People v. Lopez

IN THE SUPREME COURT OF
               CALIFORNIA

                       THE PEOPLE,
                  Plaintiff and Respondent,
                             v.
                     ROBERT LOPEZ,
                  Defendant and Appellant.

                           S287814

                   Fifth Appellate District
                          F085300

              Stanislaus County Superior Court
                          1073884



                        April 30, 2026

Justice Evans authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Wilson* concurred.




__________________________
*     Associate Justice of the Court of Appeal, Sixth Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
                       PEOPLE v. LOPEZ
                            S287814


               Opinion of the Court by Evans, J.


      In 2007, appellant Robert Lopez was convicted of the
murder of Daniel Morales, assault with a deadly weapon, and
participation in a criminal street gang. As to the murder and
the assault, the jury imposed enhancements based on the crimes
being committed for the benefit of a criminal street gang (Pen.
Code,1 former § 186.22, subd. (b)(1)) and because a principal
personally used a firearm causing death (§ 12022.53, subds. (d)
& (e)(1).) The convictions stemmed from an incident in which
Lopez, then 16 years old, codefendant Manuel Domingo
Hernandez, then 24 years old, and two others confronted
perceived gang rivals outside a taco truck in Modesto, ultimately
resulting in the fatal shooting of Morales.
      Subsequently, the Legislature significantly altered the
scope of murder liability. (Sen. Bill No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill 1437); Stats. 2018, ch. 1015, § 3.) Among
other changes, Senate Bill 1437 amended Penal Code section
188 to require that “a principal in a crime shall act with malice
aforethought,” which “shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (3).)
Under Senate Bill 1437, the Legislature also created a
resentencing procedure for defendants who had previously been
convicted of murder under prior law. (Former § 1170.95,


1
      All unspecified statutory references are to the Penal Code.

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                   Opinion of the Court by Evans, J.


added by Stats. 2018, ch. 1015, § 4, subsequently renumbered as
§ 1172.6 by Stats. 2022, ch. 58, § 10.)
     As amended in 2021 by Senate Bill No. 775 (2021–2022
Reg. Sess.) (Senate Bill 775), section 1172.6 makes eligible for
resentencing persons convicted of murder pursuant to
any “theory under which malice is imputed to a person based
solely on that person’s participation in a crime.” (§ 1172.6, subd.
(a).) Under section 1172.6, petitioners can seek resentencing
when three conditions are met: (1) “[a] complaint, information,
or indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder, 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, or attempted murder
under the natural and probable consequences doctrine”; (2)
“[t]he petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of
a trial at which the petitioner could have been convicted of
murder or attempted murder”; and (3) “[t]he petitioner could not
presently be convicted of murder or attempted murder because
of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1172.6, subds. (a)(1)–(3).)
     In January 2019, Lopez filed a pro per petition under what
is now section 1172.6, alleging that he should be resentenced
because he could not now be convicted of murder because of the
changes to sections 188 and 189. The trial court, accepting the
People’s concession, concluded that Lopez had made a prima
facie showing of resentencing eligibility.       Following an
evidentiary hearing under section 1172.6, subdivision (d)(3), the
court denied the petition on the ground that Lopez was guilty of


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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


murder as the actual killer or a direct aider and abettor. Lopez
appealed.
     The Court of Appeal affirmed, but on a different ground
than the trial court. (People v. Lopez (Oct. 4, 2024, F085300)
[nonpub. opn.].) Lopez’s claim for relief, the court observed,
rested on the contention that assertedly ambiguous instructions
had permitted his jury to convict him of murder as an aider and
abettor on a legally erroneous theory of imputed malice. The
appellate court held that such a claim is not cognizable in a
section 1172.6 petition since the claimed invalidity is not
“ ‘because of’ ” the substantive “ ‘changes to Section 188 or 189
made effective January 1, 2019.’ ” (Lopez, at p. 21; § 1172.6,
subd. (a)(3).) It reasoned that Lopez “could have advanced the
same claim in his direct appeal from his 2007 conviction, and he
has forfeited the claim by failing to raise it in his [prior] direct
appeal.” (Lopez, at p, 30.)
      We granted review limited to the following question:
“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?” We
conclude that Lopez is not categorically ineligible for relief and
therefore reverse and remand to the Court of Appeal to address
Lopez’s appeal on the merits.




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                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


    I.   FACTUAL AND PROCEDURAL BACKGROUND2
         A. Prosecution case
    On April 6, 2004, 24-year-old Norteño gang member
Manuel Hernandez drove by a taco truck and saw three young
men dressed in blue, a color traditionally associated with the
Sureño gang: Daniel Morales, Jesus Elizarraraz, and Gonzalo
Villanueva.    Morales and Villanueva were Sureño gang
members. Elizarraraz testified that Hernandez, who was alone
in the car and wearing a red sports jersey, stared at him “with a
mean look” and yelled, “Fuckin’ Scraps,” a slur for Sureño gang
members. Hernandez then drove away while Elizarraraz
remained with his friends.
       Hernandez returned soon thereafter with several other
men, including 16-year-old defendant Lopez, also affiliated with
the Norteño gang. Villanueva ran away and felt something hard
hit him in the back of the head. Two of the men in Hernandez’s
group chased after Villanueva, leaving Hernandez and Lopez.
Elizarraraz testified that Hernandez then pulled out a gun, held
it a few inches from Elizarraraz’s face and said “[y]ou’re not so
tough now, are you?” Elizarraraz did not see Lopez with a gun
at any point during the encounter. Elizarraraz testified that,
after Hernandez threatened him with the gun, Lopez said “[a]re
you ready for this” and began a fist fight with Morales. As
Hernandez walked towards the fist fight between Lopez and



2
      The summary of facts is drawn from the Court of Appeal’s
opinion below. We rely on these factual descriptions solely for
the purpose of summarizing the background of this case. They
do not constitute factual findings for purposes of the present
petition. (See People v. Antonelli (2025) 17 Cal.5th 719, 723, fn.
4 (Antonelli).)

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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


Morales, Elizarraraz ran away, hearing gunshots just a “couple
seconds” later. Elizarraraz heard Hernandez say, “We got one
of them, let’s get out of here.” Elizarraraz then saw all four men
run to the car. Elizarraraz told police (during a positive, in-field
identification of Hernandez) that Hernandez then put a gun
under the seat.
       Police officers arrested Hernandez in his car shortly after
the shooting, less than two miles from the scene. They
discovered a bike chain with a padlock in his vehicle. According
to an officer, Hernandez’s hands “were really wet and cold . . .
like if you’re rinsing your hands off and didn’t dry them.” At a
subsequent field show-up, Elizarraraz identified Hernandez as
the person who pointed the gun at him.
      Morales later died from his gunshot wounds.           The
pathologist who performed Morales’s autopsy recovered four .22-
caliber bullets from his body. Police searched Lopez’s home
multiple times, ultimately discovering a loaded .22-caliber
revolver and ammunition from his bedroom. A comparison of
the bullets recovered from Morales’s body and the seized unfired
cartridges from the revolver from Lopez’s bedroom was
“inconclusive.”
         B. Co-defendant Hernandez’s Testimony
      Hernandez testified in his own defense at trial. While
Hernandez was wearing a red sports jersey and a belt with an
“N” on it during the confrontation, Hernandez denied he was an
active Norteño gang member at the time of the shooting or that
he had ill will toward Sureños “in a gang way.” He also denied
using the slur “scraps” towards the victims. Hernandez testified
that on the day of the incident, he had a bicycle security chain
with a lock on it “for protection.” He denied that he went to the

