People v. Seidel CA4/2

Opinion

Filed 9/15/26 P. v. Seidel CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E080232 v. (Super.Ct.No. VCR6694)

DAVID BARTLETT SEIDEL, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Reversed and remanded.

Cliff Gardner, 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, Supervising Deputy Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

1 In 1991, defendant and appellant David Bartlett Seidel, who was 16 years old at the time, robbed a pawn shop and killed the owner and a customer. In 1994, a jury convicted him of both murders (prosecuted solely on the theory of first degree felony murder), robbery, and burglary. (Pen. Code,1 §§ 187, 211, & 459.) In addition, the jury found true special circumstance allegations that the murders occurred during the commission of a burglary, robbery, and by means of lying in wait. (§ 190.2, subd. (a)(3), (15), & (17).)

The jury also found true the personal gun use enhancement allegation. (§ 12022.5, subd. (a).) Defendant was sentenced to state prison for a determinate term of 20 years, to be followed by two life terms without the possibility of parole. We affirmed the judgment but ordered the 10-year sentence imposed on the robbery conviction and related gun-use enhancement stayed.2 (People v. Seidel (July 23, 1996, E015487) [nonpub. opn.].)

On July 18, 2022, defendant filed a petition for resentencing pursuant to section 1172.6 (former § 1170.953). The superior court denied his petition, concluding the lying- in-wait special-circumstance findings rendered him ineligible as a matter of law. On appeal, defendant contends the court erred because: (1) the jury’s lying-in-wait findings 1 All undesignated section references are to the Penal Code.

2 On January 27, 2023, we took judicial notice of the record of defendant’s prior appeal in case No. E015487 and deemed our prior unpublished opinion to be part of the record in this case.

3 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) The current section numbering will be used throughout this opinion.

2 do not necessarily reflect a finding that he was the actual killer;4 (2) the jury was not properly instructed on premeditation and deliberation; and (3) the jury was not required to find, nor did it find, that he aided and abetted the actual killer. Initially, we disagreed with his contentions and affirmed his sentence. Subsequently, the Supreme Court granted review, and after issuing its decision in People v. Morris (2026) 19 Cal.5th 671, 693 (Morris) [“section 189, subdivision (e)(2) requires that the nonkiller aid or abet the actual killer in the lethal act itself, and not just the underlying felony”], transferred the matter back to this court with directions “to vacate [our] decision and reconsider the cause in light of [Morris].”

Both parties submitted supplemental briefs. Defendant maintains his “1994 verdicts do not reflect a jury finding that he aided ‘the actual killer in the lethal act itself.’” The People acknowledge section 189, subdivision (e)(2)’s requirement “that the aider and abettor have assisted in the ‘lethal act,’” but contend the jury’s true findings on the lying-in-wait special circumstance allegations “conclusively establish that [defendant], if not the actual killer, assisted in those lethal acts.” In response, defendant points out that one court recently “rejected the argument that a lying-in wait special circumstance finding as to an accomplice permits summary dismissal of a section 1172.6 petition.” (People v. Bocanegra (2026) 122 Cal.App.5th 481.) He questions how a “lying-in-wait special circumstance finding necessarily means defendant ‘aid[ed] or 4 Respondent concedes the superior court incorrectly concluded the lying-in-wait special circumstance established the jury found defendant was the actual killer as a matter of law.

3 abet[ted] the actual killer in the lethal act itself, and not just the underlying felony[]’

(Morris, supra, 19 Cal.5th at p. 693[])” when the “standard lying-in-wait instructions (given here as well) permit a true finding even where the defendant himself did not lie in wait.” We reverse and remand for further proceedings.

I. PROCEDURAL BACKGROUND AND FACTS

A. The Offenses.

Harvey Wolcott operated the Hesperia Pawn Shop that sold firearms, gold, and jewelry. On the morning of November 26, 1991, he and Donald Howie, a customer, were shot and killed during a robbery at the shop; more than 20 firearms were taken. In May 1992, one of the stolen firearms (used in an unrelated shooting) was traced back to defendant. Police questioned defendant who offered different versions about his role in the robbery/murder, including an admission that he acted alone.

