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Name: People v. Lopez (2023) 88 Cal.App.5th 566
Case #: E078211
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/23/2023

Under the felony-murder law as amended by SB 1437, if a person acts with the intent to kill, the person need only aid and abet the qualifying felony, not the act causing murder, in order to be guilty of first degree murder. In 1992, Lopez participated in a robbery in a McDonald’s drive-through in which the victim was shot and killed. The jury convicted Lopez of the robbery and murder, and found true a prior-murder special circumstance under Penal Code section 190.2(a)(2). In 2019, Lopez filed a section 1172.6 petition seeking resentencing. The trial court summarily denied the petition, concluding the special circumstance finding rendered Lopez ineligible as a matter of law. Lopez appealed. He conceded that the special circumstance finding established the requisite mens rea for murder; however, he argued the record did not establish the requisite actus reus, because the jury could have found that he only aided the robbery, not the killing. Held: Affirmed. After SB 1437, a person may still be liable for felony murder if the person participated in a qualifying felony in which a death occurred, and “with the intent to kill, [the person] aided, abetted . . . or assisted the actual killer in the commission of murder in the first degree.” (Pen. Code, § 189, subd. (e)(2).) The phrase “assisted the actual killer in the commission of murder in the first degree” means to assist in the underlying qualifying felony, not to assist the actual killer in the killing. (People v. Dickey (2005) 35 Cal.4th 884.) Assisting a qualifying felony in which a death occurs is the same as assisting the actual killer in committing first degree murder under the felony-murder statute, and the People do not have to prove direct aiding and abetting of the act of killing. Because express malice is an element of section 189, subdivision (e)(2), not imputed malice, there is no reason to interpret the actus reus requirement as anything different than before SB 1437. [Editor’s Note: In a dissenting opinion, Justice Raphael would have found the defendant was not ineligible as a matter of law, because the record did not show that the jury found defendant committed an act to aid the killer in the murder.]