People v. Morris

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD CURTIS MORRIS, JR.,

Defendant and Appellant.

S284751

Fourth Appellate District, Division Three

G061916

Orange County Superior Court

08CF1591

May 4, 2026

Justice Groban authored the opinion of the Court, in which

Justices Corrigan, Liu, Kruger, and Evans concurred.

Chief Justice Guerrero filed a concurring opinion.

Justice Yegan* filed a dissenting opinion.

*

Associate Justice of the Court of Appeal, Second Appellate

District, Division Six, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.

PEOPLE v. MORRIS

S284751

Opinion of the Court by Groban, J.

Defendant Richard Morris, Jr., appeals the denial of his

petition for resentencing under Penal Code section 1172.6,1

seeking to vacate his murder conviction under Senate Bill No.

1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch.

1015). Under the former felony-murder rule, when the

defendant killed someone while committing an “ ‘inherently

dangerous felony,’ the defendant could be found guilty of the

crime of murder, without any showing of ‘an intent to kill, or

even implied malice, but merely an intent to commit the

underlying felony.’ ” (People v. Strong (2022) 13 Cal.5th 698,

704 (Strong).) In an attempt “to more equitably sentence

offenders in accordance with their involvement in homicides”

(Stats. 2018, ch. 1015, § 1(b)), Senate Bill 1437 “significantly

narrowed the scope of the felony-murder rule.” (Strong, at

p. 703.)

Under section 187, the mens rea required for murder is

malice aforethought. (§ 187, subd. (a).) Malice may be either

express or implied. A deliberate intent to kill constitutes

express malice. (§ 188, subd. (a)(1).) Implied malice is defined

as acting without provocation or with an “abandoned and

malignant heart” (§ 188, subd. (a)(2)), which a long line of cases

1

Undesignated statutory references are to the Penal Code.

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has interpreted as acting with a conscious disregard for life.

(See People v. Soto (2018) 4 Cal.5th 968, 974; People v. Chun

(2009) 45 Cal.4th 1172, 1181.) Before Senate Bill 1437’s

amendment, in the case of a felony murder, the malice element

could be supplied by proof of an intent to commit one of a subset

of underlying felonies designated by statute. The amendment

explicitly stated that malice “shall not be imputed to a person

based solely on his or her participation in a crime” (§ 188, subd.

(a)(3), as amended by Stats. 2018, ch. 1015, § 2), clarifying that

the mere intent to commit one of those felonies was not, in itself,

sufficient to establish that a nonkiller acted with malice.

Murder also requires an actus reus. (People v. Concha

(2009) 47 Cal.4th 653, 660.) The record of conviction here does

not establish whether Morris or his codefendant was the actual

killer of the decedent. Rather, the issue in this case is 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.

As relevant to this aider or abettor theory of liability, the

amended felony-murder rule now states that when a person was

not the actual killer, that person must have, “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.” (§ 189, subd. (e)(2).) Morris claims

that, when a nonkiller acts with an intent to kill, the nonkiller

must aid the actual killer in the lethal act. The Attorney

General contends, and the Court of Appeal agreed, that when a

nonkiller acts with an intent to kill, the nonkiller need only aid

in the underlying felony. We interpret the statutory language

to mean just what it says: the phrase “aided . . . or assisted the

actual killer in the commission of murder in the first degree”

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(ibid.) requires proof the defendant aided or abetted the actual

killer in the lethal act itself, and not just the underlying felony.

We therefore reverse the Court of Appeal and remand for

reconsideration in light of our opinion.

I. BACKGROUND

On January 1, 1987, Stockwell returned to his

condominium with his girlfriend S.F. As they entered the

condominium, they were attacked by a man carrying a gun who

was accompanied by another man. Stockwell was handcuffed

and Stockwell and S.F. offered the men money and jewelry. One

of the men took Stockwell upstairs. The other man then took

S.F. upstairs. S.F. saw Stockwell facedown at the top of the

stairs, where he was negotiating with the men. The men took

S.F. into a bedroom where they raped her. After the men left in

Stockwell’s car, S.F. saw Stockwell on the floor, and realized he

had been shot. Swab samples were recovered from S.F. during

a rape examination but the science of DNA matching for forensic

use was just being developed at that time. Later, retesting

revealed that Morris’s DNA was present in the swabs taken

from S.F.2

In 2013, some 27 years after the crimes, a jury found

Morris guilty of the first degree murder of Stockwell (§ 187,

subd. (a)). It also found true special circumstances for rape (§

2

This brief summary of the case is drawn from the Court of

Appeal’s opinion. We rely on that opinion solely for the purpose

of summarizing the background of this case; our consideration

of whether Morris is entitled to relief under section 1172.6 is

based on our review of the record of conviction. (See, e.g., People

v. Delgadillo (2022) 14 Cal.5th 216, 222, fn. 2.)

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Opinion of the Court by Groban, J.

190.2, subd. (a)(17)(C)), robbery (§ 190.2, subd. (a)(17)(A)), and

murder for financial gain (§ 190.2, subd. (a)(1)). The trial court

found true a prior serious felony conviction and sentenced

Morris to life without the possibility of parole, plus five years.

In 2015, the judgment was affirmed on appeal.

Based 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. There is 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.

At the time of Morris’s trial, under the former felony-

murder rule, “ ‘when the defendant or an accomplice kill[ed]

someone during the commission, or attempted commission, of an

inherently dangerous felony,’ the defendant could be found

guilty of the crime of murder, without any showing of ‘an intent

to kill, or even implied malice, but merely an intent to commit

the underlying felony.’ ” (Strong, supra, 13 Cal.5th at p. 704.)

After Morris’s trial, with the passage of Senate Bill 1437,

“the Legislature significantly narrowed the scope of the felony-

murder rule.” (Strong, supra, 13 Cal.5th at p. 703.) As amended

by Senate Bill 1437, section 189, subdivision (e) now provides as

follows: “A participant in the perpetration or attempted

perpetration of a felony listed in subdivision (a) in which a death

occurs is liable for murder only if one of the following is proven:

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“(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 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.” (§ 189, subd. (e);

see Stats. 2018, ch. 1015, §§ 3–4; Stats. 2022, ch. 58, § 10.)

In this way, the new felony-murder rule sets forth three

theories of liability. In this case, we address only the second

theory of liability concerning a nonkiller who, with intent to kill,

aids or abets “the actual killer in the commission of murder in

the first degree.” (§ 189, subd. (e)(2).)

“Senate Bill 1437 also created a special procedural

mechanism for those convicted under the former law to seek

retroactive relief under the law as amended.” (Strong, supra,

13 Cal.5th at p. 708; see People v. Lewis (2021) 11 Cal.5th 952,

959 (Lewis).) Pursuant to section 1172.6, when a petition

complies with the statutory requirements, the court assesses

whether the petitioner has made “a prima facie case for relief.”

(§ 1172.6, subd. (c).) “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, at p. 708.)

However, if the trial court determines that a prima facie

showing for relief has been made, the trial court issues an order

to show cause, and then must hold a hearing to determine

whether to vacate the conviction and resentence the petitioner.

(§ 1172.6, subd. (d)(1).)

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In 2022, Morris filed a petition for resentencing pursuant

to section 1172.6. The trial court appointed counsel. After

briefing and oral argument, the trial court summarily denied

the petition at the prima facie stage. The court reasoned that

the special circumstances jury instructions established that

Morris acted with an intent to kill and so he was statutorily

ineligible for section 1172.6 relief.

In a split decision, the Court of Appeal affirmed. The

majority (Delaney, J., joined by O’Leary, P. J.) relied upon a

different rationale than the trial court and concluded that

Morris was precluded as a matter of law from obtaining section

1172.6 relief because the jury found Morris acted with an intent

to kill and that Morris was engaged in committing the

underlying felonies with the killer at the time the homicidal act

took place. (People v. Morris (2024) 100 Cal.App.5th 1016,

1029–1030 (Morris).) The majority rejected Morris’s argument

that the actus reus required under section 189, subdivision (e)(2)

requires aiding and abetting the actual killer in the lethal act,

and not just the underlying felonies. (Morris, at pp. 1025–1029.)

Justice Moore dissented, concluding that in a felony-murder

prosecution of a nonkiller participant, the People are required

to prove that the defendant aided the actual killer in the

commission of first degree murder. (Id. at p. 1031 (dis. opn. of

Moore, J.).)

The Courts of Appeal are in conflict on this issue. People

v. Kelly (2024) 105 Cal.App.5th 162, review granted November

26, 2024, S287341 (Kelly) and People v. Jackson (2025)

110 Cal.App.5th 128, review granted June 11, 2025, S290457

(Jackson) found that section 189, subdivision (e)(2) requires

proof the defendant aided the actual killer in the lethal act.

