1

Filed 3/22/24 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

RICHARD CURTIS MORRIS, JR.,

 Defendant and Appellant.

 G061916

 (Super. Ct. No. 08CF1591)

 O P I N I ON 

Appeal from a postjudgment order of the Superior Court of Orange County, 

Lewis W. Clapp, Judge. Affirmed.

Robert F. Somers, 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, Lynne G. McGinnis and 

Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
2

This case calls on us to address the actus reus required to convict a 

nonkiller of first degree murder under the amended felony-murder statute when the 

nonkiller acts with an intent to kill. (Pen. Code, § 189, subd. (e)(2)). Defendant Richard 

Curtis Morris, Jr., previously convicted of first degree murder with rape, robbery, and 

murder for financial gain special circumstances, appeals from the trial court’s summary 

denial of his petition for resentencing (Petition) under Penal Code section 1172.6.

1 He 

contends that to convict a nonkiller of first degree murder under the amended felonymurder statute when the nonkiller acts with an intent to kill, the prosecution must prove 

the nonkiller assisted the actual killer in the killing itself. According to him, the record of 

conviction in this case, at most, demonstrates the jury found he aided an actor in 

committing the underlying felonies, which is an insufficient basis for denying a 

resentencing evidentiary hearing.

We disagree with defendant on the law and its application in this case. 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. (See People v. Curiel (2023) 15 Cal.5th 433, 464 (Curiel).) The jury instructions 

and jury verdicts in this case establish the jury necessarily concluded defendant possessed 

an intent to kill during the commission of the underlying felonies and aided and abetted 

the actual killer in committing those felonies. Because the record of conviction 

establishes, as a matter of law, defendant is not eligible for resentencing, the trial court 

1 All further statutory references are to the Penal Code. Defendant filed the 

Petition in May 2022 pursuant to former section 1170.95. Effective June 30, 2022, the 

Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) 

There were no substantive changes to the statute. For purposes of clarity, we refer to the 

statute as section 1172.6.
3

properly denied the Petition without issuing an order to show cause and holding an 

evidentiary hearing. Accordingly, we affirm the postjudgment order.

FACTS2

“James Stockwell owned the Mustang Club topless bar. On January 1, 

1987, Stockwell returned to his condominium with his girlfriend, [S.]F., about 11:00 p.m. 

As they entered the condominium from the garage, [S.F.] and Stockwell were attacked by 

a man carrying a gun. As instructed, [S.F.] and Stockwell lay down on the dining room 

floor. As Stockwell was being handcuffed, [S.F.] noticed the presence of a second man. 

[S.F.] and Stockwell offered the men money and jewelry, and Stockwell offered to take 

them to his club to obtain more money.

“One of the men took Stockwell upstairs. The other man then took [S.F.] 

upstairs; she saw Stockwell face down at the top of the stairs, where he was negotiating 

with the men. The men took [S.F.] into a bedroom. Both raped her. One of the men then 

tied [S.F.] up and told her they were going to take Stockwell to the club.

“After the men left in Stockwell’s Camaro, [S.F.] saw Stockwell on the 

floor, and realized he had been shot. [S.F.] had not heard any gunshots. [S.F.] ran to a 

neighbor’s home for help. When she and the neighbor returned to her condominium, they 

discovered Stockwell was dead. A .22-caliber shell casing was found near Stockwell’s 

body. Stockwell died as a result of a single gunshot wound to the head from a small 

caliber bullet.

“A standard forensic sexual assault examination was performed on [S.F.] at 

the hospital, and various samples were collected from [S.F.]’s clothes and body. In 1987, 

blood type analysis was performed on the samples; DNA analysis was not then available. 

2 We summarize the facts of the underlying crimes for context, and to do so 

we draw from the unpublished opinion issued by another panel of this court concerning

defendant’s direct appeal following his conviction. (People v. Morris (Mar. 18, 2015, 

G048926) [nonpub. opn.] (Morris I).)
4

The samples were analyzed again in 2009 and 2012, using DNA testing. Defendant’s 

DNA matched the DNA from the samples on all 15 markers used. . . .” (Morris I, supra,

G048926.)

PROCEDURAL BACKGROUND

In 2013, a jury found defendant guilty of first degree murder (§ 187, subd. 

(a)). It also found true three special circumstances—murder for financial gain (§ 190.2, 

subd. (a)(1)); murder during the commission of a robbery (id. at subd. (a)(17)(A)); and 

murder during the commission of a rape (id. at subd. (a)(17)(C)). After finding true an 

alleged prior serious felony conviction, the court sentenced defendant to life without the 

possibility of parole, plus a consecutive determinate term of five years. The ensuing 

judgment was affirmed on appeal. (Morris I, supra, G048926.)

