Filed 9/30/26 P. v. Jones CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065001
v. (Super. Ct. No. 21CF0741)
RYAN DAMON JONES et al., OPINION
Defendants and Appellants.
Appeals from judgments of the Superior Court of Orange County,
Kimberly Menninger, Judge. Affirmed.
Cynthia M. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant Ryan Damon Jones.
David M. McKinney, under appointment by the Court of Appeal,
for Defendant and Appellant John Ben Taylor.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Matthew Mulford and Paige B. Hazard, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendants Ryan Damon Jones and John Ben Taylor were
convicted of special circumstances felony murder for killing Osvaldo Garcia
during the commission of a robbery. On appeal, defendants contend the jury
instructions on felony murder were flawed and the felony murder statute
itself—Penal Code section 189—is unconstitutionally vague.1 Taylor also
contends the trial court violated his Miranda rights (see Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda)) by allowing the prosecution to admit
statements he made to the police following his arrest. Finding no basis for
reversal, we affirm the judgments.
STATEMENT OF FACTS
Garcia worked for a company that owned an all-cash marijuana
dispensary in Los Angeles. His primary responsibility was to transport the
daily cash receipts from the dispensary to the company’s office in Orange
County. Each night, Garcia arrived at the dispensary around eleven o’clock,
put the cash in his backpack, and then transported the backpack in the trunk
of his car.
Jones’s girlfriend also worked at the dispensary at one point. As a
manager there, she was familiar with Garcia’s nightly routine.
Jones and Taylor are cousins. On the evening of September 15,
2019, they and Taylor’s brother Antonio Triplett followed Garcia in a rented
Nissan sedan after Garcia left the dispensary and began driving south with
his cash-filled backpack in the trunk of his car. As Garcia was nearing Santa
Ana College, he called his girlfriend in a panic, saying, “‘[T]hey’re shooting at
me. They’re following me.’” Soon after that, the Nissan struck Garcia’s car
1
All further statutory references are to the Penal Code.
2
multiple times from behind, causing Garcia to spin out of control and crash
into some hedges near the college’s parking lot.
As captured on the college’s surveillance cameras, the Nissan
pulled up behind Garcia’s disabled vehicle. Taylor and Triplett exited the
Nissan while Jones, the driver, stayed behind the wheel. As Garcia was
crawling out of his car, Taylor fired several shots at him. Then Taylor or
Triplett fired two more shots at Garcia, who died at the scene from multiple
gunshot wounds. Taylor and Triplett made off with Garcia’s backpack and
phone, but they were soon arrested, along with Jones, and taken into custody
for questioning.
At trial, Taylor took the stand and admitted renting the Nissan
and being at the scene of the murder. However, he claimed he was in a
drugged-out stupor in the back of the car when Garcia was killed, completely
oblivious to what was going on. Taylor also claimed that his friend Russell
Rutherford and two of Rutherford’s friends were in the car with him, not
Jones and Triplett. Taylor testified his group was driving around looking for
drugs when he fell asleep in the back seat.
Taylor told the jury that, after being awakened by the gunshots,
he saw Rutherford getting into the Nissan with a gun in his hand. Taylor’s
group then drove to Corona, where they parted ways and Taylor called Jones
to come pick him up.
On cross-examination, Taylor admitted he lied to the police about
certain matters during his post-arrest interview. However, he insisted he did
not participate in Garcia’s murder in any way. Taylor also claimed that
Rutherford died before Taylor’s trial started.
Jones did not testify at trial. In closing argument, his attorney
conceded Jones’s DNA was found on the steering wheel of the Nissan used in
3
the robbery. However, he argued there was reasonable doubt as to how the
DNA got there and whether Jones was guilty of murdering Garcia.
