Opinion
D075950
03-27-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDREW JOHN MUIR, JR., Defendant and Appellant.
Sharon G. Wrubel, under appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael Pulos, Teresa Torreblanca and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. INF1501584) APPEAL from a judgment of the Superior Court of Riverside, Richard A. Erwood, Judge. Affirmed. Sharon G. Wrubel, under appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael Pulos, Teresa Torreblanca and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Andrew John Muir, Jr. of the first degree murder (Pen. Code, § 187, subd. (a); count 1) and kidnapping (§ 207, subd. (a); count 2) of J.C., as well as arson of property (§ 451, subd. (d); count 3). As to count 1, the jury found true allegations that Muir personally used a deadly or dangerous weapon, "to wit, a knife and a bat" (§ 12022, subd. (b)(1)) and committed J.C.'s murder while engaged in a kidnapping, a special circumstance (§ 190.2, subd. (a)(17)(B)). In a bifurcated proceeding, the trial court found true allegations that Muir suffered a serious felony prior conviction (§ 667, subd. (a)) and a strike prior conviction (§ 667, subds. (c), (e)(1)). The court sentenced Muir to seven years four months plus life without the possibility of parole, consisting of life without the possibility of parole for the special-circumstance murder conviction plus a consecutive one-year term for the deadly weapon enhancement on count 1, and one year four months (one third the two-year midterm, doubled) for the count 3 arson conviction plus a consecutive five-year term for the serious felony prior conviction. It stayed under section 654 a 10-year sentence (five years, doubled under the "Three Strikes" law) on the count 2 kidnapping conviction.
Undesignated statutory references are to the Penal Code.
Muir contends: (1) the evidence was insufficient to convict him of felony murder—the only theory of first degree murder presented to the jury—because insufficient evidence demonstrated he caused J.C.'s death during the kidnapping; (2) the trial court prejudicially erred by failing to instruct the jury sua sponte on the meaning of causation with regard to felony murder; and (3) there was insufficient evidence that he personally used a deadly or dangerous weapon, requiring reversal of the weapons enhancement on count 1. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of August 14, 2015, law enforcement officers found J.C.'s handcuffed and partially burned body in the rear cargo area of his parent's vehicle, a Toyota RAV4, that had been set on fire in the Coachella desert. J.C. had recently relapsed into heroin use, but told a friend and his boss he was getting "straight" again.
The previous day at about 3:00 p.m., J.R. was at his cousin's house in Indio when Muir (who J.R. knew as "Frost") drove up in the SUV later found burned in Coachella. J.R. saw a Caucasian individual in the car's passenger seat. Muir spoke with J.R.'s cousin for about 15 minutes while the other individual remained in the car, then Muir drove away. At around 10:00 p.m., J.R. and his eight-year-old son returned to a house on Miles Street where J.R. lived with three others including Ceferino Lara, known as "Gato." Lara had recently been shot in the knee and upper thigh and could not walk well; he sometimes used crutches to walk. When J.R. approached the house, he saw the same SUV he had seen earlier, but this time it was backed up to the front door; Muir was closing the trunk and heading into the driver's seat. As J.R.'s son tried to move toward the front door, Muir said, "Get the fuck out of here." Muir then sped away in the car, and J.R. saw a person's head pop up in the car's rear window. J.R. did not want his son in the house, so he took him to his godfather's house, then returned to the Miles Street house at about midnight, where he found Lara cleaning the entrance with a mop and bucket of water. Lara was not standing up. There was fresh paint on the wall. An aluminum bat that had long been leaning by a couch was missing.
The day after police found J.C.'s body, Muir gave J.C.'s credit card to an individual who used it to make a purchase at a fast food restaurant and gas station. Another effort to use the card was declined.
A few days later J.R. came across Muir again. In the interim, J.R. had seen a news story about a burnt vehicle that looked like the SUV Muir was driving the previous night. J.R. overheard Muir tell J.R.'s cousin something along the lines of, "I got that guy, . . . he was acting sheisty" and Muir "hit him with a bat or something like that" so he was taking him to the hospital. According to J.R., Muir related that he (Muir) kept saying, " 'Man, stay down, stay down,' " and " 'I'm gonna take you to the hospital, we're going to the hospital.' " Muir said, "And then all of a sudden . . . he was dead." J.R. overheard Muir say he took the car to Coachella and burned it.
