Filed 9/18/24

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JARRELL KELLY,

 Defendant and Appellant.

 G062071

 (Super. Ct. No. 08NF4115)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of 

Orange County, Cheri T. Pham, Judge. Reversed and remanded with 

directions.

Cliff Gardner, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. 

Swenson, Felicity Senoski and Marvin E. Mizell, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

Convicted of felony murder and attempted murder in 2012, 

Jarrell Kelly appeals the summary denial of his petition for resentencing 

under Penal Code section 1172.6.1 His appeal requires us to interpret the 

actus reus requirement for felony murder as set forth in section 189, 

subdivision (e)(2) (section 189(e)(2).) In particular, we must ascertain what it 

means to “assist[] the actual killer in the commission of murder in the first 

degree” for purposes of that provision. In our original opinion in this case, we 

interpreted that phrase to require proof the defendant assisted the actual 

killer in committing the murderous act, and since the record of appellant’s 

conviction does not contain such proof, we reversed the trial court’s ruling 

and ordered the court to conduct an evidentiary hearing on appellant’s 

entitlement to resentencing. (People v. Kelly (Mar. 14, 2024, G062071) 

[nonpub. opn.].)

However, shortly after we issued our opinion, another panel of 

this court rendered a split decision in People v. Morris (2024) 100 Cal.App.5th 

1016 (Morris) that conflicts with how we interpreted section 189(e)(2).

Whereas we interpreted that provision as requiring proof the defendant 

assisted the killer in committing the murderous act, the majority in Morris

1 That section was formerly housed in Penal Code section 

1170.95, but in 2022 it was renumbered without substantive change as Penal 

Code section 1172.6. (Stats. 2022, ch. 58, § 10.) For ease of reference, we will 

refer to the current statute. All further statutory references are to the Penal 

Code.
3

decided it simply requires proof the defendant assisted the killer in 

committing the underlying felony. (Id. at p. 1020.)2 

The California Supreme Court granted review in Morris on July 

17, 2024 (S284751), and therefore it will have the final word on the meaning 

of section 189(e)(2)’s actus reus requirement. In the meantime, we ordered a 

rehearing in this case and have obtained supplemental briefing from the 

parties on the Morris decision. Consistent with our original opinion, we 

interpret section 189(e)(2) to mean the defendant must assist the killer in 

committing the murderous act, not just the underlying felony. Because the 

record of appellant’s conviction does not conclusively establish that

requirement, we reverse the trial court’s denial order and remand for further 

proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, appellant and several other members of the Rollin’ 20’s 

gang robbed two men at gunpoint in the restroom of a Denny’s restaurant in 

Anaheim. During the robbery, Armand Jones, a friend of the victims, entered 

the restroom. Appellant’s group tried to rob him too, but he resisted and 

chased the robbers outside. Jones’ friend Ronnell Spencer joined the chase 

and fired several shots at the robbers in the parking lot. Appellant’s group

returned fire, wounding Spencer and killing Jones.

Appellant was charged with murder, attempted murder, robbery 

and street terrorism, as well as vicariously discharging a firearm. (§§ 187, 

subd. (a), 664, 211, 186.22, subd. (a), 12022.53, subds. (c), (d) & (e)(1).) He 

2 Recently, another panel of this court sided with the Morris

majority in People v. Lopez (Aug. 27, 2024, G061870) __ Cal.App.5th __ [2024 

Cal.App.LEXIS 527].
4

also faced two special circumstances allegations, namely that Jones was 

killed during a robbery and to further the activities of a criminal street gang.

(§ 190.2, subds. (a)(17)(A) & (a)(22).)

At trial, the prosecutor conceded appellant did not shoot Spencer

or Jones. However, he argued appellant was guilty of first degree felony 

murder for participating in the robbery that led to the fatal shooting. And he 

argued appellant was guilty of attempted murder because that offense was a 

natural and probable consequence of the robbery or a conspiracy to commit 

robbery.

With respect to the gang special circumstances allegation, the 

jury was instructed it not only required proof that appellant was a member of 

a criminal street gang when Jones was killed, but also that he personally 

intended to kill at that time. (CALCRIM No. 736.) The jury convicted 

appellant as charged, finding all sentencing and special circumstances 

allegations true. The trial court sentenced him to life in prison without 

parole, and we affirmed his convictions on appeal. (People v. Valerio et al. 

(Dec. 24, 2014, G047217) [nonpub. opn.].) 

