1

Filed 10/16/23 P. v. Moore CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH LYNN MOORE,

Defendant and Appellant.

 A165429

 (Alameda County

 Super. Ct. No. 67113B)

Defendant Kenneth Lynn Moore appeals from the denial of his petition 

for resentencing pursuant to Penal Code section 1170.95, now section 1172.6.1 

In 1979, defendant was convicted of an array of over 50 crimes, including

burglary, robbery, and rape. Among these convictions were two for first 

degree murder with special circumstances for which the trial court sentenced 

defendant to life without possibility of parole. On appeal, defendant argues

1 All further statutory references are to the Penal Code.

While this appeal was pending, section 1170.95 was renumbered to 

section 1172.6. (Stats. 2022, ch. 58, § 10; see People v. Strong (2022) 13 

Cal.5th 698, 708, fn. 2.) As such, we will refer to section 1172.6, but we will 

also refer to section 1170.95 as necessary to conform to the record.
2

the court erroneously concluded he was ineligible for resentencing as a 

matter of law. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Crimes and Procedural History

1. The Charged Crimes

Defendant and co-defendant David Moore,2 his brother, were charged 

by amended information with dozens of crimes committed in the summer of 

1978. As relevant here, defendant and David were charged with two counts 

of first degree murder (§ 187) in the killings of Eileen Rogers and Laura 

Muhlenbruch; they were also charged with two counts of robbery against the 

same victims. As to the murder counts, the information included robberymurder and multiple-murder special-circumstance allegations against 

defendant and David (former § 190.2, subds. (c)(3)(i), (c)(5)3), as well as 

2 We will hereafter refer to David Moore by his first name for brevity and 

to avoid confusion with defendant.

3 This former version of section 190.2 read: “The penalty for a defendant 

found guilty of murder in the first degree shall be death or confinement in the 

state prison for life without possibility of parole in any case in which one or 

more of the following special circumstances has been charged and specially 

found . . . to be true: [¶] . . . [¶] (c) The defendant was personally present

during the commission of the act or acts causing death, and with intent to 

cause death physically aided or committed such act or acts causing death and 

any of the following additional circumstances exists: [¶] . . . [¶] (3) The

murder was willful, deliberate, and premeditated and was committed during 

the commission or attempted commission of any of the following crimes: 

[¶] (i) Robbery in violation of Section 211; [¶] . . . [¶] (5) The defendant has in 

this proceeding been convicted of more than one offense of murder of the first 

or second degree . . . . [¶] (d) For the purposes of subdivision (c), the 

defendant shall be deemed to have physically aided in the act or acts causing 

death only if it is proved beyond a reasonable doubt that his conduct 

constitutes an assault or a battery upon the victim or if by word or conduct he 

orders, initiates, or coerces the actual killing of the victim.” (Former § 190.2, 
3

firearm use allegations against them (§ 12022.5). As to the robbery counts, 

the information alleged defendant and David used a firearm (§ 12022.5) and 

caused great bodily injury (§ 12022.7). 

A summary of the facts underlying the murders and other crimes 

appears in our previous opinion, People v. Moore (1984) 162 Cal.App.3d 709

(Moore I).4 We need not provide the entire summary of facts here, though we 

recount the facts of the murders to provide additional context: “[On the night

of August 18, 1978], Eileen Rogers and her daughter Laura Muhlenbruch 

were killed in the garage of their apartment building. Both women were 

found on the steps leading from the garage to the lobby; Laura was nude 

except for shoes and socks and panties around her ankles. The two women 

had been shot by handguns. One shotgun shell was found outside the garage.

Of three bullets taken from Muhlenbruch’s body, one was definitely fired by a 

.38 Smith and Wesson found in the bushes behind 411 Fairmount [the 

location of the Moore brothers’ apartment].” (Moore I, supra, 162 Cal.App.3d 

at pp. 711, 713.) Another of the bullets in Muhlenbruch’s body, as well as a 

subds. (c)(3)(i), (c)(5), (d), Stats. 1977, ch. 316, § 9, pp. 1257–1258, italics 

added.)