Roughly nine years later, defendant filed the Petition seeking resentencing 

pursuant to section 1172.6. After the trial court appointed counsel for defendant, the 

parties provided briefing. Defendant argued he made the requisite prima facie showing 

of entitlement to relief because he could have been convicted of first degree murder under 

a now invalid felony-murder theory, meaning the court should issue an order to show 

cause and hold an evidentiary hearing. The People opposed the Petition, contending the 

jury instructions and jury special circumstance findings evidenced, as a matter of law, 

defendant was not entitled to resentencing relief.

The trial court held a hearing at which it summarily denied the Petition. In 

a written statement of decision, the court explained: although the jury was instructed on 

two theories of first degree murder, namely premeditated and deliberate murder and 

felony murder, the jury was also instructed on three felony-murder special circumstances; 

the special circumstance instructions required a finding of specific intent to kill; and, the 

jury’s true finding concerning each special circumstance meant it necessarily concluded 

defendant acted with an intent to kill, precluding him from resentencing eligibility as a 

matter of law.
5

Defendant timely appealed.

DISCUSSION

Defendant contends the denial of the Petition at the prima facie stage was 

error because the jury could have convicted him of first degree murder under a now 

invalid felony-murder theory. Specifically, he argues nothing in the record of conviction 

evidences the jury made a finding that would satisfy the applicable actus reus required 

under the amended felony-murder statute. From his perspective, this means the record of 

conviction does not establish his resentencing ineligibility as a matter of law, and 

therefore, he is entitled to an evidentiary hearing. We conclude defendant’s position is 

based on a misinterpretation of the relevant law, and application of the correct law 

demonstrates the trial court did not err.

I. The Section 1172.6 Framework and Standard of Review

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was

enacted to “amend 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.” 

(Stats. 2018, ch. 1015, § 1, subd. (f).) It accomplished that purpose by substantively 

amending sections 188 and 189, and adding what later became section 1172.6.

Under section 188, subdivision (a)(3), as amended, “[m]alice shall not be 

imputed to a person based solely on his or her participation in a crime.” And under 

section 189, as amended, to be liable for felony murder, a person must be one of the 

following: (1) the actual killer; (2) although not the actual killer, a person who “with the 

intent to kill, aided, abetted . . . or assisted the actual killer in the commission of murder 

in the first degree”; or (3) a major participant in the underlying felony who acted with 

reckless indifference to human life. (§ 189, subd. (e).)
6

Persons convicted of felony murder or murder under a natural and probable 

consequences theory may seek resentencing pursuant to section 1172.6. (People v. 

Strong (2022) 13 Cal.5th 698, 708 (Strong).) The process begins with the filing of a 

petition in the court which sentenced the defendant. (§ 1172.6, subd. (a); People v. Lewis

(2021) 11 Cal.5th 952, 959 (Lewis).) Upon receipt of a petition, the court examines 

whether the petition, on its face, complies with statutory requirements. (§ 1172.6, subd. 

(b)(2); Lewis, at p. 960.) If it does, the court reviews the petition, any briefing submitted 

by the prosecution and the petitioner, and readily ascertainable information, such as the 

record of conviction, to determine if the petitioner has made a prima facie case for relief. 

(§ 1172.6, subd. (c).) The record of conviction includes, inter alia, jury instructions and

verdict forms. (People v. Harden (2022) 81 Cal.App.5th 45, 50 (Harden).) “In 

reviewing any part of the record of conviction at [the prima facie stage], a trial court 

should not engage in ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’” (Lewis, at p. 972.)

If the record of conviction establishes, as a matter of law, the petitioner is 

not eligible for resentencing, the court may summarily deny the petition without further 

proceedings. (Strong, supra, 13 Cal.5th at p. 708; Harden, supra, 81 Cal.App.5th at p.

52.) If, on the other hand, the petitioner would be entitled to relief if his or her factual 

allegations were proven, the court must issue an order to show cause. (Strong, at p. 708.) 

At a subsequent hearing, the parties may offer new evidence and the prosecution bears 

the burden of proving, beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing — i.e., would be guilty of murder under the amended statutes. (§ 1172.6, 

subd. (d)(3); Lewis, supra, 11 Cal.5th at p. 960; Harden, at p. 51.)

We apply the de novo standard of review to an appeal from a trial court’s 

denial of a section 1172.6 petition at the prima facie stage. (Harden, supra, 81 

Cal.App.5th at p. 52.)
7

II. The Jury Instructions

At defendant’s trial, the court instructed the jury on two theories of first 

degree murder liability: a premeditated and deliberate murder, and the former felonymurder rule. The jury was also instructed on aiding and abetting in the context of a 

felony murder: “In order to be guilty of murder[] as an aider and abettor to a felony 

murder, the accused and the killer must have been jointly engaged in the commission of 

the [r]ape and/or [r]obbery at the time the fatal wound was inflicted.”

