DISCUSSION

Senate Bill 1437 amended “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 bill amended section 188, which concerns malice, and section 189, which defines the degrees of murder to address felony- murder liability. (Stats. 2018, ch. 1015, §§ 2 & 3.) As relevant here, section 188 was amended to read: “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) “The offense of evading an officer while driving with reckless disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)), is not among the enumerated crimes in section 189, subdivision (a) that may still serve as a basis for a felony-murder conviction under certain circumstances.” (People v. DeHuff (2021) 63 Cal.App.5th 428, 442, fn. omitted.) Thus, regardless of whether defendant was the actual killer, he could not now be convicted of second degree felony murder based on a violation of section 2800.2, subdivision (a). It was error for the trial court to deny his petition on that basis and we accept the People’s concession accordingly. There may, however, be sufficient evidence to convict defendant of implied malice murder and the trial court must consider that evidence. We will, therefore, remand the matter for further proceedings as provided for in section 1170.95, subdivision (d), including the introduction of evidence as described in section 1170.95, subdivision (d)(3). (§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551 (Sen. Bill No. 775 (2021-2022 Reg. Sess.)).)

3

DISPOSITION

The trial court’s order denying defendant’s section 1170.95 petition is reversed and the matter is remanded for further proceedings consistent with this opinion.

KRAUSE , J.

We concur:

RAYE , P. J.

BLEASE , J.

4