In the end, the jury convicted Taylor and Jones of first degree
felony murder and found true the special circumstances allegation the
murder occurred during the commission of a robbery. (§§ 187, subd. (a), 190.2,
subd. (a)(17)(A).) Both were sentenced to life in prison without parole, which
is the same fate Triplett suffered in his separate trial. (See People v. Triplett
(Nov. 20, 2024, G062399) [nonpub. opn.] [affirming Triplett’s conviction for
special circumstances felony murder].)
DISCUSSION
I.
TAYLOR’S INTERVIEW STATEMENTS
Taylor argues his statements to the police should have been
excluded for two reasons. First, they were obtained in violation of his
Miranda rights. And second, they were inadmissible for purposes of
impeachment. We need not decide the Miranda issue because, under well-
established authority, Taylor’s interview statements were properly admitted
to impeach him on cross-examination.
A. Procedural Background
Taylor’s police interview took place about 12 hours after Garcia
was murdered. During the interview, Taylor did not make any incriminating
statements about the murder itself, but he did make some false statements
about other matters. For example, he told the police he did not have a phone,
which was not true. And he claimed he was living out of a Yukon truck when
he was actually living out of the rented Nissan used in Garcia’s murder.
Because Taylor did not confess during his police interview, the
prosecution made no attempt to use the interview during its case-in-chief.
4
But after the defense called Taylor to testify, the prosecution made a motion
to impeach him on cross-examination with his prior inconsistent interview
statements.
During the motion hearing, the trial court listened to the
recording of Taylor’s interview and reviewed a transcript of the recording
that was prepared by the prosecution. The interview was conducted by two
police detectives. At the start of the interview, they read Taylor his Miranda
rights, including his right to remain silent and his right to an attorney. (See
Miranda, supra, 384 U.S. at pp. 478–479.) The detectives then asked Taylor
if he understood his rights, to which Taylor replied, “Yeah.” Then the
following exchange occurred, with the symbol “***” denoting unintelligible
language:
“TAYLOR: I *** time.
“DET. GREEVER: Sorry, I can’t understand you when you’re
talking in your arm there buddy. What’s that?
“TAYLOR: I said, I talked to an attorney.
“DET. PREWETT: Wait, what? I’m sorry.
“TAYLOR: *** talk to an attorney.
“DET. GREEVER: I didn’t say that.
“TAYLOR: I said I had the right to it. I said, I *** said I’ll talk to
an attorney ***.
“DET. GREEVER: Mm hm. Okay.
“TAYLOR: *** what the hell. I don’t even know what the hell’s
going on, first.
“DET. GREEVER: It, it.
“TAYLOR: Cause I, shit, I thought it was a fuckin, um, traffic
stop.
5
“DET. GREEVER: Well, it was a traffic stop.
“TAYLOR: Yeah.
“DET. GREEVER: It was mainly to talk to you.
“TAYLOR: ***
“DET. GREEVER: Bring you in so we can talk to you.
“TAYLOR: Oh.”
The detectives then started asking Taylor questions about where
he was and what he had done on the previous day, i.e., the day Garcia was
murdered. They also asked Taylor questions about where he lived and
worked. It was during this stretch of the interview that Taylor lied about his
phone and living situation. When the detectives began questioning some of
his responses, Taylor told them he was getting nervous and wanted to talk to
an attorney. At that point, roughly 15 minutes into questioning, the
detectives ended the interview.
Although the detectives never asked Taylor any questions related
to Garcia’s murder, defense counsel argued the detectives should not have
questioned Taylor in the first place because, after being advised of and
acknowledging his Miranda rights, Taylor indicated he wanted to talk to an
attorney. The trial court did not see it that way. Based on everything Taylor
said in connection with his Miranda advisement, the court found he did not
make a clear and unequivocal request for counsel at that time. Based on that
finding, the court ruled the detectives did not violate Taylor’s Miranda rights
by asking him questions about his activities on the day Garcia was murdered.
That ruling prompted defense counsel to move for a mistrial, but the court
denied the motion and reaffirmed its position that no Miranda violation
occurred.