B. The Trial.

On November 6, 1992, the San Bernardino County District Attorney charged defendant with two counts of murder (§ 187), robbery (§ 211), and burglary (§ 459). All four counts alleged he personally used a firearm. (§ 12022.5, subd. (a).) The murder counts alleged four special circumstances: (1) the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)); (2) the murder occurred during the commission of a burglary (§ 190.2, subd. (a)(17)); (3) defendant committed the murder while lying in wait (§ 190.2, subd. (a)(15)); and (4) defendant committed multiple murders (§ 190.2, subd. (a)(3)).

4 Trial began in April 1994. Defendant denied shooting either victim; however, he admitted robbing the pawn shop. He testified that before the robbery, he had taken two of his father’s guns to a party to impress his friends and gave them to David Gilbert and another individual, both of whom refused to give them back. Defendant explained that Gilbert said defendant “would have to come up with another gun in order to trade to get it back.” When his father looked for his guns, defendant came up with the idea of robbing the pawn shop because he “had no other way to get any guns.” He did not want to go to the police because he would have to tell his father (a sheriff’s deputy) that he took the guns, and he feared this news would cause a greater strain on their relationship.

Defendant admitted to lying to police officers during his interviews. Nonetheless, he testified that he went to the pawn shop (wearing his letterman’s jacket with his name on the back5) with four other males, he brought a gun and bullets, and Gilbert committed the murders. Defendant maintained that he went to the shop with the intent to rob, but not the intent to kill. He insisted he was not the shooter, but when asked why he brought a gun, he answered, “When you’re going to do a robbery, you need to take a gun.”

Gilbert denied any involvement in the robbery but admitted to receiving a gun from defendant without paying for it. Evidence from Gilbert’s employer showed that he worked a full day from 6:00 a.m. to 4:56 p.m. on November 26, 1991, the day of the robbery.

5 When Wolcott, a retired sheriff’s deputy, opened the pawn shop, defendant’s father helped build racks at the business. In the past, defendant had accompanied his father to the pawn shop more than once; the defendant knew Wolcott might recognize him.

5 Joshua Allen, defendant’s best friend, testified that defendant admitted to shooting the pawn shop owner and another guy, and showed Allen the guns taken from the shop.

Allen also confirmed that defendant modified (making it a silenced weapon) the murder weapon (.22 rifle with the barrel sawed off, the stock cut off, and holes drilled in it) in or about October 1991.

C. Closing Argument, Jury Instructions, and Verdicts.

The prosecutor discussed defendant’s various stories about who was involved in the robbery/murders but argued defendant “always came back to the final story on May 27th, 1992; that is, his story that he acted alone. He planned to rob Harvey Wolcott, that it was [defendant] who shot [Wolcott] and it was [defendant] who shot Donald Howie.”

Nonetheless, the prosecutor tried the case solely on a felony-murder theory that allowed the jury to convict defendant of first degree murder without finding malice or deciding whether he was the actual killer or an aider and abettor.

Defense counsel conceded that defendant was guilty of robbery and both murders under the felony-murder rule but emphasized that the case “is about the special circumstances and the serious nature in finding them” and defendant was not the actual killer. Defense counsel maintained that Gilbert, not defendant, was the actual killer, and asked the jurors to find the special circumstances not true. He argued, “Each one of those special circumstances has to be looked at with proof beyond a reasonable doubt as to whether [defendant] is the actual killer. If he wasn’t, did he have any intent to kill? Did he act with reckless indifference and was he a major participant? Those are the legal 6 issues.” After pointing out defendant’s inconsistent versions of who committed the murders, along with the evidence that implies he did not act alone, counsel urged the jury to “[c]onsider these inconsistencies when you look at the facts of who was the actual killer. [¶] Was there any intent to kill? Reckless indifference? Major participant?

[¶] And what the prosecution would like you to do on these things is take every fact that supports that [defendant] did this all by himself, he did the shooting all by himself, and ignore everything else. Only believe he’s lying when it doesn’t fit the theory of the case, no matter how many inconsistencies there are with the physical facts. [¶] What I’m asking of you is for you to take that evidence, evaluate it, weigh it against the law of reasonable doubt. If you have a doubt as to whether these special [circumstances are true, I]’m requesting on behalf of [defendant] that you find all of them not true.”

In his rebuttal, the prosecutor asserted the defense failed to explain any reason for the jurors to “not conclude that [defendant] is guilty of the special circumstances . . . as they are charged.” He argued the evidence shows defendant was a major participant because he planned the robbery, chose the date, brought the rifle, and lured the shop owner into a position where “somebody else can get the drop on him.” He added that defendant was indifferent and reckless because he brought “a whole bunch of extra bullets,” made a silencer for the rifle, and previously test-fired the rifle. As to the lying- in-wait special circumstance, the prosecutor said it “requires that he be the killer, that he have the intent to kill, and it requires that he do it in a manner that I can only say uses a form of betrayal; where he comes in, intentionally takes advantage of the relationship 7 between the victim, Mr. Wolcott, and [his (defendant’s)] father and uses that as an advantage to get the drop on Mr. Wolcott and then kill him unsuspectingly.”

The jury was instructed on the felony-murder theory only. However, under pattern instruction former CALJIC No. 8.80.1, the jurors were directed that, if they found defendant guilty of first degree murder, they must then determine if the special circumstance is true—i.e., that the murder was committed while lying in wait.

Specifically, the jurors were instructed with former CALJIC No. 8.80.1, which required a finding that defendant is either the actual killer or “with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree, or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crime of robbery or burglary which resulted in the death of a human being, namely Harvey Wolcott and/or Donald Howie.”6 6 Former CALJIC No. 8.80.1, in relevant part, provided: “The People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true. [¶] Unless an intent to kill is an element of a special circumstance, such as the special circumstance of lying-in-wait, if you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true. [¶] If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider or abettor, you cannot find the special circumstance to be true unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree, or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crime of robbery or burglary which resulted in the death of a human being, namely Harvey Wolcott and/or Donald [footnote continued on next page]

8 (Former CALJIC No. 8.80.1, italics added.) Pursuant to former CALJIC No. 8.81.15, the jurors could find defendant guilty of intentional killing by lying in wait only if they found he had acted with the intent to kill the victims.

The jury deliberated over the course of five days. During deliberations, they submitted questions/notes to the trial court. As defendant observes, the jurors were struggling with the issue of whether he acted alone or aided and abetted Gilbert.7 Specifically, the jury requested clarification on the words “personally used,” and later indicated they had decided all counts except the lying-in-wait special circumstance.8 As to that special circumstance, the jury informed the court that they were deadlocked at 11 to 1. The jurors were polled as to whether there was a “reasonable possibility of any further movement on that special circumstance.” Since the deadlock was 11 to 1, and some jurors believed additional time and a review of the jury instructions may help break it, the court stated, “[R]ather than declare a mistrial at this time on that special Howie. [¶] . . . [¶] In order to find a special circumstance alleged in this case to be true or untrue, you must agree unanimously.” (Former CALJIC No. 8.80.1, italics added.)

7 Jurors asked for the crime scene log, which identified the placards and their locations, defense counsel’s opening and closing statements, Josh Allen’s testimony, the murder weapon, and the pistol that was placed/left behind at the home of Randy Steen (Josh Allen’s mother’s boyfriend and the individual defendant initially identified as the killer).

8 Specifically, their note stated, “We understand the terms ‘used a firearm’ and ‘firearm’—However—would he have personally used it? In his own hands? Help us out here with this part of the definition. Some are in question.” The jury asked, “What is the difference between an allegation and a special circumstance? Should we concern ourselves with this?” On the same day, they stated, “We have decided on all counts except special circ 1, 4 ‘Lying in wait.’ We cannot come to a unanimous decision. Any suggestions?”

9 circumstance, the court is inclined to send you out again.” The court indicated it would reread CALJIC No. 8.81.15 and the jury foreperson asked for a reread of the instruction on direct and circumstantial evidence. Following further discussion on the instructions to be reread, defense counsel objected to “separating these instructions out” for rereading when all the instructions are in the jury room.