4 Effective January 1, 2022, and before being renumbered, section 

1170.95 was amended to restrict consideration of prior appellate opinions to 

the procedural history of the case recited therein. (People v. Clements (2022) 

75 Cal.App.5th 276, 292.) Our own analysis of the issues on appeal is based 

on our review of the record of conviction, not the summary of facts in our 

prior appellate opinion. But we mention the facts set out in our prior opinion 

for additional context. In doing so, we note the trial court in this case

indicated it was not relying on the prior opinion’s factual recitations to reach 

its decision, though defendant does not dispute that our prior opinion

accurately recites the trial evidence. Indeed, we note defendant himself 

incorporates the facts we set out herein concerning the murder into his own 

opening brief. 
4

bullet taken from Rogers’ back, could have been fired by a .38 caliber Colt 

also found in the bushes behind 411 Fairmount. (Ibid.)

2. Instructions and Argument

The trial court instructed on two theories of first degree murder: 

willful, deliberate, and premeditated murder, and felony murder. Though 

other instructions and further details will be addressed post,

5 we note the 

following for now. 

With regard to felony murder, the court instructed that the killing of a 

human being that occurs as a result of the commission or attempted 

commission of a robbery or rape, where the perpetrator had the specific 

intent to commit such a robbery or rape, is first degree murder. The court 

also instructed that if a human being is killed by any one of several persons

perpetrating or attempting to perpetrate a robbery or rape, all persons who 

directly commit such crime, or with knowledge of the unlawful purpose of the 

perpetrator, aid, promote, encourage, or instigate its commission, are guilty 

of first degree murder. 

The trial court also instructed for both the robbery-murder and 

multiple-murder special circumstances, but emphasized the special 

circumstances would come into play only if the jury found defendant guilty of 

at least one first degree murder. The court told the jury it must “decide 

separately each special circumstance charged in this case as to each of the 

defendants.” 

5 Defendant filed a motion to augment seeking a complete set of the 

instructions given to the jury during the guilt phase that we granted. The 

executive officer of the superior court responded by submitting a letter

stating the court was unable to locate the complete set of instructions. As 

such, we are confined to reviewing a portion of a reporter’s transcript 

included in the record that shows only part of the instructions to the jury. 
5

In advocating for murder convictions, the prosecutor’s closing argument 

focused on the evidence that: the victims’ possessions were found in the 

Moore brothers’ apartment and in defendant’s bedroom specifically; the 

murder weapons were hidden in bushes outside of their apartment; bullets 

taken from the crime scene and from the victims’ bodies were fired or could 

have been fired from guns belonging to defendant and his brother; and the 

modus operandi was the same as at other crime scenes to which the brothers 

were linked. The prosecutor also focused on the jury instructions for first 

degree felony murder and for aiding and abetting a first degree felony 

murder.

3. The Verdicts

The jury found defendant guilty of both counts of first degree murder

and found the personal firearm use allegations and the robbery-murder and 

multiple-murder special circumstances true. The verdict form for the murder 

counts did not specify the theory of murder liability. The verdict forms for 

the special-circumstance allegations mirrored the instructions, stating the 

jury found true the allegations that defendant “was personally present and, 

with the intent to cause death, did physically aid or commit the act causing 

the death” of Eileen Rogers and Laura Muhlenbruch, and that those murders 

were “wilful, deliberate, premeditated and committed during the commission 

and attempted commission of a Robbery.” (Italics added.) 

Aside from the murder convictions and special circumstances findings, 

the jury convicted defendant of an additional 56 counts, including the 

robberies of the two murder victims. With regard to those robberies, the jury

found true the allegations that defendant personally used a firearm during 

the robberies and inflicted great bodily injury on the victims. 
6

In May 1980, after the jury was unable to agree as to a penalty, the 

trial court sentenced defendant to life without the possibility of parole for the 

murder counts. This division affirmed the judgment in 1984. (Moore I, 

supra, 162 Cal.App.3d at p. 719.)