Police searching the Miles house in early September 2015 found a crowbar and aluminum bat in one of the bedrooms. Testing of what appeared to be possible bloodstains confirmed that J.C.'s DNA was on the ceiling and a wall behind an entertainment center at the house. Acting on a lead, officers arrested Muir who they found hiding behind a dresser in a trailer at a mobile home park located a few miles away from the burned RAV4's location. An investigator found a folding pocketknife in another room of the trailer, but testing revealed no blood on it. J.R. testified that the knife was probably his as he and Lara had pocketknives in the Miles house. An individual in the trailer told another investigator that Muir was acting paranoid and trying to get out of town because police were looking for him.
A pathologist later determined J.C.'s death was caused by an approximately four-inch-deep stab wound that went through his rib and lower lung. According to the pathologist, the folding knife found in the trailer could have been the weapon used to stab J.C. Based on the type of wound, it would have taken a couple of minutes to up to an hour for J.C. to succumb to the injury; it was possible he could have been saved if treated immediately or within a certain period of time. Other than burn injuries, J.C. had no other trauma to his body. J.C. was dead by the time the fire took place. He had alcohol and drugs in his system, including methamphetamine.
In closing arguments, the prosecutor acknowledged he had not produced any witnesses to what happened inside the Miles house and had no evidence Muir stabbed J.C. He argued it was reasonable to infer J.C. was attacked there and was still alive when Muir kidnapped him. He argued that if the jury felt he proved the kidnapping, then it could proceed to the theory of felony murder, explaining: "What do I have to prove on this? That [Muir] committed the kidnapping, that he intended to commit the kidnapping, and that when committing the kidnapping, it caused the death of another person." The prosecutor argued: "So if [Muir] kidnapped [J.C.] and [J.C.] was alive and he died during that kidnapping, regardless of what the triggering event was, he was alive and he dies. That's felony murder. And that is a person can be guilty of felony murder if the killing was unintentional, accidental, or negligent." He also argued that Muir was guilty of the special circumstance because Muir "shut the back door [of the car] while [J.C.] was handcuffed and alive. He hit [J.C.] with a baseball bat. This was not the fatal cause. . . . Thus, not the fact of the act causing death." According to the prosecutor, though the evidence suggested Muir probably did not act alone, Lara could not have done the crime without Muir's assistance, and Muir was responsible because the act causing J.C.'s death was Muir "driving an injured [J.C.] against his will where he died in the vehicle. [¶] No soot in the lungs suggested what? When he was burned, he was dead. The act that caused the death was driving around and not getting the medical attention."
DISCUSSION
I. Sufficiency of Evidence of Felony Murder
Muir contends the evidence is insufficient as a matter of law to support his conviction for felony murder. Specifically, he argues the sole prosecution theory—that Muir caused J.C.'s death by driving him around without getting him medical attention—was based only on "pure guesswork, conjecture and speculation" that J.C. might have lived if Muir had taken him to a hospital. Muir argues the pathologist's testimony "did not provide non-speculative evidence that [J.C.] would have lived had appellant driven him to obtain medical attention during the kidnapping. Too little is known about the direness of [J.C.'s] condition when he was placed in the car and kidnapped. It is not known whether he was even put in the car right after he was stabbed, and the most [the pathologist] could say was that after [J.C.] was stabbed, he could have lived minutes. The timing is important, and it is unknown. One could speculate about any number of scenarios and possibilities, but a reasonable inference must be based on solid evidence." Muir maintains that because the evidence does not support a reasonable inference his actions caused J.C.'s death during the course of the kidnapping, this court should reverse his murder conviction.