6
At that juncture, the prosecutor asked the trial court whether,
irrespective of the Miranda issue, she could use Taylor’s interview
statements to impeach him on cross-examination. In making that request,
the prosecutor said she intended to introduce the interview into evidence and
play it for the jury up to the point Taylor unequivocally invoked his right to
counsel, at around the 15-minute mark. The trial court agreed that would be
appropriate, and defense counsel did not object to the prosecutor using the
interview in that manner.
The following morning, the trial court met with counsel and
informed them that, after listening to the recording of Taylor’s police
interview “over and over,” it had made a few changes to the transcription of
the interview. Defense counsel had no objection to the changes, which are
italicized in the footnote below.2
2
“DET. GREEVER: You understand . . . all those [referring to the
Miranda rights Greever had just read to Taylor, including the right to
counsel before questioning]?
“TAYLOR: Yeah.
“DET. GREEVER: Okay.
“TAYLOR: I *** time.
“DET. GREEVER: Sorry, I can’t understand you when you’re
talking in your arm there buddy. What’s that?
“TAYLOR: You said, I talked to an attorney. [Changed from “I
said, I talked to an attorney.”]
“DET. PREWITT: Wait, what? I’m sorry.
“TAYLOR: You said I talked to an attorney. [Changed from “***
talk to an attorney.”]
“DET. GREEVER: I didn’t say that.
“TAYLOR: You said I had the right in my cell to talk to an
attorney. [Changed from “I said I had the right to it. I said, I *** said I’ll talk
to an attorney ***.]
“DET. GREEVER: Mm hm. Okay.” (Italics added.)
7
Later that day, the prosecutor resumed her cross-examination of
Taylor. When she brought up his police interview, Taylor initially testified he
could not remember talking to the police following his arrest because he was
still coming down from his drug high. However, after the prosecution played
a recording of the interview in open court, Taylor admitted he had lied about
some things during the interview.
In closing argument, the prosecutor contended Taylor lied to
distance himself from the Nissan and his phone. The prosecutor argued
Taylor’s testimony about being out of it during Garcia’s murder was not true
because, among other things, Taylor was “not a credible witness.”
B. Analysis
Taylor argues the trial court should have excluded his interview
statements altogether as being violative of Miranda because the detectives
did not clarify his remarks about talking to an attorney before they started
questioning him. In so arguing, Taylor relies on the Ninth Circuit Court of
Appeals opinion in U.S. v. Rodriguez (9th Cir. 2008) 518 F.3d 1072
(Rodriguez), which held interrogating officers must clarify a suspect’s
ambiguous request for counsel before beginning an interrogation if the
request was made before the suspect waived his Miranda rights. (Rodriguez,
at p. 1080; compare Davis v. United States (1994) 512 U.S. 452 [officers are
not required to stop questioning or attempt to clarify a suspect’s ambiguous
request for counsel if the request is made after the suspect waives his
Miranda rights].)
The Attorney General contends Rodriguez was impliedly
overruled by the United States Supreme Court in Berghuis v. Thompkins
(2010) 560 U.S. 370 and impliedly rejected by the California Supreme Court
in People v. McCurdy (2014) 59 Cal.4th 1063. Based on the two latter
8
decisions, the Attorney General asserts there was no Miranda violation here
because during the initial colloquy with the detectives about his rights,
Taylor never unequivocally invoked his right to counsel; instead, he impliedly
waived his rights by answering the detectives’ questions after acknowledging
he understood his rights. (See Berghuis, at p. 384 [an implied waiver may be
found based on the defendant’s course of conduct during interview]; McCurdy,
at p. 1087 [finding the police were not required to clarify the defendant’s
ambiguous request for counsel after he received his Miranda rights].)