In 2022, appellant petitioned for resentencing under section 

1172.6. Based on the jury’s true finding on the gang special circumstances 

allegation, the trial court ruled appellant was ineligible for relief because he 

acted with the intent to kill. It thus denied his petition without an 

evidentiary hearing.

DISCUSSION

 Appellant contends the trial court’s ruling was erroneous because 

the record of conviction does not render him ineligible for resentencing as a 

matter of law. We agree.
5

Appellant’s claim is grounded in Senate Bill No. 1437. (Stats. 

2018, ch. 1015, §§ 2-4 (Senate Bill 1437).) That law narrowed the scope of 

vicarious liability for the crime of murder in two important ways. First, it 

eliminated the natural and probable consequences theory in murder cases by 

providing that “[m]alice shall not be imputed to a person based solely on his 

or her participation in a crime.” (§ 188, subd. (a)(3).) Second, Senate Bill 1437

reined in the felony murder rule so that it can only be applied to nonkillers if 

they assisted the actual killer in committing first degree murder, or they 

were a major participant in the underlying felony and acted recklessly 

indifferent to human life. (§ 189, subd. (e).)

Senate Bill 1437 also led to the enactment of section 1172.6, 

which is the procedural mechanism for challenging a murder conviction 

based on vicarious liability. To obtain relief under that section, the defendant 

must show 1) he was prosecuted for murder on a theory under which malice 

was imputed to him based solely on his participation in a crime, 2) he was 

convicted of murder, and 3) and he would not be liable for murder today 

because of how Senate Bill 1437 redefined that offense. (§ 1172.6, subd. (a).)

The statute applies in an analogous manner to defendants who were 

convicted of attempted murder based on the natural and probable 

consequences doctrine. (Ibid.)

If the defendant makes a prima facie showing for relief, the trial 

court is required to issue an order to show cause and conduct an evidentiary 

hearing. (§ 1172.6, subds. (c), (d).) At the hearing, the prosecution must prove 

beyond a reasonable doubt that the defendant is ineligible for resentencing 

because his conduct did in fact rise to the level of murder or attempted 

murder as redefined by Senate Bill 1437. (Id., subd. (d)(3).) Otherwise, the 
6

defendant is entitled to vacatur and resentencing per the terms of section 

1172.6.

In People v. Lewis (2021) 11 Cal.5th 952, our Supreme Court 

ruled the bar for establishing a prima facie case for resentencing is very low, 

and the trial court’s role in determining whether that bar has been cleared in 

a given case is quite limited. (Id. at pp. 970-972.) While the trial court may 

consider the underlying record of conviction, judicial factfinding is not 

allowed. (Ibid.) Unless the record of conviction conclusively establishes the 

defendant is ineligible for resentencing as a matter of law, the court must 

issue an order to show cause and conduct an evidentiary hearing on his 

entitlement to relief. (Id. at p. 971, accord, People v. Strong (2022) 13 Cal.5th 

698, 708.)

The Supreme Court’s decision in People v. Curiel (2023) 15 

Cal.5th 433 (Curiel) provides further guidance on the resentencing process.

As relevant here, the court held a jury’s finding the defendant acted with the 

intent to kill does not foreclose resentencing under section 1172.6. (Id. at pp. 

460-463.) Rather, the record of conviction must establish the jury made all of 

the findings necessary to support a conviction for murder or attempted 

murder under current law. (Id. at pp. 463-471.) This requires proof the jury 

found the defendant harbored the necessary intent and he committed the 

necessary act or acts to be guilty under a presently valid theory of liability.

(Ibid.)

With respect to appellant’s conviction for attempted murder, it is 

undisputed the jury did not make such findings. As to that offense, the jury 

was instructed on both direct aiding and abetting and the natural and 

probable consequences theory of aiding and abetting. Although direct aiding 
7

and abetting is still a valid theory of liability, and the jury found appellant 

acted with the intent to kill, the Attorney General concedes that, under 

Curiel, that finding is insufficient to establish that the jury made the 

necessary findings to convict appellant of attempted murder as a direct aider 

and abettor. (Curiel, supra, 15 Cal.5th at pp. 460-463.) Therefore, the trial 

court erred in summarily denying appellant’s petition for resentencing as to 

that offense.