People v. Lopez (2023) 88 Cal.App.5th 566 (Lopez), People v.

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Lopez (2024) 104 Cal.App.5th 616, review granted November 13,

2024, S287162, People v. Taito (2025) 115 Cal.App.5th 694,

review granted January 28, 2026, S294105, and the Court of

Appeal below found that proof the defendant aided the

underlying felony is sufficient.

We granted review.

II. DISCUSSION

There is no disagreement about the mens rea required

under section 189, subdivision (e)(2), as both sides agree that

the jury found that Morris acted with intent to kill. The

disagreement involves the actus reus requirement, specifically,

what acts are required to prove the actus reus under section 189,

subdivision (e)(2). For the reasons explained below, we interpret

the phrase “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.3

3

In dissent, Justice Yegan relies upon several “facts of the

instant case” originally drawn from the Court of Appeal opinion

and trial testimony to conclude that Morris “did assist even

under the new majority ‘interpretation’ of the felony-murder

rule.” (Dis. opn. of Yegan, J., post, at p. 4.) The dissent departs

from the issue presented here. First, this opinion only addresses

a discrete legal issue surrounding section 189, subdivision (e)(2)

to determine whether Morris is precluded by the jury’s factual

findings in making a prima facie case for resentencing relief. At

the prima facie stage, the inquiry is limited. “A court giving

effect to” the jury’s factual findings “does not engage in

‘ “factfinding involving the weighing of evidence or the exercise

of discretion.” ’ ” (People v. Curiel (2023) 15 Cal.5th 433, 465

(Curiel).) Second, as noted in footnote 10 below, on remand the

Court of Appeal may address other legal issues surrounding this

case to determine whether Morris is precluded from making a

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While the jury found that Morris acted with the intent to

kill, we are called upon to interpret the meaning of the amended

language in the context of section 189, subdivision (e) as a whole.

As we explain, the narrowed scope of the felony-murder rule

applies in the following fashion. In the absence of proof that a

defendant was the actual killer (§ 189, subd. (e)(1)), liability

under a felony-murder theory can only attach under two

circumstances (§ 189, subds. (e)(2) & (e)(3)). First, liability can

attach to a participant in the perpetration or attempted

perpetration of an enumerated felony in which a death occurs

when that individual, with the intent to kill, aided or abetted

the actual killer in commission of the lethal act. (§ 189, subd.

(e)(2).) Second, liability can attach to a participant in the

perpetration or attempted perpetration of an enumerated felony

in which a death occurs when that individual “was a major

participant in the underlying felony and acted with reckless

indifference to human life.” (§ 189, subd. (e)(3).) To clarify, an

actual killer may still be liable for his murderous conduct if he

committed the lethal act during commission of the underlying

felony. (§ 189, subd. (e)(1).) An actual killer’s intent to commit

the felony establishes his malice, even if his lethal actus reus

was accidental or if he did not intend to cause the victim’s death.

prima facie case for resentencing relief. Then, even if Morris

establishes a prima facie case on remand, there will be an

evidentiary hearing to determine whether Morris is actually

entitled to relief under the amended felony-murder rule, which

extends to consideration of whether Morris was a major

participant who acted with reckless indifference to human life.

(§ 1172.6, subd. (d), referenced in § 189, subd. (e)(3).)

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A. The Plain Language of the Statute, when

Viewed in Context, Requires a Nonkiller To Aid

the Actual Killer in the Lethal Act

“The proper interpretation of a statute is a question of law

we review de novo. [Citations] ‘ “ ‘ “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 statute’s words,

giving them a plain and commonsense meaning.” ’ ” ’ . . . ‘ “We

must harmonize ‘the various parts of a statutory enactment . . .

by considering the particular clause or section in the context of

the statutory framework as a whole.’ ” ’ ” (Lewis, supra,

11 Cal.5th at p. 961.) “ ‘ “If the language is clear, courts must

generally follow its plain meaning unless a literal interpretation

would result in absurd consequences the Legislature did not

intend. If the statutory language permits more than one

reasonable interpretation, courts may consider other aids, such

as the statute’s purpose, legislative history, and public

policy.” ’ ” (People v. Prudholme (2023) 14 Cal.5th 961, 975–976

(Prudholme).)

First, the plain language of the statute supports Morris’s

argument that section 189, subdivision (e)(2) requires a

nonkiller to aid the actual killer in the lethal act. As noted

above, the relevant statutory language states: “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.” (Ibid.) Here, aiding “the actual killer in the

commission of murder in the first degree” means just that. The

commonsense meaning of aiding or abetting “the actual killer in

the commission of murder in the first degree,” involves aiding or

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Opinion of the Court by Groban, J.

abetting the killing of a human being, and not just aiding

another in the commission of an enumerated felony by an act

that does not aid in the killing. (See Jackson, supra,

110 Cal.App.5th at pp. 166–167, review granted [collecting

dictionary definitions of “murder”].) “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.” (Id. at p. 168.) 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. In this way, the language of section 189,

subdivision (e) is “plain and unambiguous.” (Morris, supra,

100 Cal.App.5th at p. 1031 (dis. opn. of Moore, J.).)

Second, reading section 189, subdivision (e)(2) in context

with the remainder of subdivision (e) reinforces that the

provision requires a nonkiller to aid the actual killer in the

lethal act itself.4 The fact that the Legislature used the phrase

4

The cases Justice Yegan relies upon for a contrary reading

of the statute (e.g., People v. Dillon (1983) 34 Cal.3d 441, 465;

People v. Washington (1965) 62 Cal.2d 777, 781) are of little aid

because they all interpret the prior felony-murder rule. (Dis.

opn. of Yegan, J., post, at pp. 1, 3.) Though the dissent is of the

view that “the traditional felony-murder rule has served

California well” (id. at p. 1), the Legislature made clear that it

wished to alter the prior felony-murder rule. (See, e.g., Stats.

2018, ch. 1015, § 1(b)) [“There is a need for statutory changes to

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Opinion of the Court by Groban, J.

“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. Subdivision (e)(3) provides for felony-murder liability

when the defendant “was a major participant in the underlying

felony and acted with reckless indifference to human life.” (§

189, subd. (e)(3); see also id., subd. (e) [“a felony”].) Thus, the

actus reus in subdivision (e)(3) clearly specifies the “underlying

felony,” while the language in subdivision (e)(2) merely refers to

aiding or abetting “the commission of murder in the first

degree.” The use of different phrases signals the Legislature

intended to define different acts necessary to prove guilt under

each theory.5 (See People v. Trevino (2001) 26 Cal.4th 237, 242

more equitably sentence offenders in accordance with their

involvement in homicides”].) And while the dissent prefers that

we should not have to “ ‘interpret’ ” what the Legislature

intended (dis. opn. of Yegan, J., post, at p. 4), that is a task that

our court routinely performs. (See, e.g., In re Ja.O. (2025)

18 Cal.5th 271, 283; Gutierrez v. Tostado (2025) 18 Cal.5th 222,

231; People v. Walker (2024) 16 Cal.5th 1024, 1032.)

5

The concurrence notes that we should not rely on the

Legislature’s use of the phrase “underlying felony” elsewhere in

section 189 because the Legislature also used the word “killing”

elsewhere in the Penal Code and therefore the Legislature

might have used that word here as well if that were its intended

meaning. (See conc. opn. of Guerrero, C. J., post, at p. 9.) But

the use of the phrase “underlying felony” was deployed as part

of the same amendments to the same subdivision of the same

code provision (Stats. 2018, ch. 1015, § 3) that produced the

operative language here, thus providing a clear signal that the

Legislature knew how to use the phrase “underlying felony”

when it wanted to. The examples provided by the concurrence

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[“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”]; Kelly, supra, 105 Cal.App.5th at

p. 172, review granted [“The use of different wording to convey

the actus reus requirements for these subparagraphs is

significant”].) “Looking at section 189, subdivision (e) in its

entirety, ‘it is clear the Legislature intended to draw a

distinction between assisting first degree murder and assisting

the underlying felony.’ ” (Jackson, supra, 110 Cal.App.5th at

p. 168, review granted, quoting Kelly, at p. 172.)

Furthermore, the language of section 189, subdivision (e),

which functions as a preamble that introduces the three

subparts that follow, further supports Morris’s interpretation.

