Monday, August 29, 2022

SB 1437: People v. Vang , (8/5/2022): the meaning of the term “actual killer.” District: 3 DCA , Case #: C090365

This article is republish (for educational purposes) from the CCAP organization. Central California Appellate Program (CCAP) is a nonprofit law office. 

A big thank you for the analysis of the case below. 


  People v. Vang, District: 3 DCA , Case #: C090365 Opinion Date: 8/5/2022  

 Case Holding: The term “actual killer” in Penal Code section 189, subdivision (e), means the person who personally committed the act that directly caused the victim’s death. Vang was convicted of numerous offenses, including the first degree felony murder of his wife with a kidnapping-murder special circumstance. The prosecution’s theory was that Vang kidnapped his wife, who was killed when she jumped out of his moving truck to escape. The prosecution argued that even if Vang did not personally kill the victim he still was liable for her murder because he committed an inherently dangerous felony—the kidnapping—that proximately caused her death. 

On appeal, Vang argued the jury was misinstructed to allow conviction based on an invalid theory of general causation. Held: Reversed and remanded. Senate Bill No. 1437 narrowed the circumstances under which a defendant can be convicted under the felony-murder rule. It amended section 189 by adding subdivision (e), which provides that a participant in the perpetration of a qualifying felony is liable for felony murder only if he is the actual killer, acted with the intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life, as described in Penal Code section 190.2, subdivision (d). 

The dispute in this case was over the meaning of the term “actual killer.” The legislative history of SB 1437 supports the conclusion that the Legislature understood the term “actual killer” to mean the person who “personally” commits the homicidal act. Here, the jury instructions did not provide a proper definition of “actual killer” and allowed the jury to find Vang guilty of felony murder, and to find the special circumstance true, if it determined he “caused” the victim’s death based on general causation principles. This was an invalid legal theory and reversal was required. 

Additionally, because the evidence was insufficient to support the theory of guilt on which the jury was instructed, Vang cannot be retried on the felony-murder theory or the felony-murder special circumstance.

 [CCAP Editor’s Note: The court expressed no opinion on whether double jeopardy would prohibit Vang’s retrial for murder under another theory.] 


The full opinion is available on the court’s website here: