Opinion
G061409
03-06-2024
THE PEOPLE, Plaintiff and Respondent, v. LUKE THEODORE LAMPERS, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 17NF0165 Patrick H. Donahue, Judge. Reversed and remanded for further proceedings.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
A jury convicted defendant Luke Theodore Lampers of the first degree felony murder of Douglas Navarro (Pen. Code, §§ 187, subd. (a), 189, subd. (a)) and found Lampers personally discharged a firearm causing death in the commission of the offense (§ 12022.53, subd. (d)). The jury also found true the felony-murder-kidnapping special-circumstance allegation. (§ 190.2, subd. (a)(17)(B).) The court sentenced Lampers to life imprisonment without the possibility of parole for the murder and imposed a consecutive term of 25 years to life for the firearm enhancement.
All further statutory references are to the Penal Code.
In the single count information, the prosecution charged Lampers with the malice aforethought murder of Navarro. However, at trial, the prosecution exclusively pursued a felony-murder theory, with kidnapping as the underlying felony. In discussing the instructions to be given the jury, the court noted the evidence at trial presented issues as to whether the homicide occurred during the kidnapping and whether there was a logical connection between the kidnapping and the homicide. Despite Lampers's request, the court refused to instruct the jury on the lesser included offenses of second degree murder, voluntary manslaughter based on imperfect self-defense or provocation, and the defense of self-defense.
Lampers raises an instructional issue on appeal. He argues the court committed prejudicial error by not instructing the jury on second degree murder, voluntary manslaughter based on imperfect self-defense or provocation, and self-defense. We conclude the court committed prejudicial error. We reverse the judgment and remand for a new trial.
FACTS
I.
PROSECUTION EVIDENCE
A. Background
Brianne Deese met Lampers on Christmas Eve in 2016. Deese used heroin daily and methamphetamine, and she did not have her own place to live. She liked Lampers when she met him. After meeting him, she spent the night at his apartment and stayed there for a little more than a week.
During their cohabitation, Lampers supplied Deese with heroin, but he became possessive and controlling. One night after a fight, Deese said she was going to leave. Lampers put a gun to her head and told her she was not allowed to leave. The first time Lampers left her alone, Deese fled, without taking all her belongings.
Deese couch surfed for a few days, staying with various friends. During this time, Lampers repeatedly called Deese, sent her text messages, and messaged her through social media. Deese told Lampers she was afraid of him and did not want to get back together; he apologized, told her she would be safe, and pleaded with her to return. Deese asked Lampers to give her drugs and money and some of the things she had left at his apartment. Lampers met Deese on two occasions to give her money, drugs, and her belongings. The second meeting occurred on January 10, 2017, in a parking lot near the Crystal Inn motel where Deese was staying with her ex-boyfriend, Smalls, who was also giving her drugs to support her addiction. Deese did not tell Lampers where she was staying and did not want him to know because she was scared of him.
About 1:00 a.m. on January 11, 2017, Lampers spoke to M.F., who was staying at the Crystal Inn motel. Lampers told M.F. he was looking for Deese, his girlfriend, and promised to reward M.F. if M.F. called Lampers when he saw her. M.F. later saw Deese headed toward Smalls's room. M.F. informed Lampers he saw Deese at the motel but did not tell Lampers which room. M.F. also told Smalls that Deese's boyfriend was looking for her. Smalls informed Deese someone was looking for her.
Deese and Lampers exchanged text messages. Deese was upset Lampers was searching for her and because he had messaged her father through social media. Lampers repeatedly texted Deese, alternating between expressing his love for her and threatening her and her friends. In one message, he warned if she did not come back, there was going to be "drama" at the motel. Between 5:37 p.m. and 6:40 p.m. on January 11, 2017, Lampers sent Deese about nine text messages. The last one stated, "'I highly recommend you to get the fuck out of there.'"
B. Lampers Kidnaps Deese
About 6:40 p.m. on January 11, 2017, Lampers kicked in the door to Smalls's motel room. Deese was in the bathroom preparing to take a shower when Lampers entered, holding a gun. Lampers grabbed Deese by her hair and dragged her out of the motel room. He told her he was getting her away from there. Deese was screaming and pleading for him to stop and not to hurt her. Holding Deese by her hair and neck, Lampers forced Deese through the parking lot and into his car. On the way to Lampers's car, they passed Navarro; Navarro did not do anything to stop Lampers from taking Deese. Lampers locked the car's doors and drove away with Deese.
In the car, Deese was hysterical. Lampers tried to calm her down. Deese told Lampers she would calm down if he returned to the motel so she could retrieve her personal belongings, including her purse, cell phone, and drugs. She thought she might be able to get out of the car and get away from Lampers if they returned to the motel. After Deese promised to stop crying and to be calm, Lampers acquiesced. He turned around and headed back to the motel.