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                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


south side of Modesto to look for Sureños to attack. Hernandez
testified that he wanted to fight the perceived Sureños gang
members, so he drove away to find men to help him. Hernandez
asserted that he then picked up three people without
recognizing who they were because he “didn’t really pay
attention to what was in [his] back seat.”
      Hernandez denied carrying a gun the day of the incident
and said he had never owned or handled a gun in his life. He
also denied handling a gun at the scene and handing it to Lopez
before the shooting. Hernandez admitted being present at the
confrontation and that he struck Villanueva in the back of his
head with the bike chain. Hernandez testified that when he
heard a single gunshot he ran. When he looked back, he saw
Lopez standing over Morales with his arm outstretched, holding
something in his hand.
        C. Lopez’s Defense
     Lopez put on an alibi defense claiming that he and a
friend, Reuben Moreno, had gone together to the tuxedo shop on
the day of the murder and were there from approximately 2:30
p.m. to 6:00 p.m. Lopez also called an expert who agreed that
the bullets taken from Morales’s body could not be matched with
the revolver seized from Lopez’s bedroom. A latent print analyst
examined the gun recovered from Lopez’s room but did not find
any fingerprints.
        D. Closing Argument, Instructions, and Verdict
     At the preliminary hearing stage, the prosecution had
adopted Elizarraraz’s account, arguing that Hernandez was the
shooter and Lopez was an aider and abettor by virtue of his fist-
fighting with Morales. However, in closing argument at trial,
the prosecution altered its theory. The prosecution argued that

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                       PEOPLE v. LOPEZ
                 Opinion of the Court by Evans, J.


Hernandez originally had the gun, but, after Elizarraraz fled,
gave it to Lopez, who immediately thereafter shot Morales.
Hernandez’s counsel argued in closing that Hernandez had
committed an assault, but that Lopez was the shooter and that
Hernandez was completely unaware that Lopez was armed.
       The jury was instructed on both perpetrator and
accomplice liability theories.      With respect to accomplice
liability, the court instructed pursuant to former CALCRIM No.
400 that “[a] person is equally guilty of the crime whether he
committed it personally or aided and abetted the perpetrator
who committed it.” This instruction also stated that “[u]nder
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.”
      With respect to aiding and abetting, the jury was
instructed, in relevant part, pursuant to CALCRIM No. 401 as
follows:
     To prove that a 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



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                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


     4. The defendant’s words or conduct did in fact
     aid and abet the perpetrator’s commission of
     the crime.
     Someone aids and abets a crime if he knows of
     the perpetrator’s unlawful purpose and he
     specifically intends to, and does in fact, aid,
     facilitate, promote, encourage, or instigate the
     perpetrator’s commission of that crime.
     And, under the instruction for murder, CALCRIM No. 520,
the jury was instructed it had to find that the defendant
committed an act that caused the death of another person and,
when the defendant acted, he had a state of mind called malice
aforethought. The jury was provided standard instructions on
malice aforethought, including both express and implied malice.
     The jury convicted both Lopez and Hernandez of assault
with a deadly weapon and participating in a criminal street
gang. The jury convicted Lopez of murder but hung on the
murder count as to Hernandez.
        E. Section 1172.6 Proceedings and Subsequent
           Appeal
      In 2019, Lopez filed a petition for resentencing under what
is now section 1172.6, alleging that he had been convicted under
a theory of imputed malice. The People conceded that Lopez had
stated a prima facie case, a concession the trial court accepted.
At the hearing, the People relied on the trial record and did not
introduce additional evidence.
      The trial court denied relief, concluding that “Lopez could
be again tried under both theories that he was the actual killer
based on the testimony at trial or that he was a direct aider and
abettor who shared the intent to kill based on the evidence

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                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


exhibited before, during, and after the incident itself.” At the
prosecutor’s urging, the trial court corrected itself to indicate
that it should have stated “would” instead of “could.” Further
elaborating, the trial court stated, “[i]t’s not me interjecting
what I feel about the facts of the case other than he could
be/would be prosecuted under either theory.” It subsequently
noted that it had been “inartful” in saying the standard was that
petitioner “ ‘would be tried again’ as opposed to convicted based
on either theory.” Although defense counsel argued that the
trial court was required to pick between the two conflicting
theories of liability and state the facts that would support
whichever theory it found, the trial court repeatedly declined to
do so.
      Lopez appealed, arguing that there was insufficient
evidence to support the court’s finding and that the court had
erred in adopting two factually inconsistent theories. The state
did not contest Lopez’s eligibility for an evidentiary hearing and
defended the trial court’s ruling on the merits. However, the
Court of Appeal subsequently asked the parties to submit
supplemental briefing on whether Lopez was ineligible for relief
as a matter of law. The People then, for the first time, argued
that Lopez was categorically ineligible for relief. Accepting this
argument, the appellate court ruled, based upon a trio of Court
of Appeal cases, People v. Burns (2023) 95 Cal.App.5th 862
(Burns), People v. Flores (2023) 96 Cal.App.5th 1164 (Flores),
and People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921
(Berry-Vierwinden), that Lopez was barred from seeking
resentencing relief because he had not raised on direct appeal
from his conviction the instructional ambiguity which was the
basis of his section 1172.6 petition. We granted review.


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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


         F. Prior Conflicting Decisions in the Courts of
            Appeal
     Understanding the procedural bar applied by the court
below requires discussion of the Court of Appeal cases on which
it relied, Burns, Flores, and Berry-Vierwinden, as well as two
conflicting cases which preceded them, People v. Langi (2022) 73
Cal.App.5th 972 (Langi) and People v. Maldonado (2023) 87
Cal.App.5th 1257 (Maldonado)
            1. Langi and Maldonado
       In Langi, supra, 73 Cal.App.5th 972, the Court of Appeal
addressed a section 1172.6 petition in which, in the underlying
trial, the defendant and three others had robbed a group that
included the victim, Martinez. Martinez died after someone in
Langi’s group punched him, causing Martinez to fall and hit his
head, leading to his death. (Langi, at p. 975.) Similar to the
former CALCRIM No. 400 instruction given in this case, the jury
in Langi was provided with an analogous CALJIC instruction,
CALJIC No. 3.00, setting forth that each principal in a crime,
“regardless of the extent or manner of participation[,] is equally
guilty.” (Langi, at p. 981, fn. 8.) The jury was also instructed
using standard second degree murder and aiding and abetting
instructions, CALJIC Nos. 8.31 and 3.01. Under CALJIC No.
3.01, aiding and abetting was defined as follows: “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.)




