by Harold Hempstead

The Court of Appeal of California, Third Appellate District, held that the term “actual killer” under the current felony-murder rule, as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.), means the person who personally committed the homicidal act.

On February 3, 2017, Jerry Vang got in an argument with his wife Padao Vue, who fled in her car. Vang pursued her in his truck, pulled in front of her, and forced her to stop. Vang then coerced Vue “through force or fear” to get into his vehicle, and they drove away. Within a mile, Vue jumped from Vang’s moving truck, sustaining fatal injuries.

Vang was charged with numerous offenses, including kidnapping and first-degree felony-murder with a special finding. The prosecution argued that Vang was guilty of first-degree felony murder because the victim died as a result of jumping from Vang’s truck in order to escape the kidnapping, so Vang is liable for the murder because he committed an inherently dangerous felony (kidnapping) that was the proximate (legal) cause of her death.

At the close of the trial, the trial court instructed the jury that Vang was guilty of first-degree felony murder if the People proved (1) Vang committed a kidnapping, (2) he intended to commit the kidnapping, and (3) while committing the kidnapping, he caused the victim’s death, even if the killing was unintentional, accidental, or negligent. CALRIM No. 540A. The trial court further instructed the jury that an act is the cause of death if the death is a direct, natural, and probable consequence of the act and that a reasonable person would know it is likely to occur if nothing unusual intervenes. CALCRIM No. 520. Finally, the court instructed the jury that there may be more than a single cause of death and that the act in question caused the death only if it was a substantial factor in causing the death, i.e., death wouldn’t have occurred without the act. CALCRIM Nos. 520, 620.

The jury found Vang guilt of all charges. He appealed, arguing that the trial court erred by allowing the prosecution to advance a legally inadequate theory of felony murder because the felony-murder rule is inapplicable when the killing is committed by the victim. He also argued that pursuant to Senate Bill 1437, the felony-murder rule applies only if he was the “actual killer.”

The Court began its analysis by reviewing the felony-murder rule. It first discussed murder, which is “the unlawful killing of a human being … with malice aforethought.” § 187(a). Malice can be either express or implied. See People v. Gentile, 477 P.3d 539 (Cal. 2020). It’s express when the intent to kill is clear and obvious. Id. Implied malice is when a person kills with “no considerable provocation … or when the circumstances attending the killing show an abandoned and malignant heart.” Id. Implied malice entails both a physical component (the act – the natural consequences of which are dangerous to human life) and a mental component (person knows his conduct endangers others but acts with a conscious disregard for the safety of others). People v. Solis, 46 Cal. App. 5th 762 (2020).     

The Court then explained that the felony-murder rule provides an exception to the malice requirement for murder. Id. The rule imputes the necessary malice to a person who commits a homicide during the commission of an inherently dangerous felony. People v. Cruz, 46 Cal. App. 5th 740 (2020). That is, the requite mental state for murder is satisfied via the specific intent to commit the underlying felony. People v. Cavitt, 91 P.3d 222 (Cal. 2004).

The Court stated that Senate Bill 1437 amended § 189 by adding new subdivision (e), dealing with the felony-murder rule. Under the amended statute, a person who participates in the qualifying felony is liable for felony murder only if the person (1) actually killed the victim, (2) aided, assisted, or induced the murder with intent to kill, or (3) was a major participant in the qualifying felony and acted with reckless indifference to human life, as provided for in § 190.2(d). § 189(e)(1)-(3). The Court explained that the addition of subdivision (e) to § 189 made felony murder subject to the same elements of proof required for a felony-murder special-circumstances determination under § 190.2. People v. Farfan, 71 Cal. App. 5th 942 (2021).

Turning to the present case, the Court observed that the legal question at issue is the meaning of the term “actual killer.” Vang argued for a narrow interpretation of the term to include only the person who personally killed the victim. On the other hand, the People argued for a broad interpretation to include any person whose actions during the commission of a qualifying felony caused the victim’s death, regardless of whether the death was intentional or accidental, i.e., actual killer includes anyone involved in the qualifying felony whose conduct was a substantial factor in causing the victim’s death.

The Court determined that the term at issue is reasonably susceptible to both of the competing interpretations. To resolve the ambiguity, the Court turned to the legislative history, as required by the rules of statutory interpretation. People v. Preston, 239 Cal. App. 4th 415 (2015).

Reviewing the history of Senate Bill 1437, the Court observed that the Legislature was concerned with the lengthy sentences defendants were receiving as a result of felony-murder convictions, and the Legislature was especially concerned when the “killing was unintentional, accidental, or negligent.” Assem. Com. On Public Safety, Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended May 25, 2018. The legislative history also showed that the Legislature was troubled by the “harshness and inequity” of the felony-murder rule and questioned whether it produced its stated purpose of deterring criminal behavior. Id. The legislative history revealed 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.

The Court noted that when Senate Bill 1437 was enacted the Legislature declared that it was “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 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 Court also found that the Senate Rules Committee described the purpose of Senate Bill 1437 in revising the felony-murder rule was to bar imputation of malice unless the person “personally committed the homicidal act.” Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Bill No. 1437 (2017-2018 Reg. Sess.), as amended Aug. 20, 2018. The Court concluded that “the legislative history supports the view that the Legislature understood” the terms “actual killer” and person who “personally committed the homicidal act” to be “equivalent.”

The Court ruled that “the term ‘actual killer’ was intended to limit liability for felony murder – in cases where [§ 189(e)(2) or (3)] do not apply – to the actual perpetrator of the killing, i.e., the person (or persons) who personally committed the homicidal act.” Consequently, the jury was improperly instructed on the definition of “actual killer.” Thus, the Court held the jury was improperly instructed that they could find Vang guilty of felony murder and the special circumstance based on “general causation principles, even if ... [they] did not find, beyond a reasonable doubt, that he personally committed the homicidal act.”

Accordingly, the Court reversed Vang’s first-degree felony-murder conviction, vacated the special circumstance finding, and remanded so that the People can decide whether to retry him on an alternate theory. See: People v. Vang, 82 Cal. App. 5th 64 (2022). 

Editor’s note: Both the Fourth and Sixth Appellate Districts have similarly concluded that the term “actual killer” means a person who personally killed the victim and not someone who merely engages in an act that is a proximate (legal) cause of the victim’s death. People v. Lopez, 78 Cal. App. 5th 1 (2022); People v. Garcia, 46 Cal. App. 5th 123 (2020). The Lopez decision was covered by CLN in the October 2022 issue on page 40.

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