California Court of Appeal Announces Term ‘Actual Killer’ in Revised Felony-Murder Statute Refers to Person Who ‘Personally Killed’ Victim, Not Necessarily Same as Person Who ‘Caused’ Death, for Resentencing Purposes Under § 1170.95
by Matt Clarke
The Court of Appeal of California, Fourth Appellate District, held that the term “actual killer” as used in California Penal Code§ 189(e)(l) — as revised by Senate Bill 1437, which amended the felony-murder rule and natural and probable cause doctrine — means the person who “personally killed the victim and is not necessarily the same as a person who ‘caused’ the victim’s death.” It reversed an order denying a petition for resentencing under Penal Code § 1170.95 in a murder case.
Reginald Harry was bludgeoned to death in the bedroom he shared with his wife. She discovered his body after returning home from work to a ransacked apartment. Many items were missing, including a black case containing her jewelry and a large crystal cross, which was the apparent murder weapon. A DNA sample was taken from a drinking glass found in the bedroom.
Police had previously, but separately, encountered Harry and Jamie Jezzuel Lopez at locations “where homosexual men would meet to commit lewd acts.” Almost six weeks after the murder, police were called to a residence because Lopez had been having a loud argument with his roommate and had not paid the rent during the three months he lived in the studio/garage on his landlord’s property. Before police arrived, Lopez asked the landlord if he could leave some items with him. Soon after that request was refused, Lopez was seen taking items toward a backyard shed he was prohibited from using.
Police responded to the domestic disturbance call and eventually left without arresting anyone. The next day, the landlord found two backpacks behind the storage shed and called police. They discovered jewelry, a laptop computer, a pocket computer, computer equipment, and a tax return for a woman who did not know Lopez or his roommate. The jewelry was eventually sent to an auction company where it was inventoried, photographed, and sold.
Later, police showed Harry’s wife photos of the jewelry, and she identified three pieces as items stolen from her apartment. DNA testing showed Lopez was a major contributor of the DNA found on the drinking glass.
During trial, Lopez testified in his defense that he visited Harry’s apartment only once, at the behest of his friend and drug dealer Ivan Argueta, who was “high and freaking out” and told him that he needed help to move out of his boyfriend’s apartment. Lopez said he got a drink of water from the kitchen while he was waiting for Argueta, who had gone into the bedroom, but left the glass in the kitchen and never entered the bedroom. He testified that, at Argueta’s behest, he carried three pieces of luggage to Argueta’s car and did not return to the apartment. This testimony was consistent with what he had told police.
Police located Argueta in Mexico, confirmed he had owned the type of car described by Lopez, and took DNA samples. However, tests could not confirm the presence of Argueta’s DNA in Harry’s apartment.
A jury found Lopez guilty of first-degree murder and found true the special circumstance that the murder occurred during a robbery. The trial court sentenced him to life without parole. His conviction was upheld on appeal.
Ten years after his conviction, representing himself, Lopez filed a petition for resentencing under § 1170.95. The trial court appointed counsel and held a hearing after which it found that Lopez failed to make a prima facie case for relief and denied the petition. In doing so, it ruled that the conviction was not based on felony murder or the natural and probable circumstances theory. Lopez appealed.
The Court of Appeal noted that the jury found Lopez guilty of first-degree murder without specifying whether it was murder with malice aforethought or felony murder with a robbery-murder special circumstance. The latter would be eligible for resentencing but the former would not. As such, the Court stated that Lopez “could be convicted of felony murder under section 189(e), and therefore ineligible for relief under section 1170.95, if he were (1) the actual killer, or (2) though not the actual killer, acted with intent to kill and aided or abetted the actual killer in committing the murder, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life.” § 189(e).
Alternatives (2) and (3) above are inapplicable because Lopez was prosecuted under the theory that he was the actual killer and committed the robbery alone. The jury was not instructed on accomplice liability, aider and abettor liability, or liability for assisting, counseling, commanding, inducing, requesting, or soliciting the actual murderer. The jury instructions came from CALCRIM Nos. 540A and 730, modified to eliminate all theories other than Lopez acting alone. They twice instructed the jury to only find Lopez guilty of felony murder if it found that while he committed the robbery, he “caused the death of another person.” The Court explained that the jury’s true finding on the robbery-murder special circumstances necessarily means that the jury concluded that Lopez “caused the death of another person” and “did an act that caused the death of another person.”
However, based on the prosecution’s theory and the jury instructions given, the Court stated that Lopez must have been the “actual killer” in order for him to be liable for felony murder under § 189(e).
This necessitated the Court to determine the meaning of “actual killer” for purposes of § 189(e). It noted that the California Supreme Court has defined the term as the person who “personally killed” the victim in connection with felony-murder special circumstances. People v. Jennings, 760 P.2d 475 (Cal. 1988). Additionally, the Court stated that passages from the legislative history of SB 1437 indicate that the Legislature intended to use the same definition for “actual killer.” See Sen. Rules Com., Off. Of Sen. Floor Analyses, 3d reading of Bill (2017-2018 Reg. Sess.).
The Court also pointed out that the distinction between the concept of “actual killer” and “committing an act that causes death” is recognized in other areas of criminal law. See People v. Bland, 48 P.3d 1107 (Cal. 2002) (“Proximately causing and personally inflicting harm are two different things. The Legislature is aware of the difference.”). In People v. Garcia, 46 Cal. App. 5th 123 (2020), the Court of Appeal ruled that for purposes of § 190.2(b), “actual killer” refers to a person who “personally killed” the victim and doesn’t necessarily refer to someone who caused the death of the victim.
After discussing the foregoing authorities, the Court declared “we find no reason to believe the Legislature intended for the term actual killer to have a different meaning in section 189(e)(1) [than the Garcia Court concluded with respect to § 190.2(b)], particularly given the Legislative history of Senate Bill No. 1437.” Thus, the Court ruled that “actual killer” means the person who “personally killed” the victim for purposes of § 189(e)(1).
Turning to the present case, the Court concluded that after reviewing the record of conviction, it can’t “say as a matter of law the jury found [Lopez] personally killed the victim.” It stated that Lopez’s version of events of what occurred inside the victim’s apartment preclude him as being the “actual killer,” and other than a drinking glass with his DNA on it, the prosecution failed to present any evidence to refute Lopez’s version. The Court reasoned that the evidence at trial combined with the jury instructions “did not establish defendant was the actual killer as a matter of law but created the possibility the jury found defendant guilty of murder without finding him to be the actual killer.” Thus, the Court ruled that the trial court erred by denying defendant relief under § 1170.95 without issuing an order to show cause because Lopez satisfied his burden of establishing a prima facie case for relief.
Accordingly, the Court reversed the trial court’s order denying resentencing relief under § 1170.95 and remanded to the trial court with instructions to issue an order to show cause and conduct an evidentiary hearing. See: People v. Lopez, 78 Cal. App. 5th 1 (2022).
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