B. Proceedings on the Section 1170.95 Petition

In February 2019, defendant filed a section 1170.95 petition. The

petition checked boxes indicating that: (1) a charging document was filed 

against defendant allowing the prosecution to proceed under a theory of 

felony murder or murder under the natural and probable consequences 

doctrine; (2) he was convicted of first or second degree murder under the 

felony-murder rule or natural and probable consequences doctrine; and (3) he 

could not now be convicted of first or second degree murder because of 

changes made to sections 188 and 189 effective January 1, 2019. Defendant 

also checked boxes indicating that he was convicted of first degree felony 

murder and that he could not now be convicted of that crime because he was 

not the actual killer, he did not aid and abet the murder with intent to kill, 

and he was not a major participant in the underlying felony who acted with 

reckless indifference to life. 

The trial court appointed counsel for defendant and issued an order 

requesting briefing as to whether defendant “comes within” and is entitled to 

relief under section 1170.95, but indicated the briefing order was not an order 

to show cause. After the parties filed additional briefing, the court denied the 

petition for failure to state a prima facie case for relief. The court noted the 

record of conviction showed the jury made express findings that defendant

physically aided or committed the act or acts causing death with the intent to 

kill, and that defendant was precluded from relief under section 1170.95 as a 

matter of law. This appeal followed. 
7

DISCUSSION

The question presented is whether the record of conviction establishes 

as a matter of law that defendant is guilty of murder under a still-valid 

theory. (§ 1172.6, subd. (a)(3).) We conclude the instructions and jury 

verdicts in this case establish, at the very least, that defendant is guilty of 

first degree felony murder under section 189, subdivision (e)(2) 

(“section 189(e)(2)”).

A. Overview of Senate Bill No. 1437

Prior to Senate Bill No. 1437 (Senate Bill 1437), “[u]nder the old felonymurder doctrine, a defendant was liable for first degree murder if their 

confederate killed someone while they (the defendant) participated in the 

commission or attempted commission of a qualifying felony.” (People v. Lopez

(2023) 88 Cal.App.5th 566, 574 (Lopez).) “The necessary mental state was 

simply the intent to commit a qualifying felony” and “malice was imputed to 

the participant based on their willingness to commit a felony our Legislature 

deemed ‘ “inherently dangerous to human life.” ’ ” (Ibid.)

In 2018, the Legislature enacted Senate Bill 1437 which “ ‘amend[ed] 

the felony[-]murder rule and the natural and probable consequences doctrine, 

as it relates to murder, to ensure that murder liability is not imposed on a 

person who is not the actual killer, did not act with the intent to kill, or was 

not a major participant in the underlying felony who acted with reckless 

indifference to human life.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 842 

(Gentile).)

Senate Bill 1437 amended the felony-murder rule by adding 

section 189, subdivision (e): “ ‘A participant in the perpetration or attempted 

perpetration of [qualifying felonies] in which a death occurs is liable for 

murder only if one of the following is proven: [¶] (1) The person was the 
8

actual killer. [¶] (2) The person was not the actual killer, but, with the intent 

to kill, aided, abetted, counseled, commanded, induced, solicited, requested, 

or assisted the actual killer in the commission of murder in the first degree.

[¶] (3) The person was a major participant in the underlying felony and acted 

with reckless indifference to human life, as described in subdivision (d) of 

Section 190.2.’ ” (Gentile, supra, 10 Cal.5th at p. 842.)

Senate Bill 1437 also amended the natural and probable consequences 

doctrine by adding section 188, subdivision (a)(3) (section 188(a)(3)): 

“ ‘Except [for felony-murder liability] as stated in subdivision (e) of 

Section 189, in order to be convicted of murder, a principal in a crime shall 

act with malice aforethought. Malice shall not be imputed to a person based 

solely on his or her participation in a crime.’ ” (Gentile, supra, 10 Cal.5th at 

pp. 842–843.)

Additionally, Senate Bill 1437 added section 1170.95 (later renumbered 

section 1172.6), which “provides a procedure for convicted murderers who 

could not be convicted under the law as amended to retroactively seek relief.” 

(People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis); Stats. 2022, ch. 58, § 10.) 