We need not decide this issue because the remedy for a violation
of Miranda is limited in nature. Although statements obtained in violation of
Miranda cannot be used in the prosecution’s case-in-chief, they may be used
to impeach a defendant’s trial testimony, so long as the statements were
voluntarily rendered. (Harris v. New York (1971) 401 U.S. 222, 224–226
(Harris); People v. Caro (2019) 7 Cal.5th 463, 492.) In Harris, the United
States Supreme Court approved such impeachment, reasoning “[t]he shield
provided by Miranda cannot be perverted into a license to use perjury by way
of a defense, free from the risk of confrontation with prior inconsistent
utterances.” (Harris, at p. 226.)
Here, the prosecution did not use Taylor’s interview statements
in its case-in-chief, and therefore Miranda is not implicated. The issue of
voluntariness is also not at issue because Taylor does not argue—and there is
nothing to suggest—his interview statements were involuntarily rendered.
Therefore, the only issue we need decide is whether the prosecution’s use of
those statements to impeach Taylor was proper under Harris.
Taylor argues it was not because the rationale for Harris’s
impeachment rule is to prevent defendants from getting away with perjury
on the witness stand. Taylor asserts that rationale does not apply here
9
because, unlike the defendant in Harris, whose prior statements were used to
rebut his allegedly perjurious trial testimony, Taylor told the truth on cross-
examination when the prosecutor asked him about his phone and living
situation. Thus, in bringing up Taylor’s prior inconsistent interview
statements, the prosecutor was not trying to challenge his trial testimony “as
being false or perjurious, but rather to show that the prior statements were
false, and thus inconsistent with his trial statements.” Taylor contends this
distinction matters for purposes of applying Harris’s impeachment rule. In
fact, he would have us conclude the Harris rule applies only when it is
necessary to prevent a defendant from committing perjury on the stand.
We are not persuaded. Although the Harris court referenced the
need to prevent perjured testimony as a justification for allowing statements
obtained in violation of Miranda to be used for impeachment purposes, the
court also spoke more broadly about the benefit of providing the jury with
information bearing on the defendant’s veracity. In that regard, Harris
pointed out the defendant’s testimony in that case “contrasted sharply with
what he told the police shortly after his arrest. The impeachment
process . . . undoubtedly provided valuable aid to the jury in assessing [the
defendant’s] credibility . . . .” (Harris, supra, 401 U.S. at p. 225.) Equally
important, the prosecutor “did no more than utilize the traditional truth-
testing devices of the adversary process.” (Ibid.)
The same is true in this case. Allowing the prosecutor to impeach
Taylor with his prior inconsistent statements to the police assisted the jury in
evaluating the credibility of his testimonial assertion that he had nothing to
do with Garcia’s murder. As in Harris, this time-tested method of
impeachment facilitated the jury’s search for the truth. Even though the
impeachment was not used to expose Taylor’s trial testimony as perjurious,
10
we conclude it was proper under Harris to prevent Taylor from testifying
under a false aura of credibility. This conclusion follows regardless of
whether the police violated Taylor’s Miranda rights in speaking with him in
the wake of Garcia’s murder. (See People v. Collins (1996) 45 Cal.App.4th
849, 873 [“It is firmly established that the prosecution may use a prior
inconsistent statement to impeach the testimony of a voluntarily testifying
defendant, even though the statement was obtained in violation of the
prophylactic rules of Miranda”].)
II.
JURY INSTRUCTIONS ON FELONY MURDER
Taylor argues the trial court’s instructions on felony murder
permitted the jury to convict him on an invalid theory of guilt. The argument,
which Jones has joined, centers on the actus reus requirement for felony
murder under section 189, subdivision (e)(2), which prohibits aiding and
abetting the commission of murder with the intent to kill. Although the
court’s instructions directed the jury’s attention to the commission of murder
as the requisite act, defendants claim the instructions were unclear as to
whether an aider and abettor must assist the murderous act itself or simply
the underlying felony. Defendants contend the prosecutor’s closing argument
further clouded this issue and improperly invited the jury to convict them of
felony murder merely for aiding and abetting the underlying robbery during
which Garcia was killed. For the reasons explained below, we disagree.