C. Lampers Kills Navarro
Lampers and Deese returned to the motel about 7:20 p.m. Lampers parked close to Smalls's room. Motel residents Navarro, S.K., and S.K.'s father, "Pops," were standing outside Smalls's room, trying to fix the door. They were angry Lampers damaged the door. Deese walked up to Smalls's room and tried to go inside, but S.K. blocked the door and would not let her in. Lampers was behind Deese, trying to escort her into the room so she could get her belongings and they could leave. Lampers and Deese explained she needed to get her stuff. S.K. and the others would not allow Deese to go into the room because Smalls was not there.
A heated argument ensued and continued for several minutes; Lampers and S.K. were doing most of the yelling. Navarro was also yelling at Lampers. Navarro demanded Lampers pay for the damage to the door because Navarro's mother lived and worked at the motel and he did not want it to be a problem for her. Lampers refused to pay and continued to insist they let Deese into the room so she could get her belongings and they could leave. Deese was hysterical and crying.
Eventually, S.K. asked Deese if she wanted to leave with Lampers, and Deese said, "No." Lampers told them Deese was going to go with him. S.K. permitted Deese to go into the room. After Deese went into the room, the argument about the door frame continued between Lampers and the others.
According to Deese, Navarro felt it was his responsibility to get compensation for the door frame because his mother worked at the motel. Navarro's mother came out during the argument, but Navarro told her to go back to her room became he did not want her involved. Navarro yelled at Lampers to show respect to his mother. Navarro's mother heard Lampers say he came for his girl and S.K. respond, "'Take her.'" She also heard S.K. tell Lampers something like, "'Leave the girl here'" and "'get out.'" Navarro's mother heard her son tell Lampers to leave and Lampers respond by telling Navarro to mind his own business. While Lampers and Navarro were arguing, Navarro's mother saw Lampers retrieve a gun from his waist and fire two shots; one hit Navarro. Navarro's mother did not see anything in Navarro's hands when he was shot.
Another motel resident heard people arguing by Smalls's room and went to see what was happening. Navarro and his mother were telling Lampers to leave but he was not leaving. The motel resident heard someone yell, "'He has a gun. He has a gun.'" She heard gun shots and ran inside her room.
A visitor at the motel also heard the argument and heard Lampers repeatedly say he wanted "his lady," but his lady did not want to go with him.
Deese was inside the room looking for her phone when she heard two gunshots. She did not see the shooting. Lampers came back into the room, grabbed her, put her back in the car, and drove away. She did not want to go with him but felt she had to comply.
D. After the Homicide
1. Police Investigation
When the police arrived at the motel, Navarro was on the ground, suffering from a gunshot wound to his chest, which led to his death. The police found a power drill on the ground next to Navarro's body. The driver's door of Navarro's car was open, as well as the trunk.
The door frame to Smalls's room was damaged, as well as the bathroom door. In the bathroom, the police saw items discarded from a purse on the bathroom floor. The appearance of the room indicated to the investigating officers there was a struggle and Deese had been taken by force.
The police department obtained silent footage from the motel's surveillance cameras, which captured most of the events that evening, and the police put together two compilation videos. The first video shows Lampers arriving at the motel, kicking in the door to Smalls's room, and taking Deese. (People's exhibit 28.) The second video shows the events after Lampers returned to the motel with Deese to obtain her belongings from the room, including the argument between Lampers, Navarro, S.K., and Pops. The video shows Pops walking away during the argument. Shortly thereafter, Navarro runs in the direction Pops went. Navarro returns and is standing in front of Lampers when Lampers shoots and kills Navarro. Lampers also shot at S.K. but did not hit her. (People's exhibit 29.)
We have reviewed both videos, as well as the defense video exhibits (M2 and M3).
2. Lampers Is on the Run With Deese
Lampers drove Deese back to his residence. Lampers's friend A.H. was there. Lampers changed his clothes and packed a couple of bags to leave town, while Deese did heroin. Deese asked if she could leave with A.H., but Lampers would not let her. Lampers said he was going on the run and she was going with him.
When Lampers and Deese left his residence, Lampers still had his gun. He drove to a couple places to get money before they spent the night at a Los Angeles motel. The next morning, Lampers told Deese he shot Navarro. The following day, after Lampers was identified in news coverage of the shooting, they left the motel and Lampers drove them to San Diego.
They stayed at a motel in San Diego for about a week. Lampers rarely left Deese's side, and when he did, it was not for long. He almost always had his gun within his reach. Deese did not attempt to leave because she was scared. Once when she told Lampers she was going to leave, Lampers became upset and threatened her, suggesting he would kill her and himself. Deese felt she had to stay.
Deese was using heroin daily while they were staying in San Diego. Lampers met C.F. at the motel and repeatedly bought drugs from him for Deese.
