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Conviction under Felony Murder overturned where kidnap victim killed after jumping from car

THE PEOPLE, Plaintiff and Respondent, v. JERRY VANG, Defendant and Appellant. (Cal. Ct. App., Aug. 5, 2022, No. C090365) 2022 WL 3131574, at *1

Summary: Vang was convicted of first degree felony murder of his wife. After an argument with his wife,  she fled in her car, Vang followed, eventually forced her to stop, and coerced her (through force or fear) into his vehicle. As Vang was driving away, his wife opened the door and jumped from the moving vehicle, resulting in her death.

The jury was instructed that defendant was guilty of first degree felony murder if the prosecution proved Vang committed a kidnapping; he  intended to commit the kidnapping; and, while committing the kidnapping, he  caused his wife’s death. The jury received a similar instruction on the special-circumstance allegation.

Vang argued that the trial court erred by permitting the prosecution to proceed on a legally inadequate theory of felony murder. He contended that under the current felony-murder rule, as amended by Senate Bill No. 1437, he could be liable for felony murder only if he was proven to be the “actual killer.” Because the evidence showed that his wife jumped from the vehicle of her own volition, Vang  argues he was not the actual killer and therefore his conviction for first degree felony murder with a special circumstance rests on a legally invalid theory.

The Court of Appeal agreed that the Vang’s first degree felony murder conviction and special-circumstance finding rests on an invalid legal theory.  The court reverse that conviction and vacate the special-circumstance finding.

Felony Murder

The prosecution relied on the theory that Vang’s wife jumped from his  truck to escape the kidnapping. The prosecution argued that even if Vang did not personally kill his wife, he still was liable for her murder because he committed an inherently dangerous felony—the kidnapping—that proximately caused her death.

The jury was instructed that defendant was guilty of first degree felony murder if the People proved that (1) defendant committed the crime of kidnapping; (2) defendant intended to commit a kidnapping; and (3) while committing the kidnapping, defendant caused the death of another person (even if the killing was unintentional, accidental, or negligent). (CALRIM No. 540A.)The court instructed the jury that an act causes death if the death is a direct, natural, and probable consequence of the act and a reasonable person would know it is likely to happen if nothing unusual intervenes. (CALCRIM No. 520.)  The  jury was instructed that there may be more than one cause of death; and that an act causes death only if it is a substantial factor in causing the death, and the death would not have happened without the act. (CALCRIM Nos. 520, 620.)

Vang argued that he could be held liable for felony murder only if he was the “actual killer.”

Because the evidence showed that his wife jumped from the truck of her own volition, and there was no evidence that he directly caused her death, he  argued that he was not the actual killer as a matter of law. The trial court erred by permitting the prosecution to proceed on a legally inadequate theory and instructing the jury that it could convict defendant of felony murder (with a special circumstance) on that theory.

The felony-murder rule

Murder is defined as “the unlawful killing of a human being … with malice aforethought.” (§ 187, subd. (a).) The malice required by section 187 may be express or implied. It is express when there is a manifest intent to kill. (People v. Gentile (2020) 10 Cal.5th 830, 844 (Gentile). It is implied if someone kills with “ ‘no considerable provocation … or when the circumstances attending the killing show an abandoned and malignant heart.’ ”  Implied malice has both physical and mental components. (People v. Solis (2020) 46 Cal.App.5th 762, 774.) The physical component is satisfied by the performance of an act, the natural consequences of which are dangerous to human life. The mental component is established when the defendant knows his or her conduct endangers another person’s life yet acts with a conscious disregard for life. When a person directly perpetrates a killing, the perpetrator must possess malice aforethought. (Gentile, supra, 10 Cal.5th at p. 844.) When a person directly aids and abets a murder, the aider and abettor must act with malice aforethought.

In California, the felony-murder rule provides an exception to the malice requirement for murder. (People v. Solis, supra, 46 Cal.App.5th at p. 774.) The rule imputes the requisite malice to those who commit a homicide during the perpetration of a felony inherently dangerous to human life. (People v. Cruz (2020) 46 Cal.App.5th 740, 752.) The requisite mental state is simply the specific intent to commit the underlying felony.

Senate Bill 1437

Senate Bill 1437 amended the mens rea requirement for murder and narrowed the circumstances under which a defendant can be convicted under the felony-murder rule. Senate Bill 1437 amended section 188 to provide that, except when the felony-murder rule applies, a murder conviction requires proof of malice aforethought, which “shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Senate Bill 1437 eliminated aiding and abetting murder liability under a natural and probable consequences theory. (Gentile, supra, 10 Cal.5th at pp. 847-848, superseded by statute as stated in People v. Hola, supra, 77 Cal.App.5th at p. 370.)

Senate Bill 1437 also amended section 189, by adding a new subdivision (e), relating to the felony-murder rule. As amended, section 189 provides that a participant in the perpetration of a qualifying felony is liable for felony murder only if the person (1) actually killed the victim; (2) aided, assisted, or induced the murder with the intent to kill; or (3) 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)(1)-(3).) By adding subdivision (e) to section 189, Senate Bill 1437 made the crime of felony murder subject to the same elements of proof required for a felony-murder special-circumstance finding under section 190.2.

Analysis

Senate Bill 1437 amended the felony-murder rule to ensure that 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.” The dispute in this case is over the meaning of the undefined term “actual killer.”

Vang argues that the term should be interpreted “literally” to mean the person who personally killed the victim. Under this view, personally killing the victim is not the same as proximately causing the victim’s death. Thus, even in a single perpetrator case like this one, the felony-murder rule would not apply unless, during the commission of the felony, the defendant personally committed the act that directly caused the victim’s death. Here, there was not any evidence to show that defendant personally killed his wife by pushing her from the moving the vehicle, so the prosecution relied exclusively on the theory that the kidnapping proximately caused her death.

The legislative history also supports the view that the Legislature understood the term “actual killer” to mean the person who “personally” commits the homicidal act.

The Senate Rules Committee described the purpose of the bill as revising the felony-murder rule to prohibit imputation of malice unless the person “personally committed the homicidal act.”

The language of the statute also belies any suggestion that the Legislature intended the term “actual killer” to include any participant in a qualifying felony that resulted in death. Before Senate Bill 1437 was enacted, a defendant who intended to commit a qualifying felony could be convicted of murder for a killing during the felony without further examination of his or her mental state. Senate Bill 1437 narrowed the felony-murder rule so that it applies only if the defendant was a participant in the perpetration or attempted perpetration of a qualifying felony in which death occurred and the defendant (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, aided and abetted the actual killer in the commission of murder; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e).)

The term “actual killer” was intended to limit liability for felony murder—in cases where section 189, subdivision (e)(2) or (e)(3) do not apply—to the actual perpetrator of the killing.

In Garcia, supra, 46 Cal.App.5th 123, California’s Sixth Appellate District held that CALCRIM No. 730, the standard instruction for the felony-murder special circumstance, was inconsistent with the law because it allowed the jury to find the defendant guilty as an “actual killer” based on general causation principles.  The Court of Appeal held that the jury should have been instructed that it could find the special-circumstance allegation true only if the prosecution proved the defendant “ ‘personally killed’ ” the victim.

Vang was not the direct cause of his wife’s death so he cannot cannot be retried on the felony-murder theory or the felony-murder special circumstance. (Burks v. United States (1978) 437 U.S. 1, 11 [57 L.Ed.2d 1, 9].)

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