People v. Vang ( 2022 )

Filed 8/5/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090365
Plaintiff and Respondent, (Super. Ct. No. 17FE01379)
v.
JERRY VANG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Steve
White, Judge. Reversed in part with directions and affirmed in part.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C.
Leal, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of parts I, III & IV.
1
After a jury trial, defendant Jerry Vang was convicted of numerous crimes against
two different victims, including kidnapping (Pen. Code, § 207, subd. (a));1 first degree
felony murder with a special-circumstance finding (§§ 187, subd. (a), 190.2, subd.
(a)(17)); infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)); two counts of
criminal threats with firearm allegations (§§ 422, 1203.06, subd. (a)(1), 12022.5, subd.
(a)); and two counts of possession of a firearm by a felon. (§ 29800, subd. (a)(1).)
On appeal, defendant focuses the bulk of his briefing on his conviction for the first
degree felony murder of his wife, the facts of which are somewhat unique. In short,
defendant, who has a long history of domestic violence, had an argument with his wife.
After she fled in her car, defendant followed, eventually forced her to stop, and coerced
her (through force or fear) into his vehicle. As defendant was driving away, his wife
opened the door and jumped from the moving vehicle, resulting in her death.
Consistent with the prosecution’s theory at trial, the jury was instructed that
defendant was guilty of first degree felony murder if the prosecution proved defendant
committed a kidnapping; defendant intended to commit the kidnapping; and, while
committing the kidnapping, defendant caused his wife’s death. The jury received a
similar instruction on the special-circumstance allegation.
Defendant argues that the trial court erred by permitting the prosecution to proceed
on a legally inadequate theory of felony murder. He contends that under the current
felony-murder rule, as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 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, defendant 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.
1 Undesignated statutory references are to the Penal Code.
2
Defendant also challenges his judgment of conviction on grounds that: (1) the
evidence was insufficient to support the kidnapping verdict; (2) the trial court committed
reversible error by failing to instruct the jury on the limited purpose of some of the
victim’s hearsay statements or, alternatively, that his counsel was ineffective in failing to
request such instructions; (3) the trial court erred by failing to instruct the jury on the
limited purpose of certain lay opinion testimony or, alternatively, that his counsel was
ineffective in failing to request such instructions; and (4) the cumulative effect of the trial
court’s errors was an unfair trial.
After reviewing the legislative history of Senate Bill 1437 and decisional authority
interpreting the term “actual killer,” we agree that the defendant’s first degree felony
murder conviction and special-circumstance finding rests on an invalid legal theory.
Accordingly, we shall reverse that conviction and vacate the special-circumstance
finding. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In late 2014, the victim, Padao Vue, began an intimate relationship with defendant.
In August 2015, she moved into defendant’s apartment. That same year, she became
pregnant with defendant’s child, and in July 2016, she gave birth to their daughter. In
February 2016, while she was pregnant, Padao and defendant were “culturally married.”
Testimony at trial established that in the Hmong community, to which defendant
and Padao belonged, marriage is a patriarchy. Hmong women are taught to be “patient”
in marriage and to abide by the husband’s wishes. Hmong culture also discourages
involving law enforcement in family disputes. When problems arise in a Hmong
marriage, they are resolved within the community, often through a “cultural meeting”
with elders.
A. The December 2014 incident (uncharged)
In December 2014, shortly after ending a relationship with Stephen V., Padao met
with him to discuss what they would do about the apartment and car leases they shared.
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Stephen testified that Padao showed up with a black eye. He asked Padao what
happened, and she said that defendant punched her. Stephen told her to report the abuse,
but Padao told him she was scared defendant would do something to her family.
After that meeting, Stephen sent a Facebook message to one of Padao’s brothers,
Seemaown. Seemaown e-mailed Padao and asked what happened. Padao explained that
defendant thought she was cheating on him. She asked Seemaown to avoid text
messaging her or sending Facebook messages because defendant had all her passcodes.
Months later, Padao—discussing this same incident—told her sister Paduacee that
defendant hit her “very hard” and slammed her into a wall because he was mad that she
was talking to Stephen. Padao also discussed the incident with her friend and mother.
B. The September 26, 2016 incident (uncharged)
On September 26, 2016, Padao went to a store with her baby and asked an
employee to hide her because she was fleeing her abusive husband. Padao was crying
and sounded afraid. The employee and a security guard suggested she call the police, but
she did not want to because she was too scared. The employee took Padao to the store’s
break room, where Padao called friends to come get her.
When her friends arrived at the store, Padao was holding her baby and was acting
nervous and scared. Padao told them that she and defendant had argued the night before,
and defendant had pulled out a gun and threatened her and the baby. Padao said she was
scared and had to make up an excuse to get out of the house.
Padao and her baby stayed with friends for a few days. While there, Padao left a
voicemail message for her sister, Pahouang, telling her that she had left defendant and not
to answer the door if defendant came looking for her because defendant was being “very
violent.”
At some point, Stephen visited the home where she was staying, and Padao told
him that defendant had pointed at gun at her and her daughter. Padao also told her
mother.
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Padao reunited with defendant on September 30. Later, in a series of text
messages with her sister (Pahouang), Padao explained that she did not seek the family’s
help because she was scared for them. She wrote, “[Defendant] gets crazy when he’s
crazy,” and “I thought he would actually hurt or kill me.”
C. The November 2016 incident (counts three and four)
On the morning of November 15, 2016, Padao appeared at her sister’s place of
work with her baby. Padao was crying and “very scared.” Padao told her sister
(Paduacee) that defendant had pointed a gun at her and threatened to kill her and the
baby. Padao said that she was afraid of defendant. Padao told Paduacee that she was
able to calm defendant down and they went to bed. She escaped with the baby early the
next morning. Padao left her phone at home because she had to leave so quickly.
Paduacee suggested Padao call the police, but Padao did not want to out of fear and
cultural pressure.
Paduacee arranged for Padao and the baby to stay with Paduacee’s boyfriend, Sok,
for a few days. Padao told Sok that she was concerned for her baby’s safety because
defendant had pointed a gun at her and threatened to kill her and the baby. Padao also
told her mother.
On November 19, Padao text messaged her sister Pahouang that defendant had hit
her and wanted to kill her. Pahouang told Padao that the elders of the two families were
going to have a cultural meeting about the situation.
Later that day, Padao text messaged her brother, Samuel. In one of the messages,
Padao wrote, “Damn, bro[,] what if I go this time and die?” Samuel indicated that he
would meet with defendant. Padao warned, “Don’t let him drink,” “He gets crazy and
violent.” Later, she added, “Sorry, bro. I didn’t plan this. [¶] I just ran for safety. I was
so scared I was going to die that night he hit me. [¶] . . . He said he was a changed man
and look where I’m at. I’m going through the same [things] as all the other girls in his
life.” Samuel indicated that he still would talk to defendant, but Padao tried to dissuade
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him: “Just stop contacting him. I’m scared for everyone in my family already.” She
continued, “Don’t contact him and don’t see him. He is not in his right mind and he can
burst at any minute. He’s put [people] in the hospital before, and [it’s] very difficult to
calm him down.”
On November 20, a cultural meeting of the elders was held at the home of Padao’s
parents. While preparing for the meeting, Padao told a family member, C.T., that
defendant threatened to kill her if she ever left him. In response to an objection from
defense counsel, the court gave a limiting instruction that Padao’s statement was to be
considered only to show her state of mind.
At the cultural meeting, Padao told the elders that defendant had hit her and put a
gun to her face while she was holding their baby. She explained that defendant told her
to put the baby down and threatened that if she did not, she would see what was going to
happen next. She said that defendant also told her to text everyone in the family and “let
them know that she was leaving and not to look for her.” Padao told the elders that she
was afraid of defendant.
After Padao spoke, defendant had an opportunity to respond and said there was
nothing he wanted to dispute. When the elders asked defendant about his guns, defendant
said that he had given them away. In light of this, the elders asked Padao if she felt safe
with defendant. She said no. Nevertheless, the elders decided Padao should return to
defendant, and she complied.
A few weeks after the cultural meeting, Padao text messaged Pahouang that
defendant “still thinks I cheated on him. He’s so stupid.” Padao also wrote, “But he’s
been good. Let’s see how long it lasts.”
