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Court of Appeal
Murder Conviction Was Based on ‘Legally Invalid Theory’
Jury, Instructed on Felony-Murder Rule, Adjudged Man Guilty of Killing a Victim Who Jumped From Moving Car to Escape While Being Kidnapped; Opinion Says He Was Not an ‘Actual Killer’
By a MetNews Staff Writer
The Third District Court of Appeal on Friday reversed a first-degree murder conviction under the felony-murder rule in a case with facts the court observed were “somewhat unique,” holding that a man who forced a woman into his car and drove off, with the woman alighting from the moving vehicle to escape, resulting in her death, was not the “actual killer.”
Sacramento Superior Court Judge Steve White had instructed the jury that under that rule, defendant with Jerry Vang was guilty of murder in the first degree if he kidnapped the victim, intended to kidnap her, and she died in the course of that kidnapping.
The felony-murder rule—as whittled down by Senate Bill No. 1437, enacted in 2018—was not properly applied, Justice Peter A. Krause said in his partially published opinion, declaring that Vang was convicted under “a legally invalid theory.” That means that “[r]eversal is required unless we can say, beyond a reasonable doubt, that the error did not contribute to the verdict,” he wrote, and “[n]o such determination is possible here.”
The legislation amended Penal Code §189 to provide, in subd. (e):
“A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life….”
Defines Issue
Krause noted:
“The dispute in this case is over the meaning of the undefined term ‘actual killer.’ ”
In resolving the dispute, he said:
“In light of Senate Bill No. 1437’s stated intent that punishment be imposed ‘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.”
The opinion refers to the kidnapped woman, Padao Vue, as Vang’s “wife.” However, it notes that they were only “culturally married,” not legally wed.
Friday’s opinion reverses the first-degree murder conviction with a special circumstance, and orders a remand, saying:
Double Jeopardy
“We express no opinion on whether double jeopardy principles would bar retrial for Padao’s death under a different theory.”
Vang’s convictions on various other counts—some involving offenses against Vue, others against a woman who was a subsequent co-habitant—were not disturbed.
The case is People v. Vang, 2022 S.O.S. 3475.
Aside from being convicted of murder, Vang was found guilty of kidnapping, infliction of corporal injury on a cohabitant, two counts of criminal threats with firearm allegations, and two counts of possession of a firearm by a felon.
In addition to the sentence for murder—life in prison without possibility of parole—White imposed a consecutive sentence of 20 years and eight months on the other counts, not including kidnapping. Inasmuch as that offense formed the basis for application of the felony-murder rule, sentence was stayed under Penal Code §654 to avoid double punishment.
The sentence in Sacrament Superior Court was also consecutive to a sentence of eight years and eight months imposed in a Placer Superior Court case.
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