The following instructions were reread: CALJIC No. 2.90, Presumption of Innocence—Reasonable Doubt—Burden of Proof; CALJIC No. 8.80.1, Special Circumstances—Introductory; CALJIC No. 8.81.15, Special Circumstances—Murder While Lying In Wait; CALJIC No. 8.83, Special Circumstances—Sufficiency of Circumstantial Evidence—Generally; CALJIC No. 8.83.1, Special Circumstance— Sufficiency of Circumstantial Evidence to Prove Required Mental State; and CALJIC No. 17.40, Individual Opinion Required—Duty to Deliberate. After a few hours of deliberation, the jury submitted three more notes that informed the trial court as follows:

“We are trying hard to clear many details here—We might be able to come to some conclusion if we listen to a few testimony read backs . . . [defendant’s] X examine (people) portion of his testimony”; “Josh Allen testimony early on regarding ‘when gun was altered or modified’ (time period before the Murder Robbery)”; and “Bill Breniff testimony regarding whereabouts of David Gilbert on day of Murder/Robbery.

(Questioned by [the prosecutor.])” The next day, the jurors found the lying-in-wait special circumstance true and informed the court they had reached their verdicts.

10 On June 3, 1994, the jury convicted defendant of all charges with true findings on all special circumstances.

D. Defendant’s Petition for Resentencing.

On July 18, 2022, defendant filed a petition for resentencing under section 1172.6 alleging he was convicted of murder under either the natural and probable consequences doctrine or the felony-murder doctrine and could no longer be convicted of murder because of the changes to the law effected under Senate Bill No. 1437 (2017-2018 Reg.

Sess.) (Sen. Bill 1437). In his declaration, he stated that he is entitled to relief because the court records “reflect that [he] was never convicted as a major participant in the murder of both victims in this case, but only as an aider and abettor to the crimes he is now convicted of.” The superior court summarily denied the petition on the grounds (1) defendant admitted that “‘he alone committed the robbery and shot and killed both men,’ during a Miranda [v. Arizona (1966) 384 U.S. 436] interview”; (2) the jury was instructed on felony murder and lying in wait; (3) the jury’s true finding on lying in wait “shows premeditation and deliberation”; and (4) the true finding that “defendant intentionally killed the victim[s] while laying in wait” makes him the actual killer.

II. DISCUSSION

Defendant contends the superior court erred in denying his petition based on the special circumstance findings without holding an evidentiary hearing.

11 A. Applicable Law.

Section 189, as amended, limits liability under a felony-murder theory principally to “actual killer[s]” and those who, “with the intent to kill,” aid, abet, counsel, command, induce, solicit, request, or assist “the actual killer in the commission of murder in the first degree.” (§ 189, subd. (e)(1), (2).) “Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were ‘major participant[s]

in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2’—that is, the statute defining the felony- murder special circumstance.” (People v. Strong (2022) 13 Cal.5th 698, 708; see § 189, subd. (e)(3).)

“A person convicted of felony murder . . . or other theory under which malice is imputed to a person based solely on that person’s participation in a crime . . . may file a petition with the court that sentenced the petitioner to have the petitioner’s murder . . .

conviction vacated and to be resentenced.” (§ 1172.6, subd. (a).) The petition must allege the petitioner was (1) charged with one of the enumerated crimes under a theory of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime; (2) convicted of murder, attempted murder, or manslaughter; and (3) could not presently be convicted of murder because of changes to sections 188 or 189 (Stats. 2018, ch. 1015, §§ 2, 3) made effective January 1, 2019.

(§ 1172.6, subd. (a)(1), (2), (3).)

12 Where the petition complies with the three requirements, the superior court proceeds to section 1172.6, subdivision (c), to assess whether the petitioner has made “a prima facie showing” for relief. (People v. Lewis (2021) 11 Cal.5th 952, 960.) “[T]he prima facie inquiry . . . is limited. . . . ‘“[T]he court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’” (Id.

at p. 971.) At the prima facie hearing, the court may consider the record of conviction.9 (Ibid.) “If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the [superior] court may dismiss the petition.” (People v. Strong, supra, 13 Cal.5th at p. 708.)

In this case, the superior court denied defendant’s petition at the prima facie stage under section 1172.6, subdivision (c). A denial at this stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. (People v. Lewis, supra, 11 Cal.5th at p. 960.) This is a purely legal conclusion, 9 The record of conviction includes jury verdicts, jury instructions, and closing arguments. (People v. Harden (2022) 81 Cal.App.5th 45, 54-56 [considering jury instructions and verdicts to determine whether defendant made prima facie showing of eligibility]; People v. Ervin (2021) 72 Cal.App.5th 90, 106 (Ervin) [considering sentencing enhancements, jury instructions, closing arguments, and verdicts at prima facie stage].) This does not include our appellate opinion. (People v. Clements (2022) 75 Cal.App.5th 276, 292 [“[T]rial judges should not rely on the factual summaries contained in prior appellate decisions when a section [1172.6] petition reaches the stage of a full-fledged evidentiary hearing.”].)