D. The February 3, 2017 incident (counts one and two)
Sometime after midnight on February 3, Richard G. was walking near the
intersection of 53rd Avenue and 65th Street in Sacramento when he saw defendant’s
truck traveling southwest on 65th Street toward Stockton Boulevard. He estimated the
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truck was traveling faster than the speed limit of 45 miles per hour. He could hear a faint
sound, possibly crying, emanating from the truck. The passenger side door then opened
and a woman (Padao) fell from the truck and “hit the pavement.”
The truck stopped and Richard heard the driver (defendant) repeatedly say, “What
the fuck are you doing?” Richard called 911 and later watched defendant try to pick
Padao off the ground and drag her towards the truck. He then saw defendant get back
into the truck and start it, and he believed defendant was trying to leave the scene when
police arrived.
Jason J., a security guard, testified that he was driving on 65th Street when he saw
defendant’s truck stopped in his lane of travel. Defendant was dragging someone toward
the passenger side door of the truck, which was open. Jason parked at an adjacent
shopping center and approached on foot. Defendant was “a bit hysterical.” He was
sobbing and crying as he tried to drag Padao. Jason asked what happened. Defendant
responded, “We had an argument while at the casino. She opened the door to jump out. I
grabbed her shirt, but she slipped out.” Jason asked if the woman was still breathing, and
defendant said yes. Jason asked defendant if he had called 911, and defendant said he
had not. Jason then called 911. Emergency personnel responded and transported Padao
to the hospital, where she died.
E. Initial California Highway Patrol investigation
California Highway Patrol (CHP) officers responded to the scene at 12:14 a.m. As
Sergeant Jake Franklin approached, he saw defendant’s truck stopped in the outside lane
of the south/westbound side of 65th Street. The passenger door was open and defendant
was struggling to move Padao towards the truck. However, by the time he passed and
turned around, defendant was down on his knees, cradling Padao’s upper body in his
arms. Defendant appeared distraught.
Officers looked inside defendant’s truck for signs of a struggle, but did not see
anything suspicious. There was no purse or cell phone in the truck.
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Officers found Padao’s car parked on the right-hand shoulder on the southbound
side of 65th Street, about a quarter of a mile away from where Padao came to rest on the
pavement. The car was legally parked on a narrow shoulder in a poorly illuminated area
adjacent to a mobile home community. No businesses were located on that stretch of
road. The car was 1.7 miles away from Padao’s and defendant’s home.
The car’s interior and dash lights were on, but the engine was not running. There
were three gift card/coupons, each valid for a free meal at a fast food restaurant, strewn
on the driver’s side’s floorboard, and two more on the ground outside the driver’s side
door. There was a pill bottle on the ground in the same area as the free meal coupons.
There were two keys on the passenger seat of the car, one of which was a key to a Honda,
possibly belonging to Padao’s mother. There was no purse or cell phone inside the car.
An officer at the scene remarked that “it looked like she left in a hurry.”
CHP Officer Michael Phillips interviewed defendant at the scene. Defendant
explained that he and Padao had gone to Thunder Valley Casino and that he had gambled
away $2,000, which made Padao “very upset.” Defendant said they left the casino
around 10:00 or 11:00 p.m. and argued on the way home. Once at home, they got into
another argument, prompting Padao to leave in her car, a Toyota Camry. Defendant
followed her in his truck. He pulled his truck in front of her car and came to a stop,
forcing her to stop as well.
Defendant claimed that he then approached Padao’s car window, apologized for
his behavior, begged her forgiveness, and asked her to get into the truck so they could go
home. She complied. He got into her car and parked it on the shoulder of the road. He
then drove away with her in the truck, accelerating to about 30 miles per hour, when he
remembered he had not locked Padao’s car and told her about it. He also asked Padao,
“Why are you doing this?” Defendant said that Padao responded, “You know what?
Fuck the Camry.” She then opened the passenger side door and attempted to jump.
Defendant said he grabbed her clothing to stop her, but she pulled away and fell from the
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truck. He stopped immediately and ran to her. He saw blood coming from her nose and
head. He did not call 911. He denied any history of domestic violence.
To the CHP officers at the scene, the incident appeared to be an accident. They
determined defendant’s arms were not long enough to open Padao’s door and push her
out while driving. In addition, they found no sign of a struggle or foul play inside the
truck. Although crime scene photographs of defendant appear to show scratches on his
face and a possible injury to his finger, officers at the scene claimed they checked
defendant’s face and hands for fresh wounds, and found none.
F. The coroner’s investigation
Dr. Jason Tovar, a forensic pathologist, conducted an autopsy of Padao and
determined that the cause of death was blunt force trauma, particularly to the head. He
testified that all of Padao’s injuries were consistent with jumping or falling out of a
moving car, but it was possible that some of the injuries could have been caused by a
physical struggle. After reviewing Tovar’s findings, deputy coroner Heather Griffiths
concluded that the manner of Padao’s death could not be determined. Tovar agreed with
her conclusion.
G. The district attorney’s investigation
At the urging of a victim’s advocacy group, the Sacramento County District
Attorney’s Office initiated its own investigation under the direction of Lieutenant Kirk
Campbell. Campbell spoke with Padao’s sister, Paduacee, and learned about defendant’s
history of domestic violence. He reviewed the crime scene photographs and found it
“very suspicious” that Padao’s car had been parked in such a “desolate,” dark, and unsafe
area. He also thought it was “very abnormal” for her car to be left unlocked, with the
dash lights on, and free meal coupons scattered inside and outside the car. He thought the
car’s condition was suggestive of a struggle. He also found the location at which Padao
exited the truck to be significant, since it was only 0.23 miles from her car and was the
first location with businesses around where she could have sought help. Additionally, he
9
believed the photographs of defendant taken at the scene showed scratches on
defendant’s face and a possible injury to defendant’s hand.
Campbell interviewed defendant. Although defendant’s account was similar to the
one he gave at the scene, there were some key differences. Defendant told him that
although Padao had been “mad” at him, they were not really arguing, and she was just
giving him the silent treatment. He described “the kind of love [they] had” as “really
childish” and that Padao was the type of woman who “just want[ed] attention.”
Defendant said that as he followed Padao in his truck, both of their windows were
down and he was driving alongside and talking to her, telling her to come home. At
some point, he “had enough,” so he pulled in front of her car and caused her to stop. He
got out of the truck and apologized and asked her to get in the truck, which she did. He
then got into her car and parked it off the road. He had to park “real fast” because he was
concerned Padao might leave in his truck. When asked why he had decided to leave the
car on the side of the road instead of having Padao drive it back home, defendant said that
he wanted to drive her around a little bit to calm her down before returning for her car.
Defendant said that after he got back into his truck, they were silent until he
remembered that he had not locked Padao’s car and told her about it. Padao then pulled
the door handle. He tried to grab her, but she pulled away and fell out. He said he was
going about 20 miles an hour. He got out of the truck and held her, but denied trying to
move her.
Campbell asked defendant about the scratches on his face in the crime scene
photographs. Defendant said it was just acne. Defendant denied having a fight with
Padao. He denied ever hitting her and said they did not have “that kind of love.” He
denied ever pointing a gun at her and claimed he had no gun.
A criminalist examined scrapings from Padao’s fingernails and determined that a
partial DNA profile from one or more of the fingernails on Padao’s left hand was
10
consistent with defendant’s DNA profile. However, the small quantity of DNA made it
impossible to conclude whether it was the result of Padao scratching defendant.
Based on his investigation, Campbell concluded that Padao’s death was a
homicide.
H. Acts involving Chane Doe (counts five through seven)
A few months after Padao’s death, defendant began an intimate relationship with
Chane Doe. Shortly thereafter, Chane moved in with him.
Chane testified that defendant once choked her and put a gun to her head, and told
her to beg for her life. She was afraid she was going to die. Lieutenant Campbell
interviewed Chane about the incident. He observed injuries around her neck, which she
claimed were from defendant choking her. Chane said that defendant told her he was not
afraid to kill, that he had killed before, and that she would be “next.” She said that
defendant had a bad temper and that it was “very scary” living with him.