With respect to the special circumstance allegations, the court instructed the 

jury with general special circumstance instructions, as well as instructions specific to the 

rape, robbery, and financial gain allegations against defendant. A CALJIC 8.80

instruction provided, in relevant part: “If you find the defendant in this case guilty of 

murder of the first degree, you must then determine if one or more of the following 

special circumstances is true: murder during the commission or attempted commission of 

a rape, murder during the commission or attempted commission of a robbery, and murder 

for financial gain. [¶] . . . [¶] If you find beyond a reasonable doubt that the defendant 

was either the actual killer or an aider or abettor but you are unable to decide which, then 

you must also find beyond a reasonable doubt the defendant with an intent to kill aided 

and abetted an actor in the commission of the murder in the first degree in order to find 

the special circumstance to be true. On the other hand, if you find beyond a reasonable 

doubt that the defendant was the actual killer, you need not find the defendant intended to 

kill a human being in order to find the special circumstance true.” A separate instruction 

requested by defendant and given to the jury read: “In order to find the special 

circumstances true for a defendant who is not the actual killer, or when you cannot decide 

whether he is the actual killer or an aider and abettor, the People must prove that [sic]

beyond a reasonable doubt that the defendant acted with the intent to kill.” 
8

III. The Dispute

The prosecution contended below, and maintains on appeal, defendant is 

not eligible for resentencing as a matter of law because of the jury’s true findings 

concerning the special circumstance allegations. So the argument goes, the jury 

instructions required the jury to find defendant acted with an intent to kill and a finding of 

such an intent precludes defendant from obtaining section 1172.6 relief.

Defendant does not dispute the jury’s mens rea finding of intent to kill or 

the relevance of such a finding on liability under the amended felony-murder statute. 

Instead, for the first time on appeal, he focuses on the actus reus component of felony 

murder for an aider and abettor. Specifically, he notes a subtle difference in language 

between the CALJIC 8.80 instruction given to the jury in his case and the portion of 

amended section 189 which concerns a person who is not the actual killer. The former 

required the jury to find “the defendant with an intent to kill aided and abetted an actor in 

the commission of the murder in the first degree . . . .” The latter requires a finding the 

defendant, “with the intent to kill, aided, abetted . . . or assisted the actual killer in the 

commission of murder in the first degree.” (§ 189, subd. (e)(2).) Based on the 

discrepancy, defendant argues the jury could have found the special circumstances true 

by concluding he simply aided and abetted someone in the underlying felonies, whereas 

the amended felony-murder statute necessitates aiding and abetting the actual killer in the 

killing itself. We turn first to construction of the relevant statutory language.

IV. Actus Reus for Felony Murder Under Amended Section 189

As amended, section 189 provides, in relevant part, that “[a]ll

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

perpetrate, . . . rape . . . [or] robbery . . . is murder of the first degree.” (§ 189, subd. (a).) 

That a murder occurs during the commission of such a felony, however, is insufficient 

standing alone to convict a person. Rather, one of the following must also be satisfied: 

“(1) [t]he person was the actual killer[;] [¶] (2) [t]he person was not the actual killer, but, 
9

with the intent to kill, aided, abetted . . . or assisted the actual killer in the commission of 

murder in the first degree[; or] [¶] (3) [t]he person was a major participant in the 

underlying felony and acted with reckless indifference to human life, as described in 

subdivision (d) of [s]ection 190.2.” (§ 189, subd. (e).) The focus in this case is the 

second category of persons.

Unlike the actual killer, a person who is not the actual killer must both have 

a certain mental state (mens rea) and have engaged in a specified act (actus reus) to be 

convicted of felony murder under the amended statutes. (§ 189, subds. (e)(1) & (2); see 

People v. Lopez (2023) 88 Cal.App.5th 566, 581 (Lopez), review den. May 31, 2023, 

S279347 [intent to kill plus aiding actual killer in committing first degree murder]; 

Strong, supra, 13 Cal.5th at p. 703 [major participant plus reckless indifference to human 

life].) The relevant mens rea in this case, which is indisputably evidenced by the record 

of conviction, is an intent to kill. (§ 189, subd. (e)(2).) The actus reus component 

requires a closer analysis.

The statute speaks of aiding “the actual killer in the commission of murder 

in the first degree.” (§ 189, subd. (e)(2).) This phrase is a legal term of art which, 

contrary to defendant’s assertion, is not limited to assisting the killing itself. Although 

“murder in the first degree” may still be committed by an actual killer through a willful, 

deliberate and premeditated act, that is not the only way. Someone who personally 

commits what turns out to be the homicidal act while acting in furtherance of the 

common design of an enumerated felony, would also be guilty of first degree murder as 

an actual killer under the amended statutes. (See § 189, subds. (a) & (e)(1); People v. 

Pulido (1997) 15 Cal.4th 713, 716 [felony-murder homicidal act involves killing while 

acting in furtherance of common design]; People v. Washington (1965) 62 Cal.2d 777, 

782-783 [to constitute felony murder, killing must be committed by person jointly 

engaged in underlying felony and done in furtherance of common design]; People v. 

