People v. Cowie CA2/2

Filed 10/30/26 P. v. Cowie CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO THE PEOPLE, B333908 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA091960) v. DANIEL ANTHONY COWIE, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Teresa P. Magno, Judge. Reverse and remand. Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent. ****** In 2009, appellant and defendant Daniel Anthony Cowie (defendant) was convicted by jury of second degree murder and sentenced to an aggregate term of 40 years in prison. The judgment was affirmed in People v. Cowie (Apr. 26, 2011, B222597) (nonpub. opn.) (Cowie I). In 2022, defendant filed a petition for resentencing pursuant to Penal Code1 section 1172.6. The trial court denied the petition finding defendant ineligible for relief as a matter of law. Defendant appealed and another panel of this court affirmed the trial court’s order. (People v. Cowie (Nov. 27, 2024, B333908) [nonpub. opn.] (Cowie II).) Our Supreme Court granted review and transferred the matter back to us with directions to vacate and reconsider our decision in Cowie II in light of People v. Lopez (2026) 19 Cal.5th 639 (Lopez). We have done so and reverse. BACKGROUND I. Underlying conviction In 2009, a jury convicted defendant of two counts of second degree murder (§ 187, subd. (a)). As to both counts, the jury found a principal personally and intentionally discharged a firearm, which proximately caused great bodily injury and death (§ 12022.53, subds. (b), (d), (e)(1)), and the offenses were committed for the benefit of a criminal street gang (§ 186.22, 1 All further undesignated code citations are to the Penal Code. 2 subd. (b)). The jury found a multiple murder special- circumstance allegation not true. Defendant was sentenced to an aggregate term of 40 years to life in prison. In 2011, the judgment was affirmed on direct appeal in Cowie I. II. Section 1172.6 petition In November 2022, defendant filed a form petition pursuant to former section 1170.95 (since renumbered as section 1172.6).2 He requested the appointment of counsel and checked the boxes alleging required conditions for relief, including the allegation the charging document “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 … .” The trial court appointed counsel for defendant, received briefing, and held a hearing to determine whether defendant had made a prima facie showing of eligibility. On August 29, 2023, the trial court denied the petition. The court stated it had read and considered the entire file, including the petition, the charging documents, the jury instructions, as well as the parties’ briefs and oral argument and found defendant ineligible for relief 2 An earlier petition filed by defendant was denied, and the denial was affirmed on appeal. (See People v. Cowie (Nov. 13, 2019, B296955) [nonpub. opn.].) With the People’s concurrence, the trial court agreed to consider the instant petition because the first petition was filed before the Legislature expanded relief under Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437) pursuant to Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill No. 775), defendant had not been represented by counsel in the trial court and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. 3 because “the jury was not instructed on any theory of liability that required that malice be imputed to him.” As discussed, we affirmed the trial court’s order in Cowie II. On February 11, 2025, the California Supreme Court granted defendant’s petition for review and held the case “pending consideration and disposition of a related issue in People v. Lopez … .” (People v. Cowie (Feb. 11, 2025, S288685).) On June 24, 2026, the matter was transferred back to us with directions to vacate our prior opinion in Cowie II and reconsider the matter in light of Lopez. We do that now. ISSUES ON APPEAL In briefing for Cowie II, defendant argued the “instructions given [in his case] failed to appraise [sic] the jury that to be guilty of aiding and abetting implied malice second degree murder [he] must have personally appreciated that the act he aided was dangerous to human life and himself consciously disregarded that risk.” Relying on People v. Langi (2022) 73 Cal.App.5th 972, 983– 984 (Langi), defendant urged the instructions “left open the possibility that malice was improperly imputed to [him], in contravention of SB 775.” The People asserted “the record of conviction establishes that [defendant] was convicted of murder under the still-valid theory of direct aiding and abetting liability” (boldface omitted) and “in light of the jury instructions given at trial, the jury necessarily found that [defendant] personally acted with malice aforethought.” Relying on People v. Burns (2023) 95 Cal.App.5th 862 (Burns) and People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921 (Berry-Vierwinden), the