People v. Lemus CA4/3

FACTS

In May 2023, defendant filed a petition for resentencing and averred: “1. A complaint, information, or indictment was filed against me 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. [Citation.] [¶] 2. I was convicted of murder, attempted murder, or manslaughter following a trial or I accepted a plea offer in lieu of a trial at which I could have been convicted of murder or attempted murder. [Citation.] [¶] 3. I could not presently be convicted of murder or attempted murder because of changes made to [sections] 188 and 189, effective January 1, 2019.” The court appointed counsel for defendant and received additional briefing from the prosecution and defendant. Defendant argued the jury instructions delivered under CALJIC No. 8.11 (malice aforethought) and CALJIC No. 6.50 (gang crime) allowed the jury to convict him under a theory of implied malice. In a statement of decision, the court held defendant was…