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4th Appellate Court Reverses 1170.95 Denial

California v. Pacheco Docket: G059940 (Fourth Appellate District), Opinion Date: March 9, 2022. In 2008, defendant Hector Pacheco and other gang members "jumped" two people: one victim died, the other survived. A jury found Pacheco guilty of first degree murder as an aider and abettor, attempted murder, and gang participation. The jury also found true a gang special circumstance sentencing enhancement. In 2019, Pacheco filed a Penal Code section 1170.95 petition seeking to vacate his murder conviction. The trial court denied the petition at the prima facie stage. On appeal, the Attorney General argued the jury’s true finding on the gang special circumstance instruction made Pacheco ineligible for relief under section 1170.95 as a matter of law. To this, the Court of Appeal disagreed. The Court found the trial court instructed the jury on the natural and probable consequences theory, which was no longer a valid theory of murder liability. "While the gang special circumstance instruction told the jurors they needed to find Pacheco had the requisite intent to kill (the mens rea), the instruction did not require the jurors to find that Pacheco directly aided and abetted the target crime of murder (the actus reus). Therefore, without weighing the evidence, the jury’s true finding on the gang special circumstance does not conclusively establish Pacheco could be found guilty of murder under current law (that he had the intent to kill, and he directly aided and abetted the target crime of murder)." The Court reversed the trial court’s summary denial of Pacheco’s section 1170.95 petition. On remand, the court was directed to issue an order to show cause (OSC) and to conduct an evidentiary hearing as to the murder charge. #1170.95 #naturalandprobableconsequences

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