Under the statute, “an offender must file a petition in the sentencing court 

averring that: ‘(1) A complaint, information, or indictment was filed against 

the petitioner that allowed the prosecution to proceed under a theory of 

felony murder or murder under the natural and probable consequences 

doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree 

murder following a trial or accepted a plea offer in lieu of a trial at which the 

petitioner could be convicted for first degree or second degree murder[;] 

[¶] [and] (3) The petitioner could not be convicted of first or second degree 

murder because of changes to Section 188 or 189 made effective January 1, 

2019.’ ” (Lewis, at pp. 959–960.) When a petition complies with these three 
9

requirements, the court must determine whether the petitioner has made a

prima facie showing for relief. (Id. at p. 960.)

The prima facie inquiry under section 1172.6, subdivision (c), is 

“limited.” (Lewis, supra, 11 Cal.5th at p. 971.) The trial court generally 

takes the petitioner’s factual allegations as true and must issue an order to 

show cause if the petitioner would be entitled to relief if his or her factual 

allegations were proved. (Ibid.) But, after the appointment of counsel and 

the opportunity for briefing, the court may also consider the record of 

conviction to determine whether a petitioner has made a prima facie case. 

(Id. at pp. 957, 971.) The record of conviction includes closing arguments, 

jury instructions, verdict forms, and to a limited extent, prior appellate 

opinions in the case. (People v. Jenkins (2021) 70 Cal.App.5th 924, 935.) “ ‘If 

the petition and record in the case establish conclusively that the defendant 

is ineligible for relief, the trial court may dismiss the petition.’ ” (People v. 

Wilson (2023) 14 Cal.5th 839, 869.)

We review the trial court’s determination that petitioner is ineligible 

for relief under section 1172.6 as a matter of law de novo. (People v. Williams

(2022) 86 Cal.App.5th 1244, 1251.)

B. Analysis

To reiterate, under section 189(e)(2), felony-murder liability lies when a 

defendant who “was not the actual killer, but, with the intent to kill, aided, 

abetted, counseled, commanded, induced, solicited, requested, or assisted the 

actual killer in the commission of murder in the first degree.” 

Section 189(e)(2) has a mens rea—intent to kill—and an actus reus—aiding, 

abetting, counseling, commanding, inducing, soliciting, requesting, or 

assisting the actual killer in the commission of murder in the first degree. 
10

(Lopez, supra, 88 Cal.App.5th at p. 581.) Below, we examine whether the 

record of convictions establishes these statutory requirements.

1. Section 189(e)(2): Mens Rea

We have no difficulty concluding the record of conviction establishes

that defendant acted with intent to kill, the mens rea required by 

section 189(e)(2). The trial court instructed as to the robbery-murder specialcircumstance allegation that the jury must find “(1) the murder was willful, 

deliberate and premeditated, and (2) the defendant was personally present 

during the commission of the act or acts causing death, and (3) that the 

defendant with intent to cause death physically aided or committed the act or 

acts causing death, and (4) the murder was committed during the commission 

of a robbery.” (Italics added) Similarly, with regard to the multiple-murder 

special circumstance, the court instructed the jury must find “(1) the 

defendant was personally present during the commission of the act or acts 

causing death; (2) the defendant, with intent to cause death, physically aided 

or committed the act or acts causing death; and (3) the defendants or each of 

them have been convicted of first degree murder, and an additional count of 

murder, which can be either first or second degree.” (Italics added) 

Furthermore, the court’s instructions on the special circumstances explained 

to the jury that the special-circumstance findings had to be made as to each 

particular defendant: “You must decide separately as to each of the 

defendants as to the existence or non-existence of each special circumstance 

charged in this case. If you cannot agree upon your finding as to all of the 

defendants but can agree as to one of them, you must make your finding as to 

the one upon which you do agree.” 

The jury found both special-circumstance allegations true. The verdict 

forms for the special-circumstance allegations reflect findings that defendant
11

“was personally present and, with the intent to cause death, did physically 

aid or commit the act causing the death of” Eileen Rogers and Laura 

Muhlenbruch and that the murders were “wilful, deliberate, premeditated 

and committed during the commission and attempted commission of a 

Robbery . . . .” (Italics added.) 

Thus, the record of conviction establishes the jury found defendant

acted with intent to kill, the mens rea required by section 189(e)(2). This 

refutes any conclusion that malice was merely imputed to him.