3. Lampers Is Arrested
On January 18, 2017, after Lampers left the motel in his car, Deese ran to C.F.'s room. She told C.F. her real name, part of the story of what happened, and said she needed to call her father immediately. C.F. gave Deese a sweatshirt to help disguise her and helped her escape on foot to a nearby abandoned building, where Deese called her father. C.F. told Deese's father where they were. Deese's father alerted the police, who were already enroute to San Diego because of an investigative lead, and coordinated a place to meet C.F. and Deese. The police found Deese and C.F. at the meeting location. Deese told the police where they had been staying and that Lampers had a gun. Shortly thereafter, an officer spotted Lampers. After a pursuit, Lampers was shot and arrested. A loaded .380 caliber firearm found at the scene of Lampers's arrest was the gun used to kill Navarro.
4. Social Media Posts
A couple of months after Lampers's arrest, Lampers's mother messaged Deese through social media. Lampers's mother said Lampers took Deese from the motel because he was trying to save her as Deese was in danger. Deese communicated with Lampers's mother to defend herself. In these communications, Deese told Lampers's mother they got into an argument with Navarro because Navarro was demanding another couple hundred dollars for the damaged door frame. Postings on social media attributed to Deese said she set up Lampers and felt bad for getting him into "this mess," but Deese testified the postings were fake.
II.
DEFENSE EVIDENCE
S.K. testified as a defense witness and opined Lampers shot Navarro in self-defense. S.K. lived at the motel with her sister and Pops. S.K. knew Smalls and was friends with Navarro. S.K. met Deese when Deese was staying at the motel with Smalls, and S.K. did drugs with Deese. Deese told S.K. she was playing Lampers for drugs.
S.K. did not see Lampers kick in the door to Smalls's room and take Deese. She saw the door afterward and attempted to close it but could not get it to close. Navarro came over and helped her with the door. S.K. and Navarro were trying to fix the door when Lampers returned with Deese.
Lampers said they wanted to get Deese's stuff out of Smalls's room. S.K. told them she was not going to let them take anything out of the room. Lampers and S.K. argued. Lampers was aggressive and adamant they were going into the room to retrieve Deese's belongings, and S.K. was steadfast in her refusal to let them into the room. During this argument, S.K. told Lampers to take his hands out of his pockets because she thought he had a gun and he was making her nervous.
Navarro was also arguing with Lampers. Once Navarro's mother was present, Navarro became angrier and the argument more heated; Navarro was upset Lampers had a gun in her presence. Navarro's mother told Lampers to leave and told Navarro to "'get him the hell out of here.'"
During the argument, Navarro pointed at his car and told Pops to go get his gun. Pops walked over to Navarro's car to look for a gun. S.K. and Navarro continued arguing with Lampers. While the group was arguing, Pops yelled back he could not find the gun. Navarro ran to his car and argued with Pops about something. The defense played a surveillance video of the motel's parking area (exhibit M3), showing an angle different than that in the prosecution's video. The defense video shows Navarro go to a parked car, move around the car's driver's side, and partially open the trunk. Navarro's actions are not fully visible due to the camera angle.
S.K. tried to deescalate the situation. At this point, Deese was inside Smalls's motel room. S.K. told Lampers Deese was not worth it. Lampers closed his car's passenger door and indicated he was leaving. Lampers and S.K. had stopped yelling at each other, and he appeared to be calming down. Lampers opened the driver's side door and was standing next to his car getting ready to leave when Navarro walked back and stood in front of him, carrying what appeared to be a gun at his waist and under his shirt. Navarro cursed Lampers, antagonized him, and said something to the effect of, "'You should have fucking left....[Y]ou should have left before. You had a chance.'"
Navarro cornered Lampers, who was backed up by a wall. Navarro was six feet, two inches tall and weighed 194 pounds. He had "'Pure Evil'" tattooed over his eyebrows and on his knuckles. Lampers and Navarro were standing about five feet apart and yelling at each other. Navarro had his hand underneath his shirt when Lampers shot him. After Navarro fell to the ground, a power drill dropped from underneath his shirt.
S.K.'s testimony was impeached with statements she made to the police the night of the shooting. When S.K. spoke to the police, she said they were just trying to protect Deese. At trial, she did not remember telling the officer she had never seen Deese before and did not know who she was. She explained she did not give the police Deese's name because she does not cooperate with the police generally. S.K. told the police that during the argument, Lampers said he wanted to get Deese's property and would pay for the damage to the door. S.K. also told the police she heard Lampers say to Deese after the shooting, "You see now bitch, now you made me murder someone for your fucking bitch ass." S.K. testified she was on drugs when she talked to the police after the incident. When confronted with her recorded statements to the police, S.K. invoked her Fifth Amendment rights.