Bodely (2023) 95 Cal.App.5th 1193, 1199 [no mens rea requirement for actual killer 
10

under amended felony-murder statute]; People v. Vang (2022) 82 Cal.App.5th 64, 88 

[person who personally commits homicidal act is actual killer under amended felonymurder statute].) With such an act occurring in furtherance of the underlying common 

design, all others who are engaged in the commission of the felony—i.e., acting in 

furtherance of the common design—would necessarily be aiding the killer in the 

commission of murder in the first degree. Thus, the actus reus required for those 

possessing an intent to kill is simply aiding the underlying felony in which a qualifying 

death occurs. (People v. Hollywood (Feb.28, 2024, B323018) __Cal.App.5th __, __ 

[2024 WL 8323201]; Lopez, supra, 88 Cal.App.5th at pp. 577-578.)

The Supreme Court’s recent decision in Curiel lends credence to such an 

interpretation.3 There, in providing a contrasting example to the direct aiding and 

abetting and natural and probable consequences case before it, the court discussed the 

jury findings that would ordinarily preclude a nonkiller felony-murder defendant from 

resentencing eligibility. (Curiel, supra, 15 Cal.5th at p. 464.) Citing section 189, 

subdivision (e)(2), it explained that if a jury made findings of (1) an “intent to kill,” 

(2) “the commission or attempted commission of a felony enumerated in the statute,” and 

(3) “the death of a person during the commission or attempted commission of the 

enumerated felony,” “the jury’s findings would conclusively establish all of the elements 

of felony murder under current law.” (Curiel, at p. 464.) In such a situation, “the jury’s 

findings would completely refute a petitioner’s allegation that he or she could not 

currently be convicted of murder because of changes to sections 188 and 189.” (Ibid.)

These statements from the Supreme Court clarify that the actus reus embodied in section 

189, subdivision (e)(2) is simply aiding the enumerated felony (or attempted enumerated

felony).

3 The decision in Curiel came after the parties’ original appellate briefing 

was complete. We issued an order requesting supplemental briefing regarding Curiel’s 

impact on this case, and we have considered the supplemental briefs filed by both sides.
11

Our reading of the statute is also consistent with the Supreme Court’s 

earlier decision in People v. Dickey (2005) 35 Cal.4th 884 (Dickey). At issue there was 

the meaning of nearly identical statutory language formerly applicable to felony-murder 

special-circumstance findings: “‘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 . . . .’” (Id. at p. 900, citing former § 190.2, subd. (b).) 

The defendant asserted this language required the prosecution to prove he assisted the 

killings themselves, not just the underlying felonies. (Dickey, at p. 900.) The high court 

rejected the argument, explaining that one who aids and abets the commission of an 

underlying felony necessarily aids and abets first degree murder when another felony 

actor kills while acting in furtherance of the felony’s common design. (Ibid.) In other 

words, assisting the underlying felony satisfies the actus reus embodied by the phrase 

“assisting someone in the commission of murder in the first degree.”

We recognize the statutory language considered in Dickey referenced 

assisting “any actor” (Dickey, supra, 35 Cal.4th at p. 900), whereas the statutory 

provision at issue in this case speaks of assisting “the actual killer” (§ 189, subd. (e)(2)). 

The distinction is of no import to the issue before us. Before the amendments, and now, 

the person who kills while acting in furtherance of the common design of the underlying 

felony is the actual killer and is guilty of first degree murder irrespective of his or her 

mental state regarding the killing. (See People v. Garcia (2022) 82 Cal.App.5th 956, 

962-964, 967-968 [describing actual killer’s liability under former felony-murder rule 

and concluding no indication Legislature intended to modify felony-murder rule as 

applied to actual killer].)

Our interpretation is also consistent with the legislative history of Senate 

Bill 1437. Among the Legislature’s expressed purposes for adopting the statutory 

amendments was “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 
12

underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 

1015, § 1.) The focus for the second category of persons was the mens rea, not the actus 

reus. This is underscored by statements in the final Senate report concerning the 

legislation: “This bill does not eliminate the felony murder rule. The purpose of this bill 

is to merely revise the felony murder rule to prohibit a participant in the commission or 

attempted commission of a felony that has been determined as inherently dangerous to 

human life to be imputed to have acted with implied malice, unless he or she personally 

committed the homicidal act.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis 

of Sen. Bill No. 1437 (2017–2018 Reg. Sess.) as amended Aug. 30, 2018, p. 7.)

