Filed 7/13/26 P. v. Andrade CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084412
v. (Super.Ct.No. FWV13664)
GILBERT ANDRADE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with
directions.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
1
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Arlene A. Sevidal, Christopher P. Beesley and Michael D. Butera, Deputy Attorneys
General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant Gilbert Andrade appeals the trial court’s postjudgment
order denying his Penal Code1 section 1172.6 petition to recall his first degree murder
(§ 187, subd. (a)) conviction and for resentencing at the prima facie stage. On appeal,
defendant argues the trial court erred in denying his petition for resentencing at the prima
facie stage because the record of conviction does not show he was convicted as either the
actual killer or as an aider and abettor who acted with the intent to kill as a matter of law.
He also asserts the trial court impermissibly engaged in factfinding to conclude otherwise
and thus the matter should be remanded with directions to issue an order to show cause
and to conduct an evidentiary hearing. Based on our Supreme Court’s recent decision in
People v. Morris (2026) 19 Cal.5th 671, 678 (Morris), which held that an aider and
abettor of murder must actually aid and abet the lethal act in order to be convicted of
murder, we agree with defendant that the record of conviction does not show he was
convicted as either the actual killer or as an aider and abettor who acted with the intent to
kill as a matter of law, and thus the matter must be remanded with directions to issue an
order to show cause and to conduct an evidentiary hearing.
1 All future statutory references are to the Penal Code.
2
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background2
Defendant, Mario Laguna, Carl Mounts, and others engaged in a plot to kidnap
victim R.T.D. after he cooked a tainted batch of methamphetamine that made defendant’s
sister sick.
On the night of June 23, 1997, Laguna rented a hotel room and waited there with
defendant while accomplice Mounts lured the victim to them under the guise of cooking
more drugs. Once the victim arrived at the hotel, defendant threatened the victim with a
switchblade and bound his hands with duct tape. The following morning, defendant
initially transported the victim in his girlfriend’s car but later changed to his sister’s
quieter car to be less conspicuous. Defendant forced the victim into the trunk of the car,
and defendant’s friend Barry Barns could hear the victim kicking, pounding, and
screaming.
Defendant alone then drove the victim to a remote location and bludgeoned him to
death with a pipe. An autopsy confirmed that the victim suffered eight to 10 blunt force
2 Because courts may not engage in factfinding at the prima facie stage (People v.
Lewis (2021) 11 Cal.5th 952, 972 (Lewis)), we summarize the factual background of the
offenses briefly and only as background for understanding the issues. (People v. Rushing
(2025) 109 Cal.App.5th 1025, 1028, fn. 2 [“These facts are ‘for background purposes and
to provide context for the parties’ arguments.’ [Citation.] We do not rely on these facts
to review the trial court’s determination for [defendant’s] prima facie showing.”].)
This account is taken from defendant’s record of conviction from his direct appeal,
case No. E025738. We granted defendant’s request to take judicial review of the record
in case No. E025738. The reporter’s transcript from the direct appeal will be referred to
as “TTRT” and the clerk’s transcript as “TTCT.”
3
head injuries which caused major fractures to his skull. Defendant disposed the victim’s
body and then drove to his mother Marta Gjurich’s home. Defendant’s mother helped
defendant clean up the physical evidence, including the victim’s “brains and bones,” from
the trunk of his sister’s vehicle.
B. Procedural Background
In 1998, a fourth amended information was filed, charging defendant and
codefendant Laguna with first degree murder (§ 187, subd. (a)), kidnapping (§ 207), and
conspiracy to commit kidnapping (§ 182, subd. (a)(1)).3 The fourth amended information
also alleged a special circumstance allegation that defendant committed the murder
during the commission of a kidnapping (§ 190.2, subd. (a)(17)). It was further alleged
that defendant had sustained two prior serious or violent felony strike convictions
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant’s mother Gjurich was charged
with being an accessory after the fact (§ 32).