A. The Legal Definition of Felony Murder
Prior to January 1, 2019, the scope of the felony-murder rule in
California was extremely broad: Felony murder liability attached to any
person who aided and abetted an enumerated felony that resulted in the
death of a human being. (People v. Clark (2016) 63 Cal.4th 522, 615.) By the
11
time the present case arose in the fall of 2019, however, the felony-murder
rule had been narrowed through the passage of Senate Bill No. 1437. (See
Stats. 2018, ch. 1015, §§ 1–4.) As set forth in section 189, subdivision (e), the
felony-murder rule currently states, “A participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a) [including
robbery] 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, as described in
subdivision (d) of Section 190.2.” (§ 189, subd. (e)(1)–(3).)
B. The Prosecutor’s Theories of Liability and the Trial Court’s Instructions on
Felony Murder
During closing argument, the prosecutor conceded the evidence
was unclear as to which gun shot or shots actually killed Garcia and that the
fatal shot could have been fired by either Taylor or Triplett. However,
consistent with section 189, subdivision (e), the prosecutor told the jury a
person does not have to be the actual killer to be guilty of felony murder.
In that regard, the prosecutor argued that, even if Triplett fired
the fatal shots, Taylor and Jones were vicariously liable for felony murder
under the aiding and abetting and the major participant theories set forth in
subdivisions (e)(2) and (e)(3) of section 189.
Pursuant to CALCRIM No. 540B, the trial court instructed the
jury on those theories as follows:
12
“Defendants are charged with murder under a theory of first
degree felony murder. The defendant may 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:
“No. 1. The defendant committed or aided and abetted the
robbery;
“No. 2. The defendant intended to commit or intended to aid and
abet the perpetrator in committing the robbery;
“No. 3. If the defendant did not personally commit robbery then a
perpetrator whom the defendant was aiding and abetting personally
committed robbery;
“No. 4. While committing the robbery the perpetrator caused the
death of another person.
“5a. The defendant intended to kill;
“And
“5b. The defendant aided and abetted or assisted the perpetrator
in the commission of first degree murder;
“Or
“6a. The defendant was a major participant in [the] robbery;
“And
“6b. When the defendant participated in the robbery he acted
with reckless indifference[] to human life.”
C. Standard of Review
Jury instructions should be interpreted “‘to support the judgment
rather than defeat it if they are reasonably susceptible to such
interpretation.’” (People v. Martin (2000) 78 Cal.App.4th 1107, 1112.) Unless
13
there is a reasonable likelihood the jury misunderstood the subject
instructions in a manner that violated the defendant’s rights, reversal is not
required. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246, abrogated on
other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v.
Rogers (2006) 39 Cal.4th 826, 873.) In making this determination, we must
consider the record as a whole, including the instructions being challenged
and the arguments of counsel. (People v. Cain (1995) 10 Cal.4th 1, 36–37;
People v. Fiu (2008) 165 Cal.App.4th 360, 370.)
D. Analysis
Defendants’ instructional claim is focused on element 5b of
CALCRIM 540B, which instructed the jury on the actus reus requirement for
aiding and abetting felony murder with the intent to kill. Defendants do not
dispute that, consistent with section 189, subdivision (e)(2), element 5b
required the jury to find they aided and abetted the perpetrator “in the
commission of first degree murder.” However, defendants contend element
5b—and by extension section 189, subdivision (e)(2)—is unclear as to whether
the defendant must aid and abet the perpetrator in committing the
murderous act that resulted in the victim’s death, or whether the defendant
need only aid and abet the perpetrator in committing the underlying felony.
Defendants argue this ambiguity violated their constitutional right to a jury
trial and relieved the prosecution of its burden to prove every element of the
charged offense beyond a reasonable doubt.3
3
The Attorney General contends defendants forfeited their right
to challenge the felony murder instruction by not objecting to it below. But
because defendants assert the instruction violated their constitutional rights,
we consider their claim on its merits. (§ 1259; People v. Stitely (2005) 35
Cal.4th 514, 556, fn. 20.)