A.H. also testified as a defense witness. She was staying with Lampers a few days before the shooting. During this time, Deese was constantly calling Lampers demanding money, heroin, and that he return her earrings. A.H. accompanied Lampers the two times he went to meet Deese to give her money and her belongings. According to A.H., Lampers went to the motel to rescue Deese because Deese had called and said she needed help as she could not pay rent and was going to be forced into prostitution.
III.
PROSECUTION'S REBUTTAL EVIDENCE
A detective interviewed A.H. after the shooting. She did not tell the detective Deese had called and asked Lampers to come get her from the motel. A.H., instead, told the detective Lampers was "unraveling" and had said he was going to get Deese.
DISCUSSION
FAILURE TO INSTRUCT THE JURY ON SECOND DEGREE MURDER, VOLUNTARY MANSLAUGHTER, AND SELF-DEFENSE
Lampers argues the court committed prejudicial error by failing to instruct the jury on the lesser included offenses of second degree murder, voluntary manslaughter based on imperfect self-defense or provocation, and on self-defense. The Attorney General counters the court properly instructed the jury only on felony murder and if there was instructional error, it was harmless. As we explain post, under the accusatory pleading test, second degree murder and voluntary manslaughter were lesser included offenses of the charged murder and substantial evidence was presented at trial that Lampers committed a lesser included offense and not felony murder. Thus, the court should have instructed the jury on the lesser included offenses and self-defense. We further conclude the error was prejudicial because it is reasonably probable Lampers would have obtained a more favorable outcome if the jury had received these instructions.
A. Background
The prosecution filed a single count information alleging Lampers killed Navarro "unlawfully and with malice aforethought" in violation of section 187, subdivision (a). The information further alleged Lampers personally discharged a firearm in the commission of the offense (§ 12022.53, subd. (d)) and alleged a kidnapping-murder special circumstance (§ 190.2, subd. (a)(17)(B)).
The defense's trial brief, filed prior to trial, signaled Lampers intended to present evidence of self-defense at trial. Two court days before jury selection, the prosecutor announced he was proceeding only on a theory of first degree felony murder and self-defense would not apply because it is not a defense to felony murder. The defense filed an opposition, asserting the prosecution had changed its theory of the case to bar Lamper's only defense. The court indicated the trial would proceed on the theory of kidnapping felony murder and the prosecution would not be permitted to make an implied malice argument "if things go south in some way." The prosecution did not amend the information to allege felony murder.
After the close of evidence, the court and counsel discussed the instructions to be given the jury. Discussing the felony-murder instructions, the court commented that one of the issues in the case was whether there was a kidnapping still going on at the time of the shooting. The court read from People v. Wilkins (2013) 56 Cal.4th 333 at page 346, which states: "'[T]he felony-murder rule requires both a causal relationship and a temporal relationship between the underlying felony and the act resulting in death.' [Citation.] The causal relationship is established by a 'logical nexus' between the felony and the homicidal act, and '[t]he temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction.'" Based on the facts presented at trial, the court believed both sides could argue in closing the issue of whether the homicidal act was part of one continuous transaction. The court indicated the defense could argue the homicide was unrelated to the kidnapping and Lampers was not engaged in the kidnapping at the time the homicide was committed.
Lampers's counsel argued the defense was entitled to instructions on the lesser included offenses of second degree murder and voluntary manslaughter because the information charged Lampers with malice murder and there was evidence supporting the defense theory the kidnapping was not one continuous transaction and the homicide occurred between two kidnappings. Lampers's counsel asserted if there was substantial evidence to argue the offense was not a felony murder, the defense was entitled to instructions on the lesser included offenses and on self-defense.
The prosecutor asserted, "the People's theory is not one or the other. It is simply felony murder. If the felony hasn't been committed, then the defendant walks. It doesn't change suddenly then to, . . . 'if the felony hasn't been committed, it becomes a second degree murder.' [¶] That's not the case. It is as the court put it . . . at the very beginning of this. This is an 'all or nothing' proposition." The prosecutor continued: "So defense counsel, I understand, has been arguing repeatedly that no, once there is an argument that the felony hasn't been committed, then it converts to another murder. That's not the People's position. That's not the People's case. And it is the People's prerogative as to which theory to proceed on. We are only proceeding strictly on a felony murder basis."
Lampers's counsel retorted that while "it is the People's prerogative on which theory to proceed on," "it is not their prerogative on which instruction should be given at the conclusion of the case." Lampers's counsel reiterated his argument the defense had presented evidence showing it was not indisputably a felony murder because Lampers was leaving and had ceased an attempt to effectuate the kidnapping when the homicide occurred and based on this evidence, the court should instruct on the lesser included offenses. He argued the jury should not be forced into this "all-or-nothing" situation.
