Filed 7/30/26 P. v. Li CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052909
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1904784)
v.
JUN LI,
Defendant and Appellant.
A jury convicted defendant Jun Li of 10 crimes, including special
circumstance murder and rape in concert. The trial court sentenced Li to life
in prison without the possibility of parole, consecutive to 25 years to life,
consecutive to 21 years.
Li asserts the trial court erred in instructing the jury on felony murder
and the robbery-murder special circumstance and in failing to award him
pretrial custody credits on all counts of conviction. Li also requests that we
dismiss allegations that were alleged in his indictment but were not
submitted to the jury and correct errors in the abstract of judgment.
For the reasons explained below, we order corrections to the award of
pretrial custody credits and to the abstracts of judgment and affirm the
judgment as modified.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
On November 19, 2020, the Santa Clara County District Attorney filed
a first amended indictment (indictment) charging Li with 10 crimes: (1)
murder of Xingjian Li (Pen. Code,1 § 187, subd. (a); count 1) with a robbery-
murder special circumstance (§ 190.2, subd. (a)(17)); (2) second degree
robbery (§ 212.5, subd. (c); count 2); (3) rape of X. Doe2 in concert (§ 264.1,
subd. (a); count 3), with “One Strike” law allegations3 that the offense was
committed during a burglary (§ 667.61, subds. (a) & (d)), that Li personally
used a firearm during the commission of the offense (§§ 667.61, subds. (b) &
(e), 12022.53), that Li engaged in tying or binding of the victim during the
commission of the offense (§ 667.61, subds. (b) & (e)), and that Li committed
sexual offenses against more than one victim (§ 667.61, subd. (e)); (4) oral
copulation of X. Doe in concert by force or fear (§ 288a, subd. (d)(1); count 4),
with One Strike law allegations that the offense was committed during a
burglary (§ 667.61, subds. (a) & (d)), that Li personally used a firearm during
the commission of the offense (§§ 667.61, subds. (b) & (e), 12022.53), that Li
engaged in tying or binding of the victim during the commission of the offense
(§ 667.61, subds. (b) & (e)), and that Li committed sexual offenses against
more than one victim (§ 667.61, subd. (e)); (5) robbery of an inhabited place in
1 All further unspecified statutory references are to the Penal Code.
2 The indictment identified the victim by her first name and the
pseudonym “Doe.” We refer to this victim and other victims in the case by
the first initial of their first names and other persons by their initials to
protect personal privacy interests. (See Cal. Rules of Court, rule 8.90(b)(4),
(10).)
3 “California’s ‘One Strike’ law, codified at Penal Code section 667.61, is
an alternative sentencing scheme that applies when the prosecution pleads
and proves specific aggravating circumstances in connection with certain sex
offenses.” (In re Vaquera (2024) 15 Cal.5th 706, 712 (Vaquera).)
2
concert (§ 213, subd. (a)(1)(A); count 5), with an allegation that Li personally
used a firearm during the commission of the offense (§ 12022.53, subd. (b));
(6) robbery of an inhabited place in concert (§ 213, subd. (a)(1)(A); count 6);
(7) first degree burglary (§ 460, subd. (a); count 7), with an allegation that a
person not an accomplice was present during the burglary (§ 667.5, subd.
(c)(21)); (8) kidnapping of S. Doe (§ 207, subd. (a); count 8); (9) robbery of an
inhabited place in concert (§ 213, subd. (a)(1)(A); count 9); and (10) conspiracy
to commit robbery (§ 182, subd. (a)(1); count 10).
Li’s jury trial began on September 3, 2024. On November 14, 2024, the
jury found Li guilty of count 1 (first degree murder) and found true the
special circumstance (§ 190.2, subd. (a)(17)) and a reckless indifference/major
participant allegation (§ 190.2, subd. (d) (section 190.2(d))), guilty of count 2,
guilty of count 3 and found true the One Strike law allegations of commission
during a burglary, personal use of a firearm, and binding the victim, guilty of
count 4 and found true the One Strike law allegations of commission during a
burglary, personal use of a firearm, and binding the victim, guilty of count 5
and found true the allegation of personal use of a firearm, guilty of count 6,
guilty of count 7 and found true the allegation of the presence of a person not
an accomplice, guilty of count 8, guilty of count 9, and guilty of count 10.
On December 13, 2024, the trial court sentenced Li to life without the
possibility of parole, consecutive to 25 years to life, consecutive to 21 years.
Li timely appealed.
3
B. Prosecution’s Trial Evidence4
An Yan testified that in August 2017,5 he responded to a social media
post promising an opportunity to make a “ ‘quick buck.’ ” About one week
later, Yan met with Panpan Huang. Huang explained that the job involved
forcibly collecting debts from Chinese women who owed Huang money for
immigration assistance and who currently worked as prostitutes. The plan
involved entering the brothels where the women worked, subduing them, and
signaling Huang to enter so that he could collect the money owed him. At a
second meeting between Yan and Huang, Jason Shen participated in a
discussion of the plan.
In September 2017, Yan, Huang, and Shen, along with defendant Li
and Lin Tao traveled in a van from southern California to northern
California. Huang and Shen led the operation. The group possessed two
handguns (which belonged to Huang and Shen), a stun gun, zip ties, masks,
gloves, electric hair clippers, and backpacks. According to Yan, Shen told the
group that if someone resists, fire “one shot” at a couch or pillow. Shen and
Huang further instructed that “if somebody got hurt” in the shooting, the
group “needed to kill everybody” because “they didn’t want any witnesses.”
Shen and Huang repeated this instruction to the group approximately three
to four times.
4 Li did not present any witnesses in his defense. After the prosecution
rested its case, Li’s defense counsel read the following stipulation to the
jurors and then rested: “An Yan did not make any statements, conduct any
interviews, or provide any testimony about real or fake guns between his
2019 testimony and his 2022 testimony.”
