitioner’s criminal trial. This approach is not universally followed by other courts. In People v. Burns (2023) 95 Cal.App.5th 862, for example, petitioner Burns argued he made a prima facie case because the aiding and abetting instruction given at his trial may have resulted in the jury “convict[ing] him based on some ‘other theory under which malice is imputed to a person based solely on that person’s participation in a crime.’ ” (Id. at p. 865.) The Court
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of Appeal rejected the argument, reasoning, “[T]he petition process . . . was designed to permit the resentencing of defendants who were properly convicted under the law that applied at the time, but ‘could no longer be convicted of murder’ because of recent legislative changes. . . . The problem Burns raises in his petition [of an erroneous jury instruction], however, has nothing to do with the legislative changes to California’s murder law effected by Senate Bill No. 1437. . . . Accordingly, he did not satisfy the section 1172.6, subdivision (a)(3) condition as part of his required prima facie showing.” (Id. at p. 867, italics added.) The court further explained that the “instruction provided at Burns’s trial created a potential issue of instructional error, but it did not operate to offer the jury a theory of legal liability that can no longer support a conviction for murder as a result of the recent statutory changes.” (Id. at pp. 868–869.) In People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921 (Berry- Vierwinden), the petitioner was convicted of first degree murder by a jury instructed on aiding and abetting, the elements of murder, and lying-in-wait murder, and he relied on Maldonado to argue he made a prima facie case for resentencing relief. (Berry-Vierwinden, at pp. 925–929, 933.) Rejecting the argument, the Court of Appeal reasoned: “To establish a prima facie case for relief, Berry-Vierwinden was required to demonstrate that he could not presently be convicted of murder ‘because of’ the ‘changes’ made by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3).) ‘The “changes” described in section 1172.6, subdivision (a)(3) plainly refer to the substantive amendments to sections 188 and 189 that were enacted along with the resentencing provisions in Senate Bill 1437.’ (People v. Curiel (2023) 15 Cal.5th 433, 461; [citation].) [¶] . . . [T]he instructional errors Berry- Vierwinden asserts have nothing to do with these 2019 legislative changes.
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What he is really arguing is that the instructions ‘may have misled the jury as to what was then required to convict [him].’ [Citation.] By the time of his trial in 2010, California law was already clear that a direct aider and abettor could not be convicted of lying-in-wait murder on an imputed malice theory. Specifically, the Supreme Court had ruled that: (1) the perpetrator of a first degree murder by means of lying in wait must act with malice aforethought [citations]; and (2) a direct aider and abettor of murder must at a minimum ‘know and share the murderous intent of the actual perpetrator.’ ” (Berry- Vierwinden, supra, 97 Cal.App.5th at p. 935.) The court observed that the petitioner’s argument “amount[ed] to ‘a routine claim of instructional error’ that ‘could have been asserted on appeal from the judgment of conviction.’ ” (Id. at p. 936.) The Berry-Vierwinden court disagreed with Maldonado and Langi to the extent those cases could “be read to suggest that such an instructional error may be asserted as a basis for section 1172.6 relief—even if the alleged error could have been raised on direct appeal under then-existing law not changed by Senate Bill No. 1437” because “the courts in Maldonado and Langi did not consider the language of section 1172.6, subdivision (a)(3) requiring that defendants show they can no longer be convicted of murder ‘because of changes’ made by Senate Bill No. 1437.” (Berry-Vierwinden, supra, 97 Cal.App.5th at p. 936.) We find Berry-Vierwinden and Burns persuasive and follow their reasoning.3 When Krueger was tried in 2017 it was clear that a direct aider
3 We note the California Supreme Court may resolve the conflict
between Langi/Maldonado and Burns/Berry-Vierwinden in People v. Lopez (Oct. 4, 2024, F085300) (nonpub. opn.), review granted Jan. 15, 2025 (S287814). Our high court granted review in Lopez limited to the question:
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and abettor could not be convicted of murder without personally harboring malice. (See People v. McCoy, supra, 25 Cal.4th at p. 1118 [“an aider and abettor’s mental state must be at least that required of the direct perpetrator”; for murder, “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”].) Krueger was not convicted of murder under a theory in which malice was “imputed to a person based solely on that person’s participation in a crime” (§ 1172.6, subd. (a)), and she cannot show that she “could not presently be convicted of murder . . . because of changes to Section 188 or 189” made by Senate Bill 1437 (id., subd. (a)(3), italics added). In any event, even if we were to apply the framework of Langi and Maldonado, we would conclude Krueger has not made a prima facie case for relief. She argues, “The jury’s verdict may have imputed malice to [her] based on a finding that she aided and abetted non-lethal torture without malice.” But our high court has recognized that first degree murder by torture “require[s] proof of a mental state more culpable than the malice required for second degree murder, in keeping with the Legislature’s determination that murders perpetrated by these means warrant the greater punishment reserved for first degree murder. For torture murder, the prosecution must show ‘wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain.’ ” (People v. Brown (2023) 14 Cal.5th 453, 456, italics added; see People v. Steger (1976) 16 Cal.3d 539, 546 [“calculated
“Does Penal Code section 1172.6, subdivision (a)(3), which requires defendants to allege that they ‘could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019,’ render ineligible for relief petitioners who could have raised their challenges to imputed malice on prior direct appeal?”
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deliberation is required for a [first degree] torture murder conviction” as “it is the state of mind of the torturer—the cold-blooded intent to inflict pain for personal gain or satisfaction—which society condemns” and the crime is “comparatively more deplorable than lesser categories of murder”].) Thus, the jury finding that Krueger had the mental state required for aiding and abetting torture murder necessarily supplies the malice required for murder. In sum, we are “confident the jury necessarily found the [mental state and acts] required for direct aiding and abetting murder” (Curiel, supra, 15 Cal.5th at p. 467), and Krueger is ineligible for relief under section 1172.6 as a matter of law. DISPOSITION The trial court’s order denying Krueger’s petition for resentencing under section 1172.6 is affirmed.
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_________________________ Miller, J.
WE CONCUR:
_________________________ Stewart, P.J.
_________________________ Richman. J.
A171137, People v. Krueger
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Trial Court: Superior Court of Napa County
Trial Judge: Hon. Francisca P. Tisher
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant
Rob Bonta, Attorney General; Lance E. Winters, Chief Assistant Attorney General; Jeffrey M. Laurence, Assistant Attorney General; Eric D. Share, Emily Derrick, Deputy Attorneys General, for Plaintiff and Respondent
A171137, People v. Krueger
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant was ineligible for resentencing under Penal Code section 1172.6 because she was convicted of first degree murder by torture, a theory of liability not affected by the legislative changes in Senate Bill 1437.
Issues
Whether a defendant convicted of first degree murder by torture is eligible for relief under Penal Code section 1172.6.
Whether a petitioner can establish a prima facie case for relief based on alleged instructional error regarding aiding and abetting when the theory of conviction remains valid under current law.
Disposition. affirmed
Quotations verified verbatim against the opinion
“The record conclusively establishes Krueger is ineligible for relief under section 1172.6”
“Krueger was prosecuted exclusively under theories of murder liability that are currently valid.”
“The jury verdicts and jury instructions in this case conclusively demonstrate Krueger is ineligible for resentencing relief”