Cynthia M. Vargas did not pull the trigger on the gun that took the life of James Barbosa, a man who wandered into territory that was claimed by her gang. But during the brawl that followed a request for Barbosa’s gang affiliation, Vargas told the man with the gun to “Shoot, Shoot the motherfucker.” Barbosa, who was in the wrong place at the wrong time, died.

The trial court found Vargas guilty of first-degree murder, just as if she had been the one who fired the murder weapon. A series of appeals asking for her resentencing followed. Vargas’s conviction was changed to second-degree murder. More appeals, a new California law, and subsequent cases about permitting gang enhancements during sentencing followed. On October 28, an appellate court ruled that Vargas’s words “led” the shooter to “pull out his gun and fatally shoot.” Despite a new law, she is still guilty.

In a unanimous decision, certified for publication by a three-judge panel, Presiding Justice Elwood Liu of Division Two of California’s Second District Court of Appeal, denied Vargas’s petition for resentencing from a post-judgment order issued by Judge Lee W. Tsao of the Superior Court of Los Angeles.

The events that led to her sentence began one night in 2002 when three men - Barbosa, his brother John, and another friend - went into Rivera Park in Pico Rivera, California. None of them were gang members, but the area they entered was claimed by a local gang. Vargas and two others, Cesar Alcantar and Daniel Luna, were members of the Rivera gang. In an attempt to learn whether Barbosa was a member of a different gang, Alcantar asked him where he was from. Barbosa replied that he was not in any gang. Alcantar called him a liar, and a fight ensued.

When Barbosa seemed to be winning the fight, Luna pulled out a handgun, shot John in the back, and fatally shot James in the back of his head. Although neither of them actually shot the gun that killed Barbosa, Vargas and Alcantar were tried and convicted of first-degree murder. They met all criteria for the finding because the principal (Luna) “used a firearm” and the “offense was committed to benefit a street gang.” Both defendants were sentenced to 60 years to life. They both appealed, and the appellate court vacated Vargas’s first-degree conviction and changed it to second-degree with a sentence of 40 years to life because the gang enhancement was improperly imposed.

Then a ray of hope appeared. California passed Senate Bill 1437 in October 2018. The bill forbids a person who was not the “actual killer” to be held liable for murder unless that person acted “with intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer.” Vargas petitioned for resentencing, but the trial court denied her request because “the People have met their burden of proving beyond a reasonable doubt that Ms. Vargas aided and abetted” Barbosa’s murder when she shouted out “Shoot him” followed by an obscenity.

Justice Elwood explained that Senate Bill 1437 was passed to “ensure that murder liability is not imposed on a person who is not the actual killer” unless actual malice aforethought could be shown. This level of malice, he said, could not be imputed “based solely on participation” in the crime. The Superior Court has to find “substantial evidence” that the petitioner is guilty of murder beyond a reasonable doubt when viewed in a light most favorable to the prosecution.

Elwood’s opinion reviewed the trial court’s finding that they believed “left no reasonable doubt that appellant’s command to “Shoot. Shoot the motherfucker” directly led “Luna to pull out his gun and fatally shoot John Barbosa.” He wrote that Vargas’s lawyer argued Vargas did not have the “requisite intent to kill John.” The Justice said, “the court only needed only (to) find appellant acted with implied malice in directly aiding and abetting the killing.”

He said that a “whole new trial” would not be necessary to make the determination of whether, under the new law, prosecutors could prove that Vargas acted with malice aforethought. This is defined as “a mental state in which a person intends to kill someone else or commit an act that they know will endanger human life.” This intention can be express or implied. Express intent is present “when there is manifested an intent to kill.” It is implied “when a person willfully does an act, the natural and probable consequences of which are dangerous to human life and the person knowingly acts with conscious disregard to the danger to life that the act poses.”

Actual malice requires an intent to kill: implied malice does not. Critically, the Justice stated, “One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law.” The three-part test for implied intent was met. There was a crime, Vargas had knowledge of the gunman’s unlawful intent and she had intent to assist him in reaching his unlawful ends, and her conduct in fact assisted in the achievement of the crime.

He concluded “substantial evidence supports the trial court’s finding that appellant acted with implied malice to directly aid and abet the murder. Vargas was “inextricably involved in the events that led to the murder.” She was present the whole time, drinking beer and applying graffiti, kicking and punching the victim, and yelling out her order to shoot Barbosa. These activities provided “sufficient evidence” for a trial court finding that Vargas acted with implied malice in aiding and abetting the murder beyond a reasonable doubt.

She knew that “firing a gun into a brawl” could result in someone’s death. She is still guilty of murder under a still-valid theory following the new Senate law.