Defendant urges us to interpret the statute to require an act that aids the 

killer in committing the killing for a person who possesses an intent to kill to be 

convicted under a felony-murder theory. This is not only inconsistent with the Supreme 

Court’s statement in Curiel and the language of the statute discussed above which 

references “murder in the first degree,” not “killing,” but it also runs contrary to express 

legislative intent. An overarching goal of the Legislature was to ensure a person would 

be punished “according to his or her own level of individual culpability,” or stated 

differently, to “more equitably sentence offenders in accordance with their involvement 

in homicides.” (Stats. 2018, ch. 1015, § 1.) Under defendant’s interpretation, a person 

harboring the heightened mental state of an intent to kill (i.e., 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 life, 

who would simply have to be a major participant in the underlying felony. Wellestablished principles of statutory interpretation caution against adopting an interpretation 

that runs counter to express legislative intent. (Allen v. Sully-Miller Contracting Co.

(2002) 28 Cal.4th 222, 227; People v. Crowles (1993) 20 Cal.App.4th 114, 118.)

People v. Ervin (2021) 72 Cal.App.5th 90 (Ervin), a murder resentencing 

case on which defendant heavily relies, is unavailing. There, in the underlying trial, the 
13

prosecution pursued two theories of first degree murder liability related to the death of a 

person whom defendant allegedly shot while committing a robbery with others: 

premeditated and deliberate murder, and felony murder. (Id. at p. 103.) The jury 

convicted the defendant of first degree murder and found true two felony-murder specialcircumstance sentencing enhancement allegations. (Ibid.) It simultaneously found not 

true an allegation the defendant personally used a firearm in the commission of the 

murder. (Ibid.) The special circumstance instruction given stated that if the jury could 

not decide whether the defendant was the actual killer or an aider and abettor, then to find 

the special circumstance allegations true it needed to find the defendant “‘intended either 

to kill a human being or to aid another in the killing of a human being[.]’” (Id. at p. 107, 

italics omitted.)

At the prima facie stage concerning the defendant’s resentencing petition, 

the trial court agreed with the prosecution that the jury’s felony-murder specialcircumstance findings precluded the defendant from resentencing eligibility and denied 

the petition. (Ervin, supra, 72 Cal.App.5th at p. 100.) Another panel of this court 

reversed on appeal, concluding the special circumstance findings were not conclusive as 

a matter of law. (Id. at p. 111.) Two particularities led to that conclusion. First, at 

multiple points during the closing arguments, the prosecutor wrongly conveyed the jury 

could find the special circumstances true by simply finding the defendant participated in 

the underlying felony during which a person was killed without any mens rea finding. 

(Id. at pp. 109-110.) Second, the prosecutor based its case on the defendant being the 

actual shooter, but the jury found not true the allegation he used a firearm in committing 

the murder. (Id. at pp. 110-111.) From these case specific circumstances, Ervin reasoned 

“it [was] possible the jurors misinterpreted the [special circumstance] instruction” to 

mean they could find the special circumstances true by generally finding the defendant 

aided and abetted the commission of the underlying felonies and nothing more. (Id. at 

pp. 108-109.) According to Ervin, such a possible finding was not enough to preclude 
14

resentencing as a matter of law because the amended felony-murder statute requires the 

more specific finding of “aid[ing] and abet[ing] ‘the actual killer . . . with the intent to 

kill.” (Id. at p. 109.)

Ervin is not determinative of the matter raised in this case. With respect to 

the law, there is no indication the parties in that case raised a question about the proper 

interpretation of the amended felony-murder provision at issue here. Therefore, it was 

not necessary for the court to employ principles of statutory interpretation, including 

grappling with cases such as Dickey, to make an ultimate determination about the bounds 

of the amended law as it relates to a person who possesses an intent to kill. “Cases are 

not authority, of course, for issues not raised and resolved.” (San Diego Gas & Electric 

Co. v. Superior Court (1996) 13 Cal.4th 893, 943; cf. People v. Gilbert (1969) 1 Cal.3d 

475, 482, fn. 7; Community Cause v. Boatwright (1987) 195 Cal.App.3d 562, 576.) 

Further, the special circumstance jury instruction given in Ervin was markedly different 

than that given to the jury in this case. The Ervin instruction was written in the 

disjunctive with only one portion expressly referencing an intent to kill. Added to the 

extremely unique circumstances evidenced in the record, Ervin effectively concluded the 

jury’s special circumstance findings should not have ascribed to them the same 

implications they would otherwise have in a typical case. Those exceptional 

circumstances are not present here, and the special circumstance instruction given in this 

case clearly required a finding of intent to kill.

V. Application of the Law to Defendant’s Circumstances

Turning to the circumstances in this case, the record of conviction 

demonstrates as a matter of law defendant is not eligible for resentencing. Two jury 

instructions, and the verdicts related thereto, lead us to so conclude.

First, a special circumstance instruction specified that if the jury could not 

decide whether defendant was the actual killer or an aider and abettor, the jury needed to 

“find beyond a reasonable doubt the defendant with an intent to kill aided and abetted an 
15

actor in the commission of the murder in the first degree” in order to render a true finding 

on any of the special circumstances. As previously stated, there is no dispute the jury’s 

true findings on the three special circumstances necessarily mean it concluded defendant 

possessed a mens rea which would be sufficient for a felony-murder conviction under 

amended section 189 — an intent to kill. (§ 189, subd. (e)(2).)

