People v. Thomas CA2/8 ( 2023 )

Filed 8/25/23 P. v. Thomas CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B319910
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA475163-01)
v.
EDWARD DONELL THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lisa B. Lench, Judge. Affirmed.
Law Office of Stein and Markus, Andrew M. Stein, Joseph
A. Markus, and Brentford Ferreira for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Assistant Attorney
General, Marc A. Kohm, Theresa A. Patterson and Nikhil Cooper,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
William Tillett was kidnapped and murdered in 1990.
After the homicide investigation went cold, investigators
reopened the case and discovered Edward Donell Thomas’s DNA
on the pants Tillett was wearing when he was found dead.
In 2022, a jury convicted Thomas of first degree murder and
found true the kidnapping-murder special circumstance.
On appeal, Thomas argues the evidence was insufficient to
support his murder conviction and the special circumstance
finding; the trial court erred in applying the law as it existed
prior to June 5, 1990; the special circumstance instructions were
flawed; and Thomas’s trial counsel provided ineffective
assistance. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution evidence
A. Tillett’s disappearance
On May 24, 1990, 11-year-old Tillett was walking home
from school with several other children from his neighborhood in
Inglewood. Per their usual route, the children were walking on a
service road before splitting off to go to their respective homes.
At some point, Tillett lagged behind the group to kick a can.
When the other children looked back to see where he was, Tillett
was gone.
As the children searched for Tillett, they noticed a red car
driven by an African American man with a discoloration on his
face, who appeared to be following them. One of the children,
seven-year-old Kameron Hightower, saw the driver hold his hand
out of the window as if beckoning her to approach him. As the
red car turned down another street, Hightower saw the driver
holding something or someone down in the passenger seat, which
2
she believed was a dog or a child. Scared that the red car was
following them, the children ran home.
When Tillett did not arrive home from school at his usual
time, his family searched for him and reported him missing.
B. Tillett is found dead
Around 10:00 p.m. that evening, Jose Valle and Andres
Ortiz were sitting in a car across the street from the driveway of
Valle’s residence in Hawthorne. Valle lived in a triplex that had
a carport at the end of the driveway. The carport was not visible
from the street.
Valle and Ortiz noticed a silver 1970 or 1980 Datsun 280ZX
hatchback with its headlights off speed down the street without
stopping at any stop signs. Valle was suspicious of the vehicle
because he did not recognize it and the driver seemed to turn into
Valle’s driveway “without hesitation.” The Datsun sped to the
end of the driveway, made a three-point turn, and backed into the
carport, where Valle’s parents parked their cars and Valle stored
his tools. The front passenger got out and walked to the back of
the carport out of sight. Valle heard a door slam, then the
Datsun pulled out of the carport and sped back toward the street.
Valle and Ortiz saw two African American men in the front
passenger and driver seats of the Datsun as it turned out of the
driveway.
After Valle and Ortiz watched the Datsun speed down the
street, again with its headlights off and without stopping at any
stop signs, they checked the carport to see if anything had been
stolen. They discovered Tillett between Valle’s parents’ cars.
Tillett was curled up in the fetal position and not moving.
He had been bound with duct tape, which was wrapped around
3
his ankles, wrists, and face, including over his nose and mouth.
Valle ran to his residence and called the police.
C. Paramedics’ response
Paramedics responded to the scene and found Tillett was
pulseless and nonresponsive. They performed a “scoop and run,”
picking Tillett up and putting him on a gurney to administer
lifesaving measures en route to the hospital. Once in the
ambulance, the paramedics cut the duct tape from Tillett’s body.
They were not sure what happened to the duct tape after
transporting Tillett to the hospital, where he was pronounced
dead. The paramedics explained that they were not concerned
with the preservation of evidence but getting Tillett to the
hospital as quickly as possible to give him every chance to live.
D. Law enforcement investigation
Detective Steve Tyrell responded to the hospital.
He observed heavy bruising on Tillett’s right shin after
emergency personnel had removed Tillett’s pants. He also
observed duct tape adhesive on both of Tillett’s wrists. The pants
still had pieces of duct tape stuck to them, and there was
adhesive around the outside of the knee and ankle areas,
suggesting Tillett’s legs were bound together. Detective Tyrell
collected the pants and booked them into evidence.
Detective Tyrell’s investigation led him to suspect Thomas
was involved in Tillett’s kidnapping and murder. A background
investigation revealed Thomas had several potential residences,
including an address in Hawthorne approximately eight or nine
blocks away from where Tillett was found. Detective Tyrell
ultimately made contact with Thomas at an address in San
Bernardino County, where a silver 1979 Datsun 280ZX
hatchback was parked in the driveway. The vehicle was
4
photographed and impounded but was not tested for DNA
because the technology to do so was not widely available at the
time.