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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


      Under the facts of that case, the Court of Appeal found
that Langi was not categorically ineligible for relief under
section 1172.6. The Langi court first reasoned, as previously
noted by the Court of Appeal in People v. Powell (2021) 63
Cal.App.5th 689, 712–714 (Powell), a direct appeal case, that the
standard aiding-and-abetting instructions “are ill suited to the
crime of second degree murder.” (Langi, supra, 73 Cal.App.5th
at p. 982.) Langi concluded: “If, as here, 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.”
(Ibid.) The Powell court, upon which Langi relied, had
determined that, when standard aiding and abetting
instructions are conjoined with second degree murder
instructions, and are not tailored to the facts of a specific case,
a jury must find “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, at p. 714, original italics.) However, the Powell
court concluded that this creates a potential ambiguity because
the actus reus and mens rea requirements for aiding and
abetting a second degree murder do not turn on aiding in an
underlying crime but aiding in the commission of the life-
endangering act. (Ibid.; see also People v. Reyes (2023) 14
Cal.5th 981, 990–992 (Reyes) [approving of the reasoning of




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                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


Powell that, for aiding and abetting murder liability, “ ‘[t]he
relevant act is the act that proximately causes death’ ”].)3
     Thus relying on Powell, the Langi court reasoned that
CALJIC No. 3.01 required the defendant to act “ ‘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.’ ” (Langi, supra, 73
Cal.App.5th at p. 982, citing CALJIC No. 3.01, first italics in
original.) Based on these instructions and the evidence in that
case, the Langi court concluded that “the jury was entitled to
conclude that, to be guilty as an aider and abettor of second
degree murder, appellant need only have intended to encourage
the perpetrator’s intentional act — in this case, punching
Martinez — whether or not appellant intended to aid or
encourage Martinez’s killing, and whether or not he personally
knew of and disregarded the risk of such a killing.” (Id. at p.
983.) Because the appellate court concluded that “the record of
conviction does not conclusively negate the possibility that the
jury found appellant guilty of second degree murder by imputing
to him the implied malice of the actual killer,” Langi was
entitled to an evidentiary hearing. (Id. at p. 984.)
     Langi was followed by Maldonado, supra, 87 Cal.App.5th
1257. Maldonado was convicted at trial of first degree murder
and the jury was not presented with theories of natural and
probable consequences or felony murder. (Id. at p. 1259.)
Maldonado nonetheless sought resentencing under section


3
      The Court of Appeal in Powell thus found the provision of
non-tailored aiding and abetting instructions for second degree
murder erroneous under the facts of that case, but concluded the
error was harmless. (Powell, supra, 63 Cal.App.5th at p. 714.)

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                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


1172.6, arguing that he had established a prima facie case of
eligibility based on “the jury instructions for aiding and
abetting, implied malice, and lying-in-wait murder, and on the
analysis in People v. Langi.” (Maldonado, at p. 1259.) The
Court of Appeal in Maldonado concluded that an ambiguity
existed as the result of these instructions, similar to the
ambiguity that the Langi and Powell opinions had perceived.
(Maldonado, at pp. 1264–1267.) Based on the alleged ambiguity
in the “unlawful purpose” and “crime” language of CALCRIM
No. 401, and the lack of an intent to kill requirement in the
lying-in-wait murder instruction, CALCRIM No. 521, the
Maldonado court reasoned that the aiding and abetting
instructions left open the possibility that “the jury may have
found the perpetrator’s purpose was only to injure or intimidate
the victim in a surprise attack.” (Maldonado, at p. 1266, original
italics.) Thus, the defendant, under the aiding and abetting
instructions, may have intended only to encourage the
perpetrators’ intentional act — a surprise attack on the
victim — and not the act of the victim’s killing. (Ibid.) The
Court of Appeal therefore remanded for an evidentiary hearing.
(Id. at p. 1269.)
      As noted above, our decision in Reyes underscored that it
is the fatal act, not any underlying crime, that an aider and
abettor of second degree murder must aid or abet. (Reyes, supra,
14 Cal.5th at p. 991.) We thus ultimately concluded that it was
error to “rely[] exclusively on the legal principles outlined in
CALCRIM No. 520” to deny relief. (Ibid.) In September 2023,
citing our decision in Reyes, the Judicial Council adopted a new
jury instruction setting forth the elements of aiding and
abetting implied malice murder. (See CALCRIM No. 526.) The
instruction addresses the potential ambiguity identified by the

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                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


Powell court and clarifies that an aider and abettor to implied
malice murder must personally harbor implied malice and must
aid the perpetrator’s fatal act.4 This instruction, however, was
not given at Lopez’s trial.
            2. Burns, Flores, and Berry-Vierwinden
     The Court of Appeal in Burns, supra, 95 Cal.App.5th 862,
adopted a different approach. In Burns, the petitioner, whose
jury had received the then standard aiding and abetting
instructions at the original trial, including the “equally guilty”
language from the now-disapproved version of CALCRIM No.


4
       CALCRIM No. 526 provides, in relevant part: “To prove
that the defendant is guilty of aiding and abetting murder by
acting with implied malice, the People must prove that: [¶] 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 perpetrator’s act[s], the defendant intended
to aid and abet the perpetrator in committing the act[s] that
(was/were) dangerous to human life; [¶] 5. Before or during the
commission of the perpetrator’s 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 is dangerous to human life if there is a high degree of
probability that the act will result in death”

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400, argued that these instructions allowed the jury to convict
him as an aider and abettor on a theory of imputed malice.
(Burns, at pp. 865–866.) The Court of Appeal found that even if
the instructions were flawed, he was still ineligible for
resentencing relief due to the language of section 1172.6,
subdivision (a)(3), which requires petitioners to establish 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.’ ” (Burns, at p. 867 [quoting § 1172.6, subd.
(a)(3)], original italics.) In its reading, “the alleged error he
identifies has nothing to do with the 2018 and 2021 legislative
changes that gave rise to section 1172.6’s petition process.” (Id.
at p. 865.) The court reasoned, for instance, that the “problem
with the ‘equally guilty’ language in former version CALCRIM
No. 400 was not that it permitted the jury to rely on a now-
invalid theory of criminal liability, but that it may have misled
the jury as to what was then required to convict Burns.” (Burns,
at p. 868, italics in original.) Analogizing to our long-established
Dixon5 procedural bar for habeas corpus petitions, the Court of
Appeal held that section 1172.6, subdivision (a)(3) meant that a
petitioner’s “failure to raise the argument on direct appeal
forfeited th[e] claim” that ambiguous instructions allowed them
to be convicted based on an unlawful theory of imputed malice.
(Burns, at p. 868.)
      In Flores, the petitioner seeking resentencing argued that
the jury instructions given at his 2010 trial permitted the jury


5
      In re Dixon (1953) 41 Cal.2d 756, 759 (writ of habeas
corpus “will not lie where the claimed errors could have been,
but were not, raised upon a timely appeal from a judgment of
conviction”).