People also argued because “[defendant’s] asserted instructional error ‘has nothing to do with the 2018 and 2021 legislative changes that gave rise to 4 section 1172.6’s petition process,’” he “did not establish a prima facie case for relief….” In Cowie II, we rejected defendant’s argument but did not resolve the underlying instructional question on its merits. Instead, we concluded “[e]ven if we accept defendant’s reading of the instructions, … defendant has shown no more than the existence of ambiguities that could have been raised at the time of defendant’s trial.” (Cowie II, supra, B333908) Relying on Berry-Vierwinden and Burns, we held that, because People v. McCoy (2001) 25 Cal.4th 1111 (McCoy) predated defendant’s trial and already established “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), any instructional ambiguity “amount[ed] to ‘a routine claim of instructional error’ that ‘could have been asserted on appeal from the judgment of conviction’” (Berry- Vierwinden, supra, 97 Cal.App.5th at p. 936), and defendant could not “‘use it to resurrect a claim that should have been raised in his [direct] appeal’” (ibid., quoting Burns, at p. 865). We further concluded defendant’s reliance on intervening authority, i.e., People v. Reyes (2023) 14 Cal.5th 981 (Reyes), Langi, and People v. Powell (2021) 63 Cal.App.5th 689, 713 (Powell), to argue there had been a genuine change in the law, was misplaced because those decisions “clarified” the law rather than changed the governing standard. (Cowie II, supra, B333908) In supplemental briefing upon transfer, the People concede our opinion in Cowie II relied on the rationale disapproved of in Lopez. However, the People argue we should reaffirm the trial court’s denial because “there is no reasonable likelihood that the jury applied the given instructions and convicted [defendant] of 5 murder under a now-invalid theory of imputed malice.” (Italics added.) The People further contend, when viewing the instructions as a whole, the jury’s findings necessarily reflect a finding defendant “personally acted with malice aforethought.” Defendant takes issue with the People’s use of Boyde’s3 “reasonable likelihood” standard to evaluate instructional ambiguities at the prima facie stage of a section 1172.6 petition because it conflicts with Supreme Court authority, and he notes the “reasonable likelihood” test was created “to determine whether a criminal case contains the kind of instructional error that may require reversal of the conviction” and “is borrowed directly from tests used to assess prejudice from trial error.” He asserts “the ‘“prima facie bar was intentionally and correctly set very low”’” and, as a result, the proper question is whether “the record of conviction … ‘conclusively negate[s] the possibility’ that the jury convicted him on a [now-invalid] theory.” DISCUSSION I. Senate Bill No. 1437 and section 1172.6 Senate Bill No. 1437 was enacted to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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).) The statute’s text and legislative history “clearly indicate that the Legislature intended to restrict culpability for murder outside the felony murder rule to persons who personally possess malice aforethought.” (People 3 Boyde v. California (1990) 494 U.S. 370 (Boyde). 6 v. Gentile (2020) 10 Cal.5th 830, 847, superseded on other grounds by § 1172.6, subd. (g).) It accomplished this by amending section 188, subdivision (a)(3), to require that all principals must act with express or implied malice to be convicted of that crime, with the exception of felony murder under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) For a felony murder conviction under section 189, subdivision (e), Senate Bill No. 1437 required the defendant be the actual killer, an aider and abettor to the underlying felony who acted with the intent to kill, or a major participant in the felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 3.) Senate Bill No. 1437 also created section 1172.6, which established a procedure for defendants already convicted of murder under the old law to seek resentencing in the trial court if they believed they could not be convicted of that crime given the above amendments to sections 188 and 189. Section 1172.6, subdivision (c), requires the court to appoint counsel for properly pleaded petitions, and then conduct a prima facie analysis, with briefing by the parties, as to the petitioner’s eligibility before determining whether to issue an order to show cause. (§ 1172.6, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 961–970 (Lewis).) Senate Bill No. 775 amended section 1172.6, effective January 1, 2022, to permit relief if a murder conviction was based on a natural and probable consequences theory, a felony murder theory predating Senate Bill No. 1437, or, relevant here, some “other theory under which malice