Modification: People v. Berry-Vierwinden

THE PEOPLE,

Plaintiff and Respondent,

v.

RYAN BERRY-VIERWINDEN,

Defendant and Appellant.

No. D081861

(Super. Ct. No. RIF121073)

California Court of Appeal

Fourth Appellate District

Division One

Filed December 26, 2023

ORDER MODIFYING OPINION AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on December 6, 2023 be modified as follows:

On page 20, new footnote 8 is inserted at the bottom of the page and reads as follows:

In a petition for rehearing, Berry-Vierwinden argues that our holding conflicts with the Supreme Court's decisions in Strong and Curiel. We disagree. In both of those cases, the petitioner's jury was instructed on a theory of murder liability that was legally valid at the time of trial but was subsequently narrowed or eliminated by Senate Bill 

No. 1437. In Strong, the theory was felony murder, which "Senate Bill 1437 significantly limited" by making it inapplicable to defendants who were neither the actual killer nor acted with intent to kill---unless they were a " 'major participant' " in the underlying felony and acted with " 'reckless indifference to human life.' " (Strong, supra, 13 Cal.5th at pp. 707, 708 [citing §189, subd. (e)(3)].) As the Supreme Court noted, "[o]nly after the Legislature amended section 189 would the defendant have had an argument for ineligibility for murder." (Id. at pp. 711-712.) In Curiel, the theory was "aiding and abetting based on the doctrine of natural and probable consequences" (Curiel, supra, 2023 Cal. LEXIS 6622, at *16), which was also a valid theory of murder liability until it was eliminated by Senate Bill No. 1437. (Gentile, supra, 10 Cal.5th at pp. 842-851.) By contrast, Berry-Vierwinden does not dispute that at the time of his trial in 2010, California law already did not allow a direct aider and abettor to be convicted of a lying-in-wait murder on an imputed malice theory.

There is no change in the judgment.

The petition for rehearing is denied.

McCONNELL, P. J.