Court of Appeal:
By a MetNews Staff Writer
Legislative amendments barring murder convictions based on fictionally imputed malice do not aid a woman who shouted “Shoot,” propelling a man to fire a gun, resulting in a fatality, the Court of Appeal for this district declared on Friday.
The opinion by Presiding Justice Elwood Lui of Div. Two affirms an order by Los Angeles Superior Court Judge Lee W. Tsao denying a resentencing sought by Cynthia M. Vargas, who stands convicted of second-degree murder. She claimed entitlement to relief under Penal Code §1172.6 in light of the legislative repudiation in 2018 of the “natural and probable consequences doctrine” under which malice of an actual killer was imputed to one involved in a criminal conspiracy with that person.
It was Daniel Luna who, on July 12, 2002, during a brawl among gang members in a park, shot John Barbosa in the back, then in the head. Malice on the part of Luna, Vargas argued, can no longer be imputed to her.
In denying Vargas’s resentencing petition, Tsao said that there is “no reasonable doubt that it was Ms. Vargas who said, ‘Shoot him.’ Those words, together with [another’s] plea of ‘shoot him,’ led Daniel Luna to pull out his gun and fatally shoot John Barbosa.”
Accordingly, Tsao concluded, the conviction is properly founded on implied malice on Vargas’s part, rather than malice imputed to her.
In his opinion affirming Tsao’s order, Lui said:
“Here, substantial evidence supports the trial court’s finding that appellant acted with implied malice to directly aid and abet the murder. The evidence presented at trial established that from the beginning, Vargas was inextricably involved in the events that led to the murder and she was directly responsible for prompting Luna to shoot and kill John.”
“Even if these circumstances did not establish express malice on appellant’s part, they certainly constitute sufficient evidence upon which the trial court could find, beyond a reasonable doubt, that appellant acted with implied malice in aiding and abetting the murder.”
The jurist explained:
“[T]he essence of aiding and abetting a murder under an implied malice theory is the accomplice’s act of aiding, by words or conduct, the commission of a life-endangering act with knowledge of the danger to life that the act poses….Appellant knew that firing a gun into a brawl could ultimately result in someone’s death, but she directed Luna to do it anyway. She did not object when Luna walked over to John and finished what she had started, nor did she try to stop him. Substantial evidence supports the trial court’s finding that appellant is guilty of murder under a still-valid theory….”
The case is People v. Vargas, B313853.
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