is imputed to a person based solely on that person’s participation in a crime.” (§ 1172.6, subd. (a)(1).) At the prima facie stage of the petition process, “‘“the court takes petitioner’s factual allegations as true and makes a 7 preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.”’” (Lewis, supra, 11 Cal.5th at p. 971.) In making this determination, courts may examine portions of the record of conviction but may not engage in “‘factfinding involving the weighing of evidence or the exercise of discretion’” or make “credibility determinations.” (Id., at pp. 972, 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.’” (Lopez, supra, 19 Cal.5th at p. 658.) In this regard, “the jury instructions will be critical.” (People v. Antonelli (2025) 17 Cal.5th 719, 731 (Antonelli).) On review, an appellate court considers de novo whether a petitioner was ineligible for relief as a matter of law at the prima facie stage, such that he or she was not entitled to an order to show cause. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251.) II. Aiding and abetting second degree implied malice murder Second degree implied malice murder exists where “‘the killing is proximately caused by “‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’”’” (Reyes, supra, 14 Cal.5th at p. 988, quoting People v. Knoller (2007) 41 Cal.4th 139, 143.) Aiding and abetting implied malice murder remains a valid theory of murder liability notwithstanding the changes made by Senate Bill Nos. 1437 and 775. (People v. Gentile, supra, 10 Cal.5th at p. 850; see 8 also People v. Gudiel (2024) 107 Cal.App.5th 848, 859.) 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.’” (Gudiel, at p. 859.) “‘[T]o be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.’” (Reyes, supra, 14 Cal.5th at p. 991, quoting Powell, supra, 63 Cal.App.5th at p. 713.) Consistent with this framework, the relevant inquiry for a direct aider and abettor of implied malice murder does not turn on the “target offense” the defendant intended to facilitate. Instead, it turns on whether the defendant aided the life- endangering act itself while personally harboring the requisite mens rea as described in Reyes and Powell. (Reyes, supra, 14 Cal.5th at p. 991; see also Lopez, supra, 19 Cal.5th at p. 655 [describing Reyes as confirming “it is the fatal act, not any underlying crime, that an aider and abettor of second degree murder must aid or abet”].) III. The Lopez decision In Lopez, the Supreme Court disapproved of Burns, Berry- Vierwinden, and People v. Flores (2023) 96 Cal.App.5th 1164 “and their importation of a Dixon[4]-like procedural bar” because they 4 In re Dixon (1953) 41 Cal.2d 756, 759 (Dixon) established the rule a writ of habeas corpus “will not lie where the claimed 9 “conflict[] with [section 1172.6’s] text and fundamental purpose” and “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.” (Lopez, supra, 19 Cal.5th at p. 658.) As a result, the Lopez court “reverse[d] and remande[d] 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.” (Ibid.) Also relevant here, the Supreme Court declined to address “[t]he question of whether satisfaction of the Boyde standard is necessary to establish prima facie eligibility under section 1172.6.” (Lopez, supra, 19 Cal.5th at p. 670.) The Boyde standard is used when there is a claim a given instruction is ambiguous and, as a result, subject to an erroneous interpretation. In such a case, the court asks “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in [a constitutionally improper] way.’” (Lopez, at p. 670) IV. Relevant jury instructions at defendant’s trial CALCRIM No. 400 instructed the jury on the theory of direct aiding and abetting liability as follows: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.” 10 crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” (Italics added.) CALCRIM No. 401 instructed the jury regarding aiding and abetting in relevant part as follows: “To prove that the 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 [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.” The instruction further stated: “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.” The jury was also instructed with CALCRIM No. 520, which defined express and implied malice murder as follows: “The defendant is charged in Counts 1 and 2 with murder in violation of Penal Code section 187. [¶] To prove that the 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 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 unlawfully intended to kill. [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the act were 11 dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life.” V. Evaluating ambiguity at the prima facie stage As discussed, ante, the parties dispute what standard should be used when the court is faced with ambiguous jury instructions at the prima facie stage of a section 1172.6 petition. The People assert