14
Defendants’ argument is fundamentally inconsistent with the
California Supreme Court’s recent decision in People v. Morris (2026) 19
Cal.5th 671 (Morris).4 Morris resolved a split in the Courts of Appeal
regarding the actus reus requirement for the aiding and abetting theory of
felony murder contained in section 189, subdivision (e)(2). (Morris, at p. 681.)
Although some courts had ruled that aiding and abetting the underlying
felony was sufficient to satisfy that requirement, Morris held the defendant
must “aid or abet the actual killer in the lethal act, and not just the
underlying felony.” (Id. at p. 685.) Morris articulated several reasons
supporting its holding:
First, the “commonsense meaning of aiding or abetting ‘the actual
killer in the commission of murder in the first degree,’ involves aiding or
abetting the killing of a human being, and not just aiding another in the
commission of an enumerated felony by an act that does not aid in the killing.
[Citation.] ‘When the words “actual killer” are included in the phrase, so that
it reads, “aided, abetted . . . or assisted the actual killer in the commission of
murder in the first degree,” the ordinary meaning of the statutory language is
inescapable: assisting the killer in killing.’ [Citation.] A person is not ‘the
actual killer’ unless they directly cause a death. To aid ‘the actual killer’ is to
aid the very act that defines that individual—the lethal act itself. The most
natural reading therefore is that aiding ‘the actual killer’ with the
commission of murder implies aiding with the lethal act rather than aiding
the person (who ends up committing the lethal act) with some felonious act.
4
We invited and received supplemental briefing from the parties
on the Morris decision.
15
In this way, the language of section 189, subdivision (e) is ‘plain and
unambiguous.’” (Morris, supra, 19 Cal.5th at p. 683.)
“Second, reading section 189, subdivision (e)(2) in context with
the remainder of subdivision (e) reinforces that the provision requires a
nonkiller to aid the actual killer in the lethal act itself. The fact that the
Legislature used the phrase ‘underlying felony’ elsewhere in section 189, but
did not do so in subdivision (e)(2), shows that the Legislature knows how to
use the term ‘underlying felony’ in section 189 when that is the intent.
Subdivision (e)(3) provides for felony-murder liability when the defendant
‘was a major participant in the underlying felony and acted with reckless
indifference to human life.’ [Citation.] Thus, the actus reus in subdivision
(e)(3) clearly specifies the ‘underlying felony,’ while the language in
subdivision (e)(2) merely refers to aiding or abetting ‘the commission of
murder in the first degree.’ The use of different phrases signals the
Legislature intended to define different acts necessary to prove guilt under
each theory. [Citations.] ‘Looking at section 189, subdivision (e) in its
entirety, “it is clear the Legislature intended to draw a distinction between
assisting first degree murder and assisting the underlying felony.”’” (Morris,
supra, 19 Cal.5th at pp. 683–684, fns. omitted.)
“Furthermore, the language of section 189, subdivision (e), which
functions as a preamble that introduces the three subparts that follow,
further supports [our conclusion]. Specifically, subdivision (e) introduces the
three theories of liability that follow by stating: ‘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 . . . .’ [Citation.] In this way, subdivision (e)’s preamble already
requires participation in a qualifying felony and it then lists three subparts
16
with additional requirements for establishing felony-murder liability.
Consequently, it follows that subdivision (e)(2) does not require merely
‘aiding’ in the underlying felony because then it would be redundant of
subdivision (e)’s ‘participation’ requirement.” (Morris, supra, 19 Cal.5th at
p. 684.)
In light of Morris, we reject defendants’ claim that CALCRIM No.
540B is unclear regarding the actus reus requirement for felony murder
under section 189, subdivision (e)(2). Because the instruction tracks the
wording of section 189, subdivision (e)(2), and because Morris found the
wording and structure of that section make it apparent the defendant must
aid and abet the murderous act itself, the jury was unlikely to construe the
instruction differently.
