People v. Lopez

Filed 2/23/23
See dissenting opinion
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E078211

v. (Super.Ct.No. CR36044)

PEPE LOPEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Anthony Dain, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Lynne G.

McGinnis and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

1
 In 1992, a jury convicted Pepe Lopez of first degree murder with a true finding on

the prior-murder special circumstance (Pen. Code, §190.2, subd. (a)(2)) after hearing

evidence the victim was shot and killed during a robbery in which Lopez participated and

that Lopez had previously been convicted of first degree murder for his involvement in
1
another robbery. In 2019, Lopez filed a section 1172.6 (formerly section 1170.95)

petition seeking to vacate the conviction under Senate Bill No. 1437 (2017-2018 Reg.

Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437), which amended the definition of felony
2
murder and eliminated the natural and probable consequences theory of murder. The

trial court summarily denied the petition, concluding the special circumstance finding

rendered Lopez ineligible for resentencing as a matter of law because it demonstrated the

jury had found he “personally killed, or personally shared a specific intent to kill.”

On appeal, Lopez concedes the special circumstance finding established the

requisite mental state for a conviction of first degree murder under current law, but

argues it did not similarly establish “the actus reus necessary for direct aider and abettor

liability.” The People argue that whether the record establishes Lopez’s guilt as an aider

and abettor is irrelevant because the record establishes his guilt under the current felony-

murder rule. They argue the jury’s verdict demonstrates they necessarily found he was a

“participant in the perpetration or attempted perpetration of a [qualifying] felony . . . in

1 Unlabeled statutory citations refer to the Penal Code.

2Effective June 30, 2022, the Legislature renumbered section 1170.95 as section
1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We use section 1172.6 to refer
to whichever of the two statutes was in effect at the relevant time.
2
which a death occurs” and acted “with the intent to kill” within the meaning of section

189, subdivision (e)(2). We agree with the People and therefore affirm.

I

FACTS

On the evening of February 2, 1990, Gilbert Sabatka was shot three times at close

range while sitting in his car at a McDonald’s drive-thru in Corona. About 30 minutes

later, a convenience store clerk in Temecula was shot and killed during another robbery.

On May 25, 1990, a jury convicted Lopez of the first degree murder of the Temecula

store clerk.3

A few months later, the Riverside County District Attorney charged Lopez with

the first degree murder of Sabatka and alleged the prior-murder special circumstance in

section 190.2, subdivision (a)(2). The trial took place in December 1992 before Riverside

County Superior Court Judge Robert D. Macomber and proceeded in two phases, the

murder and the special circumstance.
4
The prosecution presented the following evidence in phase one. Moments before

the shooting, the McDonald’s employee who was taking Sabatka’s order heard the voices

3 Lopez’s confederate, John Howe, also pled guilty to first degree murder for the
killing of the clerk in Temecula.
4 We take the trial evidence from our opinion affirming Lopez’s conviction on
direct appeal. (People v. Lopez (Feb. 8, 1994, E011097) [nonpub. opn.] (Lopez I); see
People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis) [courts may and should consider the
record of conviction, which includes appellate opinions, at the prima facie stage of a
section 1172.6 petition].)

3
of two other men over the drive-thru speakers. She heard someone ask, “What do you

want?” immediately followed by gunshots. According to eyewitnesses who could see the

McDonald’s parking lot from their cars, two men fled the drive-thru on foot immediately

after the gunshots, one of whom was trying to tuck a short-barreled rifle under his shirt.

The men ran across the street, jumped into a car parked near a freeway onramp, and

immediately sped off.

About a half an hour later, a convenience store clerk in Temecula was shot and

killed during a robbery. A few hours after that shooting, the police found Lopez and three

other men sitting around a fire in an uninhabited home in Temecula. They also found on a

nearby embankment a wrecked vehicle matching the witnesses’ description of the car

used to flee the crime in Corona. Next to the car, they found a sawed-off .22-caliber rifle

whose bullets and shell casings matched those from both the Corona and Temecula

shootings. The other men with Lopez were Jose Andrade, Daniel Visoso, and John Howe.

According to Visoso, the four of them had decided to go out driving that day after

spending the afternoon drinking alcohol. He said the car was his and he had initially been

the one driving, but at some point Andrade took his place and he passed out drunk in the

backseat. He was aware the car had stopped several times, but he didn’t know when or

where. He woke up when the car went off the road and rolled upside down, after which,

all four of them crawled out and found shelter in the house where the police found them.

In an interview with police, Lopez also said that Andrade had been driving and

Visoso was passed out drunk in the backseat. He said he and Howe had been outside the

4
car during the Temecula shooting and Howe had fired the gun. He initially denied firing

the gun that night, but when the officers said they would test his hands for gunshot

residue, he claimed he had fired the gun earlier in the day before they went out driving.

During closing arguments, the prosecutor and defense attorney agreed Sabatka

was killed during the commission or attempted commission of a robbery; the issue was

identification. The witnesses’ description of the person fleeing with the gun matched

Lopez’s clothing but not his height. The prosecutor argued the evidence proved it was

Lopez who shot Sabatka during the robbery and thus the jury should find him guilty of

first degree murder under the felony-murder rule. The prosecutor noted that even if the

jury wasn’t persuaded that he was the shooter, as long as they found he aided and abetted

the robbery, they could still find him guilty of first degree murder under the felony

murder-rule. However, he emphasized again the prosecution’s theory was that Lopez was

the shooter: “Don’t get me wrong; I am presenting a single version of the facts, and I’m

asking you to adopt a single version of the facts, and that is that [Lopez] personally

wrapped his finger around the trigger and point[ed] directly into the face of Gilbert

Sabatka, and that’s it. That’s what I’m advocating.”5 Defense counsel relied on the

testimony about the gunman’s height to argue the evidence didn’t prove Lopez was the

shooter. Instead, he argued Lopez had stayed in the car during the incident and hadn’t

played any role in aiding the robbery.

5On our own motion, we took judicial notice of the transcript of Lopez’s trial,
which is part of the record of conviction. (Evid. Code, §§ 452, subd. (d), 459, subd. (d).)
5
 The trial court instructed the jury on first degree premeditated murder, first degree

felony murder, and accomplice liability. Although the prosecutor did not rely on a natural

and probable consequences theory, the court also instructed the jury on that doctrine.6

The felony murder instruction identified robbery as the qualifying felony and set forth the

elements of that offense.