2. Section 189(e)(2): Actus Reus

The question whether the record of conviction establishes defendant

committed the actus reus required by section 189(e)(2) requires a bit more 

discussion.

(a) The crime that was aided and abetted

Again, the actus reus required by section 189(e)(2) is that a defendant 

“aided, abetted, counseled, commanded, induced, solicited, requested, or 

assisted the actual killer in the commission of murder in the first degree.” 

(Italics added.) One issue of statutory interpretation that has arisen is 

whether liability for murder under this portion of the statute requires that 

the prosecutor prove the defendant aided, abetted, or assisted the killing 

itself, or alternatively, that the defendant aided, abetted, or assisted in the 

qualifying felony during which the killing occurs.

Support for the latter view is found in the following current language of

section 189, subdivision (a), which Senate Bill 1437 did not amend: “All 

murder that is . . . committed in the perpetration of, or attempt to perpetrate, 

. . . robbery . . . is murder of the first degree.” Additionally, the actus reus

language in section 189(e)(2) is nearly identical to the language concerning 

the felony-murder special circumstance in section 190.2, subdivision (c), 
12

which reads: “Every person, not the actual killer, who, with the intent to kill, 

aids, abets, . . . or assists any actor in the commission of murder in the first 

degree shall be punished by death or imprisonment in the state prison for life 

without the possibility of parole if one or more of the special circumstances 

enumerated in subdivision (a) has been found to be true under Section 190.4.” 

(Italics added; People v. Ervin (2021) 72 Cal.App.5th 90,106 (Ervin).) 

In People v. Dickey (2005) 35 Cal.4th 884 (Dickey), the California 

Supreme Court examined the meaning of the foregoing italicized language in 

section 190.2, subdivision (c) (formerly § 190.2, subd. (b)) and expressly 

rejected the argument that the felony-murder special circumstance required 

proof that the defendant assisted in the killings themselves. (Dickey, at 

pp. 900–901.) Following the passage of Senate Bill 1437, the Court of Appeal 

similarly held in Lopez, supra, 88 Cal.App.5th 566, that the actus reus 

required by section 189(e)(2) is an act that assists in the commission of the 

underlying felony or attempted felony that results in death, not the killing 

itself. (Lopez, at pp. 577–578, review den. May 31, 2023, S279347.) Lopez

relied on Dickey, reasoning that section 189(e)(2)’s current inclusion of 

language nearly identical to the language interpreted in Dickey signaled that 

the Legislature intended the same meaning when enacting Senate Bill 1437. 

(Lopez, at pp. 577–578.)

Lopez offered the following additional reasons supporting its 

interpretation of section 189(e)(2): (1) section 189, subdivision (a) defines 

murder in the first degree as murder committed in the perpetration or 

attempted perpetration of a qualifying felony, so assisting in a qualifying 

felony in which death occurs is the same as assisting the actual killer in 

committing first degree murder (Lopez, supra, 88 Cal.App.5th at p. 578); 

(2) the purpose of Senate Bill 1437 was to stop imputing malice to defendants
13

in order to justify a murder conviction, but a defendant who commits a 

qualifying felony while harboring express malice (see § 188, subd. (a)(3)) does 

not need that protection, so “there is no reason to interpret the actus reus 

requirement as anything different than what the felony-murder actus reus 

requirement was before Senate Bill 1437” (Lopez, at p. 578); and (3) the 

alternative interpretation (favored by the dissent in Lopez) actually makes it 

“easier” to obtain a murder conviction for defendants who harbor the less 

culpable state of mind of “reckless indifference to human life than for those 

who acted with express malice,” since the prosecution would only have to 

prove “they played a major role in the felony to be guilty of first degree 

murder under section 189” (Lopez, at p. 579).