the appropriate standard is derived from Boyde and asks whether there exists a reasonable likelihood the jury relied upon an invalid theory of murder liability. Defendant urges use of Boyde’s standard “amounts to abandonment of the prima facie standard established [by California Supreme Court authority]” and asserts the proper standard asks whether “review of the [jury] instructions ‘conclusively establishes’ that no imputed malice theory was ever given to the jury”; thus making it “clear the charging document did not ‘allow[] the prosecution’ to proceed on an imputed malice theory.” As noted, the court in Lopez declined to address this question. We undertake it here. We conclude the correct standard is the one developed beginning in Lewis and refined through Strong5 and Curiel6. That is, a section 1172.6 petition may be denied at the prima facie stage only where the record of conviction, including the jury instructions, conclusively establishes the defendant is ineligible for relief. (Curiel, supra, 15 Cal.5th at p. 470 [“the question is not whether it is likely a defendant could have felt and acted [in a way consistent with an invalid theory], but whether the court’s jury instructions foreclose that possibility as a matter of law”]; 5 People v. Strong (2022) 13 Cal.5th 698 (Strong). 6 People v. Curiel (2023) 15 Cal.5th 433 (Curiel). 12 Strong, supra, 13 Cal.5th at p. 708 [“If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition”]; Lewis, supra, 11 Cal.5th at pp. 970–972.) Boyde’s reasonable likelihood test was developed to assist in assessing whether instructional ambiguity requires reversal of a final judgment on direct appeal. In that setting, courts must balance the “strong policy in favor of accurate determination of the appropriate sentence [against] an equally strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation.” (Boyde, supra, 494 U.S. at p. 380.) Neither of those competing interests is implicated at the prima facie stage of a section 1172.6 proceeding. The finding of a prima facie case does not disturb the judgment or grant relief to the defendant; it only triggers an evidentiary hearing under section 1172.6, subdivision (d)(3). (See § 1172.6, subd. (d)(3); People v. Patton (2025) 17 Cal.5th 549, 559.) The finality concerns that justify tolerance for potential ambiguity under Boyde on direct appeal have no application to a threshold screening determination that merely opens the door to further proceedings on a section 1172.6 petition. Moreover, the “conclusively establish” standard reflects the Legislature’s deliberate choice to set the prima facie bar “‘very low.’” (Lewis, supra, 11 Cal.5th at p. 972.) Section 1172.6, subdivision (a)(1) requires only the charging document “allowed the prosecution to proceed under a theory … under which malice is imputed to a person.” Where ambiguity leaves open the possibility that the jury convicted the defendant on an invalid theory, the charging document necessarily “allowed” that theory 13 to reach the jury, regardless of whether a reviewing court believes it more or less likely the jury actually relied on it. The cases relied upon by the People do not establish the Boyde standard as governing at this stage. In People v. Rushing (2025) 109 Cal.App.5th 1025 (Rushing), the phrase “reasonable possibility” appears only in the court’s recitation of the defendant’s own argument, which the court rejected (id. at p. 1032) and, ultimately, the court concluded, pursuant to Strong, the record “conclusively establishe[d]” Rushing’s ineligibility for relief (Rushing, at pp. 1034–1035). In People v. Allen (2023) 97 Cal.App.5th 389, 396 (Allen), the court concluded the conspiracy instructions required jurors to find defendant harbored the intent to kill as a matter of law. Then, while addressing defendant’s other arguments, the court cited People v. Estrada (2022) 77 Cal.App.5th 941, 945–949 (Estrada) in finding, “[i]t was also not reasonably likely that jurors imputed malice to Allen” because there was “nothing in the evidence or jury instructions that would have suggested such a theory.” (Allen, supra, at p. 397, citing Estrada, supra, 77 Cal.App.5th at p. 947.) There was no instructional ambiguity to settle and Allen’s use of the standard to reject the defendant’s unsupported theory is distinct from the question we address today. The People do not cite People v. Ervin (2021) 72 Cal.App.5th 90 (Ervin), but it is worth a brief discussion. Decided before Strong and Curiel set forth the standard to determine whether a defendant has made a prima facie showing, Ervin applied a reasonable likelihood analysis to ambiguous jury instructions and found the ambiguity there sufficiently favored the defendant, such that reversal was in order. (Ervin, supra, at pp. 107–109, 111.) As applied by the court in Ervin, any 14 reasonably likely ambiguity would be resolved in defendant’s favor and