At the conclusion of phase one, the jury found Lopez guilty of first degree murder.

(§ 187.)

In the second phase of trial, the judge instructed the jury that in order to find the

prior-murder special circumstance allegation true “each of the following facts must be

proved: One, [Lopez] personally killed or personally shared a specific intent to kill

Gilbert Sabatka. Two, [Lopez] has previously been convicted of first degree murder.”

(Italics added.)

During closing argument, the prosecutor told the jurors that, having determined

Lopez was guilty of first degree murder, they now had to decide whether he was the

shooter or shared the shooter’s intent to kill during the incident. Noting that Howe had

pled guilty to being the shooter in the Temecula murder case, the prosecutor argued, “As

I said before, you analyze the evidence carefully, it comes back with [Lopez] pulling the

trigger in this case, not Temecula, but this case.” Defense counsel argued that if the jury

6 Because Lopez’s trial predated the California Supreme Court’s decision in
Prettyman, his natural and probable consequences jury instruction did not specify the
target crime he was charged with aiding and abetting. (See People v. Prettyman (1996) 14
Cal.4th 248, 262, 265-266 (Prettyman) [holding that the trial court has a duty to identify
the target crime for purposes of the natural and probable consequences doctrine].)
Instead, the instruction identified the target crime as the “originally contemplated crime.”
6
had decided Lopez was simply an accomplice to the robbery in phase one “then you will

have to decide whether you believe that he had the specific intent to kill Gilbert Sabatka.”

During deliberations, the jury asked, “At what point in time do we establish

intent?” and the judge responded, “The intent to kill required by law must exist at or

before the time of the act which resulted in the death of the victim.” The jury returned a

true finding on the prior-murder special circumstance allegation.

On March 6, 1992, the judge sentenced Lopez to life in prison without the

possibility of parole. In 1994, we affirmed the judgment in an unpublished opinion.

(Lopez I, supra, E011097.)

On February 6, 2019, after Senate Bill 1437 went into effect, Lopez filed a section

1172.6 petition alleging he was convicted under either a felony murder or natural and

probable consequences theory of liability and could not be convicted of murder under the

new law changes to murder liability. On December 10, 2021, Riverside County Superior

Court Judge John D. Molloy summarily denied Lopez’s petition on the ground the prior-

murder special circumstance finding rendered him ineligible for relief as a matter of law.

II

ANALYSIS

Lopez argues his record of conviction establishes he harbored the requisite mental

state (or mens rea) for murder but doesn’t establish he committed the requisite physical

act (or actus reus) because it’s possible the jury found only that he aided the robbery, not

7
the killing. We conclude the record demonstrates as a matter of law that Lopez is guilty

of first degree felony murder under section 189, subdivision (e)(2).

A. Senate Bill 1437

“Generally, malice is an essential element of the crime of murder. (§ 187.) Malice

may be either express or implied. It is express ‘when there is manifested a deliberate

intention to unlawfully take away the life of a fellow creature.’ (§ 188, subd. (a)(1).) It is

implied ‘when no considerable provocation appears, or when the circumstances attending

the killing show an abandoned and malignant heart.’ (Id., subd. (a)(2).) Implied malice

has “ ‘both a physical and a mental component. The physical component is satisfied by

the performance of ‘an act, the natural consequences of which are dangerous to life.’ . . .

The mental component is the requirement that the defendant ‘knows that his conduct

endangers the life of another and . . . acts with a conscious disregard for life.” ’ ” (People

v. Johns (2020) 50 Cal.App.5th 46, 57 (Johns).)

Prior to Senate Bill 1437, the felony murder and natural and probable

consequences doctrines were exceptions to the actual malice requirement. Under the old

felony-murder doctrine, a defendant was liable for first degree murder if their confederate

killed someone while they (the defendant) participated in the commission or attempted

commission of a qualifying felony. (Former § 189.) The necessary mental state was

simply the intent to commit a qualifying felony. (People v. Gonzalez (2012) 54 Cal.4th

643, 654.) Or, put differently, malice was imputed to the participant based on their

8
willingness to commit a felony our Legislature deemed “inherently dangerous to human

life.” (People v. Chun (2009) 45 Cal.4th 1172, 1184.)

Senate Bill 1437 “narrowed the scope of the felony-murder rule” by adding

section 189, subdivision (e). (People v. Strong (2022) 13 Cal.5th 698, 703.) Under the

new felony-murder rule, participation in a qualifying felony in which a death occurs is no

longer sufficient to justify liability for first degree murder. Instead, the defendant must be

the actual killer, intended to kill, or, if neither of those apply, felony-murder liability will

still lie if they were a major participant in the underlying felony and acted with reckless

indifference to human life. The provision states: “A participant in the perpetration or

attempted perpetration of [qualifying felonies] in which a death occurs is liable for

murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶]

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted,

counseled, commanded, induced, solicited, requested, or assisted the actual killer in the

commission of murder in the first degree. [¶] (3) The person was a major participant in

the underlying felony and acted with reckless indifference to human life, as described in

subdivision (d) of Section 190.2.” (§ 189, subd. (e).)

Under the natural and probable consequences doctrine as it existed before Senate

Bill 1437, a person could be held liable not only for the crime they intend to commit with

their confederate (the target crime), but also for any other offense (nontarget crime)—

including murder—“committed by the confederate as a ‘natural and probable

consequence’ of the crime originally aided and abetted.” (Prettyman, supra, 14 Cal.4th at

9
pp. 254, 262-263.) Because a nontarget murder “is unintended, the mens rea of the aider

and abettor with respect to that offense is irrelevant and culpability is imposed simply

because a reasonable person could have foreseen the commission of the [murder].”

(People v. Chiu (2014) 59 Cal.4th 155, 164.) In other words, the necessary mental state

was simply the intent to aid and abet an accomplice in the commission of a criminal act

that, “judged objectively,” would “naturally, probably, and foreseeably result in a

murder.” (Id. at pp. 157, 164, 166.) Like the old felony-murder rule, malice was imputed

based on the defendant’s willingness to participate in a crime—in this case, an

objectively dangerous one. (See Prettyman, at p. 260 [the doctrine “is based on the

recognition that ‘aiders and abettors should be responsible for the criminal harms they

have naturally, probably and foreseeably put in motion’”].)

Senate Bill 1437 wholly eliminated the natural and probable consequences

doctrine for first and second degree murder. (People v. Gentile (2020) 10 Cal.5th 830,

849.) It did so by amending section 188 to state: “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.”(§ 1” 88, subd. (a)(3), italics added.)

Thus, after Senate Bill 1437, section 189, subdivisions (e)(1) and (e)(3) contain

the only exceptions to the malice requirement. Now, the only circumstances under which

malice may be imputed to justify murder liability is when a person participates in the

commission or attempted commission of a qualifying felony and is either the actual killer

10
or a major participant in the felony who acted with reckless indifference to human life. (§

189, subd. (e)(1) & (3).)

B. Section 1172.6

In addition to its substantive amendments, Senate Bill 1437 “added section

[1172.6], which provides a procedure for convicted murderers who could not be

convicted under the law as amended to retroactively seek relief.” (Lewis, supra, 11

Cal.5th at p. 959.) Such offenders may petition to have their convictions vacated under

this provision and are entitled to relief if (1) the complaint or information filed against

them “allowed the prosecution to proceed . . . under the natural and probable

consequences doctrine,” (2) they were “convicted of murder, attempted murder, or

manslaughter following a trial or accepted a plea offer in lieu of a trial at which the

petitioner could have been convicted of murder or attempted murder,” and (3) they

“could not presently be convicted of murder or attempted murder because of changes to

Section 188 or 189.” (§ 1172.6, subd. (a).)

If a petition makes a prima facie showing of entitlement to relief, the court must

issue an order to show cause and hold “a hearing to determine whether to vacate the

murder, attempted murder, or manslaughter conviction and to recall the sentence and

resentence the petitioner on any remaining counts in the same manner as if the petitioner

had not previously been sentenced.” (§ 1172.6, subds. (c), (d)(1).) At that hearing, the

People bear the burden “to prove, beyond a reasonable doubt, that the petitioner is

ineligible for resentencing.” (§ 1172.6, subd. (d)(3).)

11
 In Lewis, our Supreme Court provided guidance on assessing whether a petitioner

has made a prima facie showing entitling them to an evidentiary hearing under section

1172.6, subdivision (d). The court explained the inquiry is limited to the allegations in the

petition and undisputed facts from the record of conviction (which includes the appellate

opinion). (Lewis, supra, 11 Cal.5th at p. 971.) As in “the analogous prima facie inquiry in

habeas corpus proceedings,” the court must accept the petitioner’s factual allegations as

true “and make[] a preliminary assessment regarding whether the petitioner would be

entitled to relief if his or her factual allegations were proved.” (Ibid.)

“In reviewing any part of the record of conviction at this preliminary juncture, a

trial court should not engage in ‘factfinding involving the weighing of evidence or the

exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) It is only where the record

of conviction establishes the petition lacks merit as a matter of law that the court may

deny the petition without a hearing. (Id. at p. 971.)

C. Lopez Is Not Entitled to Relief as a Matter of Law

Here, the record conclusively establishes, at the very least, that Lopez is guilty of

first degree felony murder under section 189, subdivision (e)(2) as a person who, “was

not the actual killer, but, with the intent to kill, aided, abetted, . . . or assisted the actual

killer in the commission of murder in the first degree.”

Though he was tried under both a natural and probable consequences theory and a

felony-murder theory, on this record the theories were identical because robbery—a

12
 7
qualifying felony under section 189—was the target crime for both. Thus, regardless of

the underlying theory of liability, by finding Lopez guilty of first degree murder, the jury

necessarily found one of three things was true beyond a reasonable doubt: (i) he was the

actual killer, (ii) he was an accomplice to first degree murder, or, at the very least, (iii) he

was engaged in the commission or attempted commission of a qualifying felony in which
8
a death occurred.

That last finding, coupled with the intent to kill finding from the special

circumstance, establishes Lopez’s guilt under the current felony-murder rule. This is

because, under section 189, subdivision (a), all murder that is “committed in the

perpetration of, or attempt to perpetrate [a qualifying felony] . . . is murder of the first

degree.” And here, the jury found Sabatka’s murder was committed while Lopez and his

confederate were robbing or attempting to rob him. That finding, plus the intent to kill

finding from phase two of the trial, establishes the jury found that “with the intent to kill,

[Lopez] aided, abetted, . . . or assisted the actual killer in the commission of murder in the

first degree” within the meaning of section 189, subdivision (e)(2).

7 Lopez’s jury instruction on the natural and probable consequences doctrine
described the target crime as the “originally contemplated crime,” but the evidence was
undisputed that Sabatka was killed during a robbery or attempted robbery. This is
because the jury heard no evidence of any other crimes besides robbery and murder, both
sides’ closing arguments focused exclusively on those two crimes, the felony murder
instruction identified robbery as the predicate felony, and robbery was the only other
crime the instructions described for the jury.
8 Because this case does not turn on the trial court’s use of the natural and
probable consequences instruction, Lopez’s reliance on People v. Pacheco (2022) 76
Cal.App.5th 118, review granted May 18, 2022, S274102, is misplaced.
13
 Lopez and our dissenting colleague argue for a different interpretation of the

felony-murder rule. They read section 189, subdivision (e)(2) to require an act that assists

the killing itself, not just the underlying felony. In support, they argue the phrase

“assisted the actual killer in the commission of murder in the first degree” in section 189,

subdivision (e)(2) means “assisted the actual killer in the killing.” (Italics added.) Based

on this interpretation, our dissenting colleague agrees with Lopez that the record does not

conclusively establish his ineligibility because nothing in the record establishes he aided

in the act of shooting Sabatka.

The California Supreme Court has already rejected this same argument in People

v. Dickey (2005) 35 Cal.4th 884 (Dickey). In that case, the jury had found true the felony-

murder special circumstance, which applies to “[e]very person, not the actual killer, who,

with the intent to kill, aids, abets, . . . or assists any actor in the commission of murder in

the first degree” (§ 190.2, subd. (c), italics added), if the murder was committed “while

the defendant was engaged in, or was an accomplice in, the commission of, attempted

commission of [a qualifying felony]” (§ 190.2, subd. (a)(17).) The defendant argued, as

Lopez does here, that the italicized phrase means “the aiding or abetting has to relate to

the act of killing itself, rather than just the underlying felony.” (Dickey, supra, at pp. 900-

901.) The court disagreed, holding that “under the felony-murder doctrine,” a person who

participated in the commission or attempted commission of a qualifying felony in which

a death occurred is, by definition, “guilty of aiding or abetting first degree murder[].”

(Id. at p. 900.)

14
 Here, because the Legislature used the same phrase interpreted in Dickey when

amending section 189 to state the new felony-murder rule, we assume they intended it to

have the same meaning. “[W]hen the Legislature uses a term of art, a court construing

that use must assume that the Legislature was aware of the ramifications of its choice of

language.” (People v. Gonzales (2017) 2 Cal.5th 858, 871; see also People v. Scott (2014)

58 Cal.4th 1415, 1424 [“It is a settled principle of statutory construction that the

Legislature is deemed to be aware of statutes and judicial decisions already in existence,

and to have enacted or amended a statute in light thereof” [cleaned up]].)

But even if our high court hadn’t already interpreted the language at issue in the

context of another statute, Lopez’s reading conflicts with the plain language of section

189 and defies common sense. Section 189, subdivision (a) defines “murder in the first

degree” as any murder that is “committed in the perpetration of, or attempt to perpetrate

[a qualifying felony].” Thus, under the terms of the felony-murder statute, the two

phrases are equivalents: assisting a qualifying felony in which a death occurs is the same

as assisting the actual killer in committing first degree murder, and vice versa.

Lopez’s interpretation requires too much of the felony-murder rule. The whole

purpose of Senate Bill 1437 was to stop the practice of imputing malice to defendants to

justify convicting them of murder. A defendant who participates in a qualifying felony

while harboring express malice does not fall into the class of offenders the new law was

enacted to protect. (See § 188, subd. (a)(3) [“in order to be convicted of murder, a

principal in a crime shall act with malice aforethought. Malice shall not be imputed to a

15
person based solely on his or her participation in a crime”], italics added.) In other words,

because express malice is an element of section 189, subdivision (e)(2) felony murder

liability, there is no reason to interpret the actus reus requirement as anything different

than what the felony murder actus reus requirement was before Senate Bill 1437—

“aiding and abetting the underlying felony or attempted felony that results in the murder.”

(People v. Clark (2016) 63 Cal.4th 522, 615.)

Another reason we don’t read the provision the way Lopez and our dissenting

colleague do is because their interpretation makes it easier for the prosecution to obtain a

conviction for defendants who harbored the less culpable mindset of reckless indifference

to human life than for those who acted with express malice.9 For the former class of

defendants, the prosecution need only prove they played a major role in the felony to be

guilty of first degree murder under section 189. For the latter—those who acted with

actual malice—the prosecution would have to prove not only aiding the qualifying felony

but aiding the murderous act as well. (Compare § 189, subd. (e)(2) with § 189, subd.

(e)(3).) In other words, their interpretation creates a new offense of direct and abetting

plus an additional element: that the accomplice to the murder was also engaged in a

qualifying felony when the death occurred. The Legislature was clear about the purpose

behind the recent changes to murder liability—to stop the practice of imputing malice.

There is no indication they intended to make felony murder liability more difficult to

9 Reckless indifference is a less culpable mindset than the “conscious disregard
for life” required for implied malice. (Johns, supra, 50 Cal.App.5th at p. 57, italics
added.)
16
prove than direct aiding and abetting in cases where the defendant acted with express

malice.

As the Legislature explained in their legislative findings, their aim in amending

the felony-murder rule was “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, § l, subd. (f), italics added.) In the context of felony murder,

“act[ing] with the intent to kill” means aiding and abetting a qualifying felony in which a

death occurs, with the intent to kill. (Dickey, supra, 35 Cal.4th at p. 900.) Indeed, as our

dissenting colleague notes, Senate Bill 1437’s author described the purpose of the new

law as “‘restor[ing] proportional responsibility in the application of California’s murder

statute [by] reserving the harshest punishments for those who intentionally planned or

actually committed the killing.’” (Assem. Com. on Public Safety, June 26, 2018, Rep. on

Sen. Bill No. 1437 (2017-2018 Reg. Sess.), at p.4 [italics added].) Defendants who aid a

qualifying felony with an intentional plan to kill (i.e., an intent to kill) are the exact type

of offender the author is referring to in that statement, the type who can still be convicted

of first degree murder under the recent changes to murder liability.

Finally, we don’t share our dissenting colleague’s concern that the jury could have

convicted Lopez of first degree murder based solely on his role as the getaway driver or a

passenger. (Dis. opn. post, at pp. 15-17.) In our view, the jury’s special circumstance

finding that Lopez was either the actual killer or shared the killer’s intent to kill shows

17
they rejected the defense’s theory that Lopez had stayed in the car and played no role in

the attempted robbery or murder. Plus, while there was evidence placing Lopez in the

McDonald’s parking lot with a gun, no evidence placed him in the car. Lopez and Visoso

said Andrade was driving, and Visoso said he was passed out in the backseat. Lopez

didn’t say whether he got out of the car for this robbery but he admitted doing so about

40 minutes later for the next one.

Because we conclude the record of conviction demonstrates as a matter of law

that, acting with the intent to kill, Lopez aided the actual killer “in the perpetration or

attempted perpetration of a [qualifying] felony . . . in which a death occurs,” we uphold

the summary denial of his section 1172.6 petition.

III

DISPOSITION

We affirm.

CERTIFIED FOR PUBLICATION

SLOUGH
J.
I concur:

MILLER
Acting P. J.

18
[People v. Lopez, E078211]

RAPHAEL, J., Dissenting.

The majority opinion assigns no meaning to part of one of the recent statutory

provisions narrowing the felony murder law. When a defendant assists a felony such as

robbery and a cohort kills a victim, the provision requires the defendant to have had an

intent to kill to be liable for murder. It also requires an act by the defendant that assisted

the killer in the commission of the murder. The majority reads the latter as requiring that

a defendant acted to aid the robbery, not necessarily the murder. That is not what the

statute says. As well, aiding the robbery is the precise act needed to find the defendant

liable for felony murder before the new law. Under the majority opinion, the clause can

have no effect as it eliminates liability for no one who previously would have been

responsible for murder. It also means that a jury could be instructed that it need not

decide the element in the jury instruction tracking the statute.