Specifically, subdivision (e) introduces the three theories of

liability that follow by stating: “A participant in the perpetration

or attempted perpetration of a felony listed in subdivision (a) in

which a death occurs is liable for murder only if one of the

following is proven: . . .” (§ 189, subd. (e), italics added.) In this

way, subdivision (e)’s preamble already requires participation in

a qualifying felony and it then lists three subparts with

additional requirements for establishing felony-murder

liability. Consequently, it follows that subdivision (e)(2) does

not require merely “aiding” in the underlying felony because

are more tangential, involving different subdivisions and code

sections than the one at issue here and, in some instances, they

relate to language that was enacted decades before the

enactment of Senate Bill 1437. (See, e.g., Code Amends. 1873–

1874, ch. 614, § 16, p. 427; Prop. 115, as approved by voters,

Primary Elec. (June 5, 1990) § 9, eff. June 6, 1990 [amending §

189].)

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then it would be redundant of subdivision (e)’s “participation”

requirement.

The Attorney General’s reading would mean that section

189, subdivision (e)(2)’s intent to kill requirement is the only

way that subdivision (e)(2) differs from the preamble in

subdivision (e). However, “the subdivision proceeds for another

21 words, stating ‘... 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.’ ” (Lopez, supra, 88 Cal.App.5th at p. 585 (dis. opn. of

Raphael, J.); see also Kelly, supra, 105 Cal.App.5th at p. 173,

review granted.) Under the Attorney General’s theory, those 21

words are given no meaning if they mean the same as what was

required to make the defendant a participant in the crime.6 (See

Lopez, at p. 585 (dis. opn. of Raphael, J.).) This further supports

6

The concurring opinion endeavors to ascribe additional

meaning to these 21 words — an effort that the Attorney

General wisely does not attempt. (Conc. opn. of Guerrero, C. J.,

post, at pp. 10–11.) The concurrence suggests that the language

may exist in order to cover a seemingly limited and obscure

circumstance, i.e., the “actual killer” language is perhaps not

surplusage because it establishes that in cases where the

defendant had: (1) the intent to kill and (2) aided a participant

in an underlying felony that is logically and transactionally

related to the killing (People v. Cavitt (2004) 33 Cal.4th 187,

193), but (3) somehow did so without aiding the actual killer,

then the defendant would not be liable for murder under this

subdivision. It is hard to imagine such a fact pattern —

intending to kill and also aiding a crime partner in an act related

to killing, but doing so without aiding the actual killing — and

we do not view this as the most “ ‘ “ ‘ “plain and commonsense

meaning” ’ ” ’ ” of the phrase. (Lewis, supra, 11 Cal.5th at

p. 961.)

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Morris’s position that a nonkiller defendant must aid or abet the

actual killer in the lethal act, and not just the underlying felony,

as the Attorney General’s position would turn much of

subdivision (e)(2) into surplusage. (See People v. Griffin (2004)

33 Cal.4th 1015, 1027 [“ ‘the Legislature is not presumed to use

statutory language in a sense which would render nugatory or

redundant important provisions of a statute’ ”].)

Finally, our interpretation of the language in a different

but related context provides further support for Morris’s

interpretation. The financial-gain special circumstance

contains similar phrasing as section 189, subdivision (e)(2) in

that it applies to “[e]very person, not the actual killer, who, with

the intent to kill, aids, abets, counsels, commands, induces,

solicits, requests, or assists any actor in the commission of

murder in the first degree . . . .” (§ 190.2, subd. (c), italics added.)

When construing this language in the financial-gain special

circumstance, this court held that “ ‘one who intentionally aids

or encourages a person in the deliberate killing of another for

the killer’s own financial gain is subject to the special

circumstance punishment.’ ” (People v. Fayed (2020) 9 Cal.5th

147, 202, quoting People v. Freeman (1987) 193 Cal.App.3d 337,

339.) In other words, though the concurrence is correct that the

issue arose in the context of a financial-gain special-

circumstance finding, it is nonetheless significant that this court

construed the same “in the commission of murder in the first

degree” (§ 190.2, subd. (c)) language in precisely the way we now

read it — i.e., to require that one must aid the lethal act itself,

and not just the underlying felony.

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B. The Attorney General’s Reliance on People v.

Dickey (2005) 35 Cal.4th 884 and the Felony-

murder Special Circumstance Is Misplaced

The Attorney General relies upon People v. Dickey (2005)

35 Cal.4th 884, 900–901 (Dickey), where long before Senate Bill

1437, we interpreted “in the commission of murder in the first

degree” language found in the felony-murder special

circumstance. 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. (Dickey, at pp. 900–903.) The

Attorney General now argues that the term “murder in the first

degree” includes felony murder and the Legislature intended to

import the meaning of the felony-murder special circumstance,

as interpreted in Dickey, into the amended section 189,

subdivision (e)(2). The Attorney General further argues the

Legislature’s adoption of the felony-murder special-

circumstance language explains the surplusage and the

phrasing “commission of murder in the first degree” in

subdivision (e)(2). As discussed above, the Attorney General’s

interpretation would mean that the latter portion of subdivision

(e)(2) — 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

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from the felony-murder special circumstance (“commission of

murder in the first degree”) as a way to signal that 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.7

Specifically, Senate Bill 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

7

The Attorney General also relies upon language in Strong

where we said section 189, subdivision (e)(3) “repurposes

preexisting law governing felony-murder special-circumstance

findings . . . to define eligibility for sentencing relief.” (Strong,

supra, 13 Cal.5th at p. 703; accord, People v. Vang (2022)

82 Cal.App.5th 64, 90 [interpreting the term “actual killer” in

subd. (e)(1)].) However, Strong was interpreting subdivision

(e)(3), which is not at issue in this case and is applicable to “a

major participant in the underlying felony [who] acted with

reckless indifference to human life, as described in subdivision

(d) of Section 190.2.” (§ 189, subd. (e)(3).) As Strong explained,

“[t]he major participant and reckless indifference phrases were

‘derive[d] verbatim’ from United States Supreme Court

precedent concerning the permissible scope of capital

punishment for felony murder.” (Strong, at p. 705.)

Furthermore, subdivision (e)(3) explicitly invokes the

corresponding special circumstance provision in section 190.2,

subdivision (d). (See § 189, subd. (e)(3).) Section 189,

subdivision (e)(2) contains no similar language referencing the

special circumstance.

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Opinion of the Court by Groban, J.

in furtherance of the common design.” (Dickey, supra,

35 Cal.4th at p. 900.) 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.” (Ibid.)

However, Senate Bill 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.” (Jackson, supra, 110 Cal.App.5th at p. 173,

review granted.) 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(e).” (Lopez, supra, 88 Cal.App.5th at p.

587 (dis. opn. of Raphael, J.); see also Jackson, at p. 172.) Thus,

the question we are presented with here is which 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 1437’s changes to the felony-murder rule.8

8

The Court of Appeal further relied upon language from our

decision Curiel, supra, 15 Cal.5th at p. 433 where we said that

if a jury “made findings on all of the other elements supporting

felony murder under section 189 as amended, including (1) the

commission or attempted commission of a felony enumerated in

that statute and (2) the death of a person during the commission

or attempted commission of the enumerated felony” and the

“jury additionally found intent to kill,” that “would conclusively

establish all of the elements of felony murder under current

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C. There Is Nothing in the Legislative History of

Senate Bill 1437 That Persuades Us To Adopt a

Different Result

The statutory language clearly demonstrates that section

189, subdivision (e)(2) requires proof the defendant aided or

abetted the actual killer in the lethal act itself, and not just the

underlying felony. (See Prudholme, supra, 14 Cal.5th at

pp. 975–976 [“ ‘ “If the language is clear, courts must generally

follow its plain meaning unless a literal interpretation would

result in absurd consequences the Legislature did not

intend” ’ ”].) As a result, we need not address the Attorney

General’s arguments pertaining to legislative history. In any

event, the legislative history does not aid the Attorney General’s

argument. (See People v. Rhodius (2025) 17 Cal.5th 1050, 1063

[“ ‘[E]ven if we considered the language and structure of [Senate

Bill 1437] to be susceptible to the Court of Appeal’s . . . reading,’

and thus employed ‘ “ ‘other aids, such as the statute’s purpose,

legislative history, and public policy’ ” ’ (Lewis, supra,

11 Cal.5th at p. 967), we would find nothing in that inquiry that

persuades us to adopt a different conclusion”].)