The alternative view—espoused by the dissent in Lopez—is that 

section 189(e)(2) narrowed the actus reus for felony-murder liability to aider 

and abettors who aided, abetted, or assisted in the killing itself. (Lopez, 

supra, 88 Cal.App.5th at p. 583, dis. opn. of Raphael, J.) The dissent 

reasoned this interpretation of section 189(e)(2)’s actus reus was supported 

by the statutory language, which did not simply say the actus reus required 

only that a defendant assisted in an underlying felony. (Lopez, at pp. 584–

585.) The dissent also reasoned that the majority’s interpretation would 

render section 189(e)(2)’s actus reus language surplusage “because a person 

convicted on a section 189(a) felony-murder theory must have assisted in a 

qualifying felony in which death occurs.” (Lopez, at p. 585.) The dissent was 

unpersuaded by Dickey because the decision predated Senate Bill 1437. 

(Lopez, at pp. 586–587.) Moreover, unlike the special circumstance in Dickey, 

which applied to a “nonkiller who with intent to kill ‘aids . . . any actor in the 

commission of murder in the first degree,’ ” section 189(e)(2) limits felony-
14

murder liability to “nonkillers who with intent to kill ‘aided . . . the actual 

killer in the commission of murder.’ ” (Lopez, at p. 587.)

To buttress its position, the dissent relied on Ervin, supra, 72 

Cal.App.5th 90. In Ervin, a jury convicted the defendant of burglary, 

robbery, and first degree murder, and found true two felony-murder specialcircumstance allegations, but found not true an allegation the defendant 

personally used a firearm as to the murder count. (Ervin, at p. 98.) In 

reversing the denial of the defendant’s section 1170.95 petition at the prima 

facie stage (id. at p. 95), Ervin reasoned the defendant was not categorically 

ineligible for relief because the jury did not find him to be the actual shooter, 

and so potentially found him guilty of first degree murder under the former 

first degree felony murder rule. (Ervin, at pp. 107–108.) Ervin explained, 

“under the former felony-murder rule, any participant in a robbery could be 

liable for murder without a finding of malice if someone was killed during the 

robbery,” while “the current felony-murder rule more specifically requires the 

jury to find a defendant aided and abetted ‘the actual killer in the commission 

of murder in the first degree.’ ” (Id. at pp. 94, 106.) Rejecting the People’s 

argument that the true findings on the felony-murder special-circumstance 

allegations precluded relief, Ervin explained “[t]he felony-murder special 

circumstance generally requires the jury to find a defendant aided and 

abetted ‘any actor in the commission of murder in the first degree,’ while the 

current felony-murder rule more specifically requires the jury to find a 

defendant aided and abetted ‘the actual killer in the commission of murder in

the first degree.’ ” (Id. at pp. 104, 106.) In sum, the Lopez dissent concluded, 

“As in Ervin, a finding of an act that aided the underlying felony is not 

necessarily enough for a murder conviction under [section 189, 

subdivision (e)(2)], as the Legislature required an act, done with intent to kill, 
15

that aided the killer in committing the murder.” (Lopez, supra, 88 

Cal.App.5th at p. 588.) Notwithstanding the vigorous dissent in Lopez, the 

California Supreme Court denied review of that decision in May 2023. 

(Lopez, supra, 88 Cal.App.5th 566, review den. May 31, 2023, S279347.)

After due consideration, we are more persuaded by the analysis of the

majority in Lopez, particularly given the language of section 189, 

subdivision (a), and Dickey, 35 Cal.4th 884, neither of which the Ervin court 

discussed. Dickey is not rendered irrelevant simply because it predated

Senate Bill 1437. In Dickey, the Supreme Court interpreted a phrase almost 

identical to the phrase used in section 189(e)(2), providing strong support for 

the majority’s position in Lopez. We thus conclude the actus reus element of 

section 189(e)(2) requires an aider and abettor to have aided, abetted, or 

assisted a qualifying felony during which a killing occurs.