Second, the court gave a felony-murder aider and abettor instruction, which 

provided in relevant part: “In order to be guilty of murder[] as an aider and abettor to 

felony murder, the accused and the killer must have been jointly engaged in the 

commission of the [r]ape and/or [r]obbery at the time the fatal wound was inflicted.”

Thus, if the jury’s first degree murder guilty verdict was based on a conclusion that 

defendant was simply an aider and abettor to felony murder, not the actual killer or a 

direct aider and abettor of premeditated murder (both of which would preclude 

entitlement to resentencing), the jury necessarily found defendant was engaged in 

committing the underlying felonies with “the killer” at the time the homicidal act took 

place. Under our interpretation of the amended felony-murder statute, such a finding 

satisfies the “aid[ing], abet[ing] . . . or assist[ing] the actual killer in the commission of 

murder in the first degree” component.4 (§ 189, subd. (e)(2).)

Because the jury’s verdicts embody findings that could lead to defendant 

being convicted under amended section 189, the record of conviction demonstrates as a 

matter of law defendant is not eligible for resentencing under section 1172.6. It follows 

the trial court did not err by denying the Petition without issuing an order to show cause

and holding an evidentiary hearing.

4 Because we find the relevant actus reus finding is supplied by the first 

degree murder instructions and the guilty verdict with respect thereto, we need not decide 

whether the jury’s special circumstance findings would supply the necessary actus reus 

— a matter on which the dissent hinges its conclusion and the parties disagree.
16

DISPOSITION

The postjudgment order is affirmed.

DELANEY, J.

I CONCUR:

O’LEARY, P. J.
1

Moore, J., Dissenting.

A participant in a designated felony (e.g., a robbery or a rape) may be liable 

for first degree felony murder if a death occurs during the underlying felony. This appeal 

concerns only one theory of liability under California’s revised (current) felony-murder 

rule: “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.” (Pen. Code, § 189, subd. (e)(2).)1

Here, there is no dispute that the record of conviction (the jury instructions 

and the verdicts) establishes as a matter of law that Richard Curtis Morris, Jr., acted with 

the requisite intent to kill (the mens rea). The dispositive issue is whether the record of 

conviction establishes as a matter of law that Morris also committed the requisite acts 

(the actus reus). (See People v. Curiel (2023) 15 Cal.5th 433, 463 (Curiel) [“A finding of 

intent to kill does not, standing alone, cover all of the required elements”].)

The majority and I disagree about the acts the People are required to prove 

(the actus reus) within the meaning of section 189 (e)(2).

“‘When interpreting statutes, we begin with the plain, commonsense 

meaning of the language used by the Legislature. [Citation.] If the language is 

unambiguous, the plain meaning controls.’” (People v. Rodriguez (2012) 55 Cal.4th 

1125, 1131.) “‘If the language is clear and unambiguous there is no need for 

construction, nor is it necessary to resort to indicia of the intent of the Legislature[.]’” 

(Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 850.) Our role “is simply to 

1 Further undesignated statutory references are to the Penal Code; the word “subdivision” 

is omitted throughout. There are only two other theories of liability under the current 

felony-murder rule: “A participant in . . . a [designated] felony . . . in which a death 

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

the actual killer. [¶] . . . [¶] (3) The person was a major participant in the underlying 

felony and acted with reckless indifference to human life . . . .” (§ 189 (e)(1) & (e)(3).)
2

ascertain and declare what the statute contains, not to change its scope by reading into it 

language it does not contain or by reading out of it language it does.” (Vasquez v. State 

of California (2008) 45 Cal.4th 243, 253 (Vasquez).)

The language of section 189 (e)(2) is plain and unambiguous. In a felonymurder prosecution of a nonkiller participant in the underlying felony who acted with the 

intent to kill (the mens rea), the People are required to prove that the defendant aided, 

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

in the commission of first degree murder (the actus reus).

This plain meaning interpretation of section 189 (e)(2) is consistent with 

how trial courts currently instruct jurors on the revised felony-murder rule, using the 

official jury instruction for nonkiller coparticipants in designated felonies. (CALCRIM 

No. 540B.) A trial court first instructs the jury that the actual killer is referred to in the 

instruction as “the perpetrator.” (CALCRIM No. 540B.) The court then instructs the 

jury as to the required elements the People must prove, including, in relevant part: the 

defendant participated in the underlying felony; the defendant intended to kill; and “[t]he 

defendant (aided and abetted[,])/ [or] counseled[,]/ [or]commanded[,]/ [or] induced[,]/ 

[or] solicited[,]/ [or] requested[,]/[or] assisted) the perpetrator in the commission of first 

degree murder . . . .” (CALCRIM No. 540B, italics added.)2

Conversely, the majority interprets the current felony-murder rule to mean 

that for a nonkiller participant in the underlying felony who acts with the intent to kill 