The Attorney General argues that the legislative history

shows that Senate Bill 1437 did not change the actus reus for

law.” (Id. at p. 464.) However, Curiel addressed the mental

state required in a direct aiding and abetting case, and was not

a felony-murder case. (See Kelly, supra, 105 Cal.App.5th at

p. 173, review granted.) We also made clear that our holding

was limited to the specific facts and circumstances that were

presented in that case. (See Curiel, at p. 467 [“we need not

decide whether the jury necessarily found the requisite actus

reus because we conclude the jury did not necessarily find the

requisite mens rea for direct aiding and abetting liability”]; see

also id. at p. 470, fn. 7.)

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Opinion of the Court by Groban, J.

felony-murder liability as an aider and abettor with intent to kill

because the bill’s primary purpose was to bar the imputation of

malice to aiders and abettors to murder. The Attorney General

relies upon the legislative finding that “[i]t is necessary 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(f).) The

Attorney General emphasizes that the focus for the second

category of persons in this expressed purpose is on the mens rea

and not the actus reus. The Attorney General also relies upon

various legislation resolutions and reports highlighting the need

to bar the imputation of malice. (See Sen. Conc. Res. No. 48,

Stats. 2017 (2017–2018 Reg. Sess.) res. ch. 175; Sen. Com. on

Public Safety, Analysis of Sen. Bill 1437 (2017–2018 Reg. Sess.)

as introduced Feb. 16, 2018, p. 4 [“Under this bill, prosecutors

would no longer be able to substitute the intent to commit a

felony for the intent to commit murder”].)

While barring the imputation of malice was certainly an

issue that the Legislature sought to address, the legislative

findings and legislative history of Senate Bill 1437 reflect that

the bill was also directed at the actus reus requirement and,

more generally, at making a broad ameliorative change to more

equitably sentence offenders. The legislative findings expressed

a need for reform and “for statutory changes to more equitably

sentence offenders in accordance with their involvement in

homicides.” (Stats. 2018, ch. 1015, § 1(b), italics added.) The

legislative findings note that “a person should be punished for

his or her actions according to his or her own level of individual

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Opinion of the Court by Groban, J.

culpability.” (Id. § 1(d), italics added.) Furthermore, the

legislative findings explained that “[a] person’s culpability for

murder must be premised upon that person’s own actions and

subjective mens rea.” (Id. § 1(g), italics added.) Legislative

reports on Senate Bill 1437 further confirm that the Legislature

was concerned with both the actus reus and mens rea. (See, e.g.,

Sen. Com. on Public Safety, Analysis of Sen. Bill 1437, supra, as

introduced Feb. 16, 2018, p. 9 [“those who . . . cause a death will

still be liable for murder. S.B. 1437 simply reduces the

unfairness of the felony-murder rule by refocusing attention on

the intent and actions of the participants”]; Assem. Com. on Pub.

Safety, Analysis of Sen. Bill 1437 (2017–2018 Reg. Sess.) as

amended May 25, 2018, p. 4 [the bill “ ‘seeks to restore

proportional responsibility in the application of California’s

murder statute reserving the harshest punishments for those

who intentionally planned or actually committed the killing’ ”

(italics added)].)

The legislative history thus 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 1437 was concerned only with barring the

imputation of malice to aiders and abettors to murder.

D. Interpreting Section 189, Subdivision (e)(2) To

Require a Nonkiller To Aid the Lethal Act Itself

Would Not Lead to Illogical Results

The Attorney General argues that Morris’s interpretation

of section 189, subdivision (e)(2) would be illogical because it

would require both a greater mens rea and actus reus than

required under subdivision (e)(3). Under the amended felony-

murder rule, there are three theories of liability: “[t]he person

was the actual killer” (§ 189, subd. (e)(1)); “[t]he person was not

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Opinion of the Court by Groban, J.

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” (id., subd. (e)(2)); and “[t]he person was a major

participant in the underlying felony and acted with reckless

indifference to human life” (id., subd. (e)(3)). The Attorney

General argues that this structure of section 189, subdivision (e)

is most logically understood as increasing the actus reus

requirement for felony murder as the mens rea decreases. The

Attorney General believes that as the reader progresses from

subdivision (e)(1) to subdivision (e)(3), the actus reus required

becomes progressively more onerous and the mens rea becomes

less onerous. The Attorney General further contends that

Morris’s interpretation would mean that both a greater mens

rea is required under subdivision (e)(2) than under subdivision

(e)(3) — an intent to kill rather than reckless indifference to

human life — and also a greater actus reus — aiding the lethal

act itself rather than a major participant in the underlying

felony.

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 committed the killing’ ”].)

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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.

Furthermore, even adopting Morris’s interpretation of the

statute, section 189 still does not reflect, as the Attorney

General suggests, a decreasing overall level of culpability when

progressing through the three theories of felony murder in

subdivision (e). Indeed, section 189, subdivision (e)(2) does not

necessarily require a heightened level of culpability when

compared to subdivision (e)(3). Rather, the level of culpability

for a defendant charged with felony murder under subdivision

(e)(2) versus a defendant charged under subdivision (e)(3)

depends on the circumstances of the case. The court in Kelly

explained there could be situations where “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 [Attorney General’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).” (Kelly, supra,

105 Cal.App.5th at p. 175, review granted; see also Morris,

supra, 100 Cal.App.5th at p. 1034 (dis. opn. of Moore, J.)

[describing a “hypothetical bank robbery involving three

coparticipants” to show how the three theories of felony-murder

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Opinion of the Court by Groban, J.

liability in subd. (e) apply].) Thus, there may be situations

where a person convicted under subdivision (e)(2) has greater

culpability than a person convicted under subdivision (e)(3), and

vice versa, but there is nothing illogical about adopting Morris’s

interpretation of subdivision (e)(2).

The Attorney General similarly argues that Morris’s

reading of section 189, subdivision (e) would render subdivision

(e)(2) superfluous to subdivision (e)(3), which addresses felony

murder as a major participant with reckless indifference to

human life. However, for similar reasons, this is not so.

Subdivision (e)(2) is not superfluous because “not everyone who

directly aids and abets a murder [under subdivision (e)(2)] is

liable for murder as a major participant under that section.”

(Kelly, supra, 105 Cal.App.5th at p. 176, review granted.)

Rather, in order to satisfy the major participant element in

subdivision (e)(3), the defendant’s personal involvement must be

“substantial, greater than the actions of an ordinary aider and

abettor to an ordinary felony murder . . . .” (People v. Banks

(2015) 61 Cal.4th 788, 802; accord, Kelly, at p. 176.) Thus, even

when interpreting subdivision (e)(2) to require aiding the actual

killer in the lethal act itself, subdivision (e)(3) still has

independent meaning based upon its heightened requirements

for the major participant element.

The Attorney General next argues that Morris’s reading of

section 189, subdivision (e) would render subdivision (e)(2)

superfluous to direct aiding and abetting murder under

standard aiding and abetting law. However, contrary to the

Attorney General’s claim, interpreting subdivision (e)(2) to

require aiding the actual killer in the lethal act itself is not the

same as requiring proof the defendant directly aided and

abetted murder. Rather, in order for an accomplice to be liable

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Opinion of the Court by Groban, J.

for directly aiding and abetting a murder, the accomplice must

“ ‘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.” ’ ” (Curiel, supra,

15 Cal.5th at p. 463.) In contrast, subdivision (e)(2) simply

requires the defendant, with the intent to kill, to “aid[], abet[],

counsel[], command[], induce[], solicit[], request[], or assist[] the

actual killer in the commission of murder in the first degree.”

(§ 189, subd. (e)(2).) Although subdivision (e)(2) includes “aid[]”

or “abet[]” language, it does not contain all the elements of direct

aiding and abetting murder because, even under Morris’s

interpretation of subdivision (e)(2), it does not require the same

knowledge requirements as direct aiding and abetting.

Specifically, subdivision (e)(2) requires the accomplice have the

intent to kill, while direct aiding abetting requires the

accomplice have “ ‘ “knowledge of the direct perpetrator’s

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

unlawful ends.” ’ ” (Curiel, at p. 463, italics added.) Morris’s

reading of section 189 does not render subdivision (e)(2)

superfluous to direct aiding and abetting murder because

subdivision (e)(2) requires the accomplice to have the intent to

kill but does not require the accomplice to know the direct

perpetrator’s intent.