In May 1999, a jury convicted defendant of all the charges and found true the
special circumstance allegation that defendant committed the murder during the
commission of a kidnapping. In a bifurcated proceeding, the trial court found true that
defendant had suffered two prior strike convictions.
In September 1999, the trial court sentenced defendant to life without the
possibility of parole in state prison for the murder conviction; sentences of 25 years to
life were imposed for the remaining offenses and then stayed.
3 Defendant and codefendant Laguna were tried separately.
4
On January 30, 2024, defendant filed a petition for resentencing under
section 1172.6. The trial court thereafter appointed counsel for defendant.
On July 19, 2024, the trial court held a prima facie hearing under section 1172.6.
At that time, the prosecutor argued that the relevant portions of the trial transcript
indicated defendant was convicted under a still valid theory that he was the actual killer.
The prosecutor explained that “the facts solicited” were that the coconspirators were
merely involved in cleaning up the hotel room after the victim was tortured and
kidnapped, and that defendant was the killer who “struck the victim multiple times with a
pipe, resulting in his death.” Defense counsel did not contest defendant’s ineligibility for
relief, but merely noted defendant was 25 years old at the time of the offenses and
expressed hope in reducing his sentence.
The trial court denied defendant’s section 1172.6 petition, finding defendant to be
the actual killer. The court explained: “My understanding is that, at this juncture, his
presence is waived because based on the knowledge of the facts of the case as
represented by the prosecution review of the court file, I do not believe that [defendant]
has made a prima facie case for resentencing under 1172.6 based on the fact that he was
the actual killer. [¶] I am going to indicate for the record that I did review the jury
instructions. I do recognize the fact that we did give jury instructions involving
conspiracy as well as felony murder, to wit, murder during the commission of a felony, to
wit, kidnapping. [¶] I have also reviewed the overt acts that were submitted and alleged
in the fourth amended Information. I’ll indicate that in the one overt act, which was
5
Number 13, ‘In or about June 24th of 1997, coconspirator Gilbert ‘Baby’ Andrade and/or
other unidentified coconspirators murdered victim [R.T.D.] in San Bernardino County.’
[¶] So Gilbert ‘Baby’ Andrade was the only individual actually specifically identified as
the actual killer or murderer in the conspiracy to commit murder.”
The court added, based on its own recollection of the trial, that “they were
actually—the several coconspirators actually testified against Mr. Andrade in regards to
those facts” and having been given immunity. The court further noted for the record that
defendant was found guilty of first degree murder and that the verdict forms only listed
defendant and codefendant Gjurich. The court explained, “Overt Act Number 13 that was
reflected in the Information was found true by the jurors, and that the codefendant, Marta
Gjurich, was not named in that particular overt act, only Gilbert Andrade, which by
reasonable inference and based on the facts, is that the defendant was the actual killer.”4
After examining the jury instructions and trial transcripts, the court indicated:
“Carl Mountz, Barry Barnes, Annette Arista, and James Mongras (phonetic) were
accomplices in a matter of law, and they did testify before the jurors in implicating
Gilbert Andrade as the actual killer. And that is based on the trial transcripts. [¶] I’ll
also indicate in review of Jury Instruction Number 43 of the packet, CALCRIM 6.10.5,
that I actually gave a specific instruction about, ‘A conspiracy is an agreement between
two or more persons with a specific intent to agree to commit the crime of being an
4 The verdict form for Overt Act No. 13 shows the jury found the following to be
true: “We, the jury in the above entitled action, find that on or about June 24, 1997, co-
conspirator GILBERT ANDRADE, and/or other unidentified co-conspirators, murdered
victim [R.T.D.] in San Bernardino County.”
6
accessory after the fact,’ which was not charged as such in this case against the defendant,
Marta Gjurich. So the defense in regards to Marta Gjurich is that she was an accessory
after the fact and not an actual accomplice during the commission of the actual murder,
again, leading to the conclusion that Gilbert Andrade was the actual killer. [¶] So upon
my review of the amended Information, the jury instructions, the trial transcripts, I’ll
indicate that the defendant did not make a prima facie case to withstand going to an Order
to Show Cause hearing based on the fact that he was the actual killer, so his petition is
denied.”