Analyzing whether instructions on the lesser included offenses were warranted, the court stated: "[W]hen I look at this, . . . the issue in this case to me is whether . . . the murder was in the course of the kidnapping, and . . . whether there was a logical connection between the cause of death and the kidnapping. The connection between the cause of death and kidnapping must involve more than just occurrence at the same time and place. [¶] When I read the [People v.] Huynh [(2012) 212 Cal.App.4th 285] case -- and it, basically, articulates what the felony murder [rule] is. This here is felony murder." The court explained it did not think the lesser included offenses applied, but it was not certain. Continuing its analysis, the court stated, "I think the issues really deal with was this during the course of a kidnapping? Did the kidnapping end? [¶] And, two, whether there was the causal connection, whether there was a logical connection between the cause of death and the kidnapping, and that it was more than just an occurrence at the same time and place. [¶] That's what I think based on the evidence that I heard. And based on the felony murder rule. So that's my ruling on it."
The court returned to the issue the next day. The court indicated it had again read People v. Huynh, supra, 212 Cal.App.4th 285 and read People v. Valdez (2004) 32 Cal.4th 73, which discuss lesser included offense instructions in a felony-murder case. The court found them distinguishable because in those cases, there was an argument for implied malice but in Lampers's case the facts did not present an implied malice argument. The court once more stated, "I do think this case is really about whether there was a kidnapping, . . . whether the kidnapping ended."
The court instructed the jury on first degree felony murder with kidnapping as the underlying felony. The court did not instruct the jury on any other theory of murder, voluntary manslaughter, or self-defense.
B. Applicable Law
"'"'"[I]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'"'" (People v. Banks (2014) 59 Cal.4th 1113, 1159 (Banks).)
"The rule that juries must be instructed on lesser included offenses '"prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither 'harsher [n]or more lenient than the evidence merits.'"' [Citation.] Because instructing on lesser included offenses serves to increase the accuracy of verdicts, the requirement to do so applies '"even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given."'" (Banks, supra, 59 Cal.4th at pp. 1159-1160.)
"'On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.' [Citation.] 'For purposes of determining a trial court's instructional duties, we have said that "a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser."' [Citation.] When applying the accusatory pleading test, '[t]he trial court need only examine the accusatory pleading.' [Citation.] '[S]o long as the prosecution has chosen to allege a way of committing the greater offense that necessarily subsumes a lesser offense, and so long as there is substantial evidence that the defendant committed the lesser offense without also committing the greater, the trial court must instruct on the lesser included offense.'" (Banks, supra, 59 Cal.4th at p. 1160.)
C. Felony Murder, Malice Murder, Voluntary Manslaughter, and Self-Defense
Felony murder is different from malice murder and voluntary manslaughter. "The felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state." (People v. Chun (2009) 45 Cal.4th 1172, 1182.) Felony murder "requires no proof of intent or conscious disregard of life, and renders irrelevant defenses that mitigate malice such as provocation or self-defense." (People v. Price (2017) 8 Cal.App.5th 409, 429.)
"Murder with malice aforethought results in a second degree murder conviction-assuming all other elements of the offense are proven-where the defendant had an intent to kill or acted with conscious disregard that the natural and probable consequences of the act or actions were dangerous to human life." (People v. Gonzalez (2018) 5 Cal.5th 186, 197 (Gonzalez).) "Manslaughter is the unlawful killing of a human being without malice" (§ 192) and is a lesser included offense of malice murder. (People v. Steskal (2021) 11 Cal.5th 332, 345.)
"California law recognizes two circumstances where 'a finding of malice may be precluded, and the offense limited to manslaughter, even when an unlawful homicide was committed with intent to kill' [citation]: (1) when a person kills '"'in a "sudden quarrel or heat of passion" [citation], or . . . [(2) when a person] kills in "unreasonable self-defense"-the unreasonable but good faith belief in having to act in self-defense [citations].'"' [Citation.] 'These mitigating circumstances reduce an intentional, unlawful killing from murder to voluntary manslaughter "by negating the element of malice that otherwise inheres in such a homicide [citation]."'" (People v. Schuller (2023) 15 Cal.5th 237, 252.) "A defendant charged with murder is entitled to an instruction on imperfect self-defense if there is substantial evidence to support the theory." (Id. at p. 253.) The same is true for a voluntary manslaughter instruction based on a heat of passion theory. (People v. Dominguez (2021) 66 Cal.App.5th 163, 174-176.)
While self-defense is irrelevant to felony murder, it is a complete defense to malice murder. "Perfect self-defense requires that 'one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury.'" (People v. Thomas (2023) 14 Cal.5th 327, 386.)