13 which we review de novo. (Id. at p. 961; People v. Harden, supra, 81 Cal.App.5th at p. 52.)

B. Analysis.

According to defendant, since the lying-in-wait instruction applies to both actual killers and aiders and abettors, and the jurors never received proper instructions on premeditation and deliberation, their true finding is not equivalent to premeditated and deliberate murder. He further contends he is eligible for resentencing because the law at the time of his trial allowed the jury to find him “guilty as an aider and abettor without a finding that he aided the actual killer (as required by current law).”

1. Premeditation and deliberation.

The information charged defendant with murder, alleged that he personally used a firearm (sawed-off .22 rifle), and alleged he “intentionally killed the victim[s] while lying in wait,” within the meaning of section 190.2, subdivision (a)(15). The jury was instructed that special circumstance lying in wait requires a finding the defendant intended to kill and committed the murder while lying in wait. The term “‘while lying in wait’” was defined as “waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise [even though the victim is aware of the murderer’s presence]. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.” According to the record, the 14 instruction that provided the definitions of premeditation and deliberation was withdrawn.10 Since the jurors never received proper definitions of premeditation and deliberation, defendant argues the superior court erred in concluding “the lying-in-wait findings necessarily reflected a conclusion that [defendant] killed with premeditation and deliberation.” We disagree. Although the jurors were not instructed on the definitions of premeditation or deliberation, they were instructed on the term “while lying in wait.”

This instruction made clear that the jurors could not find the special circumstance true unless they were convinced defendant determined to kill the victims after careful consideration, specifically, after “waiting and watching for an opportune time to act”

while simultaneously hiding his intent from them.

Moreover, courts have consistently held that a true finding on the special circumstance allegation—proof of lying in wait—reflects a conclusion defendant killed with premeditation and deliberation. (People v. Brown (2023) 14 Cal.5th 453, 464 [murder by lying in wait is one kind of “‘willful, deliberate, and premeditated killing’ that section 189 has listed as categorically ‘murder of the first degree’”]; People v. Hardy (1992) 2 Cal.4th 86, 162 [lying-in-wait jury instruction not deficient for failing to require independent proof of premeditation and deliberation]; People v. Sanchez (1864)

24 Cal.17, 29 [in contexts of poison, lying in wait, and torture, the means used provide 10 “[The word ‘premeditation’ means considered beforehand.] [¶] [The word ‘deliberation’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.]”

15 “conclusive evidence of premeditation”].) Lying in wait “‘“[is] the functional equivalent of proof of premeditation, deliberation, and intent to kill.” [Citation.] Thus, a showing of lying in wait obviates the necessity of separately proving premeditation and deliberation . . . .’ [citation] or intent to kill [citation].” (People v. Wright (2015) 242 Cal.App.4th 1461, 1496.) If a showing of lying in wait obviates the necessity of separately proving premeditation and deliberation, it also obviates the necessity of defining these terms.

2. Aiding and Abetting Defendant raises the question of his culpability for felony murder. He claims the jury was not required to find, nor did it find, that he aided and abetted the actual killer.

He asserts that at the time the offenses (1991) and his trial took place (1994), section 190.2, subdivision (b), extended liability for first degree murder to anyone who aided and abetted “any actor in the commission of murder in the first degree.” (§ 190.2, former subd. (b); Stats. 1989, ch. 1165, § 16, effective June 6, 1990.) Conversely, under current law, liability for a participant (not the actual killer) in the perpetration of a murder extends only to those who, with the intent to kill, aided and abetted “the actual killer in the commission of murder in the first degree.” (§ 189, subd. (e)(2), italics added.) Thus, he argues that since a jury today must find that he assisted the “actual killer” rather than “any actor,” the “lying-in-wait finding simply does not reflect a finding on the actus reus requirement now required for conviction of murder.” (See Ervin, supra, 72 Cal.App.5th 90.)