In June 2017, police searched defendant’s home and found two handguns. One
was found under a couch. The magazine associated with that gun was found in the
backyard of a connecting property. Chane was unsure if it was the gun defendant used to
threaten her. The second gun was found in a purse belonging to Chane.
I. Defendant’s prior uncharged acts of domestic violence against other
victims
The court permitted the prosecution to introduce evidence of prior uncharged acts
of domestic violence by defendant against other women under Evidence Code section
1109 and section 1101, subdivision (b). This evidence is summarized below:
1. Acts related to Kelly Doe (2002 to 2007)
Kelly Doe was in an intimate relationship with defendant from about 2002 to
2007. At some point they were culturally married. Thereafter, Kelly began living with
defendant.
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Late one night, Kelly and defendant got into an argument, during which defendant
hit her, threatened her, and poured nail polish down her throat. On another occasion, in
May 2005, they got into an argument in the car after he picked her up from a clothing
store. At a stop light, he began hitting her with his fist and then forced her out of the car.
On February 11, 2006, defendant showed up at her workplace and accused her of
cheating on him with a coworker. Kelly clocked out early and went home with
defendant. On the ride home, defendant punched her. He then drove her to a park and
told her to take off her clothes in front of strangers. When she refused, he took her home
and hit her with plastic sticks and kicked her while wearing boots. He also threatened to
scratch her face with a key. The next day, when defendant’s grandfather questioned him
about hitting Kelly, defendant became enraged and began hitting her again. Defendant’s
grandfather threatened to call the police, but defendant said he would kill the entire
family if the police were called.
In or about July 2007, defendant got angry and punched Kelly, locked her in the
bedroom, and told her to go to bed. Kelly crawled out the window, and left defendant for
good.
In March 2007, defendant pleaded guilty to assault with force likely to produce
great bodily injury (§ 245, subd. (a)(1)) in connection with the incidents involving Kelly.
2. Acts related to Anee Doe (2010)
Anee Doe was in a relationship with defendant in 2010 and lived with him in his
house. At some point during their relationship, defendant began physically abusing her.
On November 24, 2010, after defendant and Anee had been in a relationship for
approximately six months, Anee called her sisters and asked them to help her get away
from defendant. While she was hiding in a liquor store and waiting for her family,
defendant found her and dragged her from the store and into his car against her will. He
then drove her back to his apartment, punching her repeatedly and hitting her with a knife
sharpener. She was afraid defendant was going to kill her. At the apartment, defendant
12
continued to beat her. He tied her up, strangled her, and told her he was going to kill her.
Eventually the police showed up and interceded after breaking down the apartment door.
In March 2011, defendant pleaded guilty to domestic violence (§ 273.5, subd. (a))
and criminal threats (§ 422) in connection with the incidents involving Anee.
J. Domestic violence expert
David Cropp, a psychotherapist, testified as an expert in intimate partner battery.
Cropp explained the cycle of violence that is typical of intimate partner battery. He
explained it is typical of victims to not report the violence and to return to their abusers.
He also explained that leaving a relationship can be one of the most dangerous times in
an abusive relationship because the abuser can view it as an insult to his authority, which
may intensify the anger and violence.
K. Defense evidence
Ka X. was working as a security guard near 65th Street and 53rd Avenue on
February 3, 2017. He heard car tires screeching and saw a truck stop “real quick.” He
then heard defendant saying, “Oh, shit, oh shit.” As he got closer, he heard defendant
say, “Help me. Help me. Somebody help me.” He could see Padao lying in defendant’s
lap.
L. Verdict and sentencing
In a seven-count amended information, defendant was charged with the murder of
Padao (§ 187, subd. (a)—count one); kidnapping of Padao (§ 207, subd. (a)—count two);
criminal threats against Padao (§ 422—count three); infliction of corporal injury on
Chane Doe, a cohabitant (§ 273.5, subd. (a)—count five); criminal threats against Chane
Doe (§ 422—count six); and two counts of possession of a firearm by a felon. (§ 29800,
subd. (a)(1)—counts four & seven.) The information further alleged, as a special
circumstance to count one, that the murder was committed while defendant was engaged
in the commission of the kidnapping. (§ 190.2, subd. (a)(17).) It also alleged, as to
counts three and six, that defendant personally used a firearm in the commission of the
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offense. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) Lastly, it alleged that defendant
suffered a prior serious felony conviction pursuant to section 667, subdivision (a)(1), and
the Three Strikes law (§§ 667, subd. (b)-(i), 1170.12), as well as a prior domestic
violence conviction. (§ 273.5, subd. (f)(1).) Defendant pleaded not guilty and denied all
the allegations.
The jury found defendant guilty of all counts, found the murder to be first degree,
and found true the special circumstance and firearm allegations. Following a bench trial,
the court found true the prior conviction allegations.
The trial court sentenced defendant to state prison for life without the possibility
of parole on count one, plus an additional consecutive determinate sentence of 20 years 8
months as follows: on each of counts three and six, defendant was sentenced to eight
months, doubled for the strike, plus one year four months for the firearm enhancement;
on each of counts four and seven, defendant was sentenced to eight months, doubled for
the strike; on count five, defendant was sentenced to one year four months, doubled for
the strike; plus five years for the serious felony enhancement for each of the determinate
and indeterminate terms. The court imposed and stayed sentence on count two under
section 654. The sentence was imposed consecutive to defendant’s sentence of 18 years
eight months in Placer County Superior Court case No. 62-152970B, in which defendant
was convicted of kidnapping (§ 207, subd. (a)); possession of a firearm by a felon
(§ 29800, subd. (a)); and accessory to murder after the fact. (§ 32.) Defendant filed a
timely notice of appeal.
DISCUSSION
I
Sufficiency of Evidence: Kidnapping
Defendant argues that the evidence was insufficient to support his conviction of
kidnapping Padao. We disagree.
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We review the record of conviction in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. (People v. Lindberg (2008) 45 Cal.4th 1,
27.) In making our determination, we do not reweigh the evidence or reevaluate the
credibility of witnesses. (Ibid.) Rather, we view the facts in the light most favorable to
the judgment and presume in support of the judgment the existence of every fact that
could reasonably be deduced from the evidence. (Ibid.) The relevant inquiry is not
whether we believe the evidence establishes guilt beyond a reasonable doubt, but
whether, viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Under this standard, the defendant
bears an “enormous burden” in demonstrating that the evidence does not support the
conviction. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
The standard of review is the same when the conviction rests primarily on
circumstantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Although it is
the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of
two reasonable interpretations, one of which suggests guilt and the other innocence, it is
the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a
reasonable doubt. [Citation.] ‘ “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the judgment.
[Citation.]” ’ [Citation.]” (Id. at pp. 1053-1054.)
Section 207, subdivision (a) defines the offense of kidnapping. It provides:
“Every person who forcibly, or by any other means of instilling fear, steals or takes, or
holds, detains, or arrests any person in this state, and carries the person into another
country, state, or county, or into another part of the same county, is guilty of kidnapping.”
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(§ 207, subd. (a).) To prove that a defendant is guilty of kidnapping, the prosecution
must prove that: (1) the defendant took, held, or detained another person by using force
or by instilling reasonable fear; (2) using that force or fear, the defendant moved the other
person (or made the other person move) a substantial distance; and (3) the other person
did not consent to the movement. (People v. Perkins (2016) 5 Cal.App.5th 454, 464;
CALCRIM No. 1215.)
The force used against the victim need not be physical. (People v. Majors (2004)
33 Cal.4th 321, 326-327 (Majors).) As the language suggests, a kidnapping can be
accomplished not only by force, but also by threats of force or other means of instilling
fear. (People v. Moya (1992) 4 Cal.App.4th 912, 916; see also Majors, supra, at p. 327[force and fear are not mutually exclusive].) Fear of injury is not required. (People v.
Montalvo (2019) 36 Cal.App.5th 597, 616.) Movement is deemed forcible where it is
accomplished through the giving of threats or orders which the victim feels compelled to
obey. (Ibid.; Majors, at p. 327.)
Because the gravamen of the offense requires “ ‘some form of compulsion,’ ” the
concepts of consent and force (or fear) “ ‘are clearly intertwined.’ ” (Majors, supra, 33
Cal.4th at p. 327.) Kidnapping must be “against the will” of the victim. (People v.