would be sufficient to require an evidentiary hearing. This is an outcome fully consistent with Strong and Curiel. Estrada, on which Rushing and Allen relied, also did not employ the Boyde standard. Instead, it quoted the “reasonable likelihood” language from People v. Johnson (2016) 62 Cal.4th 600 and People v. Letner and Tobin (2010) 50 Cal.4th 99, both of which were direct appeals dealing with the same instructional issues presented in Estrada. The Estrada court simply restated the “determinative” holdings of those cases where, on direct appeal, each found “there was no reasonable likelihood the jury misunderstood” the instructional language. (Estrada, supra, 77 Cal.App.5th at pp. 947–948.) At no point did the Estrada court announce it as the proper standard to be used when evaluating an instructional ambiguity for purposes of section 1172.6 prima facie determinations. Furthermore, Estrada was decided before our Supreme Court’s decision in Curiel, which made clear the prima facie inquiry asks whether the instructions “foreclose th[e] possibility [of an invalid theory] as a matter of law,” not whether it was reasonably likely the jury properly applied them. (Curiel, supra, 15 Cal.5th at p. 470; see also Strong, supra, 13 Cal.5th at p. 708.) Thus, as explained, none of the authority cited by the People actually confronts or resolves the choice between these two standards (see Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [“an opinion is not authority for a proposition not therein considered”]) and each reaches its result through instructional analysis consistent with Curiel and Strong. Based on the foregoing, we conclude a section 1172.6 petition may be denied at the prima facie stage only where the jury instructions, considered as a whole and together with the 15 rest of the record of conviction, conclusively and unambiguously establish the defendant is ineligible for relief; that is, where the instructions conclusively foreclose the possibility the jury convicted the defendant on a theory under which malice was imputed to him based solely on his participation in the crime. (See Curiel, supra, 15 Cal.5th at p. 470; Strong, supra, 13 Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at pp. 971–972; see also Lopez, supra, 19 Cal.5th at p. 658.) VI. Defendant has established a prima facie showing of eligibility The instructions given in defendant’s case do not conclusively foreclose the possibility the jury convicted him of second degree murder by imputing malice to him. CALCRIM No. 400, as given to defendant’s jury, provided: “A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” This is the same “equally guilty” phrasing used in the CAJIC No. 3.00 instruction provided at Langi’s trial. (Langi, supra, 73 Cal.App.5th at p. 981, fn. 8.) In 2010, one year after defendant’s trial, CALCRIM No. 400 was amended to remove the words “equally guilty.” (See CALCRIM No. 400 (Rev. Apr. 2010).)7 Nothing in the version of CALCRIM No. 400 given to defendant’s jury resolves the ambiguity identified in Langi. 7 We note, CALJIC No. 3.00 was also later amended to direct the jury to assess the aider and abettor’s liability based on “that person’s own mental state.” This language was not included in the CALCRIM No. 400 instruction given here, or the version of CALJIC No. 3.00 given at Langi’s trial. (Langi, supra, at p. 983, fn. 13.) 16  CALCRIM No. 401 required the jury to find: (1) defendant “knew that the perpetrator intended to commit the crime,” (2) defendant “intended to aid and abet the perpetrator in committing the crime,” and (3) defendant’s “words or conduct did in fact aid and abet the perpetrator’s commission of the crime.” CALCRIM No. 401 further provided “[s]omeone 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.” This is essentially identical to the CALJIC No. 3.01 language that Langi found insufficient on its own, and it suffers from the same defect identified in Reyes and Powell. That is, it conditions liability on defendant’s knowledge of “the perpetrator’s unlawful purpose” and intent to aid “that crime,” without specifying defendant must personally know the act aided was dangerous to human life and personally act with conscious disregard for that danger.8 (Reyes, supra, 14 Cal.5th at p. 991, quoting Powell, supra, 63 Cal.App.5th at p. 713.) CALCRIM No. 520 defined implied malice as requiring “[the defendant] intentionally committed an act,” that “[t]he natural and probable consequences of the act were dangerous to 8 We note, CALCRIM No. 526, adopted after defendant’s trial, specifically addresses this exact ambiguity. (Lopez, supra, 19 Cal.5th at p. 655.) Specifically, CALCRIM No. 526 requires the jury to find “the perpetrator committed act(s) that (was/were) dangerous to human life,” “the defendant knew that the perpetrator’s act(s) (was/were) dangerous to human life, and the defendant deliberately acted with conscious disregard for human life.” CALCRIM No. 401 Bench Notes also direct that CALCRIM No. 401 no longer be given in implied malice, aiding and abetting cases. 