Unreported / Non-Citable
Background
In 2009, Daniel Anthony Cowie was convicted by a jury of two counts of second degree murder and sentenced to an aggregate term of 40 years to life in prison; the judgment was affirmed on direct appeal in 2011. In November 2022, Cowie filed a petition for resentencing under Penal Code section 1172.6, which permits defendants convicted of murder under prior law to seek relief if they could not be convicted under the amendments made by Senate Bill Nos. 1437 and 775. The trial court appointed counsel, received briefing, and held a hearing on whether Cowie had made a prima facie showing of eligibility. On August 29, 2023, the trial court denied the petition, finding Cowie ineligible for relief as a matter of law because the jury was not instructed on any theory requiring malice to be imputed to him.
Cowie appealed, and another panel of the Court of Appeal affirmed in People v. Cowie (Nov. 27, 2024, B333908) (Cowie II), relying on People v. Burns and People v. Berry-Vierwinden to treat the instructional ambiguity as a routine claim that could have been raised on direct appeal. The California Supreme Court granted review on February 11, 2025, held the case pending People v. Lopez, and on June 24, 2026 transferred the matter back with directions to vacate Cowie II and reconsider in light of Lopez, which disapproved of Burns, Berry-Vierwinden, and similar decisions for importing a procedural bar inconsistent with section 1172.6.
The Court’s Holding
The Court of Appeal first settled the standard for ambiguous jury instructions at the prima facie stage of a section 1172.6 petition. The People urged the Boyde 'reasonable likelihood' test, but the court rejected it for this posture and followed Lewis, Strong, and Curiel: a petition may be denied at the prima facie stage only where the record of conviction, including the jury instructions, conclusively establishes that the defendant is ineligible for relief. Boyde's test addresses whether instructional ambiguity requires reversal of a final judgment on direct appeal, where finality and accuracy compete; neither interest governs a threshold screening decision that merely opens the door to an evidentiary hearing and does not disturb the judgment. The court also emphasized that the Legislature set the prima facie bar very low.
Applying that standard, the court examined the instructions given at Cowie's trial. CALCRIM No. 400 told the jury that a person is 'equally guilty' whether he committed the crime personally or aided and abetted the perpetrator. CALCRIM No. 401 required findings that Cowie knew the perpetrator intended to commit the crime, intended to aid and abet it, and in fact aided it, but did not specify that he must personally know the aided act was dangerous to human life and personally act with conscious disregard for that danger. CALCRIM No. 520 asked the jury to find that 'the defendant' personally knew his act was dangerous to human life and personally acted with conscious disregard, but the ambiguity was that the jury could have understood Cowie's own act to be the driving of the vehicle rather than the shooter's act, or could have silently substituted 'the perpetrator' for 'the defendant,' requiring no personal knowledge or disregard by Cowie. The instructions therefore did not conclusively foreclose conviction by imputing malice based solely on participation, and Cowie established a prima facie case under section 1172.6, subdivision (c).
Key Takeaways
- A Penal Code 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.
- The Boyde 'reasonable likelihood' standard used to assess instructional error on direct appeal does not govern the prima facie eligibility determination under section 1172.6.
- Ambiguous aiding-and-abetting implied malice instructions that do not clearly require the jury to find the defendant personally knew the perpetrator's act was dangerous to human life and personally acted with conscious disregard do not conclusively foreclose an invalid imputed-malice theory.
- The pre-2010 'equally guilty' language in CALCRIM No. 400 and the 'unlawful purpose' formulation in CALCRIM No. 401, without more, do not establish that the jury necessarily found the personal mens rea required by Reyes for aiding-and-abetting implied malice murder.
- The Court of Appeal reversed the denial of Cowie's petition and remanded with directions to issue an order to show cause and hold an evidentiary hearing under section 1172.6, subdivision (d)(3), expressly declining to decide whether Cowie is entitled to relief on remand.
Why It Matters
The decision clarifies that the prima facie stage of a section 1172.6 proceeding is a deliberately low threshold screening mechanism, not a direct-appeal prejudice inquiry, and that finality concerns justifying tolerance for ambiguity under Boyde have no application when the only consequence is an evidentiary hearing.
It also shows that older CALCRIM Nos. 400, 401, and 520 language can leave open the possibility of conviction on an invalid imputed-malice theory, entitling a petitioner to an order to show cause even though the appellate court does not decide the ultimate resentencing question.