5 Unless otherwise indicated, all dates were in 2017.
4
a. Milpitas Incident (counts 8 & 9)
On the morning of September 27, Li and Tao entered an apartment in
Milpitas. Li had a handgun, and Tao had a stun gun. They bound,
blindfolded, and shocked S. Doe. Yan entered the apartment with a handgun
and eventually advised Huang and Shen that the apartment was secure.
Huang and Shen entered the apartment wearing ski masks. Someone
pressed something against S. Doe’s head and threatened to kill her if she did
not tell the men the location of the money. The men took money from S.
Doe’s pocket. At Huang’s request, Li and Yan dragged S. Doe into a bedroom.
Huang raped S. Doe. He penetrated her with his penis, his fingers, and an
eggplant supplied by Yan. Shen shaved off S. Doe’s hair. Shen took S. Doe’s
ATM card and cash from her wallet. Shen demanded that S. Doe provide her
ATM card PIN.
Shen later used S. Doe’s ATM card to withdraw cash from her bank
account. After the group got some food, Shen and Li purchased $1,818 worth
of merchandise at an Apple Store, while Yan, Huang and Tao went to a CVS.
b. South San Francisco Incident (counts 6 & 7)
Later, on the afternoon of September 27, the group traveled to an
apartment in South San Francisco. Li, Yan, and Tao posed as customers and
entered the apartment possessing zip ties and armed with handguns and a
stun gun. The trio used their guns to force the brothel’s “auntie,” a sex
worker, and a customer into a bedroom. Li, Yan, and Tao bound the victims
and covered their eyes with tape. The trio also bound and blindfolded
another sex worker and customer who were in a separate bedroom. Yan
disabled the security cameras.
After Yan informed Huang that the apartment was secure, Huang and
Shen entered wearing masks. Huang raped and sexually assaulted one of the
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sex workers while Li watched. In addition, Shen sexually assaulted this
victim and shaved off some of her hair. Yan sexually assaulted the other sex
worker.
The group searched the apartment for money and valuables. Shen took
envelopes of cash found in the kitchen, as well some luggage and a backpack.
The group subsequently went to get some food and cigarettes, which
they purchased using S. Doe’s ATM card.
c. Fremont Incident (counts 3, 4 & 5)
The next day (September 28), the group drove to an apartment in
Fremont. Li, Yan, and Tao were armed with handguns and a stun gun. The
brothel’s “auntie” (Y.W.) let Li, Yan, and Tao into the apartment. They
bound Y.W. and two sex workers and covered Y.W.’s head with a towel.
After Yan advised Huang that the apartment unit was secure, Huang
and Shen entered the apartment wearing masks. Yan saw Li “holding up”
one of the sex workers; Li demanded the victim’s money, passwords, and
information concerning her bank cards. Tao beat X. Doe, raped her, and
forced her to orally copulate him. Yan witnessed Huang and Shen digitally
penetrate X. Doe while Tao forced her to orally copulate him. Li put his
fingers inside X. Doe’s vagina. One of the men pressed a gun against X. Doe’s
head and raped her without wearing a condom. In addition, the men shocked
X. Doe with the stun gun and cut off some of her hair.
The group took a purse, cash, cell phones, a laptop, an iPad, and bank
cards from the apartment. Huang used one of the bank cards to purchase a
wallet at a Louis Vuitton store.
d. San Jose Incident (counts 1 & 2)
Later that same day (September 28), the group went to a San Jose
apartment brothel run by Y.G. and Xingjian Li.
6
Yan testified that Shen had previously scouted this brothel. Before
Yan, Li, and Tao entered the apartment on September 28, Shen told them
that they would encounter two men inside and “[i]f they were to resist and if
it would become necessary, shooting would be allowed.” Shen reiterated that
if any of the occupants of the brothel were shot, the men should shoot all the
occupants so that there would be no witnesses. Huang then gave his gun to
Li, and Shen gave his gun to Tao.
Yan entered the apartment posing as a customer. Soon after, Li and
Tao also entered. Li and Tao drew guns and bound Y.G. and Xingjian Li with
zip ties. Tao beat Y.G. and asked where the brothel’s money was kept. Li
and Tao forced two sex workers into the living room at gunpoint and Yan
bound their wrists with zip ties. While Li and Tao searched the bedrooms for
money, Xingjian Li freed himself. Tao came out of a bedroom and shot
Xingjian Li as he tried to jump toward the kitchen. After shooting Xingjian
Li, Tao said, “ ‘Fuck you. You thought I wouldn’t dare to shoot at you?’ ”
While Xingjian Li lay wounded on the kitchen floor, Yan bound him again
with zip ties. Li, Tao, and Yan left the apartment with suitcases and
backpacks belonging to the sex workers. Thereafter, Y.G. approached
Xingjian Li as he lay on the kitchen floor. Xingjian Li died from the gunshot
wound.
Later, Shen found over $1,000 inside the suitcases.
II. DISCUSSION
A. Alleged Instructional Error
Li contends the trial court committed prejudicial error by incorrectly
omitting the objective element of reckless indifference to human life from the
instructions on felony murder and the robbery-murder special circumstance.
Li asserts that the court’s definition of reckless indifference did not “permit
7
the jury to consider whether a law-abiding person would know” that the
conduct underlying the robbery carried a grave risk of death. (Boldface &
italics omitted.)
The Attorney General responds that Li forfeited his claim of error by
stipulating to the jury instructions and failing to request clarifying language.
The Attorney General further asserts that Li’s claim lacks merit under
precedent that addresses the meaning of reckless indifference to human life
and, regardless, any error was harmless beyond a reasonable doubt.