The record does not show that the jury at Pepe Lopez’s murder trial found an act

to aid the killer in the murder. For that reason, I would hold that Lopez is not ineligible

for relief on his Penal Code section 1172.6 petition and would remand for a hearing as to

whether he can presently be convicted of murder.

I. The Statutory Provisions

Since the 1872 Penal Code, felony murder liability has been found in section 189,

subdivision (a).1 Under the doctrine, a participant in a crime such as robbery can be

1 Further code section references are to the Penal Code. Penal Code section 189,
subdivisions (a) and (e) will be referred to as “Section 189(a)” and “Section 189(e).”

1
convicted of first-degree murder if an accomplice kills someone during the crime. As

with all crimes, felony murder requires intent (the mens rea) and an act (the actus reus).

Under section 189(a), “the required mental state is the specific intent to commit

the underlying felony” such as robbery. (People v. Booker (2011) 51 Cal.4th 141, 175.)

“The actus reus requirement for an aider and abettor to first degree felony murder is

aiding and abetting the underlying felony or attempted felony that results in the murder.”

(People v. Clark (2016) 63 Cal.4th 522, 615.) Thus, for decades under the felony murder

law, a defendant needed only intend a crime like robbery and act to aid the robbery.

In 2018, however, the Legislature passed Senate Bill No. 1437, which

“significantly narrowed the scope of the felony murder rule” and “created a path to relief

for defendants who had previously been convicted of murder on a felony-murder theory

but who could not have been convicted under the new law.” (People v. Strong (2022) 13

Cal.5th 698, 703 (Strong).) Those limitations to section 189(a) liability are found in

section 189(e).

Section 189(e) begins: “A participant in the perpetration or attempted perpetration

of a felony listed in subdivision (a) in which a death occurs is liable for murder only if

one of the following is proven. . . .” It then lists three categories of defendants.

With those categories, section 189(e) “now limits liability under a felony-murder

theory principally to ‘actual killer[s]’ (Pen. Code, § 189, subd. (e)(1)) and those who,

‘with the intent to kill,’ aid or abet ‘the actual killer in the commission of murder in the

first degree’ (id., subd. (e)(2)).” (Strong, supra, 13 Cal.5th at p. 708.) Participants are

2
also liable for murder if they were “major participant[s] in the underlying felony and

acted with reckless indifference to human life. . . . (Id., § 189, subd. (e)(3).)” (Ibid.)

The issue before us concerns only the second category of defendants. The full text

of the statutory provision, section 189(e)(2), reads, with italics added: “The person was

not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded,

induced, solicited, requested, or assisted the actual killer in the commission of murder in

the first degree.”

Just as the first portion of section 189(e)(2) raises the intent (mens rea)

requirement for participants in section 189(a) felony murder, the italicized portion

heightens the act (actus reus) requirement.

II. A Trial Today

In 1992, Lopez was convicted at a trial involving felony murder jury

instructions, where a victim was shot dead while sitting in his car as a gunman attempted

to rob him at a McDonald’s drive-through. If Lopez went to trial under current law and

the prosecution wished to base his murder liability on section 189(e)(2), the prosecution

would have to prove the section 189(e)(2) elements in addition to the traditional elements

of felony murder drawn from section 189(a).

The model jury instruction illuminates what the prosecution would have to prove

today. Lopez’s jury would first have to find four elements that establish Lopez’s

traditional felony murder liability under section 189(a). The jury would need to find that

he intended to aid and abet a robbery (his mens rea); that he aided and abetted an

3
attempted robbery (his actus reus); that his cohort attempted the robbery; and that his

cohort caused the death during the attempt. (CALCRIM 540B [elements 1 through 4,

italics added].) The italicized actus reus requirement reflects that, today as in 1992, a

jury must find that Lopez participated in the attempted robbery under section 189(a).

Today, however, the jury would then have to find the elements of section

189(e)(2) before convicting him of murder. A “participant” in a traditional felony murder

“is liable for murder only if a [Section 189(e) category] is proven. . . .” (Section 189(e).)

Removing brackets to adapt the model instruction, a jury would have to find:

5A. The defendant intended to kill;

AND

5B. The defendant assisted the perpetrator in the commission of first-degree

murder. (CALCRIM 540B [section 189(e)(2) option for the fifth element].)2

At this point, the jury would have already determined that Lopez participated in

the felony (as required by section 189(a)) by finding that he assisted an attempted

robbery. For the act identified as 5B of the model instruction (tracking section 189(e)),

the jury would be asked to find that he assisted “the perpetrator in the commission of

first-degree murder.” For those subject to section 189(e)(2), the act requirement narrows

2 The full text of the section 189(e)(2) act element in CALCRIM 540B is: “The
defendant (aided and abetted[,])/ [or] counseled[,]/ [or] commanded[,]/ [or] induced[,]/
[or] solicited[,]/ [or] requested[,]/[or] assisted) the perpetrator in the commission of first
degree murder(./;)” The model instruction does not include a temporal finding. Section
189(e)(2), though, requires that the defendant acted “with the intent to kill” in aiding the
killing, so he must have an intent to kill at the time he acted to aid the murder.

4
the set of those liable for murder from those who (with intent to kill) assisted the robbery

to a subset who (with intent to kill) also assisted the perpetrator in committing the

murder.

The model instruction tracks section 189(e)(2), which requires that the defendant

“aided . . . the actual killer in the commission of murder in the first degree.” It also

accords with the Legislature’s purpose of restricting guilt for felony murder to better

accord with an individual’s culpability. A direct aider of a killing can be as responsible

as the killer. The author of Senate Bill 1437 identified such a person in characterizing the

bill’s purpose as “‘to restore proportional responsibility in the application of California’s

murder statute reserving the harshest punishments for those who intentionally planned or

actually committed the killing.’” (Assem. Com. on Public Safety, June 26, 2018, Rep. on

Sen. Bill No. 1437 (2017-2018 Reg. Sess.), at p.4 [italics added].)