D. Second Degree Murder and Voluntary Manslaughter Were Lesser Included Offenses of the Charged Murder
Here, the parties agree that under the accusatory pleading test, second degree murder was a lesser included offense of the charged murder. We agree with the parties. Banks, supra, 59 Cal.4th 1113 is on point. In Banks, the defendant was charged with "willfully killing [the victim] with malice aforethought," but the jury was instructed only on felony murder. (Id. at p. 1160.) On appeal, the defendant argued the court had a duty to instruct on second degree murder as a lesser included offense given the charge in the indictment. (Id. at p. 1159.) The Supreme Court agreed, explaining under the accusatory pleading test, "second degree murder was plainly a lesser included offense . . . as charged ...." (Id. at p. 1160; accord, People v. Wilson (2021) 11 Cal.5th 259, 295.)
The Supreme Court has "'declined to address the question of whether second degree murder is a lesser included offense of first degree felony murder.'" (People v. Wilson, supra, 11 Cal.5th at p. 295.).
Lampers was charged with killing Navarro with malice aforethought in violation of section 187, subdivision (a). Under the accusatory pleading test, second degree murder was a lesser included offense of the charged malice murder, and voluntary manslaughter was a lesser included offense of malice murder. Thus, the court had a duty to instruct the jury on the lesser included offenses of second degree murder and voluntary manslaughter if substantial evidence was presented to the jury to support a verdict on these offenses rather than first degree felony murder. (Banks, supra, 59 Cal.4th at p. 1160; Gonzalez, supra, 5 Cal.5th at p. 197.) We therefore turn to this issue.
E. Substantial Evidence Was Presented at Trial From Which the Jury Could Conclude the Lesser Included Offenses Were Committed
The Supreme Court has explained instructions on lesser included offenses "are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162, disapproved on other grounds in People v. Schuller, supra, 15 Cal.5th at p. 260, fn. 7.) "'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed." (Breverman, at p. 162.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense." (Ibid.) "'"Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused."'" (People v. Steskal, supra, 11 Cal.5th at p. 345; accord, People v. Smith (2021) 70 Cal.App.5th 298, 308.)
The prosecution proceeded solely on its felony murder theory, presenting evidence Lampers kidnapped Deese and killed Navarro during the commission of the kidnapping. The court instructed the jury on felony murder in conformity with the prosecution's theory. The jury was instructed Lampers was guilty of first degree felony murder if the prosecution proved: (1) Lampers committed or attempted to commit a kidnapping; (2) he intended to commit a kidnapping; and (3) while committing or attempting to commit a kidnapping, Lampers caused the death of another person. (CALCRIM No. 540A.) The first step in our analysis is whether the evidence at trial raised a question as to whether all of these elements were present.
There was undisputed evidence Lampers intentionally kidnapped Deese and undisputed evidence Lampers killed Navarro. The disputed issue was whether Lampers killed Navarro while committing the kidnapping.
The court modified the felony murder instruction (CALCRIM No. 540A) to include the following language: "There must be a logical connection between the cause of death and the kidnapping. The connection between the cause of death and kidnapping must involve more than just their occurrence at the same time and place." At the prosecution's request, the court also added: "The crime of kidnapping continues until the defendant releases the victim and the defendant has reached a place of temporary safety." As the trial court recognized when discussing whether lesser included instructions were warranted, the facts at trial presented issues as to whether there was a logical connection between the homicide and the kidnapping and whether the homicide occurred in the course of the kidnapping, i.e., whether the kidnapping was one continuous kidnapping or whether the homicide occurred after first kidnapping had ended but before the second kidnapping started.
There was strong evidence Lampers committed one continuous kidnapping and shot Navarro during it. Lampers took Deese by force and removed her from the motel. He returned her to the motel so she could get her belongings, and after shooting Navarro, Lampers made Deese get back in the car and leave with him.
But there was also evidence to support the theory Lampers committed two kidnappings and shot Navarro after the first kidnapping ended but before the second began. When Lampers shot Navarro, Deese was in the motel room and no longer under Lampers's control. Lampers had closed the passenger door to his car, which Deese left open when she exited. He had returned to his car and opened the driver's side door as if to leave. The jury could infer Lampers had released Deese and intended to leave without her. S.K. testified Lampers had calmed down at this point and was getting ready to leave. No one was preventing him from leaving; instead, he was being encouraged to leave without Deese. As the trial court recognized, it was arguable the first kidnapping had ended and Lampers had reached a place of temporary safety when he shot Navarro. Thus, there was not indisputable evidence the kidnapping was still in progress when Lampers shot Navarro.
There was also evidence disabling the nexus between Deese's kidnapping and the shooting of Navarro. When Lampers and Deese returned to the motel, they were confronted by S.K., Navarro, and Pops, who were trying to fix the door Lampers had damaged. Lampers argued with Navarro, S.K., and Pops, but not about the kidnapping. They argued about the damaged door and because S.K. would not allow Deese back into the room to retrieve her belongings. After Deese was permitted to reenter the motel room, the argument continued. Navarro was upset about the damaged door, not about the kidnapping. He had watched Lampers forcefully take Deese earlier and did not intervene. Therefore, the evidence raised questions as to whether all of the elements of felony murder had been proven.
