People v. Avila CA3

BACKGROUND

For the reasons detailed in our discussion, we need not provide additional detail of the factual background of defendant’s crime. Suffice it to say, in 1996, defendant, Cobb, and Reynoso entered Godinez’s home while armed and attempted to rob him. (People v. Avila (May 2, 2002, C029883) [nonpub. opn.].) Gunfire broke out, during which defendant, Reynoso, and Godinez were shot. (Ibid.) Godinez died at the scene. (Ibid.) Although he did not shoot the bullet that killed Godinez, defendant was charged with murder. In 1998, a jury found defendant guilty of first degree murder (§ 187), burglary (§ 459), and attempted robbery (§§ 664, 211). The jury found true the special- circumstance allegations that the murder was committed during the commission or attempted commission of a burglary and robbery. (§ 190.2.) The jury instruction provided that in order to find the special circumstances true, the jury must find that although defendant was not the actual killer, he acted “with reckless indifference to human life and as a major participant, [aided,] [abetted,] [counseled,] [commanded,] [induced,] [solicited,] [requested,] [or] [assisted] in the commission of the crime of…