1. Additional Background
After discussion of the proposed jury instructions, the trial court stated
that “the parties stipulate to the instructions given, instructions not given,
and the wording of the instructions given.” There is no indication in the
record that Li’s defense counsel requested any language clarifying the phrase
“reckless indifference to human life,” as defined in the trial court’s proposed
versions of CALCRIM No. 540B (CALCRIM 540B) and CALCRIM No. 703
(CALCRIM 703).
Regarding Li’s liability for murder (count 1), the trial court instructed
the jurors solely on first degree felony murder. The court used a version of
CALCRIM 540B that read as follows:
“The defendant is charged in [c]ount 1 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 this other person the perpetrator.
“To prove the defendant is guilty of first degree murder under this
theory, the People must prove: [¶] 1. The defendant committed, aided and
abetted, or was a member of a conspiracy to commit robbery, as charged in
[c]ount 2; [¶] 2. The defendant intended to commit, intended to aid and abet
8
the perpetrator in committing, or intended that one or more of the members
of the conspiracy commit robbery; [¶] 3. If the defendant did not personally
commit robbery, then a perpetrator, whom the defendant was aiding and
abetting, or with whom the defendant conspired, committed robbery; [¶] 4.
While committing robbery, the perpetrator caused the death of another
person; [¶] 5. The defendant was a major participant in the robbery; [¶]
AND [¶] 6. When the defendant participated in the robbery, he acted with
reckless indifference to human life.
“To decide whether the defendant and the perpetrator committed
robbery, as charged in [c]ount 2, please refer to the separate instructions that
I give you on that crime. To decide whether the defendant aided and abetted
a crime, please refer to the separate instructions that I give you on aiding
and abetting. To decide whether the defendant was a member of a conspiracy
to commit a crime, please refer to the separate instructions that I give you on
conspiracy. 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 aid and abet, or been
a member of a conspiracy to commit the felony of robbery, before or at the
time of 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. [¶] It is not required that the person killed be the victim of the
felony. [¶] It is not required that the defendant be present when the act
causing the death occurs. [¶] 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 that death.
9
“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.[6]
“When you decide whether the defendant acted with reckless
indifference to human life, consider all the evidence. No one of the following
factors is necessary, nor is any one of them necessarily enough, to determine
whether the defendant acted with reckless indifference to human life. Among
the factors you may consider are: [¶] Did the defendant know that a lethal
weapon would be present during the robbery, as charged in [c]ount 2? [¶]
Did the defendant know that a lethal weapon was likely to be used? [¶] Did
the defendant know that a lethal weapon was used? [¶] Did the defendant
know the number of weapons involved? [¶] Was the defendant near the
person killed when the killing occurred? [¶] Did the defendant have an
opportunity to stop the killing or to help the victim? [¶] How long did the
crime last? [¶] Was the defendant aware of anything that would make a
coparticipant likely to kill? [¶] Did the defendant try to minimize the
possibility of violence?
“When you decide whether the defendant was a major participant,
consider all the evidence. No one of the following factors is necessary, nor is
any one of them necessarily enough, to determine whether the defendant was
a major participant. Among the factors you may consider are: [¶] What was
6 By the time of Li’s 2024 trial, the Judicial Council had revised the
italicized sentence from CALCRIM 540B. As of September 2023, CALCRIM
540B states in a bracketed sentence (which “can be given” when reckless
indifference under section 189, subdivision (e)(3) applies): “A person acts
with reckless indifference to human life when he or she engages in criminal
activity that a reasonable person would know involves a grave risk of death
and he or she knows that the activity involves a grave risk of death.”
(CALCRIM No. 540B (Sept. 2023 rev.), italics omitted.)
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the defendant’s role in planning the crime that led to the death? [¶] What
was the defendant’s role in supplying or using lethal weapons? [¶] What did
the defendant know about dangers posed by the crime, any weapons used, or
past experience or conduct of the other participants? [¶] Was the defendant
in a position to facilitate or to prevent the death? [¶] Did the defendant’s
action or inaction play a role in the death? [¶] What did the defendant do
after lethal force was used?” (Italics added & omitted.)
The trial court additionally instructed the jurors that if they “find a
defendant guilty of first degree murder, [they] must also decide whether the
People have proved that the special circumstance is true.” The court
instructed the jurors on the robbery-murder special circumstance allegation
with a version of CALCRIM 703 as follows:
“If you decide that a defendant is guilty of first degree murder but was
not the actual killer, then when you consider the special circumstance of
whether the murder was committed while the defendant, Jun Li, was
engaged in or was an accomplice in the commission, or the immediate flight
after the commission, of a felony, robbery, as charged in [c]ount 2, you must
also decide whether the defendant acted either with intent to kill or with
reckless indifference to human life.
“In order to prove this special circumstance for a defendant who is not
the actual killer but who is guilty of first degree murder as an aider and
abettor or a member of a conspiracy, the People must prove either that the
defendant intended to kill, or the People must prove all of the following: [¶]
1. The defendant’s participation in the crime began before or during the
killing; [¶] 2. The defendant was a major participant in the crime; [¶] AND
[¶] 3. When the defendant participated in the crime, he acted with reckless
indifference to human life.
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“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.[7]
“The People do not have to prove that the actual killer acted with intent
to kill or with reckless indifference to human life in order for this special
circumstance to be true.
“When you decide whether the defendant acted with reckless
indifference to human life, consider all the evidence. No one of the following
factors is necessary, nor is any one of them necessarily enough, to determine
whether the defendant acted with reckless indifference to human life. Among
the factors you may consider are: [¶] Did the defendant know that a lethal
weapon would be present during the robbery, as charged in [c]ount 2? [¶]
Did the defendant know that a lethal weapon was likely to be used? [¶] Did
the defendant know that a lethal weapon was used? [¶] Did the defendant
know the number of weapons involved? [¶] Was the defendant near the
person killed when the killing occurred? [¶] Did the defendant have an
opportunity to stop the killing or to help the victim? [¶] How long did the
crime last? [¶] Was the defendant aware of anything that would make a
coparticipant likely to kill? [¶] Did the defendant try to minimize the
possibility of violence?