Williams (2013) 57 Cal.4th 776, 781; accord, People v. Moya, supra, 4 Cal.App.4th at p.
916 [force or fear sufficient to overcome the person’s free will].) If the victim voluntarily
consented to the movement, there was no kidnapping. (People v. Isitt (1976) 55
Cal.App.3d 23, 28.) A defendant’s reasonable, good faith belief that the victim consented
to the movement is a complete defense. (Ibid.)
Defendant challenges the sufficiency of the evidence to support the findings that
he used force or fear to overcome Padao’s will and that she did not accompany him
voluntarily. Defendant argues that the prosecution’s case was based entirely on
speculative circumstantial evidence and that there was no evidence from which a rational
trier of fact could conclude beyond a reasonable doubt that he was guilty of kidnapping.
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We are not persuaded. The evidence presented to the jury, circumstantial as it was,
supported the finding that defendant kidnapped Padao.
The jury heard evidence of defendant’s history of domestic violence involving
Padao and other women. The evidence showed defendant had a propensity to commit
violent and abusive acts against women with whom he had romantic relationships.
Both Kelly and Anee, with whom defendant had a relationship prior to Padao,
testified that defendant hit them, threatened them, and caused them to fear for their lives.
Kelly testified that on one occasion defendant hit her and poured nail polish down her
throat. She recalled two instances in which defendant punched her while she was riding
in his car. Anee testified that once, after defendant had been physically abusive with her,
she tried to run away, but defendant found her, dragged her to his car, and punched her
while driving back to the apartment, where he continued to beat her.
The jury also heard evidence of defendant’s violent acts involving Padao,
including at least one instance in which defendant pointed a gun at her and their child.
The jury heard that Padao was afraid of defendant and that she had run away from him
more than once because she was scared he was going to hurt or kill her. The last of these
incidents occurred only about two months before her death.
In addition, the jury heard testimony about uncharged acts of violence against
Chane that occurred after Padao’s death. Chane testified that defendant choked her, put a
gun to her head, and told her to beg for her life. She feared that she was going to die.
This evidence demonstrated that defendant had a propensity to use force and fear
against women, and supported a finding that Padao was afraid of defendant, especially
when he was angry or upset. In this context of domestic violence and fear, the jury heard
the evidence relating to what transpired on the night of Padao’s death.
It is undisputed that on the night of her death, Padao and defendant had an
argument and Padao left the house driving her own car. Defendant followed in his truck.
17
Defendant eventually “had enough,” so he pulled his truck in front of Padao and forced
her to stop.
In his statements to the police, defendant claimed that Padao willingly left her car
and got into his truck. But the jury reasonably could find defendant’s account was not
credible, since he was not truthful with investigators about other matters, including his
history of domestic violence.
In contrast, there was abundant circumstantial evidence that, when viewed with
the evidence of defendant’s history of domestic violence and Padao’s fear of defendant,
supported an inference that Padao got into defendant’s truck against her will. Such
evidence included: (1) defendant admittedly forced Padao to stop; (2) Padao’s car was
found unlocked, with its dash lights on, in an unusual and unsafe place to park a car, less
than two miles from Padao and defendant’s home; (3) there was evidence suggestive of a
struggle, including the free meal coupons scattered inside and outside Padao’s car, the
photographs that appeared to show scratches on defendant’s face, and the DNA recovered
from Padao’s fingernails; (4) defendant admitted he was concerned that Padao might
drive away in his truck; (5) Padao was in the truck for less than a minute (0.23 miles)
before jumping out; (6) Padao jumped from the truck at the first location where she might
have been able to seek help; and (7) a witness heard a faint sound, possibly crying,
emanating from the truck just before Padao jumped from the vehicle.
The jury also could consider defendant’s actions after the incident as evidence of
defendant’s consciousness of guilt. For example, two witnesses saw defendant try to pick
Padao off the ground and drag her towards his truck. One witness testified that he saw
defendant get back into his truck and start it, as if trying to leave the scene. It was
undisputed that defendant did not call 911. He also lied to the police when they asked if
he had a history of domestic violence.
Taking all the evidence into consideration, the jury reasonably could have
concluded, without speculation, that defendant used force or fear to compel Padao to get
18
into his truck, that Padao did not consent to the movement, and that defendant could not
actually and reasonably have believed that she did.
Defendant points to weaknesses in the evidence and argues there are other
inferences that the jury could have drawn from the evidence. We do not disagree that
other reasonable inferences were possible. However, the issue on appeal is whether any
rational trier of fact could have been persuaded beyond a reasonable doubt that defendant
committed the crime charged. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) We may
not reverse the judgment merely because we believe the circumstances might also support
a contrary finding. (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) Viewing all the
evidence in the light most favorable to the verdict, as we must, we conclude that a
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.
II
Felony Murder and Special Circumstance
To establish defendant’s liability for first degree felony murder, the prosecution
relied on the theory that Padao jumped from defendant’s truck to escape the kidnapping.2
The prosecution argued that even if defendant did not personally kill Padao, he still was
liable for her murder because he committed an inherently dangerous felony—the
kidnapping—that proximately caused her death.
The trial court instructed the jury in conformity with the prosecution’s theory. It
told the jury that defendant was guilty of first degree felony murder if the People proved
2 In addition to first degree felony murder, the prosecution also argued that
defendant could be convicted under a theory of second degree murder with malice
aforethought because he engaged in an act, the natural and probable consequence of
which was dangerous to human life, and he knew that his conduct was dangerous to
human life and acted with a conscious disregard for human life. (People v. Chun (2009)
45 Cal.4th 1172, 1181.)
19
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.)3 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.) It
further instructed the jury 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.)
On appeal, defendant contends that the trial court erred by permitting the
prosecution to proceed on a legally inadequate theory of felony murder. Defendant relies
upon cases that hold that the felony-murder rule does not apply where the killing is
committed by the victim. With the enactment of Senate Bill 1437, defendant further
argues that he could be held liable for felony murder only if he was the “actual killer.”
Because the evidence showed that Padao jumped from the truck of her own
volition, and there was no evidence that defendant directly caused her death, defendant
argues that he was not the actual killer as a matter of law. Thus, he contends, 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.4 For the reasons given below, we agree.
3 The court’s instruction for the special-circumstance allegation was substantially
the same. (CALCRIM No. 730.)
4 Although defendant failed to object to the prosecutor’s theory and the court’s
instructions, we conclude he has not forfeited the issue because it affected his substantial
rights. (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7; People v.
Garcia (2020) 46 Cal.App.5th 123, 154 (Garcia).)
20
A. 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), superseded by statute as stated in People v. Hola (2022) 77
Cal.App.5th 362, 370.) It is implied if someone kills with “ ‘no considerable provocation
. . . or when the circumstances attending the killing show an abandoned and malignant
heart.’ ” (Ibid.) 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. (Ibid.) 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. (Ibid.)
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. (People v. Cavitt (2004) 33 Cal.4th 187, 197.) The purpose of the rule is to deter
criminals from killing by holding them strictly responsible for deaths that occur during
the perpetration (or attempted perpetration) of an inherently dangerous felony, regardless
of whether the killing was done by the perpetrator or an accomplice, and regardless of
whether the killing was intentional, negligent, or accidental. (Ibid.; accord, People v.
Fuller (1978) 86 Cal.App.3d 618, 622.)
21
Almost since its inception, the felony-murder rule has been criticized by some
courts and commentators as an artificial and unnecessary doctrine that erodes the relation
between criminal liability and moral culpability. (See, e.g., People v. Washington (1965)
62 Cal.2d 777, 783; Carlos v. Superior Court (1983) 35 Cal.3d 131, 146, superseded by
statute as stated in Raven v. Deukmejian (1990) 52 Cal.3d 336, 348; People v. Slaughter
(1984) 35 Cal.3d 629, 654; People v. Dillon (1983) 34 Cal.3d 441, 494 (conc. opn. of
Bird, C. J.).) As a result, some courts—including our Supreme Court—have stated that
the rule should be viewed with disfavor and given the narrowest possible application
consistent with its ostensible purpose. (See People v. Smith (1984) 35 Cal.3d 798, 803;
People v. Clem (2000) 78 Cal.App.4th 346, 353; People v. Esquivel (1994) 28
Cal.App.4th 1386, 1396.) This has led to some inconsistency in how the felony-murder
rule is applied, particularly in situations where the lethal act was committed by a person
other than the defendant or an accomplice acting in furtherance of the underlying felony.5
(Compare Washington, supra, at p. 781 [rule does not apply where accomplice killed by
victim because killing was not committed in perpetration of robbery] and People v.