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                  Opinion of the Court by Evans, J.


to convict him of provocative act murder based on an imputed
malice theory — that he aided and abetted his accomplice’s
provocative act without himself harboring malice. (Flores,
supra, 96 Cal.App.5th at p. 1170.) The Court of Appeal
concluded that the law at the time of Flores’s conviction in 2010
already required aider and abettors of provocative act murder to
possess malice. (Id. at pp. 1173–1174 & fn. 4.) Because Flores’s
claim that he could have been convicted on an imputed malice
theory was thus “a routine claim of instructional error” that
“could have been asserted on appeal from the judgment of
conviction,” the Court of Appeal found he was ineligible for
relief. (Id. at p. 1173.)
      Burns and Flores were followed by Berry-Vierwinden,
supra, 97 Cal.App.5th 921, another appeal from the denial of a
section 1172.6 petition that addressed the same aiding and
abetting and lying-in-wait murder instructions as Maldonado
and Langi. The Berry-Vierwinden court followed Burns and
Flores disagreeing with Maldonado and Langi to the extent that
they had allowed an “instructional error [to] 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.”
(Berry-Vierwinden, at p. 936.) As in Burns and Flores, the
Berry-Vierwinden court held that “ ‘[s]ection 1172.6 does not
create a right to a second appeal, and [Berry-Vierwinden] cannot
use it to resurrect a claim that should have been raised in his
[direct] appeal.’ ” (Ibid.)
   II.   DISCUSSION
         A. Principles of Statutory Interpretation
     As we have articulated in other cases interpreting section
1172.6, “[t]he proper interpretation of a statute is a question of

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                   Opinion of the Court by Evans, J.


law we review de novo. [Citations.] ‘ “ ‘ “As in any case
involving statutory interpretation, our fundamental task here is
to determine the Legislature’s intent so as to effectuate the law’s
purpose. [Citation.] We begin by examining the statute’s words,
giving them a plain and commonsense meaning.” ’ ” ’ [Citation.]
‘ “[W]e look to ‘the entire substance of the statute . . . in order to
determine the scope and purpose of the provision . . . .
[Citation.]’ [Citation.] That is, we construe the words in
question ‘ “in context, keeping in mind the nature and obvious
purpose of the statute . . . .” [Citation.]’ [Citation.] We must
harmonize ‘the various parts of a statutory enactment . . . by
considering the particular clause or section in the context of the
statutory framework as a whole.’ ” ’ ” (People v. Lewis (2021) 11
Cal.5th 952, 961 (Lewis); accord, People v. Curiel (2023) 15
Cal.5th 433, 461 (Curiel). As this court and others have
recognized, section 1172.6’s resentencing scheme constitutes
remedial legislation (People v. Delgadillo (2022) 14 Cal.5th 216,
221; People v. Bucio (2020) 48 Cal.App.5th 300, 314), and such
legislation “must be liberally construed in a manner that serves
its remedial purposes.” (Frlekin v. Apple Inc. (2020) 8 Cal.5th
1038, 1045; Robinson v. Fair Employment & Housing Com.
(1992) 2 Cal.4th 226, 233.)
         B. Legal Standards for Assessing the Prima
            Facie Case Under Section 1172.6
      The section 1172.6 petition 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 . . .’ ” (People v. Strong (2022) 13 Cal.5th 698, 708
(Strong).) To determine whether a prima facie case has been

                                  17
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


pled, courts must take a “petitioner’s factual allegations as true
and make[] a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause.” (Lewis, supra, 11 Cal.5th at p. 971.) In making
this determination, courts may examine portions of the record
of conviction but may neither engage in “ ‘factfinding involving
the weighing of evidence or the exercise of discretion’ ” nor make
“credibility determinations.” (Lewis, at p. 974.) At this
preliminary stage, denial of a section 1172.6 petition is proper
only “[i]f the petition and record in the case establish
conclusively that the defendant is ineligible for relief.” (Strong,
at p. 708, accord, Curiel, supra, 15 Cal.5th at p. 461; Antonelli,
supra, 17 Cal.5th at p. 724.)
         C. Analysis
      The Attorney General concedes that the Court of Appeal
“erred in imposing a categorical bar to relief and should instead
have considered Lopez’s record of conviction holistically before
denying relief.” As he explains, “[t]he mere fact that a petitioner
could have raised an analogous pre-S[enate] B[ill] 1437 claim of
instructional error at trial or in his original appeal does not
render him categorically ineligible for relief under section
1172.6, nor does the failure to previously make such a claim
forfeit the possibility of relief under the statute.”           The
Sacramento County District Attorney, appearing as amicus
curiae, urges us to uphold the decision of the court below and
approve the prior appellate decisions upon which it is based. We
agree with the Attorney General and disapprove the Burns-
Flores-Berry-Vierwinden line of cases and their importation of a



                                  18
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


Dixon-like procedural bar in this context.6 These cases interpret
section 1172.6, subdivision (a)(3) in a manner that conflicts with
the statute’s text and fundamental purpose. Further, the
procedural bar these decisions read into section 1172.6 aligns
with neither the doctrine of issue preclusion that informs
analysis of prima facie ineligibility nor the purposes that the
Dixon bar serves in the habeas corpus context. Therefore, we
reverse and remand the matter to enable the Court of Appeal to
address in the first instance the merits of Lopez’s claim that the
jury instructions allowed him to be convicted on a now-invalid
theory and any other claims regarding the propriety of the trial
court’s ruling denying his petition.
            1. The text and purpose of section 1172.6 do not
               support the imposition of the procedural bar
               applied in this case
      The court below determined that Lopez was categorically
ineligible for prima facie relief due to his failure to satisfy the
requirement that his murder conviction was “because of changes
to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (a)(3).) As the appropriate and necessary starting point,
we therefore begin with the relevant text of section 1172.6,
subdivision (a)(3) itself. (Lewis, supra, 11 Cal.5th at p. 961.)
     On its face, this subdivision makes no mention of prior
appeals or explicit reference to any form of procedural bar. As a


6
      We also disapprove of People v. Krueger (2025) 115
Cal.App.5th 431, People v. Warner (2025) 115 Cal.App.5th 416,
and People v. Superior Court (White) (2025) 107 Cal.App.5th
1268, to the extent they are inconsistent with this opinion.




                                  19
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


general matter, section 1172.6, subdivision (a) simply lays out
the components necessary to establish a prima facie case of
relief, including section 1172.6, subdivision (a)(3)’s requirement
that the “petitioner could not presently be convicted of murder
or attempted murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1172.6, subd. (a)(3), italics
added.) The textual focus of subdivision (a)(3) is not an inquiry
into which appellate issues might have been raised in the
past challenging particular jury instructions. Nor is it an
inquiry into which issues could have been raised in a prior direct
appeal as a result of prosecution arguments which may have
allowed the jury to consider an impermissible theory of imputed
malice.
       An interpretation of section 1172.6, focusing on the
petitioner’s guilt under current law, is the approach we took in
Curiel, supra, 15 Cal.5th 433. In Curiel, the jury in the original
trial had been instructed on aiding and abetting under the now-
invalid natural and probable consequences doctrine. (Id. at p.
446.) The prior jury, through its finding of the gang special
circumstance, had also found the defendant possessed an intent
to kill, a finding to which we afforded preclusive effect. (Id. at
p. 453.) The Attorney General argued that this intent to kill
finding was “not only relevant, but dispositive, based on section
1172.6, subdivision (a)(3).” (Id. at p. 460.) We ultimately
rejected this argument, however, explaining “a petitioner who
alleges that he or she could not currently be convicted of a
homicide offense ‘because of changes to Section 188 or 189 made
effective January 1, 2019’ (§ 1172.6, subd. (a)(3)) puts at issue
all elements of the offense under a valid theory.” (Id. at p. 462.)
We reasoned that an allegation under section 1172.6,
subdivision (a)(3) is not “refuted by the record unless the record