“When you decide whether the defendant was a major participant,
consider all the evidence. No one of the following factors is necessary, nor is
7 The trial court did not use the then-current version of CALCRIM 703
for the italicized sentence. Like CALCRIM 540B, as of September 2023,
CALCRIM 703 states in a bracketed sentence: “A person acts with reckless
indifference to human life when he or she engages in criminal activity that a
reasonable person would know involves a grave risk of death and he or she
knows that the activity involves a grave risk of death.” (CALCRIM No. 703
(Sept. 2023 rev.), italics omitted.)
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any one of them necessarily enough, to determine whether the defendant was
a major participant. Among the factors you may consider are: [¶] What was
the defendant’s role in planning the crime that led to the death? [¶] What
was the defendant’s role in supplying or using lethal weapons? [¶] What did
the defendant know about dangers posed by the crime, any weapons used, or
past experience or conduct of the other participants? [¶] Was the defendant
in a position to facilitate or to prevent the death? [¶] Did the defendant’s
action or inaction play a role in the death? [¶] What did the defendant do
after lethal force was used?
“If the defendant was not the actual killer, then the People have the
burden of proving beyond a reasonable doubt that he acted with either the
intent to kill or with reckless indifference to human life and was a major
participant in the crime for this special circumstance to be true. If the People
have not met this burden, you must find this special circumstance has not
been proved true.” (Italics added & omitted.)
During his closing argument, regarding count 1, the prosecutor
asserted that in “committing the robbery or aiding and abetting the robbery,
[Li] was a major participant in it. Wasn’t just a bystander. Wasn’t someone
who was just the get-away driver or who got some of the loot afterwards. He
was part and parcel, and there can be no more major participant in a robbery
than someone who goes in armed with a gun, someone who is punching,
yelling, ordering, [and] tying people up. All of that that Jun Li did with all
the others, that’s being a major participant, and he acted with reckless
indifference to human life. [¶] That reckless indifference was completed the
moment he stepped through the threshold with that gun, knowing Jason
Shen and Panpan Huang’s orders, knowing that they were told how to deal
with problems having a gun, knowing what these men were capable of and
13
how they treated women before. This was an inherently dangerous situation.
[¶] It is no surprise at all someone was shot and killed.”
Regarding the special circumstance allegation, the prosecutor added:
“Jun Li committed a robbery here. He intended that the robbery happen.
They wanted to get their loot. They wanted to send their message, and he
wanted to get paid. He also aided and abetted the others by helping handle
two different women, searching different rooms, et cetera, ensuring that
people were tied up. He was one of the robbers while An Yan played the
customer. [¶] It’s no mystery. We know someone ended up shot, and we
know who did it, and there can be no legitimate dispute that Jun Li was a
major participant and showed reckless indifference to human life.”
Li’s defense counsel argued the prosecution had failed to prove that Li
acted with reckless indifference to human life or was a major participant in
the crime.
The jury returned a guilty verdict for first degree felony (robbery)
murder and found true that Li, “who was not the actual killer, with reckless
indifference to human life and as a major participant, did aid, abet, counsel,
command, induce, solicit, request, or assist the shooter in the commission of a
felony, [r]obbery, which resulted in the death of Xingjian Li, within the
meaning of Penal Code section 190.2(d).”
2. Legal Principles
a. Felony Murder and Felony-murder Special Circumstance
Effective January 1, 2019, 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
14
underlying felony who acted with reckless indifference to human life.’ ”
(People v. Gentile (2020) 10 Cal.5th 830, 842, superseded by statute on
another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869; see
also § 188, subd. (a)(3).)
Senate Bill 1437 added section 189, subdivision (e) (section 189(e)) to
restrict the application of the felony-murder rule. (Stats. 2018, ch. 1015, § 3;
see People v. Curiel (2023) 15 Cal.5th 433, 448.) “[S]ection 189, as amended,
now limits liability under a felony-murder theory principally to ‘actual
killer[s]’ [citation] and those who, ‘with the intent to kill,’ aid or abet ‘the
actual killer in the commission of murder in the first degree’ [citation].
Defendants who were neither actual killers nor acted with the intent to kill
can be held liable for murder only if they were ‘major participant[s] in the
underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of . . . [s]ection 190.2’ — that is, the statute
defining the felony-murder special circumstance.” (People v. Strong (2022) 13
Cal.5th 698, 708 (Strong), quoting § 189(e).)
Section 190.2(d) states that if a felony-murder special circumstance is
found true, the prescribed penalty of death or life in prison without the
possibility of parole applies to “every person, not the actual killer, who, with
reckless indifference to human life and as a major participant, aids, abets,
counsels, commands, induces, solicits, requests, or assists in the commission
of a felony enumerated in paragraph (17) of subdivision (a) which results in
the death of some person or persons, and who is found guilty of murder in the
first degree therefor.”
In People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark), our Supreme Court “provided substantial
15
guidance on the meaning of” major participation and reckless indifference to
human life under section 190.2(d).8 (Strong, supra, 13 Cal.5th at p. 703.)
Our Supreme Court explained that “[r]eckless indifference to human
life is ‘implicit in knowingly engaging in criminal activities known to carry a
grave risk of death.’ [Citation.] Examples include ‘the person who tortures
another not caring whether the victim lives or dies, or the robber who shoots
someone in the course of the robbery, utterly indifferent to the fact that the
desire to rob may have the unintended consequence of killing the victim as
well as taking the victim’s property.’ [Citation.] Reckless indifference
‘encompasses a willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire that death as
the outcome of his actions.’ ” (In re Scoggins (2020) 9 Cal.5th 667, 676–677
(Scoggins); see Clark, supra, 63 Cal.4th at p. 617.)