Finally, the Attorney General argues Morris’s position is

illogical because it would require a higher level of culpability to

establish a first degree felony-murder conviction than to

establish eligibility for the death penalty with a true finding on

a special circumstance. As an initial matter, and as the

Attorney General acknowledges, there is no constitutional

impediment to such a scheme. A scheme narrowing eligibility

at the guilt phase as opposed to the penalty phase is not

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Opinion of the Court by Groban, J.

constitutionally proscribed when, as it does here, it narrows the

class of death-eligible defendants to first degree felony

murderers from all potential murder defendants. (See

Lowenfield v. Phelps (1988) 484 U.S. 231, 246 [“the ‘narrowing

function’ was performed by the jury at the guilt phase when it

found defendant guilty of three counts of murder under the

provision that ‘the offender has a specific intent to kill or to

inflict great bodily harm upon more than one person’ ”].) As one

Court of Appeal explained, “our role is not to ask whether a

given special circumstance narrows an already-narrowed subset

of murderers (first degree murderers) who have been found

guilty of murder under one particular theory of liability (felony

murder). Rather, our task is to determine whether the state’s

capital punishment law genuinely narrows the entire class of

murderers to a subclass of death-eligible murderers.” (People v.

Wilkins (2021) 68 Cal.App.5th 153, 165, italics omitted.) In this

case, the felony-murder special circumstance “makes a subclass

of murderers — first degree felony murderers — death eligible.

It does not apply to other murderers such as second degree

murderers or simple murderers. Because the statute renders a

mere subset of murderers eligible for the death penalty, it

sufficiently narrows the overall class of murderers as required

by the Eighth Amendment.” (Ibid.; accord, People v. Landry

(2016) 2 Cal.5th 52, 108 [“There is no requirement at the

eligibility stage that a narrowly circumscribed class of

defendants for whom the death penalty is reasonably justified

be further distinguished according to the particular

circumstances that led to their eligibility”].)

Furthermore, to the extent that the Attorney General

argues that it would be illogical for the Legislature to have

intended to require more culpability for a felony-murder

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Opinion of the Court by Groban, J.

conviction than for a special circumstance finding, the Attorney

General’s argument assumes that a special circumstance

finding requires less culpability than a felony-murder

conviction. However, the special circumstance finding is

dependent on the defendant aiding murder in the first degree

under current law. (See § 190.2, subd. (c) [“Every person, not

the actual killer, who, with the intent to kill, aids, abets,

counsels, commands, induces, solicits, requests, or assists any

actor in the commission of murder in the first degree . . .” (italics

added)].) In order to support that a special circumstance finding

requires less culpability than a first degree murder verdict, the

Attorney General appears to assume that Dickey continues to

articulate the controlling standard for the special circumstance

under section 190.2, subdivision (c). In Dickey, evidence that a

defendant “planned and participated in the burglaries and

robberies” would permit a first degree murder verdict upon

which the special circumstance finding was premised. (Dickey,

supra, 35 Cal.4th at p. 900.) However, under the amended

felony-murder rule, such evidence, without more, is no longer

sufficient for a first degree murder verdict. And if a defendant

who merely aided or abetted in the underlying felony cannot be

liable for first degree murder, then the defendant also cannot be

liable for the special circumstance finding under section 190.2,

subdivision (c) on the ground that the defendant committed first

degree murder. Finally, the Legislature is not required to

amend the felony-murder rule and the special circumstance at

the same time. Indeed, a Legislature interested in reforming

the felony-murder rule can first amend the provisions that

directly address the felony-murder rule and then later, if it

chooses, amend related special circumstance provisions. (See,

e.g., People v. Hardin (2024) 15 Cal.5th 834, 866 [“We are also

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Opinion of the Court by Groban, J.

mindful that the legislative branch is entitled to proceed

incrementally, so long as it proceeds rationally, in ‘walking [the]

tightrope’ of the political process”].)

III. CONCLUSION

We hold 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.9 We reverse the Court of

Appeal and remand for reconsideration in light of our opinion.

Morris has not had a chance to present evidence of his

culpability at a section 1172.6 evidentiary hearing. On remand,

the Court of Appeal may consider the Attorney General’s

remaining arguments in order to determine whether Morris has

made the necessary prima facie showing for an evidentiary

hearing.10 (§ 1172.6, subd. (d)(1).)

9

We disapprove Courts of Appeal reaching the opposite

conclusion in People v. Lopez, supra, 88 Cal.App.5th at page 566,

People v. Lopez, supra, 104 Cal.App.5th at page 616, review

granted, People v. Taito, supra, 115 Cal.App.5th at page 704,

review granted.

10

The Attorney General argues the jury’s true finding as to

the financial-gain special circumstance “demonstrates that

Morris aided and abetted the killing itself with intent to kill and

is thus guilty of murder even under the interpretation of section

189, subdivision (e)(2), that Morris advances.” Furthermore, the

Attorney General also argues, “in addition to felony murder, the

jury’s true finding as to the financial gain special circumstance

encompassed all the elements of direct aiding and abetting.” We

do not address these arguments here and the Court of Appeal

may address them on remand.

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Opinion of the Court by Groban, J.

GROBAN, J.

We Concur:

CORRIGAN, J.

LIU, J.

KRUGER, J.

EVANS, J.

28

PEOPLE v. MORRIS

S284751

Concurring Opinion by Chief Justice Guerrero

I join in the majority’s holding that Penal Code

section 189, subdivision (e)(2),1 requires a participant in a felony

who is not the actual killer to aid or assist in the killing itself,

or the lethal act, that occurs during the commission of the felony.

I write separately to explain that unlike the majority, I do not

find the language of subdivision (e)(2) “ ‘plain and

unambiguous.’ ” (Maj. opn., ante, at p. 10.) In my view, the

majority’s interpretation stands in relative equipoise to the

interpretation advanced by the Attorney General, the Court of

Appeal, and several other courts that have considered the

issue — that a felony participant aids an actual killer in the

commission of murder in the first degree by aiding the killer in

the underlying felony. (See People v. Taito (2025)

115 Cal.App.5th 694, 704, review granted Jan. 28, 2026,

S294105 (Taito); People v. Lopez (2024) 104 Cal.App.5th 616,

621, review granted Nov. 13, 2024, S287162; People v. Morris

(2024) 100 Cal.App.5th 1016, 1020, review granted July 17,

2024, S284751 (Morris); People v. Lopez (2023) 88 Cal.App.5th

566, 578–579 (Lopez).) Our normal interpretative aids, such as

the structure and purpose of the statute and the legislative

history accompanying Senate Bill No. 1437 (2017–2018 Reg.

Sess.) (Senate Bill 1437), do not enable us to conclude with any

degree of certainty which actus reus the Legislature sought to

1

Undesignated statutory references are to the Penal Code.

1

PEOPLE v. MORRIS

Guerrero, C. J., concurring

require for felony participants who are not themselves actual

killers, but act with intent to kill. Where, as here, two

reasonable interpretations of a criminal statute stand in relative

equipoise, the rule of lenity operates to “ ‘ “giv[e] the defendant

the benefit of every reasonable doubt on questions of

interpretation.” ’ ” (People v. Nuckles (2013) 56 Cal.4th 601, 611

(Nuckles).) Applying the rule of lenity, I would adopt the

interpretation more favorable to defendant in this case, and on

that basis join in the majority’s interpretation of

subdivision (e)(2).

I.

As the majority notes, the Legislature significantly

narrowed the scope of the felony-murder doctrine in adopting

Senate Bill 1437. Section 189, subdivision (e), now provides

that “[a] participant in the perpetration or attempted

perpetration of [an enumerated 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. [¶] (2) 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. [¶] (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.”

“ ‘ “ ‘ “ ‘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 statute’s words, giving them a plain and

commonsense meaning’ ” ’ ” ’ ” (People v. Walker (2024)

16 Cal.5th 1024, 1032 (Walker)), and determining “whether the

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PEOPLE v. MORRIS

Guerrero, C. J., concurring

language of the statute is ambiguous” (People v. Dieck (2009)

46 Cal.4th 934, 940). “A statutory provision is ambiguous if it is

susceptible of two reasonable interpretations.” (Ibid.) “ ‘ “ ‘ “ ‘If

the statutory language permits more than one reasonable

interpretation, [we] consider other aids, such as the statute’s

purpose, legislative history, and public policy’ ” ’ ” ’ ” to resolve

the ambiguity. (Walker, at p. 1032.)

The pertinent question is what it means for a felony

participant to aid or assist an actual killer “in the commission of

murder in the first degree,” for purposes of section 189,

subdivision (e)(2). (Italics added.) The majority concludes that

the commonsense meaning involves aiding the killing of a

human being and not just aiding in the commission of an

enumerated felony. (Maj. opn., ante, at pp. 9–10.) The majority

is correct that this is a reasonable interpretation of the statute,

but I respectfully disagree that it is the only reasonable

interpretation. The Attorney General’s interpretation, that

aiding in the commission of murder in the first degree includes

aiding in the underlying felony, is also reasonable.