Turning to appellant’s murder conviction, the record shows he 

was convicted based on the felony murder rule. Consistent with the law that 

was in effect at the time of appellant’s trial, the jury was instructed it could 

convict appellant under that rule so long as he committed or aided and 

abetted the underlying robbery, and Jones was killed during the commission 

of that offense. (CALCRIM No. 540B.) The jury was not required to find 

appellant possessed any particular intent with respect to the killing itself.

(See generally People v. Chun (2009) 45 Cal.4th 1172, 1184 [under the 

traditional felony murder rule, malice for the killing was imputed to the 

defendant so long as he intended to commit and participated in a qualifying 

felony].)

However, as noted above, Senate Bill 1437 narrowed the scope of 

the felony murder rule. As set forth in section 189, subdivision (e), the rule 

currently states, “A participant in the perpetration or attempted perpetration 

of a felony listed in subdivision (a) [including robbery] in which a death 

occurs is liable for murder only if one of the following is proven: [¶] (1) The 

person was the 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 
8

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.” So, unless the jury made the 

necessary findings to convict appellant under one of these three theories, he 

is not barred from obtaining relief under section 1172.6. (Curiel, supra, 15 

Cal.5th at pp. 463-471.)

The Attorney General admits that for purposes of subdivisions 

(e)(1) and (e)(3) of section 189, the jury did not find appellant was the actual 

killer or that he was a major participant who acted recklessly indifferent to 

human life. Therefore, appellant is not ineligible for resentencing by virtue of 

those subdivisions. That leaves section 189(e)(2) as the only possible basis for 

disqualifying him.

We know from its true finding on the gang special circumstances 

allegation that the jury found appellant acted with the intent to kill, which 

satisfies the mens rea requirement under section 189(e)(2). That being the 

case, appellant’s eligibility for resentencing on the murder count turns on 

whether the jury also found he “aided, abetted, counseled, commanded, 

induced, solicited, requested, or assisted the actual killer in the commission 

of murder in the first degree.” (§ 189(e)(2).)

There is no finding to that effect in the record of appellant’s 

conviction. Nevertheless, the Attorney General argues appellant is still 

ineligible for resentencing because even though the jury did not find that he 

assisted the actual killer in shooting Jones, it did find that he was involved in 

the underlying robbery. In so arguing, the Attorney General effectively 

equates the actus reus for the new felony murder rule with the actus reus for 

the old felony rule. He would have us hold that although section 189(e)(2) 
9

specifically states the defendant must assist “the actual killer in the 

commission of murder in the first degree” to be liable for felony murder, the 

defendant really only needs to assist the actual killer in committing the 

underlying felony.

This court’s decision in Morris supports that position. In that 

case, over a dissent by Justice Moore, the majority ruled, “A person who, with 

an intent to kill, directly commits or aids and abets an enumerated felony in 

which a death occurs commits the actus reus necessary for felony murder 

under the amended felony murder statute by acting in furtherance of the 

common design of the felony. [Citation.]” (Morris, supra, 100 Cal.App.5th at 

p. 1020; accord, People v. Lopez (2023) 88 Cal.App.5th 566 [holding likewise 

in a similarly split decision].) The Attorney General urges us to reach the 

same conclusion here. However, for the reasons explained below, we decline 

to do so. 

“‘“As in any case involving statutory interpretation, our 

fundamental task here is to determine the Legislature’s intent so as to 

effectuate the law’s purpose.” [Citation.] “We begin by examining the 

statutory language, giving it a plain and commonsense meaning. [Citation.] 

We do not, however, consider the statutory language in isolation; rather, we 

look to the entire substance of the statutes in order to determine their scope 

and purposes. [Citation.] That is, we construe the words in question in 

context, keeping in mind the statutes’ nature and obvious purposes. 

[Citation.] We must harmonize the various parts of the enactments by 

considering them in the context of the statutory [framework] as a whole. 

[Citation.]”’” (People v. Lipscomb (2022) 87 Cal.App.5th 9, 17.)
10

By its terms, section 189(e)(2) speaks to the situation where the 

defendant intends to kill but is not the actual killer. In that scenario, the 

statute says the defendant must assist the killer in the commission of murder 

in the first degree to be liable for felony murder. It does not say the defendant

need only assist the killer in the commission of the underlying felony. Yet, 

because first degree murder includes felony murder, the majority in Morris

determined that assisting the killer in the underlying felony will suffice to 

satisfy the actus reus of section 189(e)(2). (Morris, supra, 100 Cal.App.5th at 

pp. 1025-1026.) 

