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Name: People v. Morris (2024) 100 Cal.App.5th 1016
Case #: G061916
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 03/22/2024

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 (Pen. Code, § 189(e)).  In 1987, during a robbery committed by two men, one victim was killed and another victim was raped. At defendant’s 2013 trial, the jury was instructed on premeditated and deliberate murder, the former felony-murder rule, and aiding and abetting a felony murder. Defendant was convicted of first degree murder, with three special circumstances findings, each of which required an intent to kill. In 2022, defendant’s petition for resentencing under section 1172.6 was denied at the prima facie stage. He appealed. Held: Affirmed. Under amended section 189, all murder that is committed in the perpetration of rape or robbery is murder of the first degree, if the person was not the actual killer, but “with the intent to kill, aided, abetted . . . or assisted the actual killer in the commission of murder in the first degree” (§ 189(e)(2)). While the jury found defendant had the requisite mens rea, defendant argued it could not be shown as a matter of law that he committed the requisite actus reus under the amended felony-murder statute. Contrary to defendant’s assertion, aiding “the actual killer in the commission of murder in the first degree” is a legal term of art which is not limited to assisting the killing itself. One who aids and abets the commission of an underlying felony necessarily aids and abets first degree murder when another actor kills while acting in furtherance of the felony’s common design. Thus, the actus reus required for those possessing an intent to kill is simply aiding the underlying felony in which a qualifying death occurs. [Editor’s Note: Justice Moore dissented, and would have granted an evidentiary hearing to determine whether defendant aided and abetted the murder, and not merely the underlying felony. The language of section 189(e)(2) is plain and unambiguous, requiring the People to show that a nonkiller participant in the underlying felony, with the intent to kill (the mens rea), aided or abetted the actual killer in the commission of first degree murder (the actus reus). When the Legislature amended section 189 and significantly narrowed the scope of the felony-murder rule, it did not state that the defendant needed to aid and abet “any actor” (i.e., any participant in the felony), but rather “the actual killer.”]