Valle and Ortiz identified Thomas’s vehicle from the
photograph as the same make, model, and color they had seen on
the night they discovered Tillett’s body. They described the
Datsun’s passenger and driver as thin African American males in
their early 20’s with short hair, which matched Thomas’s general
appearance at the time. Thomas’s DMV records listed him as
21 years old, five feet eight inches tall, and weighing 145 pounds
in 1990. However, Valle, Ortiz, and Hightower were unable to
identify Thomas from a photo array.
E. Autopsy findings
The original autopsy was performed in 1990. A senior
deputy medical examiner at the Los Angeles County Department
of Medical Examiner-Coroner reviewed the case file and testified
about the autopsy findings at trial.
Tillett’s cause of death was asphyxia by probable
suffocation, and the manner of death was homicide. Suffocation,
which results from lack of oxygen to the blood, can result from
either an external compression of the mouth and nose, i.e.,
smothering, or a compression of the chest that interferes with the
victim’s breathing mechanism, i.e., mechanical asphyxia. Death
by suffocation or mechanical asphyxia can occur as quickly as 90
seconds, but is more likely to take two to three minutes. When
there is a significant size disparity between the victim and the
perpetrator, smothering generally leaves few to no marks on the
victim.
Tillett had no defensive wounds, and there was no
indication that a ligature was used on his neck. However, Tillett
5
had pinpoint hemorrhages around his heart, thymus gland, and
linings of his lungs consistent with death by asphyxiation. Tillett
had bruising on his right leg, including a bruise sustained within
a few hours of death that was approximately the size of an adult
thumb. There were also premortem injuries on Tillett’s wrists
consistent with being wrapped tightly with duct tape and with
pressure being applied to that area. Tillett had two premortem
abrasions on the right side of his forehead and bruising under his
scalp. The bruising and lack of defensive wounds suggested
Tillett was held down by a stronger and larger individual, who
placed a significant amount of pressure on his legs. Swelling on
one of Tillett’s nerves near his neck and spinal cord also
suggested a sudden and severe movement of his neck, for
example, by someone pulling back on the head to cover the nose
and mouth.
F. Subsequent investigation and DNA testing
In 2017, an investigator was assigned to reinvestigate cold
case homicides with the Inglewood Police Department and was
assigned Tillett’s case. The investigator sent Tillett’s pants to a
crime lab for DNA testing and analysis.
The lab’s director, Catherine Nguyen, found a sufficient
amount of DNA on Tillett’s lower right pant leg for testing and
comparison. An analysis of the test results revealed a mixture of
DNA, which included a major male contributor that matched
Thomas. A major contributor is someone whose DNA appears
more readily in a mixture of DNA made up of two or more people.
Nguyen explained that the period of contact, the amount of
pressure of the contact, and friction could account for Thomas
being the major contributor on Tillett’s pants 27 years later
despite the pants’ storage in nonideal conditions. She opined
6
Thomas had much more than “casual contact” with Tillett
because his DNA overwhelmed all other potential contributors,
including Tillett himself. She opined that Thomas’s DNA was
embedded in Tillett’s pants as a result of “primary transfer,”
which occurs from direct contact, as opposed to “secondary
transfer,” which occurs when a person touches an item, and then
a second person touches that same item, and the first person’s
DNA is transferred to the second person. Nguyen opined that the
probability of finding another random individual that was not
Thomas, who matched the major contributor’s profile, was
approximately 1 in 470 quadrillion.
II. Defense evidence
Thomas introduced two exhibits into evidence—
a photograph of Tillett’s shirt, which was analyzed by the lab but
did not have enough DNA for comparison; and the photo array
from which Valle, Ortiz, and Hightower were unable to identify
Thomas.
III. Jury verdict and sentencing
An information charged Thomas with murder, along with
lying-in-wait and kidnapping-murder special circumstances
(Pen. Code,1 §§ 187, subd. (a), 190.2, subds. (a)(15), (a)(17), count
1), and possession of a firearm by a felon (§ 29800, subd. (a)(1),
count 2). Thomas pled not guilty to count 1 and no contest to
count 2.
A jury found Thomas guilty of first degree murder and
found true the kidnapping-murder special circumstance. It was
unable to reach a verdict as to the lying-in-wait special
1 All further statutory references are to the Penal Code.
7
circumstance. Thomas was sentenced to life without the
possibility of parole, plus a consecutive term of two years.
Thomas appealed.
DISCUSSION
Thomas contends: (1) the evidence presented was
insufficient as a matter of law; (2) the trial court erred in
applying the law as it was prior to June 5, 1990, with respect to
felony murder liability; (3) the special circumstance instruction
was “completely flawed”; (4) because the evidence was
insufficient to support the felony murder conviction or special
circumstance finding, retrial is barred; and (5) defense counsel
was ineffective by failing to advise the trial court that existing
felony murder law should have applied and by failing to request a
jury instruction for accessory after the fact.