Jennings (1966) 243 Cal.App.2d 324, 329 [rule does not apply where accomplice
accidentally killed self while engaged in arson] with People v. Stamp (1969) 2
Cal.App.3d 203, 209-211 [felony murder applies where there is substantial evidence to
5 There also has been some uncertainty about when a nonkiller accomplice may be
held liable for a killing by an accomplice. In People v. Cavitt, supra, 33 Cal.4th at page
196, the California Supreme Court clarified the “complicity aspect” of the felony-murder
rule, holding that rule does not apply to nonkillers where the act resulting in death is
completely unrelated to the underlying felony other than occurring at the same time and
place. The court held there must be both a causal relationship and a temporal relationship
between the underlying felony and the act resulting in death. (Ibid.) The causal
relationship is established by a logical nexus between the felony and the homicidal act,
and the temporal relationship is established by proof the felony and the homicidal act
were part of one continuous transaction. (Ibid.; accord, People v. Wilkins (2013) 56
Cal.4th 333, 346-347.)
22
prove robbery caused victim’s heart attack] (superseded by statute as stated in People v.
Flint (2022) 75 Cal.App.5th 607, 609), People v. Hernandez (1985) 169 Cal.App.3d 282,
287 [same], and People v. Billa (2003) 31 Cal.4th 1064, 1069-1072 [active participant in
arson liable for accidental death of accomplice].)
B. Senate Bill 1437
In 2017, the Legislature adopted Senate Concurrent Resolution No. 48, which
recognized the need for statutory reform related to the felony-murder rule (as well as the
natural and probable consequences theory of aider and abettor liability). (Sen. Conc. Res.
No. 48, Stats. 2017 (2017-2018 Reg. Sess.) res. ch. 175.) The recitals preceding the
resolution explained that: “It is a bedrock principle of the law and of equity that a person
should be punished for his or her actions according to his or her own level of individual
culpability.” (Ibid.) “In California, defendants in felony murder cases are not judged
based on their level of intention or culpability but are sentenced as if they had the intent
to kill even if the victim of the underlying felony actually commits the fatal act.” (Ibid.)
“[A] prosecutor only needs to prove that the defendant is involved in the commission . . .
of a statutorily enumerated felony . . . to secure a first-degree murder conviction even if
the defendant did not do the killing, and even if the killing was unintentional, accidental,
or negligent.” (Ibid.) Accordingly, the Legislature recognized “the need for statutory
changes to more equitably sentence offenders in accordance with their involvement in the
crime.” (Ibid.)
The following year, the Legislature relied on Senate Concurrent Resolution No. 48
in enacting Senate Bill 1437. (Stats. 2018, ch. 1015, § 1(c).) Among other things, 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. (People v.
Wilkins (2021) 68 Cal.App.5th 153, 157.) Specifically, 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
23
based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) By requiring
proof of malice except in cases of felony murder, 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. (People v. Farfan (2021) 71 Cal.App.5th 942,
953-954; People v. Pineda (2021) 66 Cal.App.5th 792, 798, review granted Sept. 29,
2021, S270513.)
C. Standard of review
In criminal cases, a trial court has a sua sponte duty to instruct on the general
principles of law relevant to the issues raised by the evidence and necessary for the jury’s
understanding of the case. (People v. Campbell (2020) 51 Cal.App.5th 463, 493.) We
apply a de novo standard when determining whether jury instructions were complete and
correctly stated the law. (Ibid.) We consider the challenged instruction in the context of
the instructions and record as a whole to determine whether it was reasonably likely the
jury misapplied the law. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1155.)
D. Analysis
As noted, 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,
24
or was not a major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1(f).) The dispute in this case is
over the meaning of the undefined term “actual killer.”
Defendant 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 Padao
by pushing her from the moving the vehicle, so the prosecution relied exclusively on the
theory that the kidnapping proximately caused her death, and the trial court instructed the
jury in conformity with that theory. Consequently, defendant argues, the jury instructions
improperly allowed the jury to conclude that he was an actual killer and convict him of
felony murder based on general causation principles.6
The Attorney General argues that the term “actual killer” should be given a broad
interpretation, and that Senate Bill 1437 was focused solely on accomplice liability for
felony murder and that the Legislature used the term “actual killer” merely to distinguish
between a perpetrator and an ordinary aider and abettor in cases involving multiple
actors. The Attorney General contends that the Legislature did not intend to impose a
heightened causation or culpability standard for determining whether a defendant in a
single perpetrator case was a killer. Rather, the Legislature intended the term “actual
killer” to include any person whose conduct during the commission of a qualifying felony
caused the victim’s death, regardless of whether the death was intentional or accidental.
6 Defendant alternatively argues that because the evidence did not permit any other
inference as to the direct cause of Padao’s death, the evidence was insufficient to support
his conviction of felony murder and the special-circumstance finding.
25
Under the Attorney General’s interpretation, the defendant need not have
“personally” or “directly” killed the victim. It is sufficient if the defendant’s felonious
conduct was a substantial factor in causing the victim’s death. According to the Attorney
General, “when only one perpetrator is involved [in a qualifying felony] and a death
results, the sole perpetrator is by default a substantial factor in the death and the actual
killer.” Thus, the Attorney General contends there was no error; the prosecution’s theory
was legally valid and the jury was properly instructed.
The interpretation of a statute is a question of law as to which we exercise our
independent judgment. (People v. Lewis (2021) 11 Cal.5th 952, 961.) As in any case
involving statutory interpretation, our fundamental task is to determine the Legislature’s
intent to effectuate the purpose of the law. We begin by examining the words of the
statute, giving them a plain and commonsense meaning, in context, keeping in mind the
nature and purpose of the statute. (Ibid.) If the statutory language is clear and
unambiguous, there is no need for further construction. (People v. Preston (2015) 239
Cal.App.4th 415, 421-422.) But if the language is unclear or ambiguous, the court may
refer to other indicia of the intent, such as legislative history. (Id. at p. 422.)
Here, we conclude that the term “actual killer,” as used in section 189, is
reasonably susceptible to the parties’ competing interpretations. Thus, to resolve this
ambiguity, we turn to the legislative history.
The history of Senate Bill 1437 suggests that the Legislature’s concern was with
the breadth of the felony-murder rule generally, not just its application to accomplices.
For example, in describing the need for the bill, the Assembly Committee on Public
Safety stated that, “[u]nder the current felony murder rule in California, criminal liability
for a homicide is very broad. A defendant may be convicted of first-degree murder under
the felony-murder rule if the defendant is involved in the commission . . . of a statutorily-
enumerated felony (Penal Code § 189), even if the defendant did not do the killing, and
even if the killing was unintentional, accidental, or negligent.” (Assem. Com. on Public
26
Safety, June 26, 2018, Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended
May 25, 2018, p. 5.) The Committee’s report noted the “ ‘harshness and inequity’ ” of
the felony-murder rule, and questioned whether the rule is necessary and whether it
provides an effective deterrent to criminal behavior. (Id. at pp. 4-7.) The Committee’s
report also observed that the United States is the only country in the world to use the
felony-murder rule and that several states have taken steps to ban it. (Id. at p. 5.)
The Senate Committee on Public Safety quoted the author of the bill as observing
that prosecutors were able to “ ‘replace the intent to commit murder with the intent to
commit a felony if the felony results in a death. Thus a person [could] be found guilty of
murder if a death occurs while a felony is committed,’ ” and it did not matter whether the
death was intentional, accidental, unintentional, or unforeseen. (Assem. Com. on Public
Safety, supra, at p. 4.) The rule “ ‘caused disproportionately long sentences for people
who did not commit murder, and who in some cases had, at best, very peripheral
involvement in the crime that resulted in a death.’ ” (Ibid.) The author stated that Senate
Bill 1437 was intended “ ‘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.’ ” (Id. at p. 3, italics added.)