“Reckless indifference to human life has a subjective and an objective
element. [Citation.] As to the subjective element, ‘[t]he defendant must be
aware of and willingly involved in the violent manner in which the particular
offense is committed,’ and he or she must consciously disregard ‘the
significant risk of death his or her actions create.’ [Citations.] As to the
objective element, ‘ “[t]he risk [of death] must be of such a nature and degree
that, considering the nature and purpose of the actor’s conduct and the
circumstances known to him [or her], its disregard involves a gross deviation
from the standard of conduct that a law-abiding person would observe in the
actor’s situation.” ’ ” (Scoggins, supra, 9 Cal.5th at p. 677; see also People v.
8 “[T]he major participant and reckless indifference concepts trace their
origin to a pair of United States Supreme Court decisions — Enmund v.
Florida (1982) 458 U.S. 782 [] and Tison v. Arizona (1987) 481 U.S. 137 [] —
that articulate the constitutional limits of capital punishment for accomplices
to felony murder.” (People v. Emanuel (2025) 17 Cal.5th 867, 882.)
16
Hin (2025) 17 Cal.5th 401, 449 (Hin) [examining whether the “jury’s findings
satisfy both the subjective and objective elements” of the section 189(e)(3)
reckless indifference to human life mens rea requirement]; id. at p. 450 [and
concluding that the evidence showed the defendant’s “conduct created an
objectively ‘ “grave risk of death” ’ that satisfies the reckless indifference
standard”].)
b. Jury Instructions
“In a criminal case, a trial court has a duty to instruct the jury on
‘ “ ‘ “the general principles of law relevant to the issues raised by the
evidence.” ’ ” ’ [Citation.] The ‘general principles of law governing the case’
are those principles connected with the evidence and which are necessary for
the jury’s understanding of the case. [Citations.] As to pertinent matters
falling outside the definition of a ‘general principle of law governing the case,’
it is ‘defendant’s obligation to request any clarifying or amplifying
instruction.’ ” (People v. Estrada (1995) 11 Cal.4th 568, 574 (Estrada).)
The “ ‘language of a statute defining a crime or defense is generally an
appropriate and desirable basis for an instruction, and is ordinarily sufficient
when the defendant fails to request amplification. If the jury would have no
difficulty in understanding the statute without guidance, the court need do
no more than instruct in statutory language.’ ” (Estrada, supra, 11 Cal.4th at
p. 574; accord People v. Ramirez (2021) 10 Cal.5th 983, 1001.)
“ ‘ “A claim of instructional error is reviewed de novo. [Citation.] An
appellate court reviews the wording of a jury instruction de novo and assesses
whether the instruction accurately states the law.” ’ ” (People v. Howard
(2024) 104 Cal.App.5th 625, 661 (Howard).) “ ‘ “ ‘[T]he correctness of jury
instructions is to be determined from the entire charge of the [trial] court, not
from a consideration of parts of an instruction or from a particular
17
instruction,’ ” ’ ” and “ ‘[j]urors are presumed able to understand and correlate
instructions and are further presumed to have followed the court’s
instructions.’ ” (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.)
To prevail on a claim that an unrequested instruction was required, the
defendant must show that the principle of law stated in the unrequested
instruction was “necessary for the jury’s understanding of the case.” (People
v. Price (1991) 1 Cal.4th 324, 442.)
3. Analysis
Li claims that the trial court erroneously instructed the jurors by
omitting the objective component of reckless indifference to human life when
stating “ ‘[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.’ ” (Italics omitted.) Li asserts that the court’s failure to
include language regarding whether a reasonable person would know that
the defendant’s criminal activity involves a grave risk of death (as set forth in
the current versions of CALCRIM 540B and 703) “rendered the jury
instructions incomplete and incorrect.”
As noted ante (pt. II.A.1.), Li’s defense counsel did not object to
CALCRIM 540B or 703 as given and did not request any modification of the
definition of reckless indifference to human life. Notwithstanding the
Attorney General’s assertion of forfeiture, we reach the merits of Li’s
appellate claim because he contends the jury instructions provided to the
jurors were legally incorrect (in that they omitted an essential element of
reckless indifference to human life) and affected his substantial rights. (See
Howard, supra, 104 Cal.App.5th at p. 661.)
Regarding the merits of Li’s claim, we are not persuaded that
CALCRIM 540B and 703, as given, are legally erroneous. We agree with the
18
Attorney General that Li’s challenge to the instant instructions is foreclosed
by Estrada, supra, 11 Cal.4th 568. There, our Supreme Court addressed
“whether a trial court has a sua sponte duty to define the phrase ‘reckless
indifference to human life’ when instructing a jury regarding a felony-murder
special-circumstance allegation against a defendant who is not the actual
killer.” (Id. at p. 572.) The Estrada court “conclude[d] that because a
common understanding of the phrase ‘reckless indifference to human life’
amply conveys the meaning of section 190.2(d), a trial court is not required,
in the absence of a request, to further explain the statutory phrase to the
jury.” (Ibid.) The court explained that “the generally accepted meaning of
the phrase, ‘reckless indifference to human life,’ in common parlance amply
conveys to the jury the requirement of a defendant’s subjective awareness of
the grave risk to human life created by his or her participation in the
underlying felony. This is the meaning intended by the phrase ‘reckless
indifference to human life’ as it is used in section 190.2(d), and as defined in
Tison. The phrase therefore does not have a technical meaning peculiar to
the law, and the trial court had no sua sponte duty to further define the
statutory phrase for the jury.”9 (Id. at p. 578.)