As an initial matter, we find Thomas’s briefing utterly
deficient. His opening brief does not contain any substantive
analysis applying the law to the evidence in support of his
arguments, rather, it contains conclusory statements of law and
fact without ever coherently connecting the two. To make
matters worse, Thomas’s reply brief is nearly an identical copy of
his opening brief and thus fails to address any of the People’s
contentions raised in their respondent’s brief. Based on Thomas’s
deficient briefing alone, we could find that Thomas waived or
forfeited his arguments on appeal. (People v. Ham (1970)
7 Cal.App.3d 768, 783 [where point is asserted without any
substantive argument, it is deemed to be without foundation and
requires no discussion]; Jones v. Superior Court (1994) 26
Cal.App.4th 92, 99 [if appellate contentions are not supported by
substantive argument, the issues are considered waived].)
8
The deficiency of Thomas’s counsel’s briefing
notwithstanding, in the interest of justice, we will consider
Thomas’s arguments to the extent we can decipher them.
I. The jury’s verdict was supported by substantial
evidence
Thomas contends that his murder conviction and the
special circumstance finding must be reversed because there is
insufficient evidence to support the jury’s verdict.
A. Governing law
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record 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.’ [Citation.] In so doing, a reviewing court ‘presumes in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ ” (People v. Powell (2018)
5 Cal.5th 921, 944.)
“The standard of appellate review is the same in cases in
which the People rely primarily on circumstantial evidence.
[Citation.] Although it is the duty of the jury to acquit a
defendant if it finds that circumstantial evidence is susceptible of
two interpretations, one of which suggests guilt and the other
innocence [citations], it is the jury, not the appellate court which
must be convinced of the defendant’s guilt beyond a reasonable
doubt. ‘ “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a
contrary finding does not warrant a reversal of the judgment.” ’
9
[Citations.] ‘Circumstantial evidence may be sufficient to connect
a defendant with the crime and to prove his guilt beyond a
reasonable doubt.’ ” (People v. Bean (1988) 46 Cal.3d 919, 932–
933.)
Murder is defined as the unlawful killing of another with
malice aforethought. (§ 187, subd. (a).) Malice may be express or
implied. (§ 188, subd. (a).) Express malice requires an intent to
kill that is unlawful because there is no justification, excuse, or
mitigation for the killing recognized by law. (People v. Elmore
(2014) 59 Cal.4th 121, 133.) Express malice can be shown if the
perpetrator “knows to a substantial certainty that the victim’s
death will occur.” (People v. Covarrubias (2016) 1 Cal.5th 838,
890.) It may be “inferred from the defendant’s acts and the
circumstances of the crime.” (People v. Smith (2005) 37 Cal.4th
733, 741.) Under the theory of direct aiding and abetting liability
for murder, the prosecution must show that the aider and abettor
“ ‘knows the full extent of the perpetrator’s criminal purpose and
gives aid or encouragement with the intent or purpose of
facilitating the perpetrator’s commission of the crime.’ ” (People
v. Prettyman (1996) 14 Cal.4th 248, 259.)
First degree felony murder is any kind of willful, deliberate,
and premeditated killing or a killing that is committed in the
perpetration of certain enumerated felonies, including
kidnapping. (§ 189, subd. (a).) A kidnapping occurs when:
(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. Burney (2009) 47 Cal.4th
203, 232.)
10
B. Analysis
Thomas makes several arguments as to why the evidence
was insufficient for the jury to convict him of murder and to find
true the kidnapping-murder special circumstance. His
arguments are meritless.
First, Thomas argues that the evidence was insufficient to
support a murder conviction because his DNA on Tillett’s pants
was the only evidence connecting him to the crime. Thomas is
wrong. In addition to DNA evidence, Valle and Ortiz saw a
vehicle matching the make, model, and color of Thomas’s turn
into the driveway and pull into the carport, where Tillett’s body
was found moments later. They then identified Thomas’s vehicle
as the one they saw that evening in a photograph taken by
Detective Tyrell outside of a residence where Detective Tyrell
found Thomas. Valle and Ortiz also described the two men
driving Thomas’s vehicle as thin African American males in their
20’s, which fit Thomas’s description at the time. They also
testified the vehicle’s driver seemed to pull into the triplex’s
driveway without hesitation and speed to the back of the carport,
giving the impression that the driver knew about the triplex and
the carport, which was hidden from the street. This supported an
inference that the driver was familiar with the area, which
further implicated Thomas because there was evidence that he
lived at an address eight to nine blocks away. Thus, contrary to
Thomas’s argument, there were additional facts to connect him to
the crime.