Consistent with this legislative history, when Senate Bill 1437 was enacted the
Legislature found and declared that in order to “more equitably” sentence offenders in
accordance with their individual involvement and culpability in homicides, it is
“necessary to amend the felony murder rule . . . 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, § 1.)
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. As
originally proposed, section 188, subdivision (a)(3) provided: “Malice shall not be
27
imputed to a person based solely on his or her participation in a crime. A participant or
conspirator in the commission or attempted commission of a felony inherently dangerous
to human life may be imputed to have acted with implied malice only if he or she
personally committed the homicidal act.” (Sen. Bill No. 1437, as introduced Feb. 16,
2018, italics added.) Section 189, subdivision (e), in turn, originally provided: “A
participant or conspirator in the perpetration . . . of a [qualifying felony] in which a death
occurs is liable for murder only if one of the following is proven: [¶] (1) The person
personally committed the homicidal act. [¶] (2) The person acted with premeditated
intent to aid and abet an act wherein a death would occur. [¶] (3) The person was a
major participant in the underlying felony and acted with reckless indifference to human
life.” (Sen. Bill No. 1437, as introduced Feb. 16, 2018, italics added.)
Consistent with this draft language, the stated purpose of the bill was to “revise the
felony murder rule to prohibit a participant in the commission or attempted commission
of a felony that has been determined as inherently dangerous to human life to be imputed
to have acted with implied malice, unless he or she personally committed the homicidal
act.” (Sen. Com. on Public Safety, Apr. 24, 2018, Rep. on Sen. Bill No. 1437 (2017-
2018 Reg. Sess.), p. 2.)
Without explanation, the Legislature later removed the phrase “personally
committed the homicidal act” from the bill and replaced it, in section 189, subdivision
(e)(1), with the term “actual killer.” But even after this change, 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.” (Sen.
Rules Com., Aug. 20, 2018, Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.), p. 7.)
Thus, the legislative history supports the view that the Legislature understood the terms
to be equivalent.
The Attorney General argues that the title used in the Legislative Counsel’s Digest
of Senate Bill 1437—"Accomplice liability for felony murder”—proves the Legislature
28
intended the changes to the felony-murder rule to apply only in cases involving
accomplice liability. Although the Legislative Counsel’s Digest can be a valuable tool in
assessing legislative intent, the title employed by Legislative Counsel is not part of the
law and cannot alter the scope, meaning, or intent of the bill itself. (California Teachers’
Assn. v. Governing Board (1983) 141 Cal.App.3d 606, 614; see also Monterey/Santa
Cruz etc. Trades Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500,
1514.) If the Legislature’s intent had been to limit its changes to accomplice liability, the
text of Senate Bill 1437 presumably would have said so. Here, the word “accomplice” is
never used in the text and there is nothing in the language of section 189, subdivision (e)
which limits its application to cases involving accomplices.
Instead, under Senate Bill 1437, the only exception to the malice requirement
imposed by section 188 is the felony-murder rule stated in section 189, subdivision (e),
which, by its plain terms, applies to any “participant in the perpetration or attempted
perpetration of a [qualifying] felony . . . in which a death occurs.” (§ 189, subd. (e).)
Further, the Legislature’s stated intent in amending the felony-murder rule was to more
equitably sentence “offenders”—not just accomplices—in accordance with their
involvement in homicides. (Stats. 2018, ch. 1015, § 1(b).) While it is true that Senate
Bill 1437 substantially modified the law relating to accomplice liability for felony
murder, it is equally evident that the Legislature was concerned about more than the
liability of accomplices and wanted to address some of the broader criticisms of the
felony-murder rule.
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. (People v. Superior Court (Gooden)
(2019) 42 Cal.App.5th 270, 275.) However, Senate Bill 1437 narrowed the felony-
29
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).)
If mere participation in a qualifying felony that results in death were sufficient to
qualify one as the “actual killer,” the language in section 189, subdivision (e)(1) would be
superfluous.7 It is, of course, well established that interpretations that render part of a
statute superfluous are to be avoided. (Wells v. One2One Learning Foundation (2006) 39
Cal.4th 1164, 1207.)
In light of Senate Bill No. 1437’s intent to impose punishment commensurate with
the person’s culpability, we conclude that 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, i.e., the person (or persons) who
personally committed the homicidal act. In other words, the intent was to conform
California law to the “agency theory” of felony murder liability, under which criminal
culpability is restricted to deaths directly caused by the defendant or an accomplice, as
distinguished from the “proximate cause” theory of felony murder, under which a
defendant is responsible for any death that proximately results from the unlawful activity.
(See 40 Am.Jur.2d (2022) Homicide, § 60; see also Comer v. State (Del. 2009) 977 A.2d
334, 341; State v. Small (La. 2012) 100 So.3d 797, 806-809.)
7 It also would raise questions as to the purpose of section 189, subdivision (e)(3),
since a “major participant in the underlying felony” would seemingly always be liable as
an “actual killer” if the felony were a substantial factor in the victim’s death.
30
Our interpretation is consistent with precedent discussing what it means to be an
“actual killer” for purposes of section 190.2, the felony-murder special-circumstance
statute. Section 190.2 sets forth the special circumstances under which murderers and
accomplices may be punished by death or life without possibility of parole. (§ 190.2.)
The statute distinguishes between someone who was the “actual killer” and others who
aid in the murder or the underlying felony. (§ 190.2, subds. (b)-(d).) Generally, the
“actual killer” need not have acted with any intent to kill. (§ 190.2, subd. (b).) But for
those who are not the actual killer, a felony-murder special circumstance can be found
true only if the person aids and abets the murder with an intent to kill; or aids and abets
the underlying felony as a “major participant” acting with “reckless indifference to
human life.” (§ 190.2, subds. (c), (d).)
The elements of section 190.2, subdivisions (b) through (d), are designed to satisfy
the constitutional limits on executing felony murderers under the Eighth Amendment, as
articulated by the United States Supreme Court in Tison v. Arizona (1987) 481 U.S. 137[95 L.Ed.2d 127] (Tison) and Enmund v. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140].
(People v. Banks (2015) 61 Cal.4th 788, 794 (Banks).) As our Supreme Court has
explained it, Tison and Enmund collectively place the conduct of felony murder
participants on a spectrum, “with felony-murder participants eligible for death only when
their involvement is substantial and they demonstrate a reckless indifference to the grave
risk of death created by their actions.” (Banks, supra, at p. 794.) At one end of the
spectrum are minor participants, who were not on the scene, and who neither intended to
kill nor were found to have had any culpable mental state, for whom death is a
disproportional and impermissible punishment. (Id. at p. 800.) At the other end of the
spectrum are the actual killers and those who attempted or intended to kill, for whom a
punishment of death is constitutionally permissible. (Ibid., italics added; see also Tison,
supra, 481 U.S. at p. 150.) In Tison, the Supreme Court addressed “the gray area in
31
between, the proportionality of capital punishment for felony-murder participants who,
like the [defendants], fell ‘into neither of these neat categories.’ ” (Banks, at p. 800.)
Tison concerned whether death sentences were constitutionally permissible for
two accomplices to a felony murder who participated fully in the underlying felony and
watched when the homicides took place, but who neither intended to kill the victims nor
inflicted the fatal wounds. (Tison, supra, 481 U.S. at pp. 138, 143.) In Tison, the court
held that that major participation in the underlying crime, coupled with reckless
indifference to human life, was sufficient culpability for the death penalty to be imposed.
(Id. at p. 158.) Important here is that even though the court in Tison acknowledged the
“deaths would not have occurred but for [defendants’] assistance,” they were not “actual
killers.” (Id. at pp. 143, 150.)
Since Tison, our Supreme Court has repeatedly characterized the case as
articulating the constitutional limits on executing felony murderers “who did not
personally kill,” equating the term “actual killer” with someone who “personally killed”
the victim. (People v. Jennings (1988) 46 Cal.3d 963, 979; People v. Young (2005) 34
Cal.4th 1149, 1204; People v. Jones (2003) 30 Cal.4th 1084, 1119-1120; Banks, supra,
61 Cal.4th at p. 794; see also In re Hardy (2007) 41 Cal.4th 977, 1025.)
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. (Id. at p.