As the Court of Appeal explained, “ ‘murder in the first

degree’ ” is a “legal term of art” specifically defined in the Penal

Code. (Morris, supra, 100 Cal.App.5th at p. 1025; see Taito,

supra, 115 Cal.App.5th at p. 704, review granted; Lopez, supra,

88 Cal.App.5th at p. 578.) Where a legislative body uses a term

in a statute that “has developed a particular meaning in the law,

we generally presume the legislative body used the term in that

sense rather than relying on ordinary usage.” (In re Friend

(2021) 11 Cal.5th 720, 730.) Similarly, where “ ‘the Legislature

has provided an express definition of a term, that definition

ordinarily is binding on the courts.’ ” (People v. Canty (2004)

32 Cal.4th 1266, 1277.)

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PEOPLE v. MORRIS

Guerrero, C. J., concurring

“[M]urder of the first degree” is defined in subdivision (a)

of section 189 as murder2 that is “perpetrated” by one of several

enumerated means. This includes murder “committed in the

perpetration of, or attempt to perpetrate,” one of several

enumerated felonies. (§ 189, subd. (a).) Thus, for purposes of

California law “murder in the first degree” does not simply

equate to killing a human being. (§ 189, subd. (e).) It is the fact

that the killing is perpetrated by a specific means that qualifies

the killing as murder in the first degree, and one of those means

is committing a felony during which the killing occurs.

Thus, for purposes of subdivisions (a) and (e)(2) of

section 189, a person with the specific intent to kill may

reasonably be said to aid or assist an actual killer in the

commission of murder in the first degree in one of two ways:

(1) by aiding in the killing, i.e., the act that causes the death; or

(2) by aiding in the commission of the felony that effects such a

killing, i.e., the act that qualifies the killing as a first degree

murder. The interpretation turns on which element or elements

of first degree murder the Legislature intended to require the

felony participant to aid in. The Legislature may, as the

majority asserts, have intended to require the participant to aid

in the killing element. However, as the Attorney General and

other courts have recognized, the Legislature may have also

intended to require the participant to aid in either the killing

element or the commission-of-a-qualifying-felony element.

Because subdivision (e)(2) of section 189 is reasonably

2

Murder is defined in section 187, subdivision (a), as “the

unlawful killing of a human being, or fetus, with malice

aforethought.”

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PEOPLE v. MORRIS

Guerrero, C. J., concurring

susceptible to either interpretation, the statute is inherently

ambiguous.

Consider the facts of this case. Richard Morris, Jr., was

one of two participants in a robbery during which a victim was

shot and killed. There is no dispute that the jury necessarily

found Morris acted with the specific intent to kill. Assuming

Morris’s coparticipant was the shooter, Morris may reasonably

be said to have aided or assisted his coparticipant in murder in

the first degree if, with the specific intent to kill, he either

(1) helped his coparticipant shoot the victim, or (2) helped his

coparticipant perform the robbery during which his

coparticipant committed the shooting. In either case, Morris’s

assistance would have contributed to his coparticipant’s

commission of murder in the first degree for purposes of how the

Penal Code defines the term. Indeed, as one lower court noted,

the Legislature may have reasonably determined that

“[d]efendants who aid a qualifying felony with an intentional

plan to kill” are equally deserving of the harshest punishments

as those that in fact commit the killing. (See Lopez, supra,

88 Cal.App.5th at p. 579.)

II.

Because the language of section 189, subdivision (e)(2) is

ambiguous, the next step is to turn to our interpretative aids to

resolve the ambiguity, including canons of statutory

construction (McCarther v. Pacific Telesis Group (2010)

48 Cal.4th 104, 110) and the statute’s purpose, legislative

history, and public policy (Walker, supra, 16 Cal.5th at p. 1032).

The Attorney General relies largely on our prior decision in

People v. Dickey (2005) 35 Cal.4th 884 (Dickey) in support of his

proposed interpretation. The majority, by contrast, concludes

5

PEOPLE v. MORRIS

Guerrero, C. J., concurring

that various structural aspects of section 189, subdivision (e), as

well as our prior opinion in People v. Fayed (2020) 9 Cal.5th 147,

202 (Fayed), support its interpretation. In my view, the

arguments offered by the Attorney General and the majority

lend some support to each of the competing interpretations, but

do not pull strongly in either direction.

The Attorney General’s reliance on Dickey implicates one

of our well-established canons of construction: “When

legislation has been judicially construed and subsequent

statutes on a similar subject use identical or substantially

similar language, the usual presumption is that the Legislature

intended the same construction, unless a contrary intent clearly

appears.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135; see

People v. Licas (2007) 41 Cal.4th 362, 367 [“ ‘[T]he Legislature

is deemed to be aware of existing laws and judicial decisions in

effect at the time legislation is enacted and to have enacted and

amended statutes “ ‘in the light of such decisions as have a direct

bearing upon them’ ” ’ ”].)

In Dickey, we interpreted language in section 190.2, the

special circumstance statute, that is substantially similar to

section 189, subdivision (e)(2). Section 190.2, subdivision (a),

sets forth various special circumstances that, if found true, set

the penalty for first degree murder as death or life in prison

without the possibility of parole (including that the murder was

a felony murder, § 190.2, subd. (a)(17)). Subdivision (c) then

provides as follows: “Every person, not the actual killer, who,

with the intent to kill, aids, . . . or assists any actor in the

commission of murder in the first degree shall be punished by

death or imprisonment in the state prison for life without the

possibility of parole if one or more of the special circumstances

enumerated in subdivision (a) has been found to be true . . . .”

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PEOPLE v. MORRIS

Guerrero, C. J., concurring

As the text indicates, both subdivision (c) of section 190.2 and

subdivision (e)(2) of section 189 apply to nonkillers who, with

intent to kill, aid or assist “in the commission of murder in the

first degree.”

In Dickey, the defendant challenged a jury’s felony-murder

special-circumstance finding under the predecessor statute to

section 190.2, subdivision (c).3 The defendant argued, like

Morris argues here, that the statute’s use of the term “aiding . . .

in the commission of murder in the first degree” required the

prosecution to prove he aided or abetted the killing itself, rather

than merely aided or assisted in the underlying felonies.

(Dickey, supra, 35 Cal.4th at p. 900.) We rejected the

defendant’s argument, expressly holding that section 190.2,

former subdivision (b) required only that the defendant aid or

assist in the underlying felony. (Dickey, at pp. 900–901.)

Because section 189, subdivision (e)(2) so closely mirrors

section 190.2, we might normally assume, as the Attorney

General argues, that the Legislature intended to incorporate our

interpretation of aiding “in the commission of murder in the first

3

Section 190.2, former subdivision (b) provided: “Every

person whether or not the actual killer found guilty of

intentionally aiding, . . . 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, in any case in which one or more of the

special circumstances . . . has been charged and specially found

under Section 190.4 to be true.” (§ 190.2, former subd. (b), added

by initiative, Gen. Elec. (Nov. 7, 1978), renumbered as § 190.2,

subd. (c) by initiative, Primary Elec. (June 5, 1990).) For

purposes of the analysis, there are no meaningful differences

between former subdivision (b) and current subdivision (c) of

section 190.2.

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Guerrero, C. J., concurring

degree,” as stated in Dickey, supra, 35 Cal.4th 884, into

section 189, subdivision (e)(2). However, I agree with the

majority that under the unique circumstances presented, such

an assumption is not necessarily warranted. As the majority

notes, Senate Bill 1437’s amendments to the felony-murder

doctrine abrogated a key premise on which we relied in Dickey.

In Dickey, we reasoned that section 190.2, former

subdivision (b), required only that a felony participant aid or

assist in an underlying felony because “[a]ll persons aiding or

abetting the commission of [an enumerated felony] are guilty of

first degree murder when one of them kills while acting in

furtherance of the common design.” (Dickey, at p. 900.) That

premise no longer holds. Following the Legislature’s adoption

of Senate Bill 1437 (Stats. 2018, ch. 1015), a felony participant’s

liability for murder is limited to the specific instances

enumerated in section 189, subdivision (e). Thus, while Dickey

does lend some support to the Attorney General’s proposed

interpretation, I agree with the majority that the circumstances

present an unusual case in which we should not assume the

Legislature necessarily intended to adopt our prior

interpretation of language used in an earlier enacted statute.4

According to the majority, several contextual reasons

support its conclusion that the plain meaning of section 189,

subdivision (e)(2) requires the felony participant to aid in the

killing itself, rather than merely aid in the underlying felony.