Thomas also argues the evidence only supported the
conclusion his DNA was transferred to Tillett during transit but
not that he was involved in the actual killing. The fact that the
evidence may support an alternative conflicting interpretation, is
11
not a basis to overturn a conviction on appeal for insufficiency of
the evidence. It is for the jury and the jury alone to resolve
conflicts between alternative interpretations of the evidence.
(People v. Bean, supra, 46 Cal.3d at pp. 932–933.) In any event,
Thomas ignores the DNA expert’s testimony that the presence
and quantity of Thomas’s DNA on the pants decades later,
despite their less-than-ideal storage conditions, suggested
Thomas had prolonged and direct contact with Tillett. Thus, it
was reasonable for the jury to reject the possibility that Thomas’s
DNA transferred to Tillett’s pants by merely moving Tillett’s
body.
Next, Thomas argues there was no evidence he manually
suffocated Tillett or that he held him down, because the medical
examiner admitted Tillett’s death by asphyxiation may have been
caused by the duct tape covering Tillett’s nose and mouth. Again,
arguing that evidence may support two conflicting
interpretations is not a basis to overturn a jury’s verdict on
appeal. (People v. Bean, supra, 46 Cal.3d at pp. 932–933.) That
being said, Thomas’s argument ignores the circumstantial
evidence supporting a reasonable inference that he held Tillett
down and smothered him or held him down, while another
individual taped Tillett’s nose and mouth. For example, he
ignores the medical examiner’s opinion Tillett was held down by
someone much larger and stronger than him based on the lack of
defensive wounds or other marks, combined with the severity of
bruising on Tillett’s wrists and legs. He also ignores the DNA
evidence suggesting he had direct and prolonged contact with
Tillett, combined with the fact that death by asphyxiation takes
two to three minutes to accomplish. Thus, there was substantial
evidence to support the theories Thomas either manually
12
suffocated Tillett or held him down while someone else taped
Tillett’s mouth and nose, which caused the asphyxiation.
Thomas also argues the thumb-sized bruise found on
Tillett’s right shin was insufficient to prove he held Tillett down.
However, just because one piece of evidence is insufficient on its
own to support a conviction, does not mean there is insufficient
evidence to support the judgment on appeal. We review the
entire record in the light most favorable to the judgment to
determine whether it is supported by substantial evidence.
(People v. Powell, supra, 5 Cal.5th at p. 944.) We do not review a
single piece of circumstantial evidence to determine whether it is
sufficient to establish every element of the crimes charged.
Moreover, Thomas’s argument ignores the significance of the
bruise given its location, severity, the fact it was inflicted within
hours of Tillett’s death, and the presence of Thomas’s DNA in
that same area, which, when considered together, suggested
Thomas held Tillett down in the hours before Tillett was found
dead.
Thomas also argues the evidence was insufficient because
“[t]here were no witness identifications nor was there any
evidence about the actions that led to the murder.” Although it is
not entirely clear, Thomas appears to argue the evidence was
insufficient because no one was able to identify Thomas in a
photo array and there was no motive evidence. We are unaware
of any authority (and Thomas has cited none) for the proposition
that all murder convictions must be supported by eyewitness
testimony identifying the defendant. Nor is motive an element of
murder or a kidnapping-murder special circumstance. (See
People v. Watkins (2012) 55 Cal.4th 999, 1029.) Thus, while
eyewitness testimony and motive evidence may be helpful to a
13
jury, they are not prerequisites to a murder conviction or a
kidnapping-murder special circumstance finding. (Ibid.)
To the extent Thomas argues the evidence was insufficient
to prove the kidnapping-murder special circumstance, we
disagree. There is no dispute Tillett was detained against his
will after he failed to return home from school or that he died
during that detention. Indeed, after disappearing for several
hours, Tillett was found dead, bruised, bound, and had Thomas’s
DNA in overwhelming quantities on his pants, and in the same
area where he suffered significant premortem injuries. Thus,
there is substantial evidence Thomas participated in the
kidnapping by either personally detaining and restraining Tillett
or by aiding and abetting another individual who did so.
We note that Thomas dedicated significant portions of his
briefs to discuss whether the factors identified by our Supreme
Court in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark) were supported by
substantial evidence. However, those factors are only relevant to
determine whether a defendant convicted of felony murder, who
was not the actual killer, was a major participant in the
underlying felony who acted with reckless indifference to human
life. As discussed in more detail below, the jury necessarily found
Thomas was either the actual killer or acted with the intent to
kill, therefore, the Banks and Clark factors were immaterial to
the jury’s verdict.
