People v. Chavez 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

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

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 indifference to human life.2 (§ 1172.6, subd. (d)(3), incorporating by reference § 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…