People v. Tolbert CA4/2

DISCUSSION

Defendant argues that the trial court erred in denying defendant’s petition because

the jurors were instructed with the bracketed language in CALCRIM No. 400, which

reads, “Under some specific circumstances, if the evidence establishes aiding and

abetting of one crime, a person may also be found guilty of other crimes that occurred

3 during the commission of the first crime.” Defendant claims this constituted “an explicit

instruction on the natural and probable consequences doctrine” and in the alternative, “it

nevertheless constituted an instruction on a form of imputed malice murder.” We

disagree.

Section 1172.6 reads: “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 with the court that sentenced the petitioner to have the petitioner’s murder,

attempted murder, or manslaughter conviction vacated and to be resentenced.” (§ 1172.6,

subd. (a).) A section 1172.6 denial “ ‘at the first stage of prima facie review . . . is

appropriate only if the record of conviction…