The Estrada court suggested that if a request for clarification of the
phrase “ ‘reckless indifference to human life’ ” is granted, a trial court should
“instruct according to the rule set forth in the holding of [Tison], i.e., ‘that the
reckless disregard for human life implicit in knowingly engaging in criminal
activities known to carry a grave risk of death represents a highly culpable
9 As discussed ante (pt. II.A.2.a.), section 189(e) (the felony murder
statute) incorporates by reference the definition of “reckless indifference to
human life” from section 190.2(d). (§ 189(e)(3); see In re Taylor (2019) 34
Cal.App.5th 543, 561.) Thus, the Estrada court’s interpretation of the phrase
reckless indifference to human life applies to both statutes.
19
mental state.’ ” (Estrada, supra, 11 Cal.4th at p. 580; accord Banks, supra,
61 Cal.4th at p. 807, italics omitted [“Reckless indifference to human life
‘requires the defendant be “subjectively aware that his or her participation in
the felony involved a grave risk of death.” ’ ”].)
In the instant case, the trial court instructed the jurors with language
from former CALCRIM 540B and 703 that accords with Estrada’s
recommendation about “ ‘knowingly engaging in criminal activities known to
carry a grave risk of death.’ ” (Estrada, supra, 11 Cal.4th at p. 580.) Li cites
no California Supreme Court decision (and we are not aware of any) that
expressly overrules Estrada. Under Estrada, the definition of reckless
indifference to human life provided to Li’s jury is legally correct and does not
render the given instructions inadequate for a proper understanding of the
reckless indifference to human life element in sections 189(e)(3) and 190(d).
Further, we are not convinced that our Supreme Court’s post-Estrada
decisions explicating the subjective and objective components of reckless
indifference to human life render the instructions given in this case
erroneous. Li does not cite any California appellate court decision holding
that a jury must be instructed with language explaining both the subjective
component and the objective component of reckless indifference to human
life. In fact, in Strong, our Supreme Court noted that “the mandatory [jury]
instructions [for a felony-murder special-circumstance finding] did not change
in the wake of Banks and Clark” (Strong, supra, 13 Cal.5th at p. 719) and
recognized that the bracketed language in CALCRIM 703 on the Banks and
Clark factors is “optional.” (Strong, at p. 719, fn. 4; see also Judicial Council
of Cal., Crim. Jury Instns. (2026), Bench Notes to CALCRIM No. 540B, p. 289
& Bench Notes to CALCRIM No. 703, p. 428.)
20
Under extant precedent, we conclude the trial court satisfied its sua
sponte duty and did not otherwise err when instructing the jurors on the
principles of first degree felony murder and the felony-murder special
circumstance.
Even assuming arguendo that the trial court should have instructed
that reckless indifference to human life includes consideration of whether the
defendant “engages in criminal activity that a reasonable person would know
involves a grave risk of death” (CALCRIM 540B & 703), the circumstances of
the instant case lead us to conclude the error was harmless under the beyond
a reasonable doubt standard of Chapman v. California (1976) 386 U.S. 18.10
(See People v. Merritt (2017) 2 Cal.5th 819, 831 [holding that a jury
instruction omitting elements of robbery was subject to the Chapman
harmless error standard]; see also Neder v. United States (1999) 527 U.S. 1,
9–10.)
The trial evidence overwhelmingly demonstrates that Li engaged in
conduct when committing the San Jose crime that “created an objectively
‘ “grave risk of death.” ’ ” (Hin, supra, 17 Cal.5th at p. 450.) Before Li
entered the San Jose apartment, he participated in multiple crimes that
involved guns, threats, and violence. Li also participated in the planning of
the San Jose crime, which included him accepting a gun (along with Tao) and
10 The Attorney General argues that because the jury was, in fact,
instructed on the element of reckless indifference to human life, no requisite
element of felony murder or the felony-murder special circumstance was
omitted from the jury instructions and the failure to include language about
the objective component of reckless indifference amounts to state law error
subject to the prejudice standard of People v. Watson (1956) 46 Cal.2d 818.
Given our agreement with the Attorney General’s further argument that any
error was harmless even under the more stringent Chapman standard, we
need not decide whether the Watson standard applies to Li’s claim.
21
hearing Shen say that any resistance could be met with “shooting” and
witnesses should be eliminated. After Yan had entered posing as a customer,
Li proceeded to enter the apartment with Tao. Once inside, Li and Tao drew
their guns and bound Y.G. and Xingjian Li. Tao beat Y.G. and asked about
money. After Li and Tao told Yan to bind the two sex workers, Li and Tao
took the women to the bedrooms and searched for money. When Xingjian Li
freed himself and attempted to escape, Tao came out of a bedroom and shot
Xingjian Li. Less than a minute later, Li exited a bedroom with a backpack
and suitcase. Li took a “quick look” at Xingjian Li as he lay on the kitchen
floor and then left the apartment with Yan and Tao. Yan told the group that
he believed Xingjian Li had been hit by the gunshot because Yan “did feel
blood.” No one in the group called 911 or took any action to assist Xingjian
Li.
Considering these facts, no rational juror could have found it unproven
that a reasonable person would know Li’s criminal activity involved a grave
risk of death. Hence, we conclude that the failure to instruct the jurors on
the objective component of reckless indifference to human life was harmless
beyond a reasonable doubt. (See Scoggins, supra, 9 Cal.5th at p. 677; see also
People v. Ortiz (2002) 101 Cal.App.4th 410, 416.)
B. Multiple Victim Allegation
Li asserts that the multiple victim One Strike allegations in counts 3
and 4 of the indictment were never proven, were not submitted to the jury,
and are factually unsupported because counts 3 and 4 were committed
against a single victim. Li acknowledges that the allegations have “no
practical effect on [his] current sentence” but requests that this court dismiss
them “to maintain a clear record of all the charges in this case and their
dispositions.” The Attorney General responds that Li has not articulated any
22
authority supporting the contention that the failure to submit the multiple
victim allegations to the jury constitutes error.