                                  20
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


conclusively establishes every element of the offense” and that
“[i]f only one element of the offense is established by the record,
the petitioner could still be correct that he or she could not
currently be convicted of the relevant offense based on the
absence of other elements.” (Curiel, at p. 463, second italics
added.) Other appellate decisions are in accord. (See, e.g.,
People v. Clements (2022) 75 Cal.App.5th 276, 296 [section
1172.6, subdivision (a)(3) requires that, when filing a petition,
the defendant must allege “what would happen today if he or
she were tried under the new provisions of the Penal Code”],
italics added; People v. Lee (2023) 95 Cal.App.5th 1164, 1185
[“The question presented by section 1172.6, subdivision (a)(3) is
whether, had the amendments to Penal Code sections 188 and
189 existed at the time of the defendant’s conviction, the
defendant could have been convicted of murder or attempted
murder”].)
      Despite the statute’s focus on whether a defendant would
be convicted under current law, the appellate courts in Burns,
Flores, and Berry-Vierwinden, assumed, at least arguendo, that
the petitioners before them may have been convicted under now-
invalid theories of imputed malice. (See, e.g., Berry-Vierwinden,
supra, 97 Cal.App.5th at p. 933; Burns, supra, 95 Cal.App.5th
at p. 865.) The logic of these cases would bar resentencing for
defendants who clearly were convicted under a theory of
imputed malice whenever the claim relied even in part on
instructions not challenged in a prior appeal.
      Rejecting eligibility at the prima facie stage based on the
failure to challenge ambiguous instructions in prior appeals
predating Senate Bill 1437 for those otherwise eligible is not a
convincing interpretation of section 1172.6, subdivision (a)(3).
The statute specifically describes the narrow relevance of prior
                                  21
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


appeals for purposes of the evidentiary hearing. (See § 1172.6,
subd. (d)(3) [resentencing courts may “consider the procedural
history of the case recited in any prior appellate opinion”].) In
articulating the requirements for the prima facie case, section
1172.6, subdivision (a) makes no reference to any procedural bar
based on the arguments raised (or not raised) on direct appeal,
or indeed any reference to the prior appeal at all. (Cf. Brown v.
Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725 [“ ‘It is a well
recognized principle of statutory construction that when the
Legislature has carefully employed a term in one place and has
excluded it in another, it should not be implied where
excluded.’ ”].) If the Legislature had intended to erect a
procedural bar based on failure to raise claims in a prior appeal,
it likely would have done so more directly.
      More importantly, the construction of the statute adopted
by the court below contradicts the express intent of Senate Bill
1437. The legislation was designed to offer resentencing to those
convicted under now-invalid theories of imputed malice. “Our
fundamental task in interpreting a statute is to determine the
Legislature’s intent so as to effectuate the law’s purpose.”
(Coalition of Concerned Communities, Inc. v. City of Los Angeles
(2004) 34 Cal.4th 733, 737.) The purpose of this bill was “to more
equitably sentence offenders” involved in homicides. (Stats.
2018, ch. 1015, § 1, subd. (b).) As the codified legislative findings
detail, Senate Bill 1437 was enacted “to ensure that murder
liability is not imposed on a person who is not the actual killer,
did not act with the intent to kill, or was not a major participant
in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) With the
exception of section 189, subdivision (e), “a conviction for murder
requires that a person act with malice aforethought” and that

                                  22
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


“[a] person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch.
1015, § 1, subd. (g), italics added.) Senate Bill 775 subsequently
clarified that Senate Bill 1437’s ameliorative scheme was
intended to reach not merely felony murder or natural and
probable consequences cases. Instead, the statute reaches any
murder conviction in which a defendant may have been
convicted based on a “theory under which malice is imputed to
a person based solely on that person’s participation in a crime.”
(§ 1172.6, subd. (a)(1).)
     In other words, the primary and overarching purpose of
Senate Bill 1437’s scheme is to identify and to afford
resentencing relief, in qualifying cases, to those who may have
been convicted under imputed-malice murder theories. (Lewis,
supra, 11 Cal.5th at p. 971 [purpose of Senate Bill 1437 was to
“ensure that murder culpability is commensurate with a
person’s actions, while also ensuring that clearly meritless
petitions can be efficiently addressed as part of a single-step
prima facie review process”].) To fulfill the statute’s functions,
the “ ‘prima facie bar was intentionally and correctly set very
low.’ ” (Lewis, at p. 972.) The court below did not reject Lopez’s
argument that, based upon the jury instructions, he may have
been convicted based upon diminished culpability, yet denies
him eligibility for relief by asserting that the claim is simply “not
cognizable” due to his failure to raise the issue in his prior direct
appeal. Such denial conflicts with the express goals of Senate
Bill 1437.
      The legislative history does not support the reading of the
lower court, either. Like the text of the statute itself, the
legislative history of Senate Bill 1437 demonstrates a focus on
the invalidity of petitioners’ convictions under current law. Both
                                  23
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


Assembly and Senate analyses of Senate Bill 1437 indicated
that the third requirement of prima facie eligibility was simply
that “[t]he person could not be convicted of 1st or 2nd degree
murder under the provisions of this bill.” (3d reading analysis
of Sen. Bill No. 1437 (2017–2018 Reg. Sess.) as amended Aug.
20, 2018, pp. 1–2; see also Sen. Rules Com., Off. of Sen. Floor
Analyses, Analysis of Sen. Bill No. 1437 (2017–2018 Reg. Sess.)
as amended Aug. 20, 2018, p. 4.)
      The court below, and the Courts of Appeal in Burns,
Flores, and Berry-Vierwinden, purported to find textual support
for their interpretation in the “because of” language of section
1172.6, subdivision (a)(3). More granularly, these opinions
reasoned that our decision in People v. McCoy (2001) 25 Cal.4th
1111 (McCoy) established that “the direct perpetrator’s mental
state could not be imputed to an aider and abettor, whose
mental state had to be independently evaluated.” (Burns, supra,
95 Cal.App.5th at p. 868; original italics, see also Berry-
Vierwinden, supra, 97 Cal.App.5th at p. 935 [“After the Supreme
Court’s 2001 decision in McCoy, it was unmistakable that a
direct aider and abettor’s ‘mental state is her own; she is liable
for her mens rea, not the other person’s.’ ”], accord, Flores,
supra, 96 Cal.App.5th at p. 1173.) Thus, because McCoy was
decided prior to the defendants’ respective trials, these appellate
courts reasoned the invalidity of the defendants’ alleged
imputed malice murder convictions could not have been
“because of” the changes created by Senate Bill 1437. Instead,
the appellate courts concluded that petitioners’ convictions were
due to instructional errors that they could and should have
raised in their prior direct appeals.         (Burns, supra, 95
Cal.App.5th at pp. 868–869; Flores, supra, 96 Cal.App.5th at p.
1173; Berry-Vierwinden, supra, 97 Cal.App.5th at p. 936; Lopez,

                                  24
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


supra, F085300.)        As the court below concluded, “it
was McCoy that created the basis for the jury instruction issue;
S[enate] B[ill] 1437 did not create the issue.”
     This analysis is flawed in several respects. First, the
reasoning fails even on its own terms. McCoy was not the basis
of Lopez’s theory of imputed malice and Lopez’s claim for relief
did not invoke McCoy to establish a prima facie case. Instead,
Lopez relies, properly, on the instructions given in his trial and
the Court of Appeal decisions interpreting them. (See Antonelli,
supra, 17 Cal.5th at p. 731 [in assessing prima facie eligibility
for section 1172.6 petitions from individuals convicted following
jury trials, “the jury instructions will be critical.”].) McCoy,
although providing important additional clarity to the
respective mental states of perpetrators and aiders and
abettors, did not discuss the relevant jury instructions at issue
here, much less address or recognize ambiguity in any
particular instruction.
      When Lopez was asked for the first time, through the
Court of Appeal’s request for supplemental briefing, to more
fully articulate his theory of imputed murder liability (which
had been conceded by the People in the trial court), he did not
cite McCoy. Instead, Lopez relied on Powell, Langi, and
Maldonado, decisions that affirmatively identified potential
ambiguities in the aiding and abetting and murder instructions
similar or identical to those considered by his jury — all of which
postdated his 2007 trial by more than a decade. Surely the
Legislature did not mean to foreclose relief to defendants merely
because prior appellate counsel did not foresee that future case
law might support a claim of instructional error that could have
demonstrated imputed malice.