But the section 189(e)(2) actus reus requirement accordingly could exclude some

of those with minor roles in the underlying felony and no direct involvement in the

killing. This requirement affects only a narrow set of felony murder cases. It eliminates

murder liability only for those who do not fall under section 189(e)(1) or (e)(3), have

intent to kill, and assist in the underlying crime but not in the killing. It does, though,

mean that a getaway driver who was told about the killing and then aided a robbery only

by helping the robbers escape with their loot cannot be convicted under a felony murder

theory. The driver would not have assisted in the commission of murder, which at the

time of the flight was complete. (People v. McDonald (2015) 238 Cal.App.4th 16, 24-25;

5
see People v. Pulido (1997) 15 Cal.4th 713, 716.) The getaway driver’s act can establish

only that he is an accessory after the fact to murder, a “separate criminal offense.”

(People v. Jennings (2010) 50 Cal.4th 616, 668; see § 32.) Likewise, the actus reus

requirement means that other participants with a small role in a robbery, such as a person

who drove the robbers to the scene, may have a plausible jury argument that they did not

aid the actual killer in the commission of murder, even if they are found to have intent to

kill based on (for example) being told that the robbers would shoot during the robbery.

On the other hand, the actus reus requirement would not eliminate murder liability for

those with a major role in a robbery even if they did not aid in the murder, as they can be

convicted under section 189(e)(3) based on their intent and role.

No matter how narrow its application, the section 189(e)(2) actus reus requirement

is express in the statute and must be applied.

III. Lopez’s Section 1172.6 Petition

Lopez submitted a form section 1172.6 petition asserting under oath that he could

not be convicted today because of the changes made to sections 188 and 189 of the Penal

Code effective in 2019. He crafted his own declaration stating that it was not determined

he was the actual shooter, and he averred that he was “not the individual that shot the

victim nor did I aid and abet the individual in this crime.”

The trial court summarily denied the petition for the failure to plead a prima facie

case. This denial was correct if “the petition and record in the case establish conclusively

that [Lopez] is ineligible for relief.” (Strong, supra, 13 Cal.5th at p. 708.)

6
 Lopez contends that the record does not do so, as “section 189, subdivision (e)(2)

requires assisting the act of killing itself, rather than just the underlying felony, because it

uses the phrase ‘assisted the actual killer in the commission of murder in the first degree.’

(Italics added.)” (Maj. opn., ante, at p. 13.)

The majority rejects Lopez’s claim on the view that the actus reus required by

section 189(e)(2) is identical to that required for a felony murder conviction under section

189(a) at the time of his 1992 trial. The majority starts from the correct premise by

stating that if Lopez was convicted based on felony murder liability for an accomplice’s

killing, the jury necessarily found that “he was engaged in the commission or attempted

commission of a qualifying felony in which a death occurred.” (Maj. opn., ante, p. 12.)

But then the majority reasons that “the two phrases are equivalents: assisting a qualifying

felony in which a death occurs is the same as assisting the actual killer in committing first

degree murder, and vice versa.” (Id. at p. 14.) The majority sees “no reason to interpret

the actus reus requirement” of section 189(e)(2) “as anything different than what it was

before SB 1437.” (Maj. opn., ante, p. 14.)

There are two cogent reasons to interpret the new section 189(e)(2) actus reus

requirement differently than the one that existed for felony murder in section 189(a).

First, the language differs. In section 189(e)(2), the Legislature required that the

defendant “assisted the actual killer in the commission of murder in the first degree.”

This is different language than requiring that the defendant assisted the underlying felony

(here, the attempted robbery). The Legislature could have said the latter, but it did not.

7
 Second, the majority’s interpretation renders meaningless the entire 21-word actus

reus requirement in section 189(e)(2). The Legislature “does not engage in idle acts, and

no part of its enactments should be rendered surplusage if a construction is available that

avoids doing so.” (Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1087.)

The requirement is rendered meaningless because a person convicted on a section

189(a) felony murder theory must have assisted in a qualifying felony in which death

occurs. Section 189(e) applies to such “participant[s] in the perpetration or attempted

perpetration of a felony listed in subdivision (a) in which a death occurs.” Section 189(e)

narrows that class by rendering such participants “liable for murder only if one of the

following is proven,” including subdivision (e)(2). One way that section (e)(2) narrows

that class is by requiring the intent to kill. The majority reads the provision precisely as if

it had stopped there. But the subdivision proceeds for another 21 words, stating “. . . with

the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or

assisted the actual killer in the commission of murder in the first degree.” (Italics added.)

Those words are given no meaning if they mean the same as what was required to make

Lopez a participant in the crime. They could never affect a case.

The consequence of the majority’s interpretation to future trials can be seen by

considering the current model jury instruction, CALCRIM 540B, discussed in section II

above. In determining whether a defendant is guilty of felony murder, a jury first finds

that he committed or aided in a felony such as robbery. But then the jury is to apply

section 189(e)(2) by finding that the defendant assisted the perpetrator in a first-degree

8
murder. The jury could — under the majority’s view — receive an instruction from the

court that it has already decided that element. A defendant would have no ability to

argue that he did not aid the killer in the commission of murder, as the statute requires.

The majority’s claim that the “plain language” supports its view (maj. opn., ante,

at p. 14) is unconvincing, as it does not apply section 189(e)(2)’s language. But the

majority is correct that section 189(e)(2)’s “intent to kill” mens rea requirement satisfies

much of the Legislature’s purpose in reforming the felony murder law. (Maj. opn., ante,

pp. 15-16 [citing § 188, subd. (a)(3)].) The bill’s author, though, was also concerned

about long sentences for people who had “‘“very peripheral involvement in the crime that

resulted in a death.”’” (People v. Vang (2022) 82 Cal.App.5th 64, 86.) Senate Bill No.

1437 thus expressly addressed both mens rea and actus reus, reflecting an intent to

identify those who “act with the intent to kill” (Stats. 2018, ch. 1015, § l, subd. (f)

[emphasis added].) (See People v. Alaybue (2020) 51 Cal.App.5th 207, 217 [“Senate Bill

1437 . . . amended section 189 by adding subdivision (e), which imposed a mens rea and

actus reus requirement for accomplice liability for first degree felony murder”].) It

required not just an intent to kill, but intent to kill when acting to aid the killing.