16 Initially, we disagreed with this contention, concluding the actus reus required by section 189, subdivision (e)(2), is an act that assists in the commission of the underlying felony or attempted felony that results in death, not the killing itself. Our conclusion was wrong. (Morris, supra, 19 Cal.5th at p. 693.) In Morris, our high court held that to be liable for felony murder as a direct aider and abettor, a nonkiller must not only share the perpetrator’s intent to kill but must also “aid or abet the actual killer in the lethal act, and not just the underlying felony.” (Id. at p. 685; cf. People v. Reyes (2023) 14 Cal.5th 981, 991 [implied malice murder liability as a direct aider and abettor requires “aiding the commission of the [perpetrator’s] life-endangering act”].)

Relying on the holding in Morris, defendant argues “reversal and remand is required.” The People disagree, maintaining defendant remains ineligible for resentencing because Morris “clarified the relationship between section 189(e)(2)

liability and liability as a direct aider and abettor. As opposed to direct aiding and abetting, which ‘requires the accomplice have “knowledge of the direct perpetrator’s unlawful intent and [the] intent to assist in achieving those unlawful ends”’ [citations], section 189(e)(2) ‘requires the accomplice to have the intent to kill but does not require the accomplice to know the direct perpetrator’s intent.’ [Citation.]” In response, defendant points out that Bocanegra rejected the argument that a lying-in-wait special circumstance finding as to an accomplice permits summary dismissal of a section 1172.6 petition. He further adds that since jurors may find true a lying-in-wait special circumstance even where the defendant did not lie in wait, such true finding does not 17 “necessarily mean[] defendant ‘aid[ed] or abet[ted] the actual killer in the lethal act itself, and not just the underlying felony.’” Based on Morris, we conclude defendant has made a prima facie showing for resentencing.

A true finding on the special circumstance allegation established that defendant acted with the intent to kill; however, it failed to establish that he was the actual killer of Wolcott and Howie or a “nonkiller” who aided the actual killer in the lethal act itself.

(Morris, supra, 19 Cal.5th at p. 683.) According to Morris, “[t]o aid ‘the actual killer’ is to aid the very act that defines that individual—the lethal act itself. The most natural reading therefore is that aiding ‘the actual killer’ with the commission of murder implies aiding with the lethal act rather than aiding the person (who ends up committing the lethal act) with some felonious act.” (Ibid.) Here, the special circumstance instruction only required jurors to find that defendant assisted “in the commission of murder in the first degree.” (Former CALJIC No. 8.80.1, italics added.) Such finding is insufficient to establish that defendant aided the actual killer.

As our Supreme Court explained, Senate Bill 1437 substantially changed the felony-murder rule. Previously, we “relied upon the principle that ‘[a]ll persons aiding or abetting the commission of burglary or robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design.’ [Citation.]

Applying that rule, we concluded that section 190.2, former subdivision (b) was ‘not helpful to [the] defendant because, under the felony-murder doctrine, he was found guilty of aiding or abetting first degree murders.’ [Citation.] However, Senate Bill [No.] 1437 18 ‘narrow[ed] the felony-murder rule significantly by limiting it to the actual killer and to accomplices who either intend to kill and aid in the murder or play a major role in the underlying felony and act with reckless indifference to human life.’ [Citation.]” (Morris, supra, 19 Cal.5th at p. 687, italics added.) In other words, whether a nonkiller who aids in a robbery or burglary is guilty of murder when one of them kills during the offense depends on whether the nonkiller assisted the actual killer in the lethal act itself. (Ibid.)

The words “any actor” used in former CALJIC No. 8.80.1 (“assisted any actor in the commission of the murder in the first degree”) fail to convey the limitation on felony- murder liability, specifically that nonkillers with intent to kill must assist “the actual killer in the commission of murder in the first degree.” (§ 189, subd. (e)(2).)

Since a nonkiller must aid or abet the actual killer in the lethal act itself, and not just the underlying felony (§ 189, subd. (e)(2); Morris, supra, 19 Cal.5th at p. 693), the jury’s true finding on the lying-in-wait special circumstance is insufficient to prevent defendant from making a prima facie showing for resentencing relief under section 1172.6.

19 III. DISPOSITION The postjudgment order denying defendant’s petition for resentencing under section 1172.6 is reversed. On remand, the superior court is directed to issue an order to show cause and conduct an evidentiary hearing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J.

We concur:

RAMIREZ P. J.

MENETREZ J.