                                  25
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


      Second and relatedly, McCoy is not capable of supporting
the doctrinal weight attributed to it by Burns, Flores, Berry-
Vierwinden, and the decision below. As we recently explained
in Antonelli, “while McCoy . . . represent[ed] [an] important
building block[] in the evolution of our decisional law” it did not
represent a definitive statement foreclosing juries from ever
imputing malice to an accomplice. (Antonelli, supra, 17 Cal.5th
at p. 729.) It may be that Lopez could have challenged the
instructions at his trial by relying on the principles of McCoy.
However, it would be inaccurate to say, as the Court of Appeal
did below, that McCoy was the sole “basis for the jury
instruction issue.”
      Finally, even assuming that McCoy or other decisions
existing at the time of Lopez’s appeal could have supplied a
partial basis for the theory of imputed malice asserted by Lopez,
this would not categorically bar relief. Our analysis in Strong,
supra, 13 Cal.5th 698 indicates that the “because of” language
of section 1172.6, subdivision (a)(3) requires merely that the
changes in murder liability arising from Senate Bill 1437 be a
basis for the claim, not that they be the sole basis. (Strong, at p.
712.)
       In Strong, we considered whether a defendant convicted
under a theory of felony murder was ineligible for resentencing
relief under section 1172.6 because the jury that had convicted
him of felony murder “also found true felony-murder special-
circumstance allegations that he was a ‘major participant’ who
acted ‘with reckless indifference to human life.’ ” (Strong, supra,
13 Cal.5th at p. 703.) We concluded that the jury’s felony-
murder special-circumstances findings, made prior to our
decisions in People v. Banks (2015) 61 Cal.4th 788, and People v.
Clark (2016) 63 Cal.4th 522, did not render the defendant in
                                  26
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


that case categorically ineligible for relief. (Strong, at p. 703.)
We rejected, in particular, the argument that section 1172.6,
subdivision (a)(3)’s “because of” language foreclosed relief.
(Strong, at p. 712.) We reasoned that a pre-Banks/Clark
defendant’s claim for resentencing “depends, in a ‘but for’ sense,
on Banks and Clark; if those decisions had not clarified the law
regarding the relevant elements, the defendant would have no
argument for relief under Senate Bill 1437.” (Ibid.) But we
explained that the changes wrought by those decisions “matter
for resentencing purposes only because the Legislature chose to
write the same elements into its revised definition of murder.”
(Ibid.) We concluded that “section 1172.6, subdivision (a)(3)’s
‘because of’ language does not require a showing that a claim to
relief under Senate Bill 1437 arises from no other cause — only
that the 2019 changes supply a basis for the claim and so are a
cause.” (Ibid., original italics.)
      This reasoning aligns with past decisions construing the
phrase “because of.” As we have explained that phrase
“ ‘connotes a causal link’ ” of some kind (Mountain Air
Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th
744, 757), but the kind of link that is intended varies depending
on the context. (See Harris v. City of Santa Monica (2013) 56
Cal.4th 203, 216 [“Our precedent has recognized . . . that ‘but
for’ causation is not the only possible meaning of the phrase
‘because of’ in the context of an antidiscrimination statute”], 217
[acknowledging “that there are at least three plausible
meanings of the phrase ‘because of’ in [Government Code]
section 12940(a)”].) In some circumstances “because of” can
describe a causal connection in which the “cause” is not strictly
necessary, in a but-for sense, for a consequence to occur. (See In
re M.S. (1995) 10 Cal.4th 698, 732 (conc. opn. of Kennard, J.)

                                  27
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


[explaining that “because of” in § 422.6 and former § 422.7 was
more expansive than strict “but for” causation].)
      So too here. In requiring petitioners seeking resentencing
under section 1172.6 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” (§ 1172.6,
subd. (a)(3)), the Legislature did not therefore intend a causal
connection that is satisfied only when the changes effected by
Senate Bill No. 1437 represent a “but for” reason why a
petitioner is eligible for resentencing. (See Strong, supra,
13 Cal.5th at pp. 711–712.) Thus, even though the “building
block” of our decision in McCoy may have laid the groundwork
for some component of Lopez’s section 1172.6 petition, it is, at
most, a partial cause for his claim for relief. Ultimately,
Lopez’s claim that he “could not presently be convicted of
murder or attempted murder because of changes to Section
188 or 189 made effective January 1, 2019” (§ 1172.6, subd.
(a)(3), italics added) rests on the Legislature’s change to section
188, namely that “[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3); cf. Curiel, supra, 15 Cal.5th at p. 462 [narrow reading of
the “because of” language “ignores the provision’s broader effect
on murder liability in California”].)
      Further, ascertaining whether an issue of instructional
ambiguity could and should have been raised on prior direct
appeal raises practical difficulties. As a general matter, such a
retrospective inquiry into appellate defense counsel’s strategic
decisions is susceptible to “the distorting effects of hindsight.”
(In re Valdez (2010) 49 Cal.4th 715, 729.) Although sometimes
a claim with merit is clear from existing authority, it is more
frequently murky. We doubt the Legislature intended trial
                                  28
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


courts to resolve such nebulous legal questions at the prima
facie stage.
      If, as Lopez alleges, the record of conviction, including the
jury’s findings as informed by the instructions, evidence, and
argument in his case did not “conclusively refute [his] allegation
that he . . . could not be convicted of murder under current
law[,]” dismissal at the prima facie stage is improper. (Curiel,
supra, 15 Cal.5th at p. 463.) Ignoring the actual instructions
provided to the petitioner’s trial jury — as the decision below
does — contradicts our recent direction that these instructions
play a central role in ascertaining the meaning of jury
factfinding in assessing prima facie eligibility. (Antonelli,
supra, 17 Cal.5th at p. 731.) In other words, as the Attorney
General asserts, a claim made pursuant to section 1172.6 based
on instructional ambiguity does not become noncognizable
simply because the court and parties may “use tools also used to
assess claims of instructional error, or because a petitioner may
also have had a viable claim of instructional error at trial or on
appeal.”
     Amicus curiae proposes a distinct textual basis to support
the holding of the court below. It admits that the language of
section 1172.6 is “silent on the concept of forfeiture.” It points
instead to the language added by Senate Bill 775, which clarified
that “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 . . . may file a petition” for
resentencing. (§ 1172.6, subd. (a), italics added.) Amicus curiae
notes that the italicized language was included after several
appellate decisions had held that provocative murder was
neither felony murder nor murder under the natural and
                                  29
                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