Defendant timely appealed.
III.
DISCUSSION
Defendant contends the trial court erred in denying his section 1172.6 petition at
the prima facie stage because the record of conviction does not show as a matter of law
defendant was the actual killer, and the trial court engaged in impermissible factfinding to
conclude otherwise. He thus believes the matter should be remanded with directions to
issue an order to show cause and to conduct an evidentiary hearing.
While the appeal was pending, the California Supreme Court issued its decision in
Morris, supra, 19 Cal.5th 671, 678, holding that an aider and abettor of murder must
actually aid and abet the lethal act in order to be convicted of murder. We requested
briefing on this issue prior to oral argument, and the parties have submitted supplemental
briefs.
7
A. Governing Law and Standard of Review
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019,
significantly limited the scope of California’s felony-murder rule and eliminated liability
for murder under the natural and probable consequences doctrine through two key
statutory provisions. (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Strong (2022) 13
Cal.5th 698, 707-708 (Strong).) Section 189 was amended so that a defendant is liable
for felony murder only if he was (1) the actual killer, (2) a direct aider and abettor with
the intent to kill, or (3) a major participant in the underlying felony and acted with
reckless indifference to human life. (Strong, at p. 708.) Section 188 was amended to
impose a new requirement that, except in cases of felony murder, a principal in the crime
of murder can only be convicted where he or she acted “with malice aforethought,” and
“[m]alice shall not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3); see People v. Curiel (2023) 15 Cal.5th 433, 449; see People
v. Love (2025) 107 Cal.App.5th 1280, 1286; People v. Antonelli (2025) 17 Cal.5th 719,
724; People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 931.)
“A person convicted of felony murder . . . or other theory under which malice is
imputed to a person based solely on that person’s participation in a crime . . . may file a
petition with the court that sentenced the petitioner to have the petitioner’s murder . . .
conviction vacated and to be resentenced.” (§ 1172.6, subd. (a).) The petition must
allege the petitioner was (1) charged with one of the enumerated crimes under a theory of
felony murder or other theory under which malice is imputed to a person based solely on
8
that person’s participation in a crime; (2) convicted of murder, attempted murder, or
manslaughter; and (3) could not presently be convicted of murder because of changes to
sections 188 or 189 (Stats. 2018, ch. 1015, §§ 2, 3) made effective January 1, 2019.
(§ 1172.6, subd. (a)(1), (2), (3).)
Upon receiving a petition that contains all the required information, the trial court
must appoint counsel for the petitioner if requested (§ 1172.6, subd. (b)(3)) and “[a]fter
the parties have had an opportunity to submit briefings, the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for relief. If the petitioner
makes a prima facie showing that [he] is entitled to relief, the court shall issue an order to
show cause” (§ 1172.6, subd. (c)) and proceed to an evidentiary hearing (§ 1172.6,
subd. (d)(3)).
“[T]he prima facie inquiry . . . is limited. . . . ‘ “[T]he court takes petitioner’s
factual allegations as true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual allegations were proved. If so,
the court must issue an order to show cause.” ’ [Citation.] ‘[A] court should not reject
the petitioner’s factual allegations on credibility grounds without first conducting an
evidentiary hearing.’ ” (Lewis, supra, 11 Cal.5th at p. 971.) At the prima facie hearing,
the court may consider the record of conviction. (Ibid.) The record of conviction
includes jury verdicts, jury instructions, and closing arguments. (People v. Harden
(2022) 81 Cal.App.5th 45, 54-56 [considering jury instructions and verdicts to determine
whether defendant made prima facie showing of eligibility]; People v. Ervin (2021) 72
9
Cal.App.5th 90, 106 [considering sentencing enhancements, jury instructions, closing
arguments, and verdicts at prima facie stage].) This does not include our appellate
opinion. “[T]he factual summary in an appellate opinion is not evidence that may be
considered at an evidentiary hearing to determine a petitioner’s eligibility for
resentencing. [Citation.] If such evidence may not be considered at an evidentiary
hearing to determine a petitioner’s ultimate eligibility for resentencing, we fail to see how
such evidence could establish, as a matter of law, a petitioner’s ineligibility for
resentencing at the prima facie stage.” (People v. Flores (2022) 76 Cal.App.5th 974, 988,
fn. omitted; see People v. Clements (2022) 75 Cal.App.5th 276, 292 [“[T]rial judges
should not rely on the factual summaries contained in prior appellate decisions when a
section [1172.6] petition reaches the stage of a full-fledged evidentiary hearing.”].)
