In People v. Esquivel (1994) 28 Cal.App.4th 1386, a jury convicted the defendant of first degree murder based on the felony murder doctrine and the defendant's participation in the underlying robbery as an aider and abettor. The defendant appealed, arguing the court erred in failing to instruct that if the defendant became an aider and abettor to the robbery after the victim had been fatally wounded, he could not be found guilty of felony murder. (Esquivel, supra, 28 Cal.App.4th at p. 1392.) The appellate court reversed. (Id. at p. 1400.) Two major differences stand out between the present case and the scenario in Esquivel. In Esquivel, the prosecution argued to the jury that the victim was already dead when the property was taken, but that if the defendant participated in the robbery he was guilty of felony murder even if he did not join the plan to rob until after the murder. (Esquivel, supra, 28 Cal.App.4th at p. 1394.) The appellate court noted this statement was incorrect, and that if the design to take property from the victim is formed after the victim has already been killed or mortally wounded, the felony-murder doctrine does not apply. (Id. at p. 1396.) In Esquivel, the appellate court also concluded evidence in the record could reasonably support an inference that the defendant did not form the intent to participate in the robbery until after the victim was dead. (Esquivel, supra, 28 Cal.App.4th at p. 1397.) The trial court had noted there was no testimony that the defendant entered the property to commit a felony. Various witnesses testified the defendant stated the perpetrator struck the victim after being asked to leave. The defendant fled in fear during the attack. The appellate court found this evidence sufficient for the jury to be instructed on the timing of the defendant's intent. (Id. at pp. 1397-1398.)