People v. Enriquez CA4/2

DISCUSSION

Under section 1172.6, the trial court must vacate a first-degree murder conviction

that was based on a felony-murder theory, unless the petitioner either (1) was the actual

killer, (2) had the intent to kill and aided and abetted the commission of first-degree

All further statutory citations are to the Penal Code.

The petition was actually filed under former section 1170.95. (Enacted by Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) While this appeal was pending, former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will use section 1172.6, somewhat anachronistically, to refer to whichever one of the two statutes was in effect at the relevant time.

2 murder, or (3) was a major participant in the underlying felony and acted with reckless

indifference to human life.2 (§ 1172.6, subd. (d)(3), incorporating § 189, subd. (e).)

A felony-murder special circumstance, however, requires that the defendant either

(1) was the actual killer, (2) had the intent to kill and aided and abetted the commission of

first-degree murder, or (3) was a major participant in the underlying felony and…