However, if the record contains facts refuting the allegations in the petition, the
court may make a credibility determination adverse to the petitioner. (Lewis, supra, 11
Cal.5th at p. 971.) “If the petition and record in the case establish conclusively that the
defendant is ineligible for relief, the trial court may dismiss the petition.” (Strong, supra,
13 Cal.5th at p. 708.)
A trial court’s failure to comply with these statutory requirements is harmless if
the record of conviction establishes that a defendant is ineligible for section 1172.6 relief
as a matter of law. (See Lewis, supra, 11 Cal.5th at p. 973.) Our Supreme Court has held
that a trial court’s statutory omissions at the first step process under section 1172.6 are
not state or federal constitutional violations. (Lewis, at p. 973; see People v. Hurtado
10
(2023) 89 Cal.App.5th 887, 893.) Hence, a trial court’s failure to follow the procedures
enacted in section 1172.6 is analyzed for prejudice under the state law standard of People
v. Watson (1956) 46 Cal.2d 818, 836. (Lewis, at pp. 973-974.)
We independently review a trial court’s determination of whether a petitioner has
made a prima facie showing. (Harden, supra, 81 Cal.App.5th 45, 52.) “[W]e may affirm
a ruling that is correct in law on any ground.” (People v. Cortes (2022) 75 Cal.App.5th
198, 204.)
B. Analysis
Defendant argues the overt act findings were worded in such a way that the jury
could have based its findings on acts committed by “other unidentified co-conspirators”
without also finding defendant committed any of the overt acts. He also asserts that the
conspiracy instructions imputed the acts of any conspirator to all of the conspirators and
allowed the jury to convict defendant of felony murder based on conspiring with others to
commit the kidnapping. He further contends the special circumstance instruction only
required the jury to find that a murder was committed during the kidnapping and that the
instructions given did not expressly require a conclusion defendant personally committed
the murder, or that if he was not the actual killer, that he specifically intended to kill.5
5 The People concede the trial court improperly engaged in factfinding at the
prima facie stage; that the finding on Overt Act No. 13 left open the possibility someone
other than defendant was the actual killer; and that the felony murder jury instructions
cannot be given preclusive effect because defendant was tried before People v. Banks
(2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 were decided. The
People, however, maintain that reading the jury instructions as a whole and the jury
verdicts show defendant’s culpable conduct even if he was not the actual killer. Our
[footnote continued on next page]
11
Based on our review of the record of conviction in this case and the holding in Morris,
we agree with defendant. Moreover, during oral argument, the Attorney General
conceded that based on the jury instructions given to the jurors in this case at the time of
defendant’s trial, the matter should be remanded to hold an evidentiary hearing.
Prior to the Morris decision, there was a split of authority amongst the Courts of
Appeal as to whether a nonkiller can be held liable for felony murder based on aiding and
abetting the underlying felony alone. (See People v. Lopez (2023) 88 Cal.App.5th 566,
574, review den. May 31, 2023, S279347 [defendant must aid the underlying felony];
People v. Morris (2024) 100 Cal.App.5th 1016, review granted Jul. 17, 2024, S284751
[underlying felony]; People v. Lopez (2024) 104 Cal.App.5th 616, review granted
Nov. 13, 2024, S278162 [underlying felony]; People v. Kelly (2024) 105 Cal.App.5th
162, review granted Nov. 26, 2024, S287341 [defendant must aid the killing]; People v.