4

I also agree with the majority’s conclusions that the

legislative history does not support the Attorney General’s

proposed interpretation over its interpretation, and that its

proposed interpretation would not lead to illogical results. (Maj.

opn., ante, at pp. 18–27.)

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PEOPLE v. MORRIS

Guerrero, C. J., concurring

The reasons offered do not strongly support the majority’s

interpretation.

First, the majority notes that the Legislature used the

term “underlying felony” elsewhere in section 189, namely in

subdivision (e)(3). (Maj. opn., ante, at pp. 10–12.) According to

the majority, the fact that the Legislature used the term

“underlying felony” elsewhere in section 189 indicates that it did

not intend the term aiding a “murder in the first degree” (§ 189,

subd. (e)(2)) to mean merely aiding in an underlying felony.

However, the same can be said about the majority’s proposed

interpretation. The Legislature used the term “killing” in

subdivisions (a) and (d) of section 189 when referring to a lethal

act that causes a death, as well as in numerous neighboring

provisions of the Penal Code. (§§ 187, subd. (a), 188, subd. (b),

190, subd. (d), 190.2, subd. (a)(10), (13).) Similarly, the

Legislature used the term “actual killer” in section 189,

subdivision (e)(1) and (2) when referring to the person or

persons that most directly perpetrate the killing. To the extent

the Legislature’s use of the term “underlying felony” elsewhere

in section 189 indicates that it did not intend aiding in the

commission of murder in the first degree to mean aiding in the

underlying felony, its use of the terms “killing” and “actual

killer” would similarly indicate it did not intend aiding in the

commission of murder in the first degree to simply mean aiding

in the killing.

The majority also contends that the Attorney General’s

proposed interpretation would create surplusage within

section 189, subdivision (e)(2). The majority notes that the

preamble to subdivision (e) states that, to be liable for felony

murder, a defendant must first be “[a] participant in the

perpetration or attempted perpetration of a felony listed in

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PEOPLE v. MORRIS

Guerrero, C. J., concurring

subdivision (a) in which a death occurs . . . .” In light of the

preamble, the majority concludes that interpreting the phrase

“aid[ing] . . . or assist[ing] . . . in the commission of murder in

the first degree” to include aiding in the underlying felony would

render the entire 21-word clause at the end of section 189,

subdivision (e)(2) surplusage. (Maj. opn., ante, at pp. 12–14.)

I agree with the majority’s general point that, if the

Legislature intended to require a felony participant who acts

with intent to kill to do no more than aid the killer in the

underlying felony, the language used in section 189,

subdivision (e) is cumbersome and not a straightforward way to

do so. However, I do not share the majority’s view that such an

interpretation renders the final 21 words in subdivision (e)(2)

surplusage. Section 189, subdivision (e) imposes an initial

requirement that the person participate in an enumerated

felony “in which a death occurs.” It does not, however, specify

how that death must occur during the felony. Subdivision (e)(2)

then includes three clauses, each of which adds an additional

element. The first clause requires that the participant not be

“the actual killer” (thus distinguishing subd. (e)(1)). The second

clause requires that the participant act “with the intent to kill.”

(§ 189, subd. (e)(2).) The final, 21-word clause — the one the

majority refers to — requires that the participant aid or assist

the actual killer in the commission of murder in the first degree.

(Ibid.) In other words, the final clause sets a limitation on how

the death must occur during the felony: one of the participants

in the felony must be the actual killer, or person directly

responsible for the victim’s death. The third clause in

subdivision (e)(2) thus serves to exclude cases where, for

example, the circumstances causing the death are too

tangentially related to any felony participant’s conduct, such

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PEOPLE v. MORRIS

Guerrero, C. J., concurring

that no participant may reasonably be described as an actual

killer. (See Sen. Com. on Public Safety, Analysis of Sen. Bill

No. 1437 (2017–2018 Reg. Sess.) as introduced Feb. 16, 2018,

pp. 3, 6 [expressing concern that felony-murder liability may

attach where “accidental” deaths occur during the commission

of a felony, such as a fall by a victim while chasing a

participant].)

Moreover, any surplusage in section 189,

subdivision (e)(2) may reasonably be explained by the fact that

subdivision (e)(2) mirrors pre-existing subdivision (c) of

section 190.2. As discussed, subdivision (c) of section 190.2 sets

forth when a jury may find a special circumstance true for

nonkillers who act with intent to kill. As the Attorney General

argues, the Legislature’s decision to incorporate language from

section 190.2, subdivision (c) into section 189, subdivision (e)(2)

may reasonably reflect its intent to limit a defendant’s liability

for felony murder to the same conditions under which the special

circumstance statute applies. Given the alternative explanation

for the Legislature’s use of the language, I do not view the

existence of arguable surplusage as especially probative of the

Legislature’s intent. (See Ferra v. Loews Hollywood Hotel, LLC

(2021) 11 Cal.5th 858, 872 [“canons of interpretation ‘are not

immutable rules’; they are ‘guidelines subject to exceptions,’ ”

including where competing canons point in different

directions].)

Finally, the majority asserts that our opinion in Fayed

supports its interpretation. But Fayed has no relevance to this

case.

Fayed addressed an application of the financial gain

special circumstance, not the felony-murder special

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PEOPLE v. MORRIS

Guerrero, C. J., concurring

circumstance. (See § 190.2, subd. (a)(1); Fayed, supra, 9 Cal.5th

at pp. 201–202.) The financial gain special circumstance applies

where “[t]he murder was intentional and carried out for

financial gain.” (§ 190.2, subd. (a)(1).) In Fayed, the defendant

paid an employee to arrange for the murder of his estranged

wife. The employee in turn enlisted two associates to carry out

the killing. (Fayed, at p. 155.) On appeal, the defendant argued

that the evidence did not support the special circumstance

finding because the person who stood to gain financially from

the murder (his employee) was not the person who actually

killed the victim (the associates whom the employee enlisted).

(Id. at p. 201.) We rejected defendant’s argument. Relying in

part on the fact that section 190.2, subdivision (c) makes special

circumstance findings applicable to nonkillers who aid in the

murder with intent to kill, we held that it was immaterial which

person — the actual killer or an intermediary — stood to reap

the “financial gain” from the murder. (Fayed, at p. 202.)

Fayed says nothing about whether a felony participant

must aid the killing itself, rather than the underlying felony.

The defendant in Fayed was not convicted under a felony-

murder theory, and the felony-murder special circumstance

(§ 190.2, subd. (a)(17)) was not at issue.

III.

Ultimately, section 189, subdivision (e)(2) does not

perfectly correspond to either the majority’s interpretation or

the interpretation advanced by the Attorney General and Court

of Appeal. The Legislature would have better accomplished the

majority’s interpretation had it stated that a felony participant

who acts with intent to kill must aid or assist the actual killer

in the “killing,” “actual killing,” or “lethal act,” rather than in

12

PEOPLE v. MORRIS

Guerrero, C. J., concurring

the “commission of murder in the first degree.” Similarly, the

Legislature would have better accomplished the Attorney

General’s proposed interpretation had it stated, for example,

that a felony participant must aid or assist the actual killer in

“either the lethal act or the underlying felony.” Neither the

“ ‘text, context and structure, overall purpose, relevant case law,

[or] legislative history’ ” provide a satisfactory answer as to

what the Legislature intended to require when stating that a

felony participant must, with intent to kill, aid the actual killer

in the commission of murder in the first degree. (People v.

Reynoza (2024) 15 Cal.5th 982, 1012.)

In this circumstance, the rule of lenity applies to resolve

the otherwise insoluble ambiguity in the statute. The rule of

lenity generally requires that, where two reasonable

interpretations of a criminal statute “ ‘ “ ‘ “stand in relative

equipoise,” ’ ” ’ ” ambiguity “ ‘ “should be resolved in favor of

lenity, giving the defendant the benefit of every reasonable

doubt on questions of interpretation.” ’ ” (Nuckles, supra,

56 Cal.4th at p. 611.) The rule is grounded in principles of due

process for those potentially subject to criminal penalties.

“ ‘Application of the rule of lenity ensures that criminal statutes

will provide fair warning concerning conduct rendered illegal

and strikes the appropriate balance between the legislature, the

prosecutor, and the court in defining criminal liability.’ ” (People

ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313.)

The rule “ ‘does not apply every time there are two or more

reasonable interpretations of a penal statute.’ ” (Nuckles, supra,

56 Cal.4th at p. 611.) Rather, the rule applies “ ‘only if the court

can do no more than guess what the legislative body intended;

there must be an egregious ambiguity and uncertainty to justify

invoking the rule.’ ” (People v. Avery (2002) 27 Cal.4th 49, 58.)