The People respond that evidence J.C. was alive with a potentially-survivable stab wound when Muir put him in the car permits a conclusion that Muir's conduct was a substantial contributing cause of J.C.'s death. They argue a conviction for first degree felony murder does not require proof of a strict causal relationship between the felony and the homicide; it is sufficient that the defendant's act is a substantial factor contributing to the result rather than an insignificant or merely theoretical factor. The People argue the jury could have reasonably concluded Muir either stabbed J.C. during the kidnapping (even though the prosecutor did not argue that theory), or, comparing the circumstances to People v. Stamp (1969) 2 Cal.App.3d 203, that his driving J.C. while injured was a substantial factor in his death since J.C. could have lived up to 60 minutes after he was stabbed. They maintain evidence that. J.C.'s wound was not instantly fatal and that he might have lived with treatment was enough for the jury to make the factual call on causation. A. Review Standard
When this court considers a challenge to the sufficiency of the evidence to support a conviction, we do not determine the facts ourselves. (People v. Brown (2014) 59 Cal.4th 86, 106.) Rather, " ' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Beck (2019) 8 Cal.5th 548, 626.) We do not reweigh or resolve conflicts in the evidence or reevaluate the credibility of witnesses. (See People v. Brown, at p. 106.) " 'If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' " (People v. Rivera (2019) 7 Cal.5th 306, 331; Brown, at p. 106.) "The standard is the same whether the prosecution relies on direct or circumstantial evidence." (Rivera, at p. 331.) B. Legal Principles
Under recently amended section 189, all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies, including kidnapping, is still murder of the first degree. (§ 189.) The felony-murder rule "covers 'a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident . . . .' " (People v. Billa (2003) 31 Cal.4th 1064, 1068.) The rule—at least as applicable to a sole perpetrator—does not require that the killing be planned as part of the commission of the felony, nor is the felony murder doctrine limited to deaths that are foreseeable. (People v. Stamp, supra, 2 Cal.App.3d at pp. 209, 210.) It simply requires the People to prove defendant's specific intent to commit the underlying felony; it does not require proof of intent to kill. (People v. Ghobrial (2018) 5 Cal.5th 250, 279; People v. Cavitt (2004) 33 Cal.4th 187, 197; People v. Andreasen (2013) 214 Cal.App.4th 70, 81.) " 'Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning—if a death results from his commission of that felony it will be first degree murder, regardless of the circumstances.' " (People v. Cavitt, at p. 197.) A conviction of first degree felony murder for a sole perpetrator does not require proof of a strict causal relationship between the underlying felony and the homicide; it requires only some logical connection or nexus between the felony and the act resulting in death and a temporal relationship between them by proof the killing and felony are part of one continuous transaction. (People v. Wilkins (2013) 56 Cal.4th 333, 346-347 [applying logical nexus and temporal relationship rules from Cavitt to case involving a sole perpetrator]; Cavitt, at pp. 199, 201, 203; People v. Huynh (2012) 212 Cal.App.4th 285, 307; People v. Portillo (2003) 107 Cal.App.4th 834, 843.)
The People proceeded on the theory that Muir's conduct caused J.C.'s death; that Muir was J.C.'s actual killer even if he did not act alone. Accordingly, Muir does not invoke the provisions of Senate Bill No. 1437, which " '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 underlying felony who acted with reckless indifference to human life.' " (People v. Larios (2019) 42 Cal.App.5th 956, Z964, review granted Feb. 26, 2020, S259983, quoting Stats. 2018, ch. 1015, § 1, subd. (f); see also People v. Martinez (2019) 31 Cal.App.5th 719, 723.) The bill did so by substantively amending sections 188 and 189. (Martinez, at pp. 723-724.) The legal principles relevant to felony murder remain unchanged with respect to individuals like Muir who are the actual killers or major participants in the underlying felony who act with reckless indifference to human life.
The felony-murder rule's purpose " 'is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing . . . . , whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony.' [Citation.] To effectuate this purpose, when a killing occurs during the defendant's commission or attempted commission of one of the felonies listed in the felony-murder statute, the offense of first degree murder is committed without 'the need to plumb the parties' peculiar intent with respect to a killing committed during the perpetration of the felony.' " (People v. Andreasen, supra, 214 Cal.App.4th at pp. 80-81; see also People v. Billa, 31 Cal.4th at p. 1070.)