probable consequences doctrine, and therefore the petitioners
convicted of provocative act murder were deemed ineligible for
relief. Amicus curiae infers that the term “other theory under
which malice is imputed” must have been intended to
encompass only judicially recognized theories of imputed
malice, such as felony murder, the natural and probable
consequences doctrine, or provocative act murder, that were
“abrogated or narrowed” by Senate Bill 1437. Thus, amicus
curiae argues, because Lopez’s jury was never instructed on a
judicial theory “abrogated” by Senate Bill 1437 or Senate Bill
775, he is categorically ineligible for relief.
      Amicus curiae’s narrow reading of “other theory under
which malice is imputed” is unpersuasive. Amicus curiae is
correct that the Legislature may have been, and is presumed to
be, aware of existing appellate authority (Estate of McDill (1975)
14 Cal.3d 831, 839), including cases prior to the passage of
Senate Bill 775 rejecting provocative act murder as a basis for
section 1172.6 relief. However, to the extent amicus curiae
argues that the phrase “other theory” was therefore intended to
refer solely to forms of provocative act murder in which malice
may be imputed, that is not the language adopted by the
Legislature. Instead of specifically referencing this particular
theory, as it had for felony murder and the natural and probable
consequences doctrine in Senate Bill 1437, the Legislature
adopted broader language. It would be odd to construe this
distinctively general phrasing to encompass only the single
additional theory cited by amicus curiae.
       Moreover, the legislative history describes the addition of
“other theory under which malice is imputed” as applying
broadly to “a theory” under which malice was imputed. (See,
e.g., Sen. Rules Com. Off. of Sen. Floor Analyses, 3d reading
                                 30
                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


analysis of Sen. Bill 775 (2021–2022 Reg. Sess.) as amended
Sept. 1, 2021, pp. 1, 4; Assem. Com. on Appropriations, Analysis
of Sen. Bill 775 (2021–2022 Reg. Sess.) as amended July 6, 2021,
p. 1; Assem. Com. on Public Safety, Analysis of Sen. Bill No. 775
(2021–2022 Reg. Sess.) as amended July 6, 2021, p. 1.) Indeed,
the Assembly Committee on Public Safety analysis went on to
describe the language cited by amicus curiae as “a catchall
provision.” (Id. at p. 7.) The repeated use of the expansive
phrase “any theory” and explicit reference to the added text as
a “catchall” within Senate Bill 775’s legislative history support
a broad reading of the language. (See In re M.M. (2012) 54
Cal.4th 530, 538 [“use of the catchall phrase ‘any public officer’
signaled [Legislature’s] intent to give the codified section an
even broader application”].)
       The phrase “other theory under which malice is imputed”
could, and we believe does, also refer to any theory of criminal
liability that could lead to conviction based on imputed malice,
as defined by argument, evidence, and instructions. In the
context of section 1172.6, we have already suggested that it is
instructional theories of guilt, not simply named and judicially
recognized theories, that establish eligibility. As we explained
in Antonelli, the reasons that instructions are “critical” in the
eligibility inquiry is that they help explain “whether defendant
was convicted ‘pursuant to a “theory under which malice is
imputed to a person based solely on that person’s participation
in a crime.” ’ ” (Antonelli, supra, 17 Cal.5th at pp. 731–732,
italics added, internal quotation marks omitted.) And, in People
v. Patton (2025) 17 Cal.5th 549 (Patton), we described our past
cases under section 1172.6 as assessing whether “an invalid
theory was supported by the evidence” and “argued by the
parties.” (Patton, at p. 566, fn. 8.)

                                 31
                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


      Under the interpretation offered by amicus curiae, even if
instructions clearly allowed malice to be imputed from the
perpetrator to the accomplice, or if the prosecutor argued that
the instructions allowed for such imputation of malice, section
1172.6 petitioners would still be ineligible based on the failure
to raise the issue in a prior appeal. Thus, like the Court of
Appeal’s construction of section 1172.6, subdivision (a)(3)’s
“because of” language, amicus curiae’s interpretation of “other
theory under which malice is imputed” also runs counter to the
express purpose of section 1172.6.
       As we have underscored, the language of section 1172.6 is
to be interpreted “ ‘ “in context, keeping in mind the nature and
obvious purpose of the statute.” ’ ” (Lewis, supra, 11 Cal.5th at
p. 961.) The central ameliorative purpose of section 1172.6 was
to “ensure that murder culpability is commensurate with a
person’s actions.” (Lewis, at p. 971.) Amicus curiae identifies
no reason to conclude that defendants to whom malice was
imputed via a judicially recognized theory are any less culpable
than defendants to whom malice may have been imputed via
instructions that are ambiguous, whether that ambiguity is
plainly apparent on the face of the instructions or revealed only
by flawed argument. (See People v. Beltran (2013) 56 Cal.4th
935, 954–955.) Given the availability of another reasonable
interpretation, construing the phrase “other theory under which
malice is imputed” narrowly — as a categorical bar to eligibility
for defendants such as Lopez, who allege a prima facie case
based on instructional ambiguity — runs counter to legislative
intent. We therefore reject amicus curiae’s construction. (See
Allen v. Sully–Miller Contracting Co. (2002) 28 Cal.4th 222, 227
[we must “choose the construction that comports most closely
with the apparent intent of the lawmakers, with a view to

                                 32
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


promoting rather than defeating the general purpose of the
statute”].)
            2. Principles of issue preclusion do not
               categorically bar Lopez’s claim
      We have indicated that general principles of issue
preclusion inform consideration of the effect of prior jury
findings in a resentencing proceeding under section 1172.6.
(Curiel, supra, 15 Cal.5th at p. 451; Strong, supra, 13 Cal.5th at
pp. 715–716.) As traditionally understood and applied, issue
preclusion “bars relitigation of issues earlier decided ‘only if
several threshold requirements are fulfilled. First, the issue
sought to be precluded from relitigation must be identical to that
decided in a former proceeding. Second, this issue must have
been actually litigated in the former proceeding. Third, it must
have been necessarily decided in the former proceeding. Fourth,
the decision in the former proceeding must be final and on the
merits. Finally, the party against whom preclusion is sought
must be the same as, or in privity with, the party to the former
proceeding.’ [Citation.]” (Strong, at p. 716.) In deciding the
question of whether an issue was “actually litigated” in the prior
proceedings, “ ‘courts look carefully at the entire record from the
prior proceeding, including the pleadings, the evidence, the jury
instructions, and any special jury findings or verdicts.’
[Citation.]” (Curiel, at p. 452, italics added.) Issue preclusion,
however, does not apply to “issues that could have been raised
and decided in the prior proceeding but were not.” (Bridgeford
v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034, 1043.)
      Amicus curiae effectively argues that courts should afford
preclusive effect to jury findings by looking to what facts the jury
was supposed to have found under abstract legal principles.
Instead, courts should apply preclusive effect only to findings on
                                  33
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


factual issues necessarily found, looking to the entire record (i.e.,
the jury instructions provided, applied to the evidence
presented, leading to particular jury findings). (Curiel, supra,
15 Cal.5th at p. 452.)
      To be sure, the Legislature did not “open resentencing to
every previously convicted murder defendant” and we have
rejected “wholesale relitigation of findings supporting murder
convictions in the context of section 1172.6 resentencing.”
(Strong, supra, 13 Cal.5th at p. 715.) To the contrary, jury
findings which, on their face, supply the elements to a still-valid
theory of murder “ordinarily do foreclose section 1172.6
resentencing.” (Ibid.) However, this does not mean that
potentially ambiguous or even openly flawed instructions should
be ignored by a resentencing court evaluating a petitioner’s
prima facie allegations merely because these flaws were not
raised in a prior appeal. Instead, in cases such as Lopez’s, the
section 1172.6 resentencing court should address on the merits
the alleged flaws or ambiguities in instructions that may have
resulted in conviction under now-invalid theories of imputed of
malice.
             3. The analogy to the habeas corpus context
                adopted by the decision below is inapt
     The Court of Appeal in Burns drew support for its section
1172.6 forfeiture rule by direct analogy to the procedural bar in
Dixon, supra, 41 Cal.2d at p. 759. (Burns, supra, 95 Cal.App.5th
at p. 868.) As set forth in Dixon, the “general rule is that habeas
corpus cannot serve as a substitute for an appeal, and, in the
absence of special circumstances constituting an excuse for
failure to employ that remedy, the writ will not lie where the
claimed errors could have been, but were not, raised upon a
timely appeal from a judgment of conviction.” (Dixon, at p. 759.)
                                  34
                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


The fundamental question in this case is whether section 1172.6
should be interpreted to also encompass a procedural bar,
similar in function to Dixon, barring relief based on theories of
flawed or ambiguous instructions that were not raised by
petitioners in their prior direct appeal.
      The lower court’s attempt to analogize to habeas corpus
procedures was not entirely without basis. We have explained
that, in certain respects, the prima facie inquiry under section
1172.6 is “analogous” to the prima facie inquiry in habeas corpus
proceedings. (Lewis, supra, 11 Cal.5th at p. 971 [citing habeas
corpus procedural requirements, including taking a petitioner’s
factual allegations as true and generally prohibiting credibility
determinations and factfinding prior to an evidentiary hearing];
Patton, supra, 17 Cal.5th at pp. 564–566 [adopting habeas
corpus requirement prohibiting conclusory allegations from
establishing a petitioner’s prima facie burden].) However, we
have also cautioned that habeas corpus process “does not
seamlessly map onto the section 1172.6 process.” (Patton, at p.
565.) Section 1172.6 is its own statute, and, in many respects,
the section 1172.6 petition processes are distinct from those
utilized in habeas corpus. (Patton, at p. 565, fn. 7.) Ultimately,
like other questions of statutory interpretation, whether section
1172.6 procedures mirror those governing habeas corpus
petitions is a question of legislative intent. Mindful of the lack
of textual support for the holding below, we review the purposes
of the Dixon bar and assess whether the purposes of the
resentencing procedure sufficiently align with those served by
the Dixon bar that we should assume the Legislature intended
to incorporate the bar into section 1172.6.
     As we have explained, the Dixon bar, “[b]y insisting on
presentation of claims on appeal if reasonably possible, . . .
                                 35
                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


speeds resolution of claims, avoids delay, and encourages the
finality of judgments.” (In re Reno (2012) 55 Cal.4th 428, 490.)
There is no affirmative evidence the Legislature intended to
incorporate a procedural bar addressing these concerns in
enacting section 1172.6. To the contrary, the general premise of
section 1172.6 proceedings is to enable a careful review of
petitioners’ (often final) cases to determine whether the
petitioners may have been sentenced under now-invalid
imputed malice theories. Senate Bill 1437, and the amendment
of that bill by Senate Bill 775 to clarify its expanded scope,
plainly contemplated that traditional concerns regarding
finality of judgments would have to yield, at least in cases like
the one at hand, in which instructions may have allowed
imputation of malice. To serve the statute’s overall purpose,
courts must “ensure that murder culpability is commensurate
with a person’s actions, while also ensuring that clearly
meritless petitions can be efficiently addressed as part of a
single-step prima facie review process.” (Lewis, supra, 11
Cal.5th at p. 971, italics added.) Incorporating a Dixon bar,
untethered from the merits of petitioner’s theory of imputed
malice, would not effectively serve these purposes.
      Nor would imposing this procedural bar encourage
presentment of claims to prior trial or appellate courts. In most
cases, including Lopez’s, section 1172.6 petitioners’ trials and
appeals had concluded by the time Senate Bill 1437 had passed,
meaning that adopting a Dixon-like bar could have no impact in
encouraging litigants to present claims at an earlier juncture.
In sum, the analogy to habeas corpus is inapt. To the extent
that some of our cases have looked to habeas corpus doctrine to
guide prima facie analysis when doing so served the purposes of
section 1172.6 (Patton, supra, 17 Cal.5th at pp. 564–566; Lewis,

                                 36
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Evans, J.


supra, 11 Cal.5th at p. 971), the analogy provides no support
when purposes of habeas corpus doctrine conflict with the goals
established by section 1172.6.
            4. Additional issues raised by the Attorney
               General
      For the first time in this court, the Attorney General
proposes an alternative basis for concluding that Lopez is
ineligible for relief at the prima facie stage. He urges that we
incorporate, as another layer of analysis to establish eligibility
at the prima facie stage for claims based on instructional
ambiguity, the “analogous” standard applicable to claims of
instructional error on direct appeal articulated by the high court
in Boyde v. California (1990) 494 U.S. 370. (See id. at p. 380
[where a “claim is that the instruction is ambiguous and
therefore subject to an erroneous interpretation . . . the proper
inquiry . . . is whether there is a reasonable likelihood that the
jury has applied the challenged instruction in [a constitutionally
improper] way”].) The question of whether satisfaction of the
Boyde standard is necessary to establish prima facie eligibility
under section 1172.6 is outside the scope of the question
presented. (Cal. Rules of Court, rule 8.516.) We therefore
decline to address it.




                                  37
                        PEOPLE v. LOPEZ
                  Opinion of the Court by Evans, J.


    III.   DISPOSITION
      We reverse the judgment of the Court of Appeal. The
cause is remanded to the Court of Appeal for further proceedings
consistent with the views expressed herein.
                                            EVANS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
WILSON, J.*




*
      Associate Justice of the Court of Appeal, Sixth Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

                                 38
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Lopez
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 10/4/24 – 5th Dist.
Rehearing Granted
__________________________________________________________

Opinion Nos. S287814
Date Filed: April 30, 2026
__________________________________________________________

Court: Superior
County: Stanislaus
Commissioner: Nancy A. Leo
__________________________________________________________

Counsel:

Cliff Gardner, under appointment by the Supreme Court, and Daniel J.
Buffington for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Chief Assistant Attorneys General, Michael P. Farrell and
Susan Sullivan Pithey, Assistant Attorneys General, Eric L.
Christoffersen, Seth K. Schalit, Chung L. Mar, Christina Hitomi
Simpson and Idan Ivri, Deputy Attorneys General, for Plaintiff and
Respondent.

Thien Ho, District Attorney (Sacramento), and David R. Boyd, Deputy
District Attorney, for the Sacramento County District Attorney as
Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Cliff Gardner
Attorney at Law
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093

Idan Ivri
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6168