Defendants’ fallback position is that, even if CALCRIM No. 540B
sufficiently informed the jury that defendants had to assist the perpetrator in
committing the lethal act to be guilty of felony murder under the aiding and
abetting theory, the prosecutor created confusion on that issue by saying
otherwise in her closing argument. As proof of this, defendants direct our
attention to various segments of the prosecutor’s closing argument.
Defendants first point to a passage where the prosecutor
addressed the intent requirements for the two different theories of vicarious
liability set forth in CALCRIM No. 540B, aiding and abetting with the intent
to kill, and major participation with reckless indifference to human life. The
prosecutor stated “under either theory [Taylor and Jones] have the intent
required for . . . felony murder . . . . [¶] They committed an[d] aided and
abetted the robbery with either intent to kill or as a major participant who
acts with reckless indifference to human life. They are guilty of first degree
murder.”
17
Defendants assert the jury would have understood these remarks
to mean that assisting the underlying robbery was sufficient to satisfy the
actus reus requirement for aiding and abetting with the intent to kill.
However, the very first sentence of the quoted passage shows the prosecutor
was discussing the intent requirement for felony murder, not the actus reus
requirement. Therefore, it is not reasonably likely the jury construed the
passage in the manner defendants now suggest.
In her closing argument, the prosecutor also stated, “So when
someone commits one of these felonies, and a death occurs, and there are
participants, and they act either with intent to kill or reckless indifference to
human life, the law says they are guilty of first degree murder whether or not
they are the person who actually pulled the trigger. So that is the theory of
murder in this case, felony murder by robbery.” Defendants argue these
remarks invited the jury to convict them of felony murder merely for
assisting the robbery with the intent to kill, but the prosecutor made the
remarks at the outset of her closing argument, while she was discussing the
felony murder theory in general terms. Later in her argument, the prosecutor
made clear the felony murder instruction required her to prove not only that
defendants intended to kill, but also that they aided and abetted the
perpetrator “in the commission of the first degree murder.” This was a correct
statement of the law.
Defendants also draw our attention to the prosecutor’s following
remarks:
“So going to the elements you will see that for first degree murder
and a special circumstance, . . . the first four elements are the same for both
of those.
18
“The defendant committed or aided and abetted robbery. The
defendant intended to commit or to aid and abet the perpetrator in
committing robbery, and if the defendant did not personally commit or
intended to commit the robbery, then a perpetrator whom the defendant was
aiding and abetting committed the robbery. [¶] While committing robbery the
perpetrator caused the death of another person.
“So these are the four things that I have to prove in regards to
each of the defendants’ actions in this case. Essentially it boils down to a
robbery was committed. The defendant intended for the robbery to occur, and
that they either personally committed the robbery or aided and abetted the
robbery.”
When read in isolation, the last paragraph in this passage
arguably suggests defendants could be convicted of felony murder merely for
aiding and abetting a robbery during which a person was killed. Viewed in
context, however, it is apparent the prosecutor was simply describing “the
first four elements” of felony murder. Because the prosecutor was not
attempting to describe all the elements of that offense—elements that were
plainly laid out in CALCRIM No. 540B—it is not reasonably likely the jury
would have understood her argument in that manner.
In arguing otherwise, Jones cites to a segment of the prosecutor’s
closing argument in which she reviewed the evidence regarding his role in
the events surrounding Garcia’s murder. In discussing this evidence,
however, the prosecutor did not tell the jury Jones was guilty of felony
murder simply for aiding and abetting the robbery. Instead, the prosecutor
argued the evidence demonstrated Jones both aided and abetted the robbery
and aided and abetted the murder. Contrary to Jones’s claim, the prosecutor
did not conflate those two requirements in her remarks to the jury.