1. Additional Background
The indictment includes multiple victim One Strike allegations for
counts 3 and 4. (See § 667.61, subd. (e)(4).) At trial, following the close of
evidence, the prosecutor stated on the record that the multiple victim
allegations were not “supported by the evidence, and so that [they] will need
to be stricken before the case is presented to the jury. We can address that
and even perfect a copy of the [i]ndictment for the jury’s purposes at a later
point.” The trial court replied “Okay.” There is no indication in the record
that the court formally dismissed the allegations or that a new indictment
was prepared.
Counts 3 and 4 alleged sexual assault against the same victim. Neither
the jury instructions nor the verdict forms for counts 3 or 4 mention the
multiple victim allegations.
The probation report prepared for Li’s sentencing states that the
probation officer asked counsel about the status of the multiple victim
allegations for counts 3 and 4. The prosecutor informed the probation officer
that the multiple victim allegations attached to counts 3 and 4 had been
dismissed “at the end of evidence,” and “a count was dismissed at [the
section] 995 [hearing] so the allegations no longer applied.”
2. Analysis
We agree with the Attorney General that Li has failed to meet his
burden on appeal of showing error with respect to the multiple victim
allegations attached to counts 3 and 4 of the indictment. At trial, the
prosecutor acknowledged on the record before the court (outside the presence
of the jury) there was no evidence to support the allegations, and they should
23
be dismissed. The multiple victim enhancements were not referenced in the
jury instructions, and they do not appear in the verdict forms. Although Li
asserts that there may be confusion with respect to these allegations, he does
not explain how or why. As Li does not explain the error or the necessity for
a remedy, we decline to take any action on appeal with respect to this issue.
C. Custody Credits
Li contends that the trial court erred under section 2900.5, subdivision
(b) (section 2900.5(b)) in failing to apply all of Li’s presentence custody credits
to the “aggregate sentence.” Li acknowledges that he is not entitled to any
more custody credits than those already awarded by the trial court, and the
court’s error was “a technical one.” Nevertheless, Li asserts that it was error
and this court should modify the judgment (and the sentencing minute order
and abstracts of judgment) to reflect that Li’s presentence credits apply to his
“aggregate sentence.” Specifically, Li asks this court to reverse the trial
court’s order that Li receive zero pretrial custody credits on counts 1, 2, 3, 6,
and 9.
The Attorney General disagrees in part. The Attorney General states
that, under section 669, when an indeterminate sentence is consecutive to a
determinate term, the determinate term of imprisonment must be served
first. The Attorney General argues that, because the trial court ordered that
Li’s indeterminate terms on counts 1, 3, and 4 be served consecutively to the
aggregate determinate term sentence imposed on counts 2, 5, 6, 7, 8, 9, and
10, the trial court should have under sections 669 and 2900.5 awarded zero
days of presentence custody credit on counts 1, 3, and 4 and 2,209 days on
counts 2, 5, 6, 7, 8, 9, and 10.
24
1. Additional Background
The trial court pronounced an aggregate sentence of life without the
possibility of parole consecutive to 25 years to life consecutive to 21 years.
The court imposed the following sentences on the individual counts: on count
5, the middle term of six years with a consecutive 10-year enhancement
under section 12022.53, subdivision (b) for a total term of 16 years; on count
2, one year (one-third of the middle term) to run consecutively; on count 6,
two years (one-third of the middle term) to run consecutively; on count 7, the
middle term of four years to run concurrently; on count 8, the middle term of
five years to run concurrently; on count 9, two years (one-third of the middle
term) to run consecutively; on count 10, the middle term of two years to run
concurrently; on count 1, life without the possibility of parole, consecutive to
“any other time,” including 21 years on the “nonsex” determinate sentence
counts; on count 3, a term of 25 years to life to run consecutively; and on
count 4, a term of 25 years to life to run concurrently with count 3. The trial
court stated that counts 3 and 4 were imposed pursuant to section 667.6,
subdivision (c), and counts 2, 5, 6, 7, 8, 9, and 10 were imposed pursuant to
section 1170.1.
The trial court awarded 2,209 days of pretrial custody credit for counts
4, 5, 7, 8, and 10 and zero good conduct days for a total of 2,209 days. On
counts 1, 2, 3, 6, and 9, the court awarded zero days of pretrial custody credit.
2. Analysis
We review de novo the application of section 2900.5 to Li’s sentence.
“ ‘ “ ‘We first examine the statutory language, giving it a plain and
commonsense meaning. . . . If the language is clear, courts must generally
follow its plain meaning unless a literal interpretation would result in absurd
25
consequences the Legislature did not intend.’ ” ’ ” (People v. Cofer (2026) 20
Cal.5th 1, 12.)
Under section 2900.5, defendants who serve time in custody prior to
their sentencing “receive credit against their prison terms for all of those
days spent in custody prior to sentencing, so long as the presentence custody
is attributable to the conduct that led to the conviction.” (People v. Duff
(2010) 50 Cal.4th 787, 793 (Duff).)11 Section 2900.5(b) states in relevant part,
“For the purposes of this section . . . [c]redit shall be given only once for a
single period of custody attributable to multiple offenses for which a
consecutive sentence is imposed” (italics added).
Our Supreme Court has stated that the italicized language “does no
more than clarify that when consecutive terms are imposed for multiple
offenses in a single proceeding, only one of the terms shall receive credit for
presentence custody.” (People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9.)
Thus, if sentences are imposed consecutively in a single proceeding, dual
credits are expressly prohibited by statute.
Section 669, subdivision (a) provides, in part: “Whenever a person is
committed to prison on a life sentence which is ordered to run consecutive to
any determinate term of imprisonment, the determinate term of
imprisonment shall be served first.”