2 “The California jury instructions approved by the Judicial Council are the official 

instructions for use in the state of California. The goal of these instructions is to improve 

the quality of jury decision making by providing standardized instructions that accurately 

state the law in a way that is understandable to the average juror.” (Cal. Rules of Court, 

rule 2.1050(a).) However, the Judicial Council’s official pattern jury instructions are not 

binding authority. (See People v. Mojica (2006) 139 Cal.App.4th 1197, 1204, fn. 4 

[“Although pattern jury instructions are prepared by distinguished legal scholars and 

provide a valuable service to the courts, they are not the law and are not binding”].)
3

(the mens rea), the People need merely to prove as to the required acts (the actus reus) 

that the defendant “was engaged in committing the underlying felonies with ‘the killer’ at 

the time the homicidal act took place.” (Maj. opn., ante, p. 15.)

I respectfully disagree. The majority departs from the plain meaning of 

section 189 (e)(2) and broadens its “scope by reading into it language it does not contain 

[and] by reading out of it language it does.” (See Vasquez, supra, 45 Cal.4th at p. 253.)

To be clear, I agree with the majority that the jury instructions and verdicts 

in the instant case establish as a matter of law that Morris intended to kill, and he was 

engaged in committing the underlying felonies (rape and robbery) with the killer at the 

time the homicidal act took place. (See Maj. opn., ante, pp. 14–15.)

However, without considering the underlying facts, the record of conviction 

does not establish as a matter of law that Morris “aided, abetted, counseled, commanded, 

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

the first degree.” (§ 189 (e)(2).) This actus reus requirement of the current felonymurder rule was understandably never considered, deliberated upon, or found true by the 

jury in Morris’s case. (Accord, People v. Ervin (2021) 72 Cal.App.5th 90, 108–109 [the 

jury found defendant “aided and abetted another in the commission of the robbery or 

burglary (that ultimately led to the killing of a human being), rather than a more specific 

finding that [he] aided and abetted ‘the actual killer . . . with the intent to kill’”].)

Thus, I would reverse the trial court’s ruling, which denied Morris’s 

petition at the prima facie stage and remand the matter for an evidentiary hearing. 

(Former § 1170.95; now § 1172.63; People v. Lewis (2021) 11 Cal.5th 952, 972 [“In 

reviewing any part of the record of conviction at [the prima facie stage], a trial court 

should not engage in ‘factfinding involving the weighing of evidence’”].)

3 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, 

with no change in text (Stats. 2022, ch. 58, § 10).
4

The majority’s holding largely relies on the Supreme Court’s analysis in 

People v. Dickey (2005) 35 Cal.4th 884 (Dickey). But in Dickey, the Court was not

interpreting the current felony-murder rule: aiding and abetting “the actual killer in the 

commission of murder in the first degree.” (§ 189, subd. (e)(2), italics added.) The Court 

was interpreting the former felony-murder special-circumstance enhancement: aiding 

and abetting “any actor in the commission of the murder in the first degree.”

(§ 190.2, former subd. (b), added by initiative measure Prop. 7, § 6, approved by the 

electorate Nov. 7, 1978, italics added.) The Court rejected defendant’s argument that 

“the prosecution was required to prove, not only that he aided and abetted the burglaries 

and robberies, but also that he ‘assisted in the killings themselves.’” (Dickey, at p. 900.) 

However, the Supreme Court’s analysis in Dickey was explicitly premised 

on the former felony-murder rule: “All persons aiding or abetting the commission of 

burglary or robbery are guilty of first degree murder when one of them kills while acting 

in furtherance of the common design.” (Dickey, supra, 35 Cal.4th at p. 900.) Under the 

former (now defunct) felony-murder rule, any person (i.e., any actor) who participated in 

the underlying felony with the killer at the time the homicidal act took place was guilty of 

first degree felony murder, regardless of intent. But the scope of the current felonymurder rule is narrower than the scope of the former felony-murder rule that was 

analyzed and applied in Dickey. (See People v. Strong (2022) 13 Cal.5th 698, 703 [“the 

Legislature significantly narrowed the scope of the felony-murder rule”].)

