People v. Pinckney CA2/4

BACKGROUND

A. Procedural Background 2 In 2008, following a jury trial, appellant was convicted of one count of first degree murder (§ 187, subd. (a)). (People v. Pinckney (Oct. 22, 2009, B212120) [2009 LEXIS 8404 at p. *1, nonpub. opn.] (Pinckney I).) The only theory of murder presented by the prosecution was that of felony murder committed during a rape or attempted rape.3 (Pinckney, supra, 2009 LEXIS 8404 at p. *3.) The jury found not true a rape-murder allegation under section 190.2, subdivision (a)(17) (the special circumstance statute).4 (Pinckney, supra, 2009 WL 3386022, at p. *1.) Appellant was sentenced to a

We cite to the opinion in appellant’s direct appeal (and prior § 1172.6 appeal) in summarizing the procedural history of the case, which section 1172.6, subdivision (d)(3) expressly permits.

Regarding vicarious liability, the jury was instructed on direct aiding and abetting and the natural and probable consequences theory of aiding and abetting with the target crime of rape. The jury was also specifically instructed as to aiding and abetting in the context of felony murder, which required that the aider intended to commit rape and that the victim…