156, fn. 33.) The prosecution had argued the defendant was an “actual killer” because he
handed the “ ‘instrumentality of death’ ” (a roll of duct tape) to a coperpetrator who used
it to cover the victim’s face. (Id. at pp. 149, 152, 154.) Consistent with the prosecution’s
argument, the trial court instructed the jury that it could find the special circumstance true
if defendant committed an act that proximately caused the victim’s death. (Id. at pp. 143,
149-150, 155.) The appellate court held that this was error because the instructions failed
32
to limit liability to the “actual killer” and therefore permitted the jury to find the
defendant guilty based on an invalid legal theory. (Id. at pp. 150, 155.) 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. (Id. at p. 155.)
The court in Garcia explained that the meaning of “ ‘actual killer’ ” under section
190.2 is literal: the actual killer is the one who personally killed the victim. (Garcia,
supra, 46 Cal.App.5th at pp. 151-152.) To personally kill the victim is to directly cause
the victim’s death, not just to proximately cause it. (Id. at p. 151.) While handing a
murder weapon to the person who actually kills the victim might result in liability as an
aider and abettor under section 190.2, subdivision (c) or (d), it does not qualify as an act
of an “actual killer” under section 190.2, subdivision (b). (Garcia, at p. 154.) Thus, the
special circumstance was submitted to the jury on a legally invalid theory, that is, that the
defendant could be found liable as the actual killer just for handing duct tape to a
coperpetrator, even if the defendant did not personally participate in placing the tape on
the victim’s face. (Id. at pp. 154-155.)
Our interpretation of the term “actual killer” in section 189 aligns with the
definition in Garcia. By amending section 189 to add subdivision (e), Senate Bill 1437
made the elements required to prove felony murder essentially coextensive with the
elements for a felony-murder special-circumstance finding under section 190.2. (People
v. Pineda, supra, 66 Cal.App.5th at p. 798, rev.gr.; People v. Farfan, supra, 71
Cal.App.5th at pp. 953-954.) Although the statutes serve different purposes, nothing
suggests the Legislature intended the term “actual killer” to have one meaning for
purposes of the felony-murder rule, and a different meaning under the felony-murder
special-circumstance statute. To the contrary, as the former expressly incorporates
language from (and references) the latter, the logical implication is that the Legislature
33
intended them to be the same. Accordingly, Garcia supports our interpretation that the
term “actual killer” means the person (or persons) who personally killed the victim.
We find further support for our interpretation in the Fourth Appellate District’s
recent opinion in People v. Lopez (2022) 78 Cal.App.5th 1. In the course of deciding
whether the defendant made a prima facie case for resentencing relief under section
1170.95, the appellate court considered what it means to be an “actual killer” for
purposes of section 189, subdivision (e)(1). (Lopez, supra, at p. 16.) Relying on Garcia,
the appellate court concluded that the term “actual killer” means someone who personally
killed the victim, not someone who merely commits an act that is a proximate cause of
the victim’s death. (Id. at pp. 16-19.)
The jury instructions here have the same flaw as those in Garcia. They allowed
the jury to find defendant guilty of felony murder, and to find the special circumstance
true, if it determined that defendant “caused” Padao’s death based on general causation
principles, even if it did not find, beyond a reasonable doubt, that he personally
committed the homicidal act. The instructions were inadequate because jurors were not
provided a proper definition of “actual killer.” The jury was permitted to find defendant
guilty of felony murder, with a special circumstance, based on an invalid legal theory.
Where, as here, the verdict was based on a legally invalid theory, reversal is
required unless we can say, beyond a reasonable doubt, that the error did not contribute to
the verdict. (People v. Lewis (2006) 139 Cal.App.4th 874, 884.) No such determination
is possible here. Accordingly, we shall reverse the judgment of conviction for first
degree felony murder, vacate the special-circumstance finding, and remand the case to
the trial court.
Because the evidence does not permit any inference that defendant was the direct
cause of Padao’s death, we also agree with defendant that the evidence was insufficient to
support the theory of guilt on which the jury was instructed. Thus, defendant cannot be
retried on the felony-murder theory or the felony-murder special circumstance. (Burks v.
34
United States (1978) 437 U.S. 1, 11 [57 L.Ed.2d 1, 9].) We express no opinion on
whether double jeopardy principles would bar retrial for Padao’s death under a different
theory.8 (See, e.g., People v. Smith (1998) 62 Cal.App.4th 1233, 1235-1236, fn. 1.)
III
Evidentiary Issues
A. Lieutenant Campbell’s lay opinions
Before trial, defense counsel moved to exclude Lieutenant Campbell’s lay
opinions that the crime scene photographs showed injuries to defendant’s face and hand
and suggested there had been a struggle inside Padao’s car. The trial court ruled that the
prosecution could present those opinions for the limited purpose of explaining the steps
the lieutenant took in his investigation and pledged to give the jury a “contemporaneous
instruction as to the limited purpose” of that testimony under Evidence Code section 355.
Thereafter, when Campbell testified to those opinions, the trial court failed to admonish
the jury that it could consider the opinions only for the limited purpose of explaining the
steps in his investigation.
On appeal, defendant does not dispute the admission of the crime scene
photographs, but he contends the trial court prejudicially erred by admitting Campbell’s
lay opinion testimony concerning what the photographs depicted. Defendant argues that
by admitting the evidence without a limiting instruction, the court allowed the jury to
consider the evidence for an improper purpose—to prove there was a struggle and that
defendant sustained injuries to his face and hands.
The Attorney General argues that defendant forfeited this claim by failing to
object when the evidence was presented. We agree.
8 Unless and until the prosecution chooses to retry the murder charge, the double-
jeopardy issue is not yet ripe. (People v. Zermeno (1999) 21 Cal.4th 927, 933-934, fn. 3.)
35
The purpose of the forfeiture doctrine is to “reduce the number of errors
committed in the first instance and preserve the judicial resources otherwise used to
correct them.” (People v. Scott (1994) 9 Cal.4th 331, 353.) The alleged error at issue
here—an inadvertent failure to provide a limiting instruction that the court previously had
agreed to give—is precisely the type of error that could have been easily corrected if
called to the court’s attention at some point prior to the jury’s deliberations. (People v.
Dennis (1998) 17 Cal.4th 468, 534 [court is not obligated to give limiting instructions
when the evidence is presented].) Defendant’s pretrial motion to exclude the opinion
evidence did not excuse his failure to object when the offending evidence was presented
at trial, especially where, as here, defense counsel elicited some of the same testimony on
cross-examination. (People v. Cowan (2010) 50 Cal.4th 401, 479-480 (Cowan); People
v. Maciel (2013) 57 Cal.4th 482, 528-529; People v. Boone (1954) 126 Cal.App.2d 746,
749.)
Anticipating the forfeiture problem, defendant argues that the trial court had a sua
sponte duty to give a limiting instruction. We are unpersuaded. “Absent a request, a trial
court generally has no duty to instruct as to the limited purpose for which evidence has
been admitted. [Citations.]” (Cowan, supra, 50 Cal.4th at p. 479.) There is a “narrow
exception to this rule in the ‘ “occasional extraordinary case” ’ in which the evidence at
issue ‘ “is a dominant part of the evidence against the accused, and is both highly
prejudicial and minimally relevant to any legitimate purpose.” ’ ” (Ibid.) That exception
does not apply here. Campbell’s opinion testimony was not a dominant part of the
prosecution’s case. The testimony was admissible because it was rationally based on his
perception of the crime scene photographs and helped explained the actions the lieutenant
took in investigating the crime. And, as discussed infra, admission of the evidence was
not highly prejudicial. The trial court therefore had no sua sponte duty to instruct.
Defendant alternatively argues that his attorney rendered ineffective assistance of
counsel by failing to object to the lack of a limiting instruction. To establish ineffective
36
assistance, a defendant must show that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms, and that the deficient
performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688,
693-694 [80 L.Ed.2d 674, 693-694, 697-698] (Strickland); People v. Ledesma (1987) 43
Cal.3d 171, 216-218 (Ledesma).) When a defendant has failed to establish prejudice, a
reviewing court may reject the claim on that basis without determining whether counsel’s
performance was deficient. (People v. Kipp (2001) 26 Cal.4th 1100, 1123.)