The other section 189(e) categories address actus reus too. The first prong

addresses actus reus only: the killer during a robbery is liable for first degree murder even

if the killing were accidental. (Section 189(e)(1).) The third prong addresses actus reus

in requiring that the defendant act as a “major participant” in a listed felony along with

9
having the mens rea of “reckless indifference to human life.” (Section 189(e)(3).)3 The

Legislature in SB 1437 was concerned with intent and actions.

The majority supports its view that “assisting the actual killer in the commission

of murder” means “assisting in the underlying felony” with People v. Dickey (2005) 35

Cal.4th 884 (Dickey). (Maj. opn., ante, pp. 13-16.) Dickey appears possibly applicable

here because it construed language from the special circumstance in section 190.2,

subdivision (c), which is nearly identical to the section 189(e)(2) actus reus language. In

Dickey, our Supreme Court held that evidence of aiding the underlying felony was

enough to show the defendant aided “in the commission of murder” for purposes of the

special circumstance. (Dickey, supra, 35 Cal.4th at p. 900.) Applying Dickey to liability

for murder after Senate Bill 1437, however, is circular. The special circumstance was

found in Dickey, as is typical, in a penalty phase after a jury found the defendant guilty of

murder. (Dickey, at p. 900.). At stake in Dickey was a mandatory penalty for the murder

conviction. The premise of Dickey’s analysis was that, “under the felony-murder

doctrine, he was found guilty of aiding or abetting first degree murders.” (Ibid.) That is

because, at the time, “[a]ll persons aiding or abetting the commission of burglary or

3 Interpreting section 189(e)(2) to require an act that aids the commission of
murder does not create an “absurd situation” (maj. opn., ante, at p. 15) in relation to
section 189(e)(3). Any defendant who has the intent to kill also is recklessly indifferent
to human life, and so can be found guilty of murder if he is a major participant in the
underlying crime. The two sections operate such that a non-killer participant with the
intent to kill is guilty of murder under section 189(e)(2) if he aided the killer in the
commission of the murder. Even if he took no such action, however, he may be liable if
he was a “major participant” in the underlying felony under section 189(e)(3).
10
robbery are guilty of first degree murder when one of them kills while acting in

furtherance of the common design.” (Ibid.)

Dickey’s premise is the very one that the Legislature abrogated in Senate Bill

1437. Now, when a jury applies section 189(e)(2) to decide whether a defendant assisted

“the actual killer in the commission of murder,” the defendant has not yet been found

guilty of murder. It is no longer true that all persons who aided in a burglary or robbery

are guilty of murder when one of them kills during that offense. Whether such a

participant is liable for murder is what the jury is now charged with deciding when it

applies section 189(e). For this reason, it does not make sense to view the actus reus

language in section 189(e)(2) as a “term of art” (maj. opn., ante, at p. 14) that the

Legislature has grafted from the special circumstance with Dickey’s construction of its

meaning. Doing so renders meaningless the 21-word actus reus requirement in section

189(e)(2), as, so construed, it provides no restriction on murder liability; one must have

aided the underlying felony simply to participate in traditional felony murder.

There is, further, a textual reason to avoid construing the section 189(e)(2)

language in the manner that Dickey construed the special circumstance’s language. In

adapting the language, the legislature chose to narrow its scope. The special

circumstance applies to a non-killer who with intent to kill “aids . . . any actor in the

commission of murder in the first degree.” (§ 190.2, subd. (c) [italics added].) But the

limitation on felony murder liability applies to non-killers who with intent to kill

“aided . . . the actual killer in the commission of murder.” (§ 189(e)(2) [italics added].)

11
In Senate Bill 1437, that is, the Legislature altered that language to require aiding the

actual killer rather than just aiding any participant. The majority’s reasoning renders that

change pointless by holding every participant in the underlying crime aids and abets the

murder. Along with making worthless the section 189(e)(2) actus reus requirement, then,

the majority gives no effect to a wording change made in adapting that requirement.

This wording change was dispositive in People v. Ervin (2021) 72 Cal.App.5th 90,

106-111, where, as here, a trial court had denied a section 1172.6 petition for the failure

to state a prima facie case. In a 1993 trial, the jury made a special circumstance finding

that the defendant had the intent to kill. (People v. Ervin, supra, 72 Cal.App.5th at p.

107.) As to the actus reus, it had been instructed to find that the defendant aided

“another in the killing of a human being.” (Id. at p. 108.) The Court of Appeal held that

the record did not foreclose the defendant’s section 1172.6 eligibility because his jury

found that he “aided and abetted another in the commission of the robbery or burglary

(that ultimately led to the killing of a human being) rather than a more specific finding

that [he] aided and abetted ‘the actual killer . . . with the intent to kill.’” (Id. at pp. 108-

109; see id. at p. 106 [jury findings did not “categorically preclude [the defendant] from

obtaining relief under [section 1172.6] as a matter of law”].)

The majority’s analysis conflicts with Erwin. We hold today that a finding of the

act of aiding a robbery is sufficient under section 189(e)(2) and renders a defendant

ineligible for section 1172.6 relief. Erwin, in contrast, held that a jury finding of aiding a

robbery was not sufficient, even where—more specific than the findings here—the jury

12
found the defendant to have aided not only the robbery but a participant in the killing (but

did not find he aided the killer). As in Erwin, a finding of an act that aided the

underlying felony is not necessarily enough for a murder conviction under section

189(e)(2), as the Legislature required an act, done with intent to kill, that aided the killer

in committing the murder.

IV. Lopez is Not Ineligible for Relief as a Matter of Law

For a section 1172.6 petition, the “‘prima facie bar was intentionally and correctly

set very low.’” (People v. Lewis (2021) 11 Cal.5th 952, 972.) At the prima facie stage,

we take the petition’s assertions as true unless, without engaging in factfinding or

weighing evidence, we can conclude that the record refutes the allegations. (Id. at pp.

971-972; People v. Delgadillo (2022) 14 Cal.5th 216, 233 [record “makes clear” that the

defendant was the actual killer and only participant].)

The jury instructions at Lopez’s 1992 trial permitted him to be found guilty on a

felony murder theory, where the victim was shot dead sitting in a car in a McDonald’s

drive-through line while a gunman robbed him. The court instructed Lopez’s jury that he

was guilty of murder if, with the “intent or purpose of committing, encouraging, or

facilitating” the robbery, he “aid[ed], promote[d], encourage[d], or instigate[d] by act or

advice its commission.”

If the jury had found that Lopez was the shooter, he would be ineligible for

resentencing because an actual killer remains guilty after Senate Bill No. 1437 per section

189(e)(1). It was, however, by no means clear Lopez was the gunman. Before trial, the

13
court struck for lack of probable cause the allegation that he personally used a firearm.

No witness testified to seeing the killer shoot. Three trial witnesses described a man,

running from the scene with a gun, as between five-foot-six and five-foot-eight inches

tall. Lopez was six-foot-two, yet his three accomplices were five-foot-five or a “few

inches taller.” Two of the three witnesses were shown lineups and both identified a

person other than Lopez. The People make no argument today that we can conclude the

jury necessarily found Lopez was the actual killer.

The question is whether Lopez’s conviction is still valid today under section

189(e)(2) because the jury necessarily found that, with intent to kill, Lopez assisted the

actual killer in committing murder. In the penalty phase of the trial, the jury found Lopez

had the intent to kill. The jury was not asked to find that, when he had that intent, he

assisted the killer in the murder. The evidence permitted the jury to convict on a range of

acts that assisted the robbery, which can be seen by considering the prosecution’s closing

arguments. Before the arguments, the prosecution informed the court that, based on the

polo shirt that Lopez was wearing that accorded with some witness testimony about the

person running from the scene, its primary theory was that Lopez was “running from the

crime . . . carrying a murder weapon.” But “even if it wasn’t Mr. Lopez running with the

murder weapon, we’ve shown . . . three culpable participants in this crime; the driver and

two people who were out running doing the crime.”

The prosecution then argued those alternative theories in closing. In his closing

argument, the prosecutor alluded to the evidence that Lopez’s polo shirt matched the

14
person running from the McDonald’s. He then quoted and explained the felony murder

instruction. The prosecutor rhetorically asked “what would that include?” He argued

that accompanying the gunman or driving the car qualified (emphasis added): “it would

certainly include being along, by going with them. It would certainly include driving the

car to a predetermined location on the other side of all the traffic lights so they could

make a quick getaway, turning the car in the right direction and waiting for them. That

facilitates [the robbery.]” He added that “[a]ny person who does that aids, promotes,

encourages, instigates” the robbery and is guilty of the murder.

The prosecutor further explained that everyone “in on the robbery” was guilty of

murder in a way that emphasized this was true even if they had nothing to do with the

killing: “Don’t come to us and say but my partner promised me he wouldn’t use a gun.

We don’t want to hear it. You’re going to do a robbery, you’re going to be responsible if

someone dies, end of the question. That’s it. And we don’t care who pulled the trigger.

Everyone is guilty of first-degree murder if they were in on the robbery. That’s it.” The

prosecutor ended his principal closing by arguing that, when a gunman heads to do a

robbery, he is helped or encouraged both by a driver who parks his car with the motor

running to aid in a getaway and by a person who accompanies the gunman.

In his rebuttal, the prosecutor again explained that beside malice there is “another

way” to find guilt and “[t]hat is the felony murder rule which I talked about before.” He

argued “if you find there is a robbery, then you short-circuit all that and you go around it

and you end up at first-degree murder.” The prosecutor said “[d]on’t get me wrong,” he

15
was advocating that Lopez was the one that pulled the trigger, but he also emphasized

that several types of minimal conduct by an accomplice or driver were enough to aid the

robbery: “opening the door and saying go get ’em is aid, encouraging, and facilitating.

Parking the car in the right direction; aid, facilitating, encouraging. Going along as a

lookout or as moral support is aid and encouraging and facilitating. Speaking up during a

robbery is aiding, encouraging, and facilitating.”

It is possible that some or all of the jurors concluded that Lopez was the shooter,

or that he had a role that directly aided the killer. But the closing arguments illustrate that

jurors could have found Lopez guilty of felony murder based on a range of roles. On

these facts, we cannot conclude, without weighing evidence, that the jury necessarily

found that Lopez “assisted the actual killer in the commission of murder” (section

189(e)(2)) simply because it found that he assisted the attempted robbery.

In fact, this court demonstrated as much through its 1994 opinion on direct appeal,

which stated that there was sufficient evidence to support the theory that Lopez

accompanied the killer at the McDonald’s and “took the rifle from the triggerman while

they made their escape.” This action legally cannot serve as aiding the commission of

murder, which at the time of the flight was complete; it can just prove accessory after the

fact to murder. (People v. McDonald, supra, 238 Cal.App.4th 16, 24-25; § 32.) As well,

acting only as the getaway driver could serve as an act for accessory to murder but not as

aiding and abetting a murder because the murder would be complete. Other peripheral

16
roles that the prosecutor suggested that assisted the robbery arguably would not serve to

aid the killer in the murder.4

The trial record does not demonstrate that the jury necessarily found that Lopez

“with the intent to kill . . . assisted the actual killer in the commission of murder in the

first degree.” (§ 189(e)(2).) For this reason, I respectfully dissent. I would hold that

Lopez has pled a section 1172.6 prima facie case. This does not necessarily mean that he

merits resentencing, but only that he is eligible for the hearing contemplated by section

1172.6 to determine whether he qualifies. If tried today, Lopez would have a chance to

argue the fifth element of the CALCRIM 540B jury instruction when section 189(e)(2)

applies, that he did not aid the actual killer in the commission of the murder. A section

1172.6 hearing provides him the chance to direct evidence and argument to that element,

which did not exist in 1992. At the hearing, the People could demonstrate that he could

be convicted of murder under any theory permissible today.

RAPHAEL
J.

4 Even though the prosecutor several times argued that the driver had a role that
assisted in the attempted robbery, the majority concludes that it can determine
(apparently without the evidence-weighing forbidden at this stage) that the jury did not
convict Lopez on a view that he was the getaway driver or a passenger. (Maj. opn., ante,
at pp. 17-18). There was evidence identifying Jose Andrade as the driver at times, but
that does not conclusively establish what Lopez did during the McDonald’s incident, nor
what Andrade did. When successfully seeking an aiding-and-abetting jury instruction,
even the prosecutor suggested that Andrade could have been the one running with the
gun: “whether or not it was Mr. Lopez running with the gun in his hand or Mr. Howe or
Mr. Andrade, I think there is enough evidence to give to this jury on the aiding and
abetting.”
17