People v. Resendiz CA4/3

DISCUSSION

Appellant claims the trial court erred in relying on the felony murder theory in denying his petition for resentencing on his murder conviction, and the Attorney General concedes the error. In fact, the state admits that not only did the prosecution avoid the felony murder theory at trial and in opposing appellant’s resentencing petition, that theory is legally inapt to the facts of this case. (See People v. Chun (2009) 45 Cal.4th 1172, 1200 [if the underlying felony is assaultive in nature, it merges with the homicide and cannot be used to support a conviction for felony murder].) Therefore, we agree with the parties that the trial court’s order denying appellant relief on his murder conviction must be reversed, and the matter must be remanded for a new evidentiary hearing. (People v. Reyes (2023) 14 Cal.5th 981, 992; People v. Arnold (2023) 93 Cal.App.5th 376, 391.) At the hearing, the prosecution must prove beyond a reasonable doubt that appellant is guilty of murder under a currently valid theory of liability, such as direct aiding and abetting. (People v. Curiel (2023) 15 Cal.5th 433, 463.) Otherwise, the trial court must vacate his murder conviction and…