II. The trial court properly applied the law as it existed
prior to June 5, 1990, to the extent it was favorable to
Thomas
Thomas contends that the trial court erred by applying the
law as it existed prior to June 5, 1990, and by failing to
14
retroactively apply the “profound changes” in felony murder
liability resulting from the enactment of Senate Bills Nos. 775
and 1437. Beyond this conclusory statement, the substance of
Thomas’s argument is unclear as his briefs do not identify the
precise change in the law the trial court purportedly failed to
apply. To exacerbate matters further, Thomas’s brief contains no
citations to the record. Thus, it is unclear whether Thomas is
arguing instructional error, insufficiency of the evidence, or
another type of error.
Given Thomas’s failure to advance any coherent argument
on this point, we may summarily reject it as vague, conclusory,
and without foundation. (See People v. Narvaez (2002) 104
CalApp.4th 1295, 1303.) However, in the interest of justice, we
will consider the merits of his argument to the extent we
understand it.
A. Relevant proceedings
During a discussion about jury instructions, the trial court
indicated that CALCRIM No. 701 should be modified to reflect
the law prior to June 5, 1990, which required the jury to find
Thomas had the intent to kill if it found he was not the actual
killer to find true the lying-in-wait and kidnapping-murder
special circumstances. The parties agreed.
The trial court instructed the jury with CALCRIM No. 701,
which read: “If you decide that the defendant is guilty of first
degree murder but was not the actual killer, then, when you
consider the special circumstance of lying in wait or murder
during the commission of a kidnapping, you must also decide
whether the defendant acted with the intent to kill. [¶] In order
to prove this special circumstance of lying in wait or murder
during the commission of a kidnapping for a defendant who is not
15
the actual killer but who is guilty of first degree murder as an
aider and abettor, the People must prove that the defendant
acted with the intent to kill. [¶] If the defendant was not the
actual killer, then the People have the burden of proving beyond
a reasonable doubt that he acted with the intent to kill for the
special circumstance of lying in wait or murder during the
commission of a kidnapping to be true. If the People have not
met this burden, you must find the special circumstance of lying
in wait or murder during the commission of a kidnapping has not
been proved true.”
The trial court also instructed the jury with CALCRIM
Nos. 540A and 540B.
CALCRIM 540A read: “The defendant is charged with
murder, under a theory of first degree felony murder. [¶] To
prove that the defendant is guilty of first degree murder under
this theory, the People must prove that: [¶] 1. [t]he defendant
committed kidnapping; [¶] 2. [t]he defendant intended to commit
kidnapping; [¶] AND [¶] 3. [w]hile committing kidnapping, the
defendant caused the death of another person. [¶] A person who
was the actual killer may be guilty of felony murder even if the
killing was unintentional, accidental, or negligent. [¶] To decide
whether the defendant committed kidnapping, please refer to the
separate instruction that I will give you on that crime. You must
apply that instruction when you decide whether the People have
proved first degree murder under a theory of felony murder. [¶]
The defendant must have intended to commit the felony of
kidnapping before or at the time that he caused the death. [¶] It
is not required that the person die immediately, as long as the act
causing death occurred while the defendant was committing the
felony.”
16
CALCRIM 540B read: “The defendant may also be guilty of
murder, under a theory of felony murder, even if another person
did the act that resulted in the death. I will call the other person
the perpetrator. [¶] To prove that the defendant is guilty of first
degree murder under this theory, the People must prove that: [¶]
1. [t]he defendant committed, or aided and abetted kidnapping;
[¶] 2. [t]he defendant intended to commit, or intended to aid and
abet the perpetrator in committing kidnapping; [¶] 3. [i]f the
defendant did not personally commit kidnapping, then a
perpetrator, whom the defendant was aiding and abetting,
committed kidnapping; [¶] 4. [w]hile committing kidnapping, the
perpetrator caused the death of another person; [¶] 5A. [t]he
defendant intended to kill; [¶] AND [¶] 5B. [t]he defendant aided
and abetted the perpetrator in the commission of first degree
murder; [¶] OR [¶] 6A. [t]he defendant was a major participant in
the kidnapping; [¶] AND [¶] 6B. [w]hen the defendant
participated in the kidnapping, he acted with reckless
indifference to human life. [¶] To decide whether the defendant
and/or the perpetrator committed kidnapping, please refer to the
separate instruction that I will give you on that crime. To decide
whether the defendant aided and abetted a crime, please refer to
the separate instructions that I have given you on aiding and
abetting. You must apply those instructions when you decide
whether the People have proved first degree murder under a
theory of felony murder. [¶] The defendant must have intended
to commit, or aided and abetted, the felony of kidnapping before
or at the time of the death. [¶] You may not find the defendant
guilty of felony murder unless all of you agree that the defendant
or a perpetrator caused the death of another. You do not all need
to agree, however, whether the defendant or a perpetrator caused
17
that death. A person acts with reckless indifference to human life
when he or she knowingly engages in criminal activity that he or
she knows involves a grave risk of death.”