The second step in our analysis is whether there was substantial evidence to support the lesser included instructions of second degree murder and voluntary manslaughter. There was substantial evidence Lampers killed Navarro with malice aforethought (second degree murder) as he shot Navarro in the chest while they were standing only a few feet apart. There was also substantial evidence from which the jury could have concluded Lampers committed voluntary manslaughter based on imperfect self-defense. A claim of imperfect self-defense "'arises when a defendant acts in the actual but unreasonable belief that he is in imminent danger of death or great bodily injury.'" (People v. Steskal, supra, 11 Cal.5th at p. 345.) The motel's surveillance videos and, if believed by the jury, S.K.'s testimony presented substantial evidence of imperfect self-defense. S.K. testified that during the argument, Navarro told Pops to go get Navarro's gun. The video shows Pops walking away in the direction of Navarro's car. S.K. testified Pops yelled back he could not find Navarro's gun. In the video, Navarro is seen running toward his car. Navarro returns from his car as Lampers is standing next to the open door of his own car. S.K. testified when Navarro walked up to Lampers, Navarro had something concealed underneath his shirt, acted like he had a gun, and was making antagonizing statements to Lampers. Lampers stepped to the side and back, ending up with a wall behind and next to him. Navarro was standing a few feet in front of him when Lampers shot him. A power drill was later found next to Navarro's body. From this evidence, a reasonable jury could conclude Lampers had an actual but unreasonable belief he was in imminent danger of death or great bodily injury when he shot Navarro.
Because we conclude there was substantial evidence to support instructing the jury on voluntary manslaughter premised on imperfect self-defense and further conclude this error was prejudicial, as we explain post, we do not discuss whether the evidence also supported instructing the jury on voluntary manslaughter based on provocation.
There was enough evidence, viewed in the light favorable to the defense, from which a reasonable jury could conclude Lampers was guilty of the lesser offenses of second degree murder or voluntary manslaughter, but not the greater of felony murder. (See People v. Campbell (2015) 233 Cal.App.4th 148, 164-165 [court prejudicially erred by failing to instruct on second degree murder and voluntary manslaughter where evidence was sufficient to warrant lesser included instructions].) Therefore, the court erred by failing to instruct on second degree murder and voluntary manslaughter.
For similar reasons, the court erred by failing to instruct on self-defense. The difference between perfect self-defense and voluntary manslaughter premised on imperfect self-defense is whether the defendant reasonably believed it was necessary to defend "'oneself from imminent danger of death or great bodily injury.'" (People v. Thomas, supra, 14 Cal.5th at p. 386.) Here, the evidence before the jury presented the issue of whether Lampers reasonably believed he need to use deadly force. Thus, self-defense instructions would have been warranted had the jury been instructed on malice murder.
F. The Error Was Prejudicial
In Gonzalez, supra, 5 Cal.5th 186, the Supreme Court discussed the harmless error analysis in a situation similar to that before us. There, the defendants were convicted of first degree felony murder and the jury found true the special circumstance allegation the murder was committed during a robbery. (Id. at p. 194.) On appeal, the defendants claimed they were entitled to instructions on the lesser included offenses of second degree malice murder, voluntary manslaughter, involuntary manslaughter, and the defenses of self-defense and accident. (Id. at p. 195.) The Supreme Court "granted review to resolve whether the jury's finding of a felony-murder special circumstance renders harmless a trial court's failure to instruct on murder with malice aforethought, lesser included offenses of murder with malice aforethought, and defenses to murder with malice aforethought." (Ibid.)
The Supreme Court explained in Gonzalez the failure to instruct the jury on a lesser included offense is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818 at pages 836-837, which requires the defendant to demonstrate "it is '"reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."'" (Gonzalez, supra, 5 Cal.5th at p. 195.) The Supreme Court rejected the position that evidence sufficient to warrant an instruction on a lesser included offense necessarily amounts to evidence sufficient to create a reasonable probability of a different outcome had the lesser included instructions been given. (Id. at pp. 200-201; Banks, supra, 59 Cal.4th at p. 1161.) And it also rejected the position a jury's true finding on a felony-murder special circumstance necessarily renders the error harmless. The Supreme Court relied on its prior case law that explained: "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Lewis (2001) 25 Cal.4th 610, 646; Gonzalez, supra, 5 Cal.5th at p. 200.)
Analyzing the case before it, the Supreme Court noted the instructions given the jury on the primary elements of felony murder and the robbery-murder special circumstance were similar, "as both required the jury to find that a killing occurred during the commission of a robbery." (Gonzalez, supra, 5 Cal.5th at p. 202, fn. omitted.) "But the special circumstance instructions also required findings that were not necessary to the felony-murder conviction." (Ibid.) Thus, "when the jury . . . found true the robbery-murder special circumstance, it necessarily made additional findings beyond those necessary for felony murder . . ." and "these additional findings were incongruous with the jury believing defendants' nonrobbery theories of the case." (Id. at p. 192.) The Supreme Court concluded the special circumstance finding, therefore, could be relied upon to find the instructional error harmless because the finding demonstrated it was not reasonably probable the jury would have reached a more favorable outcome in the absence of the error. (Id. at pp. 200, 209.)