We believe that, looking at section 189 as a whole, it is clear the 

Legislature intended to draw a distinction between assisting first degree 

murder and assisting the underlying felony. That becomes apparent when we 

contrast the language of section 189(e)(2) with the language of section 189, 

subdivision (e)(3), which applies when the defendant “was a major 

participant in the underlying felony and acted with reckless indifference to 

human life[.]” (§ 189, subd. (e)(3) (section 189(e)(3)).)

Whereas the actus reus requirement of section 189(e)(3) is 

phrased in terms of participation in the “underlying felony,” section 189(e)(2) 

speaks of assisting the commission of “murder in the first degree.” The use of 

different wording to convey the actus reus requirements for these 

subdivisions is significant. Indeed, the law is well established that when “the 

Legislature uses materially different language in statutory provisions 

addressing the same subject or related subjects, the normal inference is that 

the Legislature intended a difference in meaning.” (People v. Trevino (2001) 

26 Cal.4th 237, 242.)
11

Comparing subdivisions (e)(2) and (e)(3) of section 189 side by 

side, it is reasonable to conclude the Legislature was aware of and intended 

to draw a distinction between mere involvement in the underling felony and 

involvement in the murder itself. Yet, under the Morris majority’s 

interpretation of the statute, the use of different terminology in these 

provisions carries no legal significance. We cannot subscribe to an 

interpretation of section 189, subdivision (e) that treats materially different 

terms as if they meant the same thing.

By interpreting section 189(e)(2) to merely require assistance in 

the underlying felony, the Morris majority also renders other aspects of 

section 189, subdivision (e) meaningless, which contravenes another 

convention of statutory interpretation. (See People v. Griffin (2004) 33 

Cal.4th 1015, 1027 [one part of a statute should not be construed so as to 

make another part of the statute nugatory or redundant].) This becomes 

apparent when we look at the opening paragraph of section 189, subdivision 

(e). 

That paragraph makes it clear that assistance in the commission 

of a qualifying felony is a foundational requirement for all felony murders. It 

states, “A participant in the perpetration or attempted perpetration of a 

[qualifying] felony . . . in which a death occurs is liable for murder only if one 

of the following is proven . . . .” (§ 189, subd. (e).)

This wording indicates that something more than mere assistance 

in the commission of the felony is required to satisfy the actus reus 

requirement in section 189(e)(2), otherwise the language in that provision 

would be superfluous. That something more is spelled out in the statute. In 

addition to requiring the defendant to assist the underlying felony, the 
12

statute requires the defendant to assist the actual killer in the commission of 

first degree murder. (§ 189, subd. (e)(2).) To avoid redundancy, that must 

mean assisting the killer in the commission of the murderous act itself, not 

just the underlying felony.

Although the wording and structure of section 189, subdivision 

(e) undermine the Morris majority’s interpretation of that provision, the 

majority justified its holding on the belief that it was consistent with the 

Supreme Court’s decision in Curiel, supra. But Curiel was a direct aiding and 

abetting case, not a felony murder case. The Supreme Court went out of its 

way to make clear its holding was limited to the specific facts and theories 

that were presented in that case. (Curiel, supra, 15 Cal.5th at pp. 470, fn. 7 & 

471.)

As the Morris majority pointed out, the Curiel court did pose a 

hypothetical involving the felony murder rule at one point of its analysis.

(Morris, supra, 100 Cal.App.5th at p. 1026.) However, that hypothetical 

assumed the actus reus requirement for felony murder was established; it did 

not purport to define that requirement in the first instance. (Curiel, supra, 15 

Cal.5th at p. 464.) Therefore, unlike the majority in Morris, we do not read 

the hypothetical as clarifying that requirement.3

3 At the time Curiel was decided, neither did the Attorney 

General. Now he contends the Curiel hypothetical lends credence to the 

majority opinion in Morris. We note, however, that in response to an amicus 

curiae request to modify the Curiel opinion to make clear the hypothetical 

was not intended to reflect the court’s understanding of the requirements for 

felony murder under section 189(e)(2), the Attorney General conceded the 

hypothetical did not provide an exhaustive list of all the elements necessary 

to impose liability under that section.
13

The Morris majority also relied on People v. Dickey (2005) 35 

Cal.4th 884 (Dickey), in coming to its conclusion about section 189(e)(2)’s 

actus reus requirement. In Dickey, the Supreme Court interpreted the special 

circumstances provision contained in former section 190.2, subdivision (b).