11 Some defendants may earn additional credits for work and good
conduct during presentence incarceration (§§ 2900.5, subd. (a), 4019). Li did
not earn any presentence conduct credit because he was convicted in count 1
of murder. (See § 2933.2, subd. (c); Duff, supra, 50 Cal.4th at p. 794, italics
omitted [“Subdivision (a) [of section 2933.2] prohibits persons convicted of
murder from earning postsentence worktime credit, and subdivision (c) of the
statute prohibits such persons from earning conduct credit for periods of
presentence incarceration.”].) Li does not challenge the trial court’s denial of
presentence conduct credit.
26
Three separate sentencing schemes governed Li’s sentencing. For his
conviction for murder (count 1), his indeterminate sentence was dictated by
sections 190 and 190.2(a). For his convictions for rape in concert (count 3)
and oral copulation in concert (count 4), his indeterminate sentences were
supplied by the One Strike law. (See § 667.6, subd. (c); Vaquera, supra, 15
Cal.5th at p. 724 [“[T]he trial court must impose a One Strike sentence when
a One Strike allegation is properly pled and proved.”].) His determinate
sentences for counts 2, 5, 6, 7, 8, 9, and 10 were governed by sections 1170
and 1170.1.
The trial court pronounced an aggregate determinate term of 21 years
on counts 2, 5, 6, 7, 8, 9, and 10. It also pronounced the statutorily required
sentence of life without the possibility of parole on count 1, and 25 years to
life on counts 3 and 4.12
The trial court’s election to sentence the three groups of convictions
consecutively triggered the ban on dual custody credits in section 2900.5(b),
which directs a sentencing court to award credit “only once for a single period
of custody attributable to multiple offenses for which a consecutive sentence
is imposed.”
Li’s sentence falls squarely under this restriction. Li’s presentence
custody was a single period of custody attributable to multiple offenses, and
he received consecutive sentences. By its plain language, section 2900.5(b)
allows for custody credits to be applied “only once.” (See People v. Cooksey
(2002) 95 Cal.App.4th 1407, 1415, italics omitted [“Section 2900.5,
subdivision (b), only permits credit to be awarded ‘once’ when consecutive
12 The trial court ordered the sentences on counts 3 and 4 to run
concurrently with each other but consecutively to the other counts of
conviction.
27
sentences are imposed as occurred here.”].) Thus, the pretrial custody credits
could only be imposed on one of the three terms he received: the 21-year
determinate term, the term of life without the possibility of parole (for count
1), or the term of 25 years to life (for counts 3 and 4).
Li cites no published authority for the proposition that the trial court
should have awarded custody credits to all of the determinate and
indeterminate terms simply because they eventually resulted in a single
“aggregate sentence.” We are not aware of any precedent to this effect, and it
does not comport with section 2900.5(b)’s plain language. We reject his
interpretation of the statute.
Nevertheless, we agree with the Attorney General that the trial court
erred in awarding pretrial custody credits for Li’s conviction on count 4, and
in failing to award them for his convictions on counts 2, 6, and 9.
Section 669 requires that when a person is sentenced to a life sentence
which is ordered to run consecutive to any determinate term of
imprisonment, the determinate term shall be served first. Although the
record is not entirely clear, it appears the trial court intended to apply the
pretrial custody credits to the aggregate determinate term. Therefore, the
trial court should have awarded pretrial custody credits on all the counts
comprising the determinate term (counts 2, 5, 6, 7, 8, 9, & 10). Conversely,
having sentenced the indeterminate terms consecutively, the trial court erred
under section 2900.5(b) in awarding any pretrial custody credits on the
counts comprising the indeterminate terms (counts 1, 3, and 4).
We will therefore direct the trial court to amend the sentencing minute
order and abstracts of judgment to award 2,209 days of presentence custody
credits on counts 2, 5, 6, 7, 8, 9, and 10 (§ 2900.5(a)) and zero days of
presentence custody credits on counts 1, 3, and 4 (§ 2900.5(b)).
28
D. Abstract of Judgment
Li asserts that the abstract of judgment incorrectly describes the jury’s
true findings under section 190.2(d) and 667.61 as sentencing
“enhancements.” He requests that they be stricken from section 2 of the
abstract of judgment for his indeterminate sentences. The Attorney General
agrees, as do we.
The jury’s true findings pursuant to sections 190.2(d) and 667.61 are
penalty provisions that exposed Li to greater punishment than would be
authorized by a verdict on the underlying offense alone;13 they were not
sentencing enhancements. (See People v. Boswell (2016) 4 Cal.App.5th 55, 60
[section 190.2]; People v. Acosta (2002) 29 Cal.4th 105, 117 [section 667.61].)
They should not be so described in the abstract of judgment. We will direct
the trial court to delete the entries under “enhancements” in part 2 of Li’s
indeterminate abstract of judgment.
III. DISPOSITION
The judgment is affirmed. The trial court is directed to correct the
minute order for Li’s sentencing to reflect an award of 2,209 days of pretrial
custody credits on counts 2, 5, 6, 7, 8, 9, and 10, and zero days of pretrial
custody credits on counts 1, 3, and 4. The trial court is also ordered to
prepare an amended determinate felony abstract of judgment to reflect 2,209
days of pretrial custody credits. The trial court is further directed to prepare
an amended indeterminate felony abstract of judgment to reflect zero days of
pretrial custody credits and to indicate no sentencing enhancements for
counts 1, 3, and 4.
13 “A penalty provision ‘sets forth an alternate penalty for the
underlying felony itself, when the jury has determined that the defendant
has satisfied the conditions specified in the statute.’ ” (People v. Jones (2009)
47 Cal.4th 566, 576, italics omitted.)
29
The trial court is directed to send a copy of the amended abstracts of
judgment to the Department of Corrections and Rehabilitation.
30
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P. J.
____________________________________
Chung, J.
H052909
People v. Li
Judge of the Santa Clara County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.