B. Governing law
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
1437) “amend[ed] the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, 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,
subd. (f).) It accomplished this by amending section 188,
subdivision (a)(3), to require that all principals to murder must
act with express or implied malice to be convicted of that crime,
with the exception of felony murder under section 189,
subdivision (e). (Stats. 2018, ch. 1015, § 2.) For a felony murder
conviction under section 189, subdivision (e), Senate Bill 1437
required that the defendant be the actual killer, an aider and
abettor to the murder who acted with intent to kill, or a major
participant in the underlying felony who acted with reckless
indifference to human life. (Stats. 2018, ch. 1015, § 3.)
Senate Bill 1437 also added a petition process for a person
convicted of felony murder or murder under a natural and
probable consequences theory, to petition the trial court that
sentenced the petitioner, to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts. (§ 1172.6, subd. (a).) Senate Bill No. 775 expanded the
petition process to include individuals convicted of “attempted
murder under the natural and probable consequences doctrine.”
(Legis. Counsel’s Dig., Sen. Bill No. 775 (2020–2021 Reg. Sess.)
18
(Senate Bill 775).) It also allowed a person with a qualifying
conviction that was not yet final to challenge the validity of that
conviction on direct appeal. (People v. Birdsall (2022) 77
Cal.App.5th 859, 865–866.)
With respect to the special circumstance allegations, for all
murders committed prior to June 6, 1990, the People were
required to prove an aider and abettor acted with intent to kill for
all special circumstances.2 (People v. Anderson (1987) 43 Cal.3d
1104, 1147; see pre-June 6, 1990, § 190.2, subd. (b).) In contrast,
the current law provides that the actual killer does not have to
act with an intent to kill unless the special circumstance
specifically requires intent. (§ 190.2, subd. (b).) However, if the
jury finds that the defendant is not the actual killer, the People
must prove defendant was a major participant and acted with
intent to kill or with reckless indifference to human life. (§ 190.2,
subd. (d); Banks, supra, 61 Cal.4th at pp. 807–809; People v.
Estrada (1995) 11 Cal.4th 568, 571.)
C. Analysis
Here, the jury instructions reflected the changes in the
felony murder law after the passage of Senate Bill 1437. To
convict Thomas of felony murder, the jury was instructed that it
must find he was the actual killer unless it found he was an aider
and abettor who acted with the intent to kill, or was a major
participant in the underlying felony who acted with reckless
indifference to human life. Thomas has not identified how this
instruction was erroneous or how it failed to comply with the
2 The only exception to this rule was for special
circumstances charged under section 190.2, subdivision (a)(2), in
which the special circumstance was a prior murder conviction.
19
changes in the law after the enactment of Senate Bill 1437.
Even assuming the instructions erroneously failed to account for
the changes in felony murder law under Senate Bill 1437,
Thomas cannot establish prejudice because the jury found the
kidnapping-murder special circumstance true, which necessarily
means they found Thomas was the actual killer or was an aider
and abettor, who acted with the intent to kill as instructed by
CALCRIM No. 701.
Likewise, Thomas has not explained how Senate Bill 775
applies to his case. As discussed above, Senate Bill 775 merely
expanded the availability for resentencing to include individuals
convicted of “attempted murder under the natural and probable
consequences doctrine” and allowed individuals with qualifying
convictions to challenge the validity of their convictions on direct
appeal. Thomas was not charged with attempted murder, and
the changes to felony murder liability under Senate Bill 1437
were properly applied during his trial. Thus, it is unclear what
Thomas is arguing when he says the trial court erred in allowing
the case “to proceed as if [Senate Bill] 1437 and [Senate Bill] 775
had never been enacted.”
With respect to the special circumstance allegations, the
jury was required to find Thomas acted with the intent to kill if
he was not the actual killer. Whether this retroactive application
of the law was error or not, Thomas has not and cannot
demonstrate that he suffered prejudice as a result of the
instruction as it narrowed the circumstances under which the
jury could find the special circumstance true. Moreover, because
the jury necessarily found Thomas was the actual killer or an
aider and abettor who acted with the intent to kill, he cannot
demonstrate that giving additional instructions, with respect to
20
the special circumstance on whether he was a major participant
who acted with reckless disregard for human life, would have
resulted in a more favorable verdict. (See People v. Mil (2012)
53 Cal.4th 400, 415–416.)
III. The trial court correctly instructed the jury on
murder special circumstance
Next, Thomas argues that the special circumstance
instruction “was completely flawed.” Again, Thomas’s briefs do
not elaborate how the special circumstance instruction was
purportedly flawed, merely quoting language from People v.