Jackson (2025) 110 Cal.App.5th 128, review granted June 11, 2025, S290457 [killing];
People v. Taito (2025) 115 Cal.App.5th 694, 704 [underlying felony].)
On May 4, 2026, our Supreme Court issued its decision in Morris resolving the
split of authority. The issue in Morris was “whether Morris is precluded from making a
prima facie showing for resentencing relief under section 1172.6 as a nonkiller aider or
abettor of robbery and rape with intent to kill.” (Morris, supra, 19 Cal.5th at p. 678.)
Morris argued that to be denied resentencing relief, “when a nonkiller acts with an intent
to kill, the nonkiller must aid the actual killer in the lethal act.” (Ibid.) The Attorney
independent review of the record shows that defendant was ineligible for section 1172.6
relief as a matter of law.
12
General asserted to the contrary “that when a nonkiller acts with an intent to kill, the
nonkiller need only aid in the underlying felony.” (Ibid.) The Morris court disagreed and
interpreted section 189, subdivision (e)(2) “to mean just what it says: the phrase
‘aided . . . or assisted the actual killer in the commission of murder in the first degree’
[citation] requires proof the defendant aided or abetted the actual killer in the lethal act
itself, and not just the underlying felony.” (Morris, at p. 678.) In reaching that
conclusion, the Supreme Court in Morris reversed the Court of Appeal’s decision and
remanded the matter for reconsideration. (Ibid.)
In Morris, “[b]ased upon the felony murder special-circumstance jury instructions
given in this case, the parties agree that the record of conviction establishes as a matter of
law that Morris acted with the intent to kill.” (Morris, supra, 19 Cal.5th at p. 679.) In
addition, similar to this case, in Morris, there was “also no real dispute that, based upon
the aiding and abetting for first degree felony murder jury instruction given in this case,
the record of conviction also establishes that, even if Morris did not fire the fatal shot, he
aided and abetted the actual killer in the underlying felonies.” (Ibid.) The disagreement
in Morris, like in the present case, involved the actus reus requirement, “specifically,
what acts are required to prove the actus reus under section 189, subdivision (e)(2).” (Id.
at p. 681.) The Morris court interpreted the phrase in that statute, “ ‘in the commission of
murder in the first degree’ consistent with its natural meaning to require proof the
defendant aided or abetted the actual killer in the lethal act.” (Ibid.)
13
Applying the rules of statutory construction, the Supreme Court first looked at the
words of section 189, subdivision (e)(2) to give those words a plain and commonsense
meaning. (Morris, supra, 19 Cal.5th at p. 683.) The court explained, “[t]he
commonsense meaning of aiding or abetting ‘the actual killer in the commission of
murder in the first degree,’ involves aiding or abetting the killing of a human being, and
not just aiding and abetting another in the commission of an enumerated felony by an act
that does not aid in the killing. [Citation.]” (Ibid.) The court found the meaning of the
statute “inescapable” based on the inclusion of “ ‘actual killer’ ” in that phrase. (Ibid.)
The court explained, “When the words ‘actual killer’ are included in the phrase, so that it
reads, ‘aided, abetted . . . or assisted the actual killer in the commission of murder in the
first degree,’ the ordinary meaning of the statutory language is inescapable: assisting the
killer in killing.” [Citation.] A person is not ‘the actual killer’ unless they directly cause
a death. To aid ‘the actual killer’ is to aid the very act that defines that individual—the
lethal act itself. The most natural reading therefore is that aiding ‘the actual killer’ with
the commission of murder implies aiding with the lethal act rather than aiding the person
(who ends up committing the lethal act) with some felonious act.” (Ibid.) Thus, agreeing
with the dissent in Morris, supra, 100 Cal.App.5th at page 1031 (dis. opn. of Moore, J.),
the court concluded, “the language of section 189, subdivision (e)(2) is ‘plain and
unambiguous.’ [Citation.]” (Morris, at p. 683.)
The Morris court further concluded its reasoning was reinforced by the fact the
statutory provision, read in context with the remainder of subdivision (e) of section 189,
14
“requires a nonkiller to aid the actual killer in the lethal act itself.” (Morris, supra, 19
Cal.5th at p. 683.) More specifically, the court explained “[t]he fact that the Legislature
used the phrase ‘underlying felony’ elsewhere in section 189, but did not do so in
subdivision (e)(2), shows that the Legislature knows how to use the term ‘underlying
felony’ in section 189 when that is the intent.” (Morris, at pp. 683-684.)
To the extent the Attorney General in Morris argued that the financial-gain special
circumstance finding necessarily showed the defendant had aided and abetted the killing
itself, the Supreme Court rejected that argument, as well as the Attorney General’s
reliance on People v. Dickey (2005) 35 Cal.4th 884, 900-901 (Dickey).6 The Morris court
explained, “the Attorney General’s interpretation would mean that the latter portion of
subdivision (e)(2) [of section 189]—i.e., that the defendant ‘aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree’—would be redundant of what is already in the preamble in
subdivision (e). The Attorney General contends this surplusage is present in
subdivision (e)(2) because the Legislature used the language from the felony murder
special circumstance (‘commission of murder in the first degree’) as a way to signal that
6 In Dickey, supra, 35 Cal.4th 884, the Supreme Court interpreted “in the
commission of murder in the first degree” language found in the felony murder special
circumstance long before Senate Bill No. 1437 was enacted. (Morris, supra, 19 Cal.5th
at p. 686.) “In Dickey, the court interpreted the felony-murder special circumstance in
section 190.2, former subdivision (b), which applied to “[e]very person . . . found guilty
of intentionally aiding, abetting . . . or assisting any actor in the commission of murder in
the first degree . . . .” (§ 190.2, former subd. (b); see now § 190.2, subd. (c).) We
interpreted this language to only require aiding or abetting the underlying felony and not
the lethal act itself. [Citation.]” (Morris, at p. 686, citing Dickey, at pp. 900-903.)
15
it was importing the same (broad) meaning that had been assigned to the phrase in the
felony murder special-circumstance context. However, the Attorney General’s reliance
on Dickey and the felony murder special-circumstance is misplaced because Dickey did
not turn on any parsing of the language of section 190.2, subdivision (c), but on
application of a background legal principle that is no longer good law.” (Morris, supra,
19 Cal.5th at p. 686.)
“Specifically, Senate Bill [No.] 1437 abrogated the premise of Dickey by
substantially changing the felony-murder rule. Our holding in Dickey relied upon the
principle that ‘[a]ll 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.’ [Citation.] Applying that rule, we concluded that section 190.2, former
subdivision (b) was ‘not helpful to [the] defendant because, under the felony-murder
doctrine, he was found guilty of aiding or abetting first degree murders.’ [Citation.]
However, Senate Bill [No.] 1437 ‘narrows the felony-murder rule significantly by
limiting it to the actual killer and to accomplices who either intend to kill and aid in the
murder or play a major role in the underlying felony and act with reckless indifference to
human life.’ [Citation.] This change abrogates Dickey’s reasoning because now ‘[i]t is
no longer true that all persons who aided in a burglary or robbery are guilty of murder
when one of them kills during that offense. Whether such a participant is liable for
murder is what the jury is now charged with deciding when it applies section 189[,
subdivision] (e).’ [Citations.] Thus, the question we are presented with here is which
16
individuals remain liable for first degree murder. To allow the now-outdated legal
principle informing Dickey to dictate our decision here would be circular and inconsistent
with the very purpose of Senate Bill [No.] 1437’s changes to the felony-murder rule.”
(Morris, supra, 19 Cal.5th at p. 687.)