To establish prejudice, “[i]t is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding.” (Strickland, supra, 466
U.S. at p. 693; Ledesma, supra, 43 Cal.3d at p. 217.) The defendant must show there is a
reasonable probability that, but for counsel’s deficient performance, the result of the
proceeding would have been different. (Strickland, at p. 694; Ledesma, at pp. 217-218.)
A reasonable probability is a probability sufficient to undermine confidence in the
outcome. (Strickland, at p. 694; Ledesma, at p. 218.)
Defendant cannot meet this burden. Even if the failure to give a limiting
instruction was error, it was not prejudicial. It is unlikely the jury assigned much weight
to Lieutenant Campbell’s opinion. Given the nature and context of Campbell’s
testimony, the jurors likely understood the limited use of his opinions about what the
photographs revealed. The jury knew that Campbell was not a percipient witness and
that the district attorney’s office had asked him to investigate the case after the fact. The
prosecution’s questions were framed in terms of what he learned through the course of
his investigation,9 and when asked about the crime scene photographs, he couched his
testimony as opinion, not fact.
9 The following exchange is instructive: “[Prosecution:] Because you looked at this
photograph and saw what appeared to be scratches, is that why you requested that the
37
Further, the jury viewed the same photographs, and heard evidence conflicting
with Lieutenant Campbell’s opinions, including defendant’s statement that he did not
have any scratches, as well as the testimony of the officers at the scene who did not report
seeing any scratches or signs of a struggle (but who conceded the photographs appeared
to show injuries). The court properly instructed the jury that they were not required to
accept any witness’s opinion as true and correct, and that they may disregard all or any
part of an opinion that they find unbelievable, unreasonable, or unsupported by the
evidence. (CALCRIM Nos. 332, 333.) The court also instructed the jury that they “must
decide what the facts are,” and what evidence to believe. (CALCRIM Nos. 200, 220,
222, 302.) We presume the jury understood and followed the court’s instructions.
(People v. Holt (1997) 15 Cal.4th 619, 662.) Thus, under all the circumstances, it is
unlikely the jury was influenced by Campbell’s opinions, as opposed to its own
evaluation of the evidence.
Finally, defense counsel specifically told the jury during closing argument that
Campbell’s opinions were merely to explain the steps he took in his investigation.
Defense counsel also argued, at length, why the photographs did not support the
prosecution’s theory of a struggle.
On this record, it is not reasonably probable that defendant would have received a
more favorable result if the trial court had specifically admonished the jury regarding
Campbell’s opinion testimony. Thus, defendant’s ineffective assistance claim fails.
B. Padao’s hearsay statements
Defendant also argues that the judgment must be reversed because some of
Padao’s hearsay statements were admitted without an admonishment that they were
admissible only as evidence of Padao’s state of mind.
fingernail scrapings collected from [Padao] during the course of her autopsy be examined
for possible DNA evidence? [¶] [Lt. Campbell:] Yes.”
38
Before trial, the prosecution moved to admit certain statements made by Padao to
friends and family regarding defendant’s acts of domestic violence and her fearful state
of mind. Defense counsel opposed admission of the statements, arguing that Padao’s past
state of mind was not at issue and that the statements were being offered for an improper
purpose—to prove defendant acted in conformity with past conduct. The trial court
granted the prosecution’s motion, concluding the evidence was admissible for the
purpose of explaining Padao’s mental state at the time of the incident. The court stated
that it would instruct the jury on the limited purpose of the evidence.
Defendant contends that despite having “pledged” to instruct the jury that the
statements were admissible only as evidence of Padao’s state of mind, the court broke
that pledge, admonishing the jury in some instances, but not others. As a result,
defendant contends the jury was allowed to consider some of Padao’s statements for an
impermissible hearsay purpose.
Again, the Attorney General argues that defendant forfeited this claim by failing to
object when the evidence was presented. Again, we agree. Because defendant failed to
request a limiting instruction when the evidence was presented, or to remind the court of
the need for one at any point prior to jury deliberations, the claim is forfeited. (Cowan,
supra, 50 Cal.4th at pp. 479-480; People v. Maciel, supra, 57 Cal.4th at pp. 528-529.)
The court had no sua sponte duty to give a limiting instruction for such evidence.
(People v. Farnam (2002) 28 Cal.4th 107, 163-164; People v. Riccardi (2012) 54 Cal.4th
758, 824-825 (Riccardi), overruled on other grounds as stated in People v. Rangel (2016)
62 Cal.4th 1192, 1216.)
We likewise reject defendant’s alternative claim of ineffective assistance of
counsel because, regardless of any tactical reasons for counsel’s actions, defendant has
not shown a reasonable probability that he would have received a more favorable result
had additional limiting instructions been given. (Strickland, supra, 466 U.S. at p. 694.)
39
As a preliminary matter, we observe that not all of Padao’s statements required a
limiting instruction. Her statements involved two different theories of admissibility:
statements that were admissible as hearsay under the state of mind exception to the
hearsay rule (Evid. Code, § 1250), and statements that were admissible for the
nonhearsay purpose of providing circumstantial evidence of her state of mind. (People v.
Ortiz (1995) 38 Cal.App.4th 377, 389-390 (Ortiz); Riccardi, supra, 54 Cal.4th at pp. 822-
823, overruled on other grounds as stated in People v. Rangel, supra, 62 Cal.4th at p.
1216.)
In the first category were Padao’s direct declarations of her state of mind, such as
statements that she was “afraid” of defendant. Although these statements were hearsay,
they were admissible under Evidence Code section 1250 to prove her fear of defendant
and explain her behavior on the day of the incident. (Ortiz, supra, 38 Cal.App.4th at pp.
389-390; Riccardi, supra, 54 Cal.4th at pp. 822-823; see also People v. Kovacich (2011)
201 Cal.App.4th 863, 884-890.) In the second category were statements that described
defendant’s violent character or conduct, from which the trier of fact was asked to draw
an inference as to Padao’s then-existing state of mind. Only this second category of
statements—the circumstantial evidence of Padao’s state of mind—required a limiting
instruction. (Ortiz, at p. 389.)
Defendant argues that allowing the jury to consider the circumstantial evidence of
Padao’s state of mind without a limiting instruction was prejudicial because it “cast [him]
as a serial abuser,” and “greatly enhanced the likelihood that the jury would accept [that
he] repeatedly abused Padao . . . in the past.” However, such evidence could not have
prejudiced defendant because there was overwhelming evidence of defendant’s domestic
abuse from other (admissible) sources. (People v. Hensley (2014) 59 Cal.4th 788, 811
[no prejudice where other evidence independently established facts].) That evidence
included the direct testimony of Kelly, Anee, and Chane, who described numerous acts of
domestic violence by defendant against them. The evidence also included (1) Padao’s
40
expressions of fear; (2) other witnesses’ perceptions of her fear and observations of her
injuries; and (3) Padao’s statements at the November 20 cultural meeting, which
defendant concedes were admissible as adoptive admissions. Further, defense counsel
conceded in his opening and closing arguments that “[defendant’s] relationship with
Padao was punctuated by acts of domestic violence.” Indeed, defense counsel elicited
similar reports of abuse during cross-examination.
On this record, we do not see any reasonable probability that defendant would
have achieved a more favorable outcome but for the asserted error. Accordingly,
defendant’s ineffective assistance claim fails.
IV
Cumulative Prejudice
Even if no single error required reversal, defendant argues that the cumulative
effect of the asserted errors denied him a fair trial and due process of law. We are
satisfied that defendant received due process and a fair trial, so his claim of cumulative
error fails.
DISPOSITION
We reverse the conviction for first degree felony murder, vacate the special-
circumstance finding, and remand the case to the trial court so that the People may elect
whether to seek to retry defendant for Padao’s death on an alternate theory. If the People
41
do not elect to retry the murder count, defendant shall be resentenced accordingly. In all
other respects, the judgment is affirmed.
KRAUSE , J.
We concur:
DUARTE , Acting P. J.
RENNER , J.
42