We acknowledge the point of the dissent in Lopez that section 189(e)(2)

requires that a defendant’s aiding and abetting must be provided to the 

“actual killer.” (Lopez, supra, 88 Cal.App.5th at p. 587.) But that 

requirement is met where, as here, the special-circumstance instruction tells

the jury it has to find the “defendant with intent to cause death physically 

aided or committed the act or acts causing death.” (Italics added.) And as the 

trial court below instructed: “A defendant shall be deemed to have physically 

aided in the act or acts causing death only if it is proved beyond a reasonable 

doubt that his conduct constitutes an assault or battery . . . upon the person 

killed, or if by word or conduct he orders, initiates or coerces the actual 

killing of the victim.” (Italics added.) Though this latter instruction 

narrowed the ways in which defendant could have physically aided the act 

causing death, it nonetheless required the jury to find that defendant aided 

the killer in the killing act.
16

Without addressing the actus reus analyses of Lopez, or Dickey, or even 

Ervin, defendant argues that current law requires a showing that he “acted 

with knowledge that the perpetrator (his brother) intended the victims’ 

death[s], with an intent to facilitate or encourage his brother to kill the 

victims.” Setting aside the circumstance that the jury actually determined 

that defendant himself acted with the intent to cause the victims’ deaths, his 

reliance on People v. Chiu (2014) 59 Cal.4th 155, People v. McCoy (2001) 25

Cal.4th 1111, and People v. Offley (2020) 48 Cal.App.5th 588, remains

unavailing. Chiu and McCoy pre-date Senate Bill 1437, and more to the 

point, none of those cases meaningfully addressed the felony-murder 

doctrine. (Chiu, at p. 158; McCoy, at pp. 1118, 1122–1123; Offley, at p. 595 & 

fn. 4.) 

(b) Application of the actus reus requirements

Having concluded section 189(e)(2)’s actus reus requirement means 

that an alleged aider and abettor must have “aided, abetted . . . or assisted” 

the qualifying felony during which the killing occurs, we turn to address 

whether the record of conviction establishes the requisite actus reus.

Aiding and abetting has its own act and mental state elements. 

Specifically, “a person aids and abets the commission of a crime when he or 

she, acting with (1) knowledge of the unlawful purpose of the perpetrator; 

and (2) the intent or purpose of committing, encouraging, or facilitating the 

commission of the offense, (3) by act or advice aids, promotes, encourages or 

instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 

547, 561; People v. Koenig (2020) 58 Cal.App.5th 771, 799.)

Here, the trial court instructed on two theories of first degree murder: 

willful, deliberate and premeditated murder, and felony murder. The 

instructions for felony-murder liability as an aider and abettor instructed: “if 
17

a human being is killed by any one of several persons engaged in the 

perpetration of or attempt to perpetrate the crime of robbery . . . , all persons 

who either directly and actively commit the act constituting such crime, or 

who with knowledge of the unlawful purpose of the perpetrator of the crime, 

aid, promote, encourage, or instigate by act or advice its commission . . . are 

guilty of murder in the first degree.” (Italics added.) The court also

instructed that “a person aids and abets the commission of a crime if he 

knowingly and with criminal intent aids, promotes, encourages or instigates 

by act or advice, or by act and advice, the commission of such crime.” (Italics 

added.)

Here, the jury found defendant guilty of robbery against the murder 

victims. Robbery, as the trial court instructed, requires proof of the specific 

intent to permanently deprive the owner of their property. 

Taken together, the foregoing instructions and the completed jury 

verdict forms establish that: (1) defendant acted with knowledge of the 

unlawful purpose of the perpetrator, i.e., to rob; (2) he, too, specifically 

intended to commit the robbery; and (3) he aided in the commission of the 

crime. Thus, not only does the record of conviction show the mens rea 

element of section 189(e)(2) has been met (i.e., defendant acted with the 

intent to cause the victims’ deaths), the record also shows the statutory actus 

reus requirement has been established (i.e, defendant intended to cause the 

victims’ deaths while aiding, abetting, or assisting in the qualifying robbery 

felony during which the killings occurred).

Having so concluded, we need not and do not discuss defendant’s 

argument that the jury could have concluded he was guilty of first degree 

murder “as a natural and probable consequence of robbery.” Nor do we need 

to address his further contentions that the trial court’s order cannot be 
18

upheld based on the true finding as to the firearm use allegations, or on the 

ground that defendant was a major participant who acted with reckless 

indifference to human life. 

DISPOSITION

The order denying defendant’s section 1170.95 petition is affirmed.

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Petrou, J.

People v. Moore (A165429)