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PEOPLE v. MORRIS

Guerrero, C. J., concurring

Where resort to other interpretative aids does not resolve the

criminal statute’s ambiguity, “ ‘the rule of lenity is a tie-

breaking principle.’ ” (People v. Manzo (2012) 53 Cal.4th 880,

889.)

This case is one in which the competing interpretations

stand in relative equipoise, and we can do no more than guess

what the Legislature intended. The Legislature’s use of the

phrase aiding the actual killer “in the commission of murder in

the first degree” in section 189, subdivision (e)(2), is ambiguous.

Our normal interpretative aids do not resolve that ambiguity in

favor of either competing interpretation offered by the parties.

The rule of lenity thus operates as the appropriate tie-breaking

principle. Indeed, resort to the rule is especially appropriate

considering the Legislature’s general ameliorative goal in

enacting Senate Bill 1437 to limit the scope of the felony-murder

doctrine. I therefore join the majority on this basis in adopting

the construction of section 189, subdivision (e)(2) that is more

favorable to defendants: a participant in a felony is liable for a

murder only if that person acts with intent to kill, and aids or

assists the actual killer in committing the lethal act.

GUERRERO, C. J.

14

PEOPLE v. MORRIS

S284751

Dissenting Opinion by Justice Yegan

I respectfully dissent. One hundred seventy-five years of

felony-murder precedent should not be set aside by an

ambiguous statute. I agree with the Court of Appeal opinion

authored by Justice Delaney with a concurrence by Presiding

Justice O’Leary, People v. Morris (2024) 100 Cal.App.5th 1016

(Morris), which applied the traditional felony-murder rule.

(See also People v. Taito (2025) 115 Cal.App.5th 694, 704,

review granted Jan. 28, 2026, S294105; People v. Lopez (2024)

104 Cal.App.5th 616, 621, review granted, Nov. 13, 2024,

S287162 (Lopez); Morris, at p. 1020; People v. Lopez (2023)

88 Cal.App.5th 566, 578–579.) The felony-murder rule and its

history in California for about 175 years is fully explicated by

Justice Mosk in People v. Dillon (1983) 34 Cal.3d 441, 465. In

my opinion, even though it may be controversial, the

traditional felony-murder rule has served California well.

“ ‘Salus populi suprema lex esto.’ ” (People v. Pacheco (2022) 75

Cal.App.5th 207, 209 [“ ‘The safety of the community is the

highest law’ ”].) To the extent the Legislature seeks to modify

it, as “interpret[ed]” by the majority (maj. opn. ante, at pp. 2, 9,

23), their remedy has taken the “teeth” out of the rule.

The judiciary does not judge the wisdom of legislation,

and it is the business of the Legislature to define crime and the

punishment, therefore. (In re Lynch (1972) 8 Cal.3d 410, 414.)

When the Legislature announces an unambiguous rule either

superseding or modifying the felony-murder rule, I will follow

1

PEOPLE v. MORRIS

Yegan, J., dissenting

it. They have not done so and the language seized upon by the

majority, “interpreting” Penal Code section 189, subdivision

(e)(2),1 is, in my opinion, a judicial stretch. There is way too

much “interpretation” going on here.

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018,

ch. 1015) is not going to win an award for clarity. Subdivision

(e)(2) of section 189, enacted in 2018, does not say that the

aider and abettor must have “aided” or “assisted” the actual

killer in the “lethal act.” (Maj. opn. ante, at p. 10.) This is

“added” by the majority opinion. The Legislature uses the

words “aided” or “assisted” the killer “in the commission of first

degree murder.” (§ 189, subd. (e)(2).) As indicated in the

underlying Court of Appeal majority opinion, the latter phrase

is a description of what crime is at issue, i.e., “a legal term of

art.” (Morris, supra, 100 Cal.App.5th at p. 1025.) The statute

is not “ ‘plain and unambiguous.’ ” (Maj. opn. ante, at p. 10,

quoting Morris, supra, at p. 1031 (dis. opn. of Moore, J.).) An

example of the Legislature’s choice of language being “plain

and unambiguous” would be this statement of intent: “The

traditional felony murder rule is abolished. Participation in

the underlying felony which results in murder, standing alone,

no longer supports a murder conviction.”

The majority opinion here declares that the language

chosen by the Legislature satisfies the statutory construction

rules. That is to say, the statute passes the “plain and common

sense” test and is “clear.” (Maj. opn. ante, at pp. 10, 11.) Well,

it was not “plain and common sense” and “clear” to Justice

Delaney, Presiding Justice O’Leary, Justice Sanchez, Justice

1

All further statutory designations are to the Penal

Code.

2

PEOPLE v. MORRIS

Yegan, J., dissenting

Motoike, Justice Gooding, Justice Hanasono, Justice Egerton,

Justice Adams, Justice Slough and Justice Miller. It is not

“plain and common sense” to the Chief Justice. (Conc. opn. of

Guerrero, C. J.) And, it is not “plain and common sense” and

“clear” to me. “We may not rewrite the statute to conform to

an assumed intention that does not appear in its language.”

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

And, neither the California Supreme Court nor the Court of

Appeal should “interpret” a statute by adding words to it, to

reach a result it thinks furthers an ambiguous goal. I disagree

that adding language is the most “natural reading” of the new

statute. (Maj. opn. ante, at p. 10.)

Any person who conspires with and aids the actual

perpetrator of the lethal act (the person who physically

delivers the fatal injury by, e.g., shooting) and commits the

underlying felony with a criminal mindset of committing only

the underlying felony, should have liability pursuant to the

felony-murder rule. Now there is something in addition: the

defendant must “aid[]” or “assist[]” the actual perpetrator of

the lethal act. (§ 189, subd. (e)(2).) It must be emphasized

that, traditionally, the actual perpetrator of the “lethal act”

(ibid.) need not even strike a blow nor shoot the murder victim.

The killing may be “inadvertent” or “accidental” and the felony

murder rule would apply. (People v. Washington (1965) 62

Cal.2d 777, 781.) If the victim dies of a heart attack upon

seeing a home intruder, each other intruder is guilty of felony

murder. The underlying enumerated felonies are so inherently

dangerous to human life that those who commit the underlying

felony should be strictly liable for any death as a result thereof.

It is common knowledge that a criminal is emboldened

when he or she has an accomplice who aids in the criminal

3

PEOPLE v. MORRIS

Yegan, J., dissenting

enterprise. In the typical felony murder case, an accomplice

who aids in the underlying felony is a willingly “major

participant” who is acting with a “reckless indifference” to any

homicide which results from the commission of the underlying

felony. (People v. Owens (2022) 78 Cal.App.5th 1015, 1021.)

The rule of lenity, relied upon by the Chief Justice, is

well known. (People v. Alberts (1995) 32 Cal.App.4th 1424,

1426 (opn. of Yegan, J.).) In my view, it has no application

here. The statute is ambiguous and we should not “save” it

with an imaginative interpretation. We should not have to

“interpret” (maj. opn. ante, at pp. 2, 9) or “guess” at what the

Legislature intended.

The facts of the instant case demonstrate an uncharged

conspiracy and sophisticated plan to commit, at the very least,

residential burglary and armed robbery. And, appellant

Richard Morris, Jr., did assist even under the new majority

“interpretation” of the felony-murder rule. He helped to

handcuff the victim in his bedroom before the victim was

executed. It is much easier for an actual murderer to execute

the victim if he is handcuffed. It appears that the only reason

why appellant was not in the bedroom assisting in the actual

shooting, is because he was busy forcibly raping the murder

victim’s girlfriend in another bedroom.

YEGAN, J *

*

Associate Justice of the Court of Appeal, Second Appellate

District, Division Six, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.

4

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Morris

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 100 Cal.App.5th 1016

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S284751

Date Filed: May 4, 2026

__________________________________________________________

Court: Superior

County: Orange

Judge: Lewis W. Clapp

__________________________________________________________

Counsel:

Pauline E. Villanueva, under appointment by the Supreme Court, and

Robert F. Somers, under appointment by the Court of Appeal, for

Defendant and Appellant.

Galit Lipa, State Public Defender, and Samuel Weiscovitz, Deputy

State Public Defender, for the Office of the State Public Defender as

Amicus Curiae on behalf of Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and Charles C.

Ragland, Chief Assistant Attorneys General, Michael R. Johnsen,

Lynne G. McGinnis, Collette C. Cavalier, Alan L. Amann and James

M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Pauline E. Villanueva

Appellate Defenders, Inc.

555 West Beech Street, Suite 300

San Diego, CA 92101

(619) 696-0282

James M. Toohey

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9043