Garcia (2020) 46 Cal.App.5th 123 (Garcia) and People v. Vang
(2022) 82 Cal.App.5th 64 (Vang). Based on the language Thomas
quotes from Garcia and Vang, we construe his argument to be the
instruction improperly allowed the jury to find true the felony
murder special circumstance allegations based on general
causation principles as opposed to a finding that he personally
killed the victim. Thomas’s argument is without merit.
A. Additional background
As discussed above, the trial court properly instructed the
jury with CALCRIM Nos. 540A and 540B for the theory of first
degree felony murder, as well as CALCRIM No. 701, which
required the jury to find that Thomas acted with the intent to kill
if it found he was not the actual killer to find the kidnapping-
murder special circumstance true.
Additionally, the trial court instructed the jury on the
kidnapping-murder special circumstance with CALCRIM
No. 730, which read: “The defendant is charged with the special
circumstance of murder committed while engaged in the
commission of kidnapping in violation of . . . section 190.2(a)(17).
[¶] To prove that this special circumstance is true, the People
21
must prove that: [¶] 1. [t]he defendant committed, or aided and
abetted kidnapping; [¶] 2. [t]he defendant intended to commit, or
intended to aid and abet the perpetrator in committing
kidnapping; [¶] 3. [i]f the defendant did not personally commit
kidnapping, then a perpetrator whom the defendant was aiding
and abetting before or during the killing, personally committed
kidnapping; [¶] AND [¶] [t]he defendant or the person who
defendant aided and abetted did an act that caused the death of
another person. [¶] To decide whether the defendant or a person
who the defendant aided and abetted committed kidnapping,
please refer to the separate instruction that I will give you on
that crime. To decide whether the defendant aided and abetted a
crime, please refer to the separate instructions that I have given
you on aiding and abetting. You must apply those instructions
when you decide whether the People have proved this special
circumstance.”
During closing argument, the prosecutor argued Thomas
could be guilty of murder as either the actual killer or as someone
who aided and abetted the killer. The prosecutor explained that
an “actual killer . . . is the person who directly committed the
murder.” With respect to the special circumstances, the
prosecutor explained: “[I]f you find that the defendant was not
the actual killer[,] you must find that the defendant acted with
intent to kill.”
B. Governing law
“In assessing a claim of instructional error, we examine the
instructions as a whole. The test we apply is whether there is a
reasonable likelihood the jurors would have understood the
instructions in a manner that violated a defendant’s rights.
[Citation.] In this regard, we presume that jurors are intelligent
22
individuals who are capable of understanding instructions and
applying them to the facts of the case before them.” (People v.
Hajek and Vo (2014) 58 Cal.4th 1144, 1246.)
C. Analysis
In Garcia, supra, 46 Cal.App.5th 123, the defendant and
his coperpetrators committed a home invasion robbery. (Id. at
p. 129.) During the course of the robbery someone taped the
victim’s nose and mouth, causing him to suffocate and die. (Id. at
p. 136.) The trial court instructed the jury with CALCRIM
No. 730, requiring the prosecutor to prove defendant “did an act
that caused the death of another person” during the commission
of a robbery. (Garcia, at p. 144.) The prosecutor argued to the
jury that it could find defendant was the actual killer if it found
defendant gave the tape, “the instrumentality of death,” to a
coperpetrator. (Id. at p. 149.)
There, the defendant challenged the jury’s felony murder
special circumstance finding, arguing the jury could have found
he was the actual killer if it found he committed any act in the
chain of events that led to the victim’s death. (Garcia, supra,
46 Cal.App.5th at pp. 142–143.) The court reversed the special
circumstance finding, concluding the instructions combined with
the prosecutor’s closing argument allowed the jury to convict the
defendant on an invalid legal theory. (Id. at pp. 155–156.) This
invalid theory allowed the jury to convict the defendant if it
determined he caused the victim’s death, even if it did not find
beyond a reasonable doubt that defendant participated in the
taping of the victim’s face. (Ibid.) The court held this theory was
legally invalid because an “actual killer” must have “personally
killed” the victim, not merely “ ‘did an act that caused the death
of another person.’ ” (Id. at pp. 151, 155.)
23
In Vang, supra, 82 Cal.App.5th 64, the defendant got into
an argument with his wife, and she fled in her car. (Id. at p. 69.)
Defendant followed her, forced her to stop, and coerced her into
his vehicle. (Ibid.) As defendant drove away, his wife jumped
from the moving vehicle and died. (Ibid.) The trial court
instructed the jury that it could find defendant guilty of first
degree felony murder and find the special circumstance
allegation true if it found that defendant committed a
kidnapping; defendant intended to commit the kidnapping; and,
while committing the kidnapping, defendant caused his wife’s
death. (Ibid.)