That provision provided, “‘Every person whether or not the actual killer 

found guilty of intentionally aiding, abetting . . . or assisting any actor in the 

commission of murder in the first degree shall suffer death or confinement in 

state prison for a term of life without the possibility of parole[.]’” (Dickey, 

supra, 35 Cal.4th at p. 900, italics omitted, quoting former § 190.2, subd. (b); 

see now § 190.2, subd. (c).)

Dickey argued this language required proof he assisted the 

subject killings themselves, not just the underlying felonies during which the 

killings were committed. (Dickey, supra, 35 Cal.4th at p. 900.) That argument 

did not go over well because unlike section 189(e)(3), which requires the 

defendant to assist the “actual killer” in committing first degree murder, 

former section 190.2, subdivision (b) applied more broadly whenever the 

defendant assisted “any actor” in the commission of that offense. Applying

the old felony murder rule that swept up all manners of assistance within its 

ambit, the Supreme Court ruled the language in former section 190.2, 

subdivision (b) applied whenever the defendant aided and abetted a felony 

that led to the victim’s death. (Dickey, supra, 35 Cal.4th at p. 400.)

However, the felony murder rule has undergone a significant 

transformation since Dickey was decided. Precisely because it was so 

sweeping in its scope, the Legislature narrowed the felony murder rule 

through the enactment of Senate Bill 1437 to ensure the defendant’s 

punishment is commensurate with his culpability. (People v. Lewis, supra, 11 
14

Cal.5th at p. 971.) One of the ways it did that is by tethering the assistance 

requirement in section 189(e)(2) to the “actual killer,” as opposed to “any 

actor.” This word choice indicates the Legislature intended to require a closer 

nexus between the defendant’s actions and the actual killing than was 

previously required under Dickey.

We thus find Dickey to be of little value in our analysis of section 

189(e)(2). That decision would obviously be binding if we were interpretating 

the very same statutory language at issue in that case. (Auto Equity Sales, 

Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) However, as Justice Moore 

pointed out in her Morris dissent, “the Supreme Court’s nearly two-decadesold analysis in Dickey does not apply to California’s current felony-murder 

rule.” (Morris, supra, 100 Cal.App.5th at p. 1033 (Moore, J., dissenting); cf. 

People v. Ervin (2021) 72 Cal.App.5th 90, 108 [jury’s finding that the 

defendant assisted “another” in carrying out the crime of murder was 

insufficient to satisfy section 189(e)(2)’s requirement that the defendant 

assist “the actual killer”].)

In interpreting section 189(e)(2), the Morris majority also found it 

significant that section 189(e)(3) imposes felony murder liability on any 

person who was a major participant in the underlying felony and acted with

reckless indifference to human life. The majority expressed concern that if

section 189(e)(2), which requires the intent to kill, were interpreted to require

assistance in the murderous act itself, “a person harboring the heightened 

mental state of . . . express malice . . . would need to engage in a more 

significant act vis-à-vis the killing, namely assist the killing itself, than 

someone with the less culpable mental state of reckless indifference to human 
15

life, who would simply have to be a major participant in the underlying 

felony.” (Morris, supra, 100 Cal.App.5th at p. 1027.)

The Morris majority rejected that interpretation for fear it would

contravene the proportionality objective behind Senate Bill 1437. (Morris, 

supra, 100 Cal.App.5th at p. 1027.) However, there certainly could be 

situations where that would not be the case, such as when the defendant 

offers minor assistance to a qualifying felony not expecting (but secretly 

hoping) it will result in the death of another human being. Under that 

scenario, the defendant would be liable for felony murder under the Morris

majority’s interpretation of section 189(e)(2) if a death occurred during the 

felony, even if he was not present at the scene of the killing. But, despite 

harboring a malicious mindset, he could actually be less culpable than 

someone whose participation in the felony was so considerable that it 

amounted to reckless indifference to human life for purposes of section 

189(e)(3). (See People v. Banks (2015) 61 Cal.4th 788, 801 [the reckless 

indifference requirement is established when a person is “willingly involved 

in the violent manner in which the particular offense is committed, 

demonstrating reckless indifference to the significant risk of death his or her 

actions create.”].)

That would explain why the Legislature required assistance in 

the commission of first degree murder in section 189(e)(2), but it only 

required assistance in the underlying felony in section 189(e)(3). The 

Legislature presumably understood that culpability is derived from both the 

defendant’s mental state and his actions, not one or the other. Our concern is 

that the Morris majority used the intent to kill requirement in section 

189(e)(2) as a justification for eviscerating the remaining elements in that 
16

provision. While the intent to kill is certainly a blameworthy mental state, 

standing alone it is not sufficient to render a defendant ineligible for 

resentencing. (Curiel, supra, 15 Cal.5th at pp. 461-468 [although the 

legislative history of Senate Bill 1437 makes clear that malice is generally 

considered a necessary prerequisite for murder, “[i]t is only one element. It 

does not by itself establish any valid theory of liability.”].) 

In attempting to defend the Morris majority’s interpretation of 

section 189(e)(2), the Attorney General makes an additional argument 

regarding the interplay between that provision and section 189(e)(3). Namely, 

he asserts that interpreting the former provision to require proof that the 

defendant assisted the killer in committing the murderous act would render 

the latter provision superfluous.

This argument is based on two assumptions. First, assisting a 

murder with the intent to kill is the same as directly aiding and abetting the 

crime of murder. Second, directly aiding and abetting a felony is the 

functional equivalent of being a major participant in a felony for purposes of 

section 189(e)(3). Both of these assumptions are incorrect.

Contrary to the Attorney General’s assertion, interpreting section 

189(e)(2) to require assistance in the murderous act is not the same as 

requiring proof the defendant directly aided and abetted the crime of murder.

Curiel made this evident by clarifying that to be liable for directly aiding and 

abetting a murder, the defendant must not only possess the intent to kill, he 

must also aid “‘the commission of that offense with “knowledge of the direct 

perpetrator’s unlawful intent and [with] an intent to assist in achieving those 

unlawful ends.”’ [Citation.]” (Curiel, supra, 15 Cal.5th at p. 463.) In other 
17

words, the necessary mental state consists of both “intent and knowledge.”

(In re Lopez (2023) 14 Cal.5th 562, 579.)

In comparison, section 189(e)(2) merely requires the defendant to 

aid, abet or assist the actual killer in committing first degree murder. Even 

when the defendant harbors malice, assisting is not the same as aiding and 

abetting, as that term was defined in Curiel. Although section 189(e)(2) uses 

language that is commonly associated with direct aiding and abetting, it does 

not contain all the elements of that theory of liability. (See Curiel, supra, 15 

Cal.5th at pp. 464-465; In re Lopez, supra, 14 Cal.5th at pp. 587-588.)

Even if it did, that would not render section 189(e)(3) superfluous 

because, contrary to the Attorney General’s claim, not everyone who directly 

aids and abets a murder is liable for murder as a major participant under 

that section. In fact, our Supreme Court has made it clear that in order to 

satisfy the major participant element in section 189(e)(3), the defendant’s 

personal involvement must be “greater than the actions of an ordinary aider 

and abettor[.]” (People v. Banks, supra, 61 Cal.4th at p. 802.) This 

requirement gives section 189(e)(3) independent force and meaning, apart 

from the liability described in section 189(e)(2). 

For better or worse—and that is not our call to make—the People 

of the state, through their legislators, have determined that we defined 

murder too broadly in the last century. They enacted sweeping reforms to 

pull back from those definitions. To now rule that their intention was to 

define murder as broadly as would our dissenting colleague seems to us 

contrary to the language and goal of that legislation. We would leave it to 

them to make such an intention clearer.
18

DISPOSITION

The trial court’s order denying appellant’s section 1172.6 petition 

for resentencing is reversed, and the matter is remanded for the issuance of 

an order to show cause and an evidentiary hearing on appellant’s entitlement 

to resentencing on his convictions for both first degree murder and attempted 

murder.

BEDSWORTH, ACTING P. J.

I CONCUR:

MOORE, J.
1

GOODING, J., Dissenting. 

I respectfully dissent. 

I agree with the analyses and conclusions set forth in People v. Lopez (Aug. 27, 

2024, G061870) Cal.App.5th [2024 Cal.App.LEXIS 527]) and in the majority 

opinion in People v. Morris (2024) 100 Cal.App.5th 1016, review granted July 17, 2024, 

S284751, and believe those cases were correctly decided. I therefore would affirm the 

trial court’s denial of defendant’s petition for resentencing under Penal Code section 

1172.6.

GOODING, J.