The new felony murder rule

We all studied the felony murder rule (the Rule) in law school. It appeared on the Bar Exam in one form or another. A person could get convicted of murder when a victim dies during the commission of a felony even when the defendant did not intend to kill anyone or even know that anyone had been killed. All you had to do was to aid, abet or commit an inherently dangerous felony. If a person got accidentally killed while you were waiting for your crime partner to return from the Sack of Suds, well, tough noogies. No reform for you. You got "the steam bath" (gas chamber) or life without parole.

The Rule was widely criticized for adding pressure to the sentencing structure, unnecessary carceral overcrowding and resulting costs. As orthodox as it was perceived in many quarters, the Rule does little if anything to deter violent crime. Moreover, in states where it remains unrestricted, the Rule is typically applied disproportionately to people of color. In 2020, 80% of those incarcerated for felony murder in Pennsylvania were people of color. Seventy percent were African American.

Some of us will recall the Rule's application in various "hard line," bright line," and "red line" jurisdictions. Some of us have applied the Rule or seen it applied in the courtroom. When it comes to felony murder, which can lead to a death or life without parole sentence for capital murder, you gotta draw the line somewhere.

It used to be that defendants in felony murder cases were not judged based on their level of intention or culpability. People from the entire range of culpability, from minor participants who were not even on the scene, and who neither intended to kill nor were found to have had any culpable mental state, to actual killers and those who attempted or intended to kill were all sentenced the same and this was true even if the victim of the underlying felony actually committed the fatal act.

The winds of change slowly commenced to blow in the 1980's. Eighth Amendment limits on executing felony murderers were brought by Enmund v. Florida (1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137, recognizing the gray area in between, the proportionality of capital punishment for felony-murder participants who fall into neither category. Later, the California Supreme Court has explained that Tison and Enmund collectively place the conduct of felony murder participants on a spectrum, "with felony-murder participants eligible for death only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions." People v. Banks (2015) 61 Cal.4th 788, 794. After Banks, a person under a sentence of death or life without parole could file a writ and argue that their culpability was to the lesser side of the spectrum in order to reduce their sentence. But that was about as far as it went.

But, in 2017, the California Legislature adopted Senate Concurrent Resolution No. 48 which correctly recognizes "the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime." In 2018, these winds blew into a gale with the enactment of Senate Bill 1437 amending the mens rea requirement for murder and narrowing the circumstances under which a person can be convicted under the felony-murder rule. The nuts and bolts of this legislation include many statutory amendments the recitation of which are like watching paint dry. Such details have been omitted here.

What is important to know is that with few exceptions, a murder conviction requires proof of malice aforethought, which "shall not be imputed to a person based solely on his or her participation in a crime." And, where the felony murder rule does apply, a participant in the perpetration of a qualifying felony is liable for felony murder only if the person (1) actually killed the victim; (2) aided, assisted, or induced the murder with the intent to kill; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. The People can still try a felony murder case. But they can no longer skip over these elements, turning juries into unguided missiles and filling prison cells that could be better used for persons who actually "done it".

The new legislation gave a prisoner under sentence for murder, the right to file a re-sentencing petition. As you might imagine, many such petitions were filed. At first, prosecutors challenged these on constitutional grounds. Fortunately, the courts made it clear that the law is the law and now there are a great many persons out of prison who would otherwise have not been. That may be controversial. But it was a long time coming and from this writer's perspective, it was clearly the right thing to do. You gotta draw the line somewhere.

As Justice Holmes wrote in Dominion Hotel v. Arizona (1919) 249 U.S. 265, 269, an early equal protection case:

"'If in its theory the distinction is justifiable, as for all that we know it is, the fact that some cases, including the plaintiff's, are very near to the line makes it none the worse. That is the inevitable result of drawing a line where the distinctions are distinctions of degree; and the constant business of the law is to draw such lines. "Upholding the act as embodying a principle generally fair and doing as nearly equal justice as can be expected seems to import that if a particular case of hardship arises under it in its natural and ordinary application, that hardship must be borne as one of the imperfections of human things." (citation omitted.).'"

Recently the Third District Court of Appeal took the step of drawing the line on murder liability in a manner consistent with the goals and purpose of SB 1437. People v. Vang, C090365 (Cal. App. 3rd Dist. Aug. 5, 2022). At its least common denominator, Vang, unremarkably, says that "actual killer" means the actual killer.

Vang isn't the first case to say this. People v. Lopez (2022) 78 Cal. App. 5th 1 says the same thing and People v. Garcia (2020) 46 Cal. App. 5th 123 said that allowing a jury to convict a person of murder for handing the "instrumentality of death" (a roll of duct tape) to a co-perp who then used it to cover the victim's face was error based upon an invalid legal theory. Personal killing is what's now required.

So, why all the controversy about Vang? The facts that led up to the Vang Court's determination were, to say the least, a bit unusual. But then, many cases that used to be within the ambit of the felony murder rule are unusual, if not bizarre. The felony murder rule is a magnet for such fact patterns that are as comfortable on a Bar exam as they are in the law books. But as human beings, such facts tend to make us very uncomfortable. The facts in Vang are similar to those in the "Last of the Mohicans" where Mugua, a kidnapper, tries to coax Alice, his victim, back from the nape of a cliff before she jumps to her death to escape from him.

On Feb. 3, 2017, Mr. Vang, who had a long history of domestic abuse and criminality, kidnapped his estranged "wife" (the Court found that the couple were "culturally married"). As Vang drove her away, she jumped out of the truck to her death. Vang got convicted of kidnapping, murder and a few other things. But, in this circumstance, the Court had to determine whether Vang was the actual killer. Many commentators say "of course he was" under a "but for" causation theory. And indeed, the trial court in Vang allowed the jury to find him guilty of felony murder with special circumstance true, if it determined that Vang has "caused" Padao's death based on general causation principles, even if it did not find, beyond a reasonable doubt, that he personally committed the homicidal act.

SB 1437, Lopez, Garcia and Vang all say these instructions were inadequate because the jurors were not provided a proper definition of "actual killer." "We conclude that the term 'actual killer' was intended to limit liability for felony murder... to the actual perpetrator of the killing, i.e., the person (or persons) who personally committed the homicidal act." So, "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 media and the legal community are now abuzz with this decision. Many think it a hardship for justice that the Vang court let him off on the murder. (The kidnap conviction stuck.) The facts of Vang, I'll admit, are extreme and less than sympathetic. Not exactly the case of a person who agreed to be the driver in a liquor store robbery with a co-defendant who merely simulates a gun in his pocket only to end up in a fatal scuffle with the attendant over a six-pack and $20.00. At the end though it should be recalled that the Vang Court allowed the defendant to be retried on any remaining theory of murder. Perhaps that will occur. It depends upon the folks at the DA's office. (Anyone who has seen the "Last of the Mohicans" will recall that Magua too was brought to the rough equivalent of - albeit 18th century - justice at the end.)

It all comes down to what Justice Holmes said so cogently in Dominion Hotel v. Arizona. The theory of distinction between those who actually kill and those who commit felonies inherently dangerous to human life without the intent to kill is eminently justifiable. The felony murder rule was too all-encompassing and a prophylactic line clearly needed to be drawn somewhere. Vang may rightly be perceived as that "particular case of hardship" arising under the new felony murder rule in its natural and ordinary application. And if it is a hardship for some people, "that hardship must be borne as one of the imperfections of human things" because the imperfections of the old Rule were, by far, the worse of two evils.