On appeal, defendant argued, because Senate Bill 1437
provided defendant could only be liable for felony murder if he
was the actual killer, and his wife jumped from the vehicle of her
own volition, his conviction for first degree felony murder with a
special circumstance rested on a legally invalid theory. (Vang,
supra, 82 Cal.App.5th at pp. 69, 80.) The court agreed, holding
that, in light of Senate Bill 1437’s intent to impose punishment
commensurate with the person’s culpability, the term “actual
killer” was intended to limit liability for felony murder to the
actual perpetrator of the killing, i.e., the person who personally
committed the homicidal act. (Vang, at p. 88.) “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.”
(Ibid.) The Vang court noted that the jury instructions had the
same flaw as those in Garcia. (Vang, at p. 91.) They allowed the
24
jury to find defendant guilty of felony murder, and to find the
special circumstance true, if it determined that defendant
“caused” the victim’s death based on general causation principles,
even if it did not find, beyond a reasonable doubt, that he
personally committed the homicidal act. (Ibid.)
Here, there was no possibility the jury improperly found
Thomas was the actual killer based on general causation
principles. The prosecutor argued Thomas was either the actual
killer, or, in the alternative, that he aided and abetted the actual
killer. The prosecutor explained that “actual killer” meant
someone who directly committed the murder. The prosecutor
never argued or even implied that Thomas could be considered an
actual killer under a proximate cause theory if he committed any
act in the chain of events that led to Tillett’s death. Moreover,
the evidence supported the conclusion Thomas had direct contact
with Tillett, suggesting he was either the actual killer who
personally committed the murder or that he directly aided and
abetted the person who committed the murder by holding Tillett
down as he was bound.
Given the evidence, instructions, and the prosecutor’s
closing argument, there is no possibility the jury found Thomas
was the actual killer under a proximate cause theory like the
juries in Garcia and Vang.
Because we find the trial court properly instructed the jury,
and substantial evidence supported the murder conviction and
special circumstance finding, we do not address Thomas’s
argument that retrial is barred under Vang, supra, 82
Cal.App.5th 64.
25
IV. Thomas was not denied effective assistance of
counsel
Lastly, Thomas argues he was denied his right to effective
assistance of counsel because his counsel: (1) failed to advise the
trial court that this case should have been tried under the law
existing after the enactment of Senate Bill 1437; (2) failed to
request additional instructions on the factors identified in Banks,
supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522 with
respect to whether an individual, who is not the actual killer, was
a major participant in the underlying felony and acted with
reckless indifference to human life for purposes of felony murder
liability; and (3) failed to request a jury instruction on the lesser
included offense of accessory after the fact.
“ ‘ “ ‘In assessing claims of ineffective assistance of trial
counsel, we consider whether counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome.’ ” ’ ” (People v. Johnson
(2016) 62 Cal.4th 600, 653.) We presume that “counsel’s
performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.” (People v.
Gamache (2010) 48 Cal.4th 347, 391.) “If the record on appeal
sheds no light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel
must be rejected unless counsel was asked for an explanation and
failed to provide one, or there simply could be no satisfactory
explanation.” (Ibid.)
26
With respect to whether defense counsel should have
informed the trial court to apply the law of felony murder as it
existed after the enactment of Senate Bill 1437, the jury
instructions reflected the amendments in the law that required a
showing that Thomas was the actual killer, or that he acted with
intent to kill and aided and abetted the perpetrator in the
commission of first degree murder, or that he was a major
participant in the underlying felony who acted with reckless
indifference to human life. Thus, there was no need for trial
counsel to inform the trial court about changes in the law because
the trial court properly applied the amendments.
Regarding defense counsel’s failure to request the clarifying
instructions on the Banks and Clark factors to determine
whether Thomas was a major participant in the crime and that
he acted with reckless indifference to human life, Thomas cannot
show prejudice because the jury necessarily found he was the
actual killer or was an aider and abettor who acted with the
intent to kill. Thus, further instructions on the Banks and Clark
factors would have had no effect on the jury’s verdict.
With respect to trial counsel’s failure to request an
instruction on the crime of accessory after the fact, Thomas has
not shown that he was entitled to such an instruction, or that,
even if he requested the instruction, it would have been given.
Being accessory after the fact to a murder is not a lesser included
offense of murder. (People v. Jennings (2010) 50 Cal.4th 616,
668.) Thomas was not entitled to the instruction, and there is no
indication that the People would have agreed to the instruction.
“California law does not permit a court to instruct concerning an
uncharged lesser related crime unless agreed to by both parties.”
27
(Ibid.) Consequently, Thomas was not denied effective assistance
of counsel.
DISPOSITION
The judgment is affirmed.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
GRIMES, J.
28