17 human life,” that “[a]t the time he acted, he knew his act was dangerous to human life,” and that “[h]e deliberately acted with conscious disregard for human life.” The People argue, read in context, “the defendant” necessarily means the actual perpetrator, since no theory at trial suggested defendant himself was the actual killer, and a rational jury would have understood the instructions as such. The People’s reading is not unreasonable, but it is not the only interpretation the text permits. CALCRIM No. 520 does not state “the defendant” refers to the actual perpetrator when the prosecution proceeds on an aiding and abetting theory and CALCRIM No. 401 does nothing to clarify that the knowledge and conscious disregard required by CALCRIM No. 520 of “the defendant” must be found as to defendant personally, as opposed to the perpetrator whose act defendant is alleged to have aided. As read, CALCRIM No. 520 asked the jury to find defendant personally knew his act was dangerous to human life and personally acted with conscious disregard for that danger. If the jury applied the instruction as written, it may have understood defendant’s own act to be the driving of the vehicle, in which case the instruction would have required the jury to find defendant personally knew the act of driving was dangerous to human life and he personally disregarded that danger. This is a different showing than Reyes requires of a direct aider and abettor of implied malice murder, which demands the aider and abettor know the perpetrator’s act (here, the shooting) was dangerous to life and personally disregard that danger. (Reyes, supra, 14 Cal.5th at p. 991.) Alternatively, if the jury silently substituted “the perpetrator” for “the defendant” as the People urge it must have, the instruction 18 would have required no showing of defendant’s own knowledge or disregard at all. This is precisely the imputed malice problem Senate Bill Nos. 1437 and 775 were enacted to address. Neither reading forecloses, as a matter of law, the possibility the jury convicted defendant without finding he personally knew the shooter’s act was dangerous to human life, and he personally acted with conscious disregard for that danger. The People rely on McCoy’s observation that “one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice” (McCoy, supra, 25 Cal.4th at p. 1123) and argue, because murder was the only crime charged, the jury’s guilty verdict necessarily reflects a finding defendant “knowingly and intentionally aided the actual perpetrator in committing the sole charged crime of murder,” and therefore he “personally acted with malice aforethought.” We are not persuaded. McCoy’s observation rests on a finding the aider and abettor “knew of [the perpetrator’s] unlawful purpose and intended to commit, encourage or facilitate that purpose.” (Id. at pp. 1122–1123.) This is the same language used in CALCRIM No. 401. However, Reyes, Langi, and Powell have since held this “unlawful purpose” formulation, on its own, does not suffice to establish liability for aiding and abetting an implied malice murder, because knowledge of the perpetrator’s unlawful purpose does not necessarily encompass personal knowledge the perpetrator’s act was dangerous to human life and personal disregard of that danger. (Reyes, supra, 14 Cal.5th at p. 991.) McCoy had no occasion to consider whether a finding of “unlawful purpose” satisfies the additional elements Reyes later required. (See Ginns v. Savage, supra, 61 Cal.2d at p. 524, fn. 2 [“an opinion is not authority for a proposition not therein 19 considered”].) Defendant’s jury was not unambiguously instructed in terms requiring that individualized finding. Applying the standard set forth in part V, ante, we cannot conclude the instructions in defendant’s case conclusively foreclose the possibility the jury convicted defendant by imputing malice to him based solely on his participation in the crime. As a result, the record of conviction does not “‘establish conclusively that the defendant is ineligible for relief.’” (Curiel, supra, 15 Cal.5th at p. 470, quoting Strong, supra, 13 Cal.5th at pp. 715– 716; accord Antonelli, supra, 17 Cal.5th at p. 724; Lopez, supra, 19 Cal.5th at p. 658.) We find defendant has established a prima facie case for relief as required by section 1172.6, subdivision (c). DISPOSITION The trial court’s order denying defendant’s section 1172.6 petition for resentencing is reversed. The matter is remanded to the trial court with directions to issue an order to show cause and hold an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3). We express no opinion on whether defendant is entitled to relief on remand. CHAVEZ, J. We concur: LUI, P. J. GOORVITCH, J. 20