19
Moreover, the jury was instructed the attorneys’ closing
arguments were just that—arguments—and that, irrespective of anything
the attorneys said about the law, the jurors were required to follow the law as
conveyed to them by the trial judge. (CALCRIM No. 200.) Because there is
nothing in the record to suggest the jury failed to heed these instructions, we
presume the jury followed them in reaching its verdict. (People v. Avila (2006)
38 Cal.4th 491, 575; People v. Thompson (2022) 83 Cal.App.5th 69, 96.)
For all these reasons, we reject defendants’ claim that the jury
instructions, coupled with the prosecutor’s remarks in closing argument,
improperly permitted the jury to convict them of felony murder based on an
invalid theory of guilt. It is not reasonably likely the jury convicted
defendants of that offense simply for aiding and abetting Garcia’s robbery, as
opposed to aiding and abetting the lethal act that caused Garcia’s death.
Even if we were to assume otherwise, any error was harmless
beyond a reasonable doubt because by finding the felony murder special
circumstances allegation true, the jury necessarily determined the
defendants were major participants in Garcia’s robbery and acted recklessly
indifferent to Garcia’s life. (See CALCRIM No. 703.) That determination
satisfied the requirements for felony murder under section 189, subdivision
(e)(3), on which the jury was properly instructed. (See People v. Strong (2022)
13 Cal.5th 698, 710.) Therefore, even if the instructions on aiding and
abetting with the intent to kill under section 189, subdivision (e)(2) were
flawed, there would be no cause for reversal.
Taylor resists this conclusion on two grounds. His primary
contention is that the prosecutor’s arguments regarding the actus reus
requirement for section 189, subdivision (e)(2) liability may have tainted the
jury’s verdict on the special circumstances allegation. As we explained above,
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however, the prosecutor did not misstate the law on that requirement in her
closing argument.
Taylor also claims the evidence is disputable as to whether he
was a major participant in the robbery and acted recklessly indifferent to
human life, so as to support the jury’s true finding on the special
circumstances allegation. Taylor points to his own testimony in arguing this
point, but in finding Taylor guilty of murder, the jury necessarily rejected
Taylor’s claim that he was so high on drugs during the shooting that he was
completely oblivious to Garcia’s murder. On review, we cannot second-guess
that credibility determination. (People v. Zamudio (2008) 43 Cal.4th 327,
357.)
In sum, the record shows the jury was properly instructed on the
actus reus requirement for felony murder under section 189, subdivision
(e)(2). And, even if the instructions on that requirement were flawed, any
error was harmless in light of the jury’s true finding on the special
circumstances allegation.
III.
VAGUENESS
Lastly, defendants contend the phrase “in the commission of
murder in the first degree” in section 189, subdivision (e)(2) violates due
process because it fails to provide adequate notice of what type of conduct is
prohibited under that provision. Once again, we disagree.
To satisfy due process, a statute must give fair notice of the
conduct proscribed and be sufficiently definite to prevent arbitrary and
discriminatory enforcement. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069,
1106–1107.) “‘[A] statute which either forbids or requires the doing of an act
in terms so vague that [people] of common intelligence must necessarily
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guess at its meaning and differ as to its application, violates the first
essential of due process of law.’” (People ex rel. Gallo v. Acuna (1997) 14
Cal.4th 1090, 1115.)
Section 189, subdivision (e)(2) is not such a statute. As the
California Supreme Court ruled in Morris, viewed from an ordinary and
commonsense perspective, the phrase “‘in the commission of murder in the
first degree’” contained in that provision plainly and unambiguously refers to
the subject killing itself, not the underlying felony during which the killing
occurred. (Morris, supra, 19 Cal.5th at p. 683.) Therefore, the jury in this case
would have properly understood it could not convict defendants of felony
murder on the theory of aiding and abetting unless they assisted the actual
killer in the lethal act or acts that led to Garcia’s death. Defendants have
failed to show section 189 subdivision (e)(2) violates due process or that the
jury instruction pertaining to that provision—CALCRIM No. 540B—is
unconstitutionally vague.
DISPOSITION
The judgments are affirmed.
GOODING, J.
WE CONCUR:
MOTOIKE, P. J.
MOORE, J.
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