People v. Cho CA2/7

INTRODUCTION

In 2006 Jae Cheol Cho was convicted of second degree murder for the killing of Ki Hong. His codefendant, Kyu Lee, was convicted of first degree murder. At trial, Cho’s jury was instructed with CALJIC No. 3.01 on aiding and abetting, which holds an aider and abettor liable if he acts “[w]ith 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.” In 2022 Cho filed a petition for resentencing under Penal Code section 1172.6.1 At the prima facie review hearing, Cho argued the jury instructions allowed him to be convicted of second degree murder under a theory of imputed malice because CALJIC No. 3.01 did not require the jury to find he personally acted with malice as an aider and abettor. The superior court denied Cho’s petition, relying on denials of other resentencing petitions where the petitioners were convicted of murder as an aider and abettor. Although the record of conviction demonstrates potential instructional error, we conclude the superior court did not err in denying Cho’s petition because the record of conviction demonstrates he is ineligible for…