The Morris court also rejected the Attorney General’s arguments relating to the
legislative history of Senate Bill No. 1437, and concluded that “[t]he legislative
history . . . shows that the Legislature was interested in addressing both the acts and
intent required to prove felony murder, and it certainly does not demonstrate that Senate
Bill No. 1437 was concerned only with barring the imputation of malice to aiders and
abettors to murder.” (Morris, supra, 19 Cal.5th at p. 689.)
The Supreme Court in Morris also determined that interpreting section 189,
subdivision (e)(2) to require a nonkiller to aid the lethal act itself would not lead to
illogical results. (Morris, supra, 19 Cal.5th at pp. 689-693.) The court noted, “It may be,
as the Attorney General contends, that the Legislature was trying to create an inversely
proportional relationship between actus reus and mens rea for the three theories of
felony-murder liability in subdivision (e). However, it may also be that the Legislature
simply was trying to create different paths to liability in order to better accord with an
individual’s culpability depending on the circumstances of the case. (See Assem. Com.
on Public Safety, Analysis of Sen. Bill No. 1437, supra, as amended May 25, 2018, p. 4
[“ ‘restor[ing] proportional responsibility in the application of California’s murder statute
reserving the harshest punishments for those who intentionally planned or actually
17
committed the killing’ ”].) This conclusion is consistent with the language the
Legislature enacted. And it is not illogical to conclude that the Legislature sought to
capture three different scenarios of potential liability—as opposed to create a perfect,
inverse sliding scale of actus reus and mens rea culpability—especially since there is
nothing in the legislative history that reflects such an intent. (Morris, supra,19 Cal.5th at
p. 690.)
In sum, Morris holds that “section 189, subdivision (e)(2) requires that the
nonkiller aid or abet the actual killer in the lethal act itself, and not just the underlying
felony.” (Morris, supra, 19 Cal. 5th at p. 693.)
Here, the record of conviction does not establish as a matter of law that defendant
participated in aiding and abetting the kidnapping and other acts that led to the victim’s
death and that he acted with the intent to kill. The overt act findings which included
defendant were worded in such a way that the jury could have based its findings on acts
committed by “other unidentified co-conspirators” without also finding defendant
committed any of the overt acts. The true finding on Overt Act No. 13 read: “We, the
jury in the above entitled action, find that on or about June 24, 1997, coconspirator
GILBERT ANDRADE, and/or other unidentified coconspirators, murdered victim
Russell Travis Dorff in San Bernardino County.” The conspiracy instructions imputed
the acts of any conspirator to all of the conspirators and allowed the jury to convict
defendant of felony murder based on conspiring with others to commit the kidnapping.
And the special circumstance instruction only required the jury to find that a murder was
18
committed during the kidnapping; the instructions given did not expressly require a
conclusion that defendant personally committed the murder, or that if he was not the
actual killer, that he specifically intended to kill.
CALJIC No. 8.80.1 did not implicitly require the jury to find defendant acted with
the intent to kill if they did not find him to be the actual killer. The instruction told the
jury they could find the special circumstance true if they found defendant guilty of
murder during the commission of kidnapping; the instruction also told jurors that they did
not have to find intent to kill if they found he was the actual killer. Reading the
instructions as a whole, the jury was told a murder committed during a kidnapping is first
degree murder, even if the killing was unintentional, and that the only specific intent
needed was the intent to commit kidnapping. Taken together, the jury would not
necessarily have read or understood CALJIC No. 8.80.1 to require a finding of specific
intent to kill for an aider and abettor.
Based on foregoing, the recent decision in Morris supports defendant’s claim that
the trial court erred in denying his section 1172.6 petition for resentencing at the prima
facie stage. We thus reverse the trial court’s order and remand the matter with directions
to issue an order to show cause and to conduct an evidentiary hearing.
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IV.
DISPOSITION
The trial court’s postjudgment order denying defendant’s section 1172.6 petition is
reversed and the matter is remanded with directions to issue an order to show cause and
to conduct an evidentiary hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
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