However, in Gonzalez, the Supreme Court stated it was expressing "no opinion as to whether this conclusion would apply in cases where the special circumstance finding does not require findings in addition to those necessary for a felonymurder conviction, or where those extra factual findings are foregone conclusions based on the record evidence." (Gonzalez, supra, 5 Cal.5th at p. 206, fn. 6.) Here, we are faced with the situation not addressed in Gonzalez. The special circumstance finding in Lampers's case did not require the jury to make findings additional to those for its felony-murder verdict. Instead, the felony-murder instruction had the additional requirements. In the felony-murder instruction, the jury was informed: "There must be a logical connection between the cause of death and the kidnapping" and "The crime of kidnapping continues until the defendant releases the victim and the defendant has reached a place of temporary safety." These requirements were not part of the felonymurder-kidnapping special-circumstance instruction. The felony-murder-kidnapping special-circumstance instruction required the jury to find: (1) Lampers committed a kidnapping; (2) he intended to commit a kidnapping; and (3) he committed an act that caused the death of another person. (CALCRIM No. 730 [§ 190.2, subd. (a)(17)].) The special circumstance instruction further advised the jury, "[t]he defendant must have intended to commit the felony of kidnapping before or at the time of the act causing the death." The special circumstance instruction did not require the jury to find the kidnapping was ongoing at the time of the homicide.
When considering the value of a special circumstance finding in a harmless error analysis, the question is whether a reviewing court can say that by returning a true finding on the special circumstance allegation the jury "therefore necessarily rejected the factual theory on which the defendant's argument for a second degree murder instruction rests." (People v. Lancaster (2007) 41 Cal.4th 50, 85.) Here, we cannot say the jury's true finding on the kidnapping-murder special circumstance demonstrates the jury necessarily rejected Lampers's factual theory that he was not engaged in a kidnapping at the time of the homicide.
We find instructive People v. Campbell, supra, 233 Cal.App.4th 148, in which the Court of Appeal held the trial court's failure to instruct on the lesser included offenses of second degree murder and voluntary manslaughter was prejudicial error. (Id. at pp. 165-174.) In Campbell, the special circumstance finding applied to a defendant who killed an individual during a robbery of a drug dealer. There was conflicting testimony as to whether he fired his gun to aid the robbery or as an act of self-defense. (Id. at pp. 163-164.) The Court of Appeal concluded the special circumstance finding did not inspire confidence because "the decision to convict the defendant of [felony] murder essentially compel[led jurors] . . . to further find the special circumstance allegation true." (Id. at p. 168.)
In Gonzalez, the Supreme Court expressed "no opinion on whether Campbell was correctly decided." (Gonzalez, supra, 5 Cal.5th at p. 207, fn. 6.).
Lampers asserts "a true finding on the kidnapping-murder special circumstance would necessarily follow a conviction of felony murder, the only theory on which the jury could have convicted" and therefore the finding of the special circumstance allegation provided no independent confirmation of the jury's felonymurder verdict. We agree with Lampers, "[o]nce the jury returned a guilty verdict on felony murder, a true finding on the kidnapping-murder special circumstance was a foregone conclusion." Thus, we are not persuaded by the special circumstance finding that the failure to instruct on second degree murder and voluntary manslaughter was harmless.
In Gonzalez, the Supreme Court explained: "The prejudice arising from the failure to instruct on lesser included offenses and defenses creates a specific kind of risk-that the jury, faced with an all-or-nothing choice between first degree murder or acquittal, convicted defendants of first degree felony murder even though the prosecution failed to satisfy its burden." (Gonzalez, supra, 5 Cal.5th at p. 191; see also People v. Vasquez (2018) 30 Cal.App.5th 786, 798-802 [concluding failure to instruct on lesser included offense was prejudicial error].) Such a risk was conspicuously present here. On more than one occasion during the trial, the jury was shown the disturbing video in which Lampers shot and killed Navarro. The jury was given "an all-or-nothing choice" of convicting Lampers of felony murder or finding him not guilty of any crimes, as the prosecution had not separately charged kidnapping.
Based on the circumstances in this case, we conclude it is reasonably probable Lampers would have achieved a better result if the jury had been instructed on second degree malice murder, its lesser included offenses, and defenses. Accordingly, Lampers's conviction is reversed.
DISPOSITION
The judgment is reversed, and the matter remanded for retrial.
WE CONCUR: MOORE, ACTING P. J., DELANEY, J.