When the Legislature amended section 189 and significantly narrowed the 

scope of the felony-murder rule, it did not use the words “any actor” (i.e., any participant 

in the felony) as used in the felony-murder special-circumstance enhancement. (See 

§ 190.2 (c).) Rather, the Legislature chose the words: “the actual killer.” (See § 189 

(e)(2).) When interpreting statutes, we must give effect to the words chosen by the 

Legislature. (San Diego Police Officers’ Assn. v. City of San Diego Civil Service Com.
5

(2002) 104 Cal.App.4th 275, 284 [“In construing a statute we are required to give 

independent meaning and significance to each word, phrase, and sentence in a statute and 

to avoid an interpretation that makes any part of a statute meaningless”].)4

In short, the Supreme Court’s nearly two-decades-old analysis in Dickey

does not apply to California’s current felony-murder rule. (See, e.g., People v. Stevens 

(1996) 48 Cal.App.4th 982, 985 [the party’s “position is based on an analysis no longer 

viable under California law”]; see also Dickey, supra, 35 Cal.4th at p. 901 [“It is 

axiomatic a decision does not stand for a proposition not considered by the court”]; 

Curiel, supra, 15 Cal.5th at p. 461 [in an analysis of “amendments to section 188, 

concerning malice,” the Supreme Court noted that “the amendments to section 189, 

concerning the felony-murder rule, are inapplicable here”].)

It may be helpful to illustrate the distinction between the two divergent 

interpretations of the current felony-murder rule by way of a hypothetical bank robbery 

involving three coparticipants. Defendant A entered the bank with a firearm and 

accidentally shot and killed a bank teller during the robbery. Defendant B also entered 

the bank with a firearm, but he did not intend to kill anyone. Defendant C was an 

unsavory character with the intent to kill, but his role in aiding and abetting the robbery 

was limited to keeping the getaway car running and watching the front door.

Defendant A is almost certainly liable for first degree felony murder 

because he was the actual killer, regardless of his mental state. (See § 189 (e)(1).) 

Defendant B, who had no intent to kill, is arguably liable for first degree felony murder if 

4 The majority describes the phrase “actual killer in the commission of murder” as used 

in section 189 (e)(2) as a “legal term of art.” (Maj. opn., ante, p. 9.) I disagree. I think 

the statute means what it says and says what it means. (See People v. Vang (2022) 82 

Cal.App.5th 64, 91 [“the term ‘actual killer’ means someone who personally killed the 

victim”]; see also People v. Lopez (2022) 78 Cal.App.5th 1, 4 [“the term ‘actual killer’ as 

used in the revised felony-murder rule . . . refers to someone who personally killed the 

victim and is not necessarily the same as a person who ‘caused’ the victim’s death”].)
6

the People are able to prove he was a major participant in the robbery who acted with 

reckless indifference to human life. (See § 189 (e)(3).)

Defendant C had the intent to kill, so under the majority’s interpretation of 

section 189 (e)(2), he would be liable for first degree felony murder if the People were 

simply able to prove that he was jointly engaged in the commission of the robbery with 

Defendant A at the time the shooting of the teller inside the bank took place. But under 

the plain meaning interpretation of section 189 (e)(2) the People would be required to 

prove not only that Defendant C participated in the robbery, but also that he aided, 

abetted, counseled, commanded, induced, solicited, requested, or assisted Defendant A in 

the commission of first degree murder.

5 (See CALCRIM No. 540B.)

In this case, there must be a weighing of the evidence to determine if the 

People will meet their burden to prove Morris is guilty under one of the three liability 

theories under the current first degree felony-murder rule (analogous to the hypothetical),

or some other viable murder liability theory under current law.

To conclude, and without expressing my views on the merits of the section 

1172.6 petition, I see no reason why Morris should not be entitled to the statute’s 

procedural protections, which include an evidentiary hearing. This disposition would 

appear to be in harmony with each of the Supreme Court’s major section 1172.6 

pronouncements over the last several years. (See, e.g., Curiel, supra, 15 Cal.5th at pp. 

440–441 [defendant entitled to an evidentiary hearing despite jury’s true finding as to a 

5 I submit that of the two divergent interpretations of section 189 (e)(2), the majority’s 

interpretation does not “‘more equitably sentence offenders in accordance with their 

involvement in homicides.’” (Maj. opn., ante, p. 12, quoting Stats. 2018, ch. 1015, § 1, 

italics added.) However, I acknowledge that the majority opinion currently represents the 

predominant view among the appellate courts. (See People v. Hollywood (Feb. 28, 2024, 

B323018) __Cal.App.5th__, __ [2024 WL 832320]; see also People v. Lopez (2023) 88 

Cal.App.5th 566–580 (maj. opn.); but see id. at pp. 581–591 (dis. opn. of Raphael, J.); 

People v. Ervin, supra, 72 Cal.App.5th at pp. 108–109.)
7

gang special circumstance]; People v. Strong, supra, 13 Cal.5th at p. 721 [defendant 

entitled to an evidentiary hearing despite jury’s true finding as to a felony-murder special 

circumstance]; People v. Reyes (2023) 14 Cal.5th 981, 992 [defendant entitled to a 

second evidentiary hearing where trial court misunderstood the legal requirements of 

implied malice murder]; People v. Lewis, supra, 11 Cal.5th at pp. 962–964 [defendant 

entitled to the appointment of counsel upon the filing of a facially sufficient petition].)

For all the foregoing reasons, I respectfully dissent.

MOORE, J.