In People v. Stamp, defendants robbed a business whose 60-year-old owner had a history of heart disease. (People v. Stamp, supra, 2 Cal.App.3d at pp. 207-208.) The defendants, who were armed with a gun and blackjack, entered from the rear and ordered the employees to go to the front of the premises, where two secretaries were working. (Id. at p. 208.) After one of the defendants went into the owner's office, the owner emerged "looking very frightened and pale . . . [and] in a 'kind of hurry.' " (Ibid.) The robbery victims were told to lie down on the floor and remain there for five minutes so nobody would get hurt while the robbers took money and fled out the back door. (Ibid.) After they left, the owner became "short of breath, sucking air, and pounding and rubbing his chest. As he walked down the hall, in an unsteady manner, still breathing hard and rubbing his chest, he said he was having trouble 'keeping the pounding down inside' and that his heart was 'pumping too fast for him.' A few minutes later, although still looking very upset, shaking, wiping his forehead and rubbing his chest, he was able to walk in a steady manner into an employee's office. When the police arrived, almost immediately thereafter, he told them he was not feeling very well and that he had a pain in his chest. About two minutes later, which was 15 or 20 minutes after the robbery had occurred, he collapsed on the floor. At 11:25 he was pronounced dead on arrival at the hospital. The coroner's report listed the immediate cause of death as heart attack." (Ibid.)
During the hours before the robbery the owner had appeared to be in normal health, but he was an obese man who did not take care of his heart and due to his business was under a great deal of pressure. (People v. Stamp, supra, 2 Cal.App.3d at p. 208.) Doctors testified that although he had an advanced case of atherosclerosis, a progressive and ultimately fatal disease, there must have been some immediate upset to his system that precipitated the attack. (Ibid.) They concluded that the fright induced by the robbery was too much of a shock to the owner's system; but for the robbery, he would not have had a fatal seizure at that time. (Ibid.) An opposing expert testified that it could not be said with reasonable medical certainty that fright could ever be fatal. (Ibid.)
On appeal of their felony-murder convictions, defendants argued the evidence was insufficient to prove that the robbery caused the owner's death, and that the felony-murder rule was entirely inapplicable. (People v. Stamp, supra, 2 Cal.App.3d at p. 209.) The Court of Appeal rejected the arguments. It held the jury could have reasonably deduced from the evidence that the robbery caused the owner's death: "[T]here was substantial evidence of the robbery itself, that appellants were the robbers, and that but for the robbery the victim would not have experienced the fright which brought on the fatal heart attack." (Ibid.) It explained that expert medical testimony couched in terms of a reasonable medical certainty was valid on the point, and the trial court did not err by permitting the expert medical witnesses to testify about the cause of the victim's heart attack. (Id. at p. 209, fn. 2.) The appellate court further held that the felony-murder rule applied to the circumstances, explaining, "There is no requirement that the killing occur, 'while committing' or 'while engaged in' the felony, or that the killing be 'a part of' the felony, other than that the few acts be a part of one continuous transaction." (Id. at p. 210.)
The appellate court in People v. Stamp held: "[A] felon is held strictly liable for all killings committed by him . . . in the course of the felony. [Citation.] As long as the homicide is the direct causal result of the robbery the felony-murder rule applies whether or not the death was a natural or probable consequence of the robbery. So long as a victim's predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition, and the robber's ignorance of it, in no way destroys the robber's criminal responsibility for the death. [Citations.] So long as life is shortened as a result of the felonious act, it does not matter that the victim might have died soon anyway. [Citation.] In this respect, the robber takes his victim as he finds him." (People v. Stamp, supra, 2 Cal.App.3d at pp. 210-211.) C. Analysis
Despite recent changes in the felony-murder rule (see footnote 3, ante), the court's observations remain applicable to a felon who is the actual killer; we limit Stamp's holding to those circumstances.
Though there is no direct evidence that Muir actually stabbed J.C., there is some circumstantial evidence—the presence of Muir and J.C. at the Miles house on the night J.C. was kidnapped, evidence of J.C.'s blood inside the house, and the discovery of a pocket knife consistent with the murder weapon in the trailer where Muir was found—from which the jury could reasonably infer Muir stabbed J.C. But even if that were not the case, the People presented evidence that Muir was engaged in the commission of J.C.'s kidnapping when he put J.C. in the car and drove it away from the Miles house. The evidence showed J.C. was still alive at that time, having popped his head up from the rear of the RAV4 and given Muir admitted telling J.C. to "stay down" during the drive. The jury could reasonably infer from evidence of J.C.'s DNA in the Miles house that J.C. was stabbed or severely injured there before he was placed in the vehicle. Based both on evidence of Muir's admission to J.R.'s cousin, and on the medical evidence that J.C. was dead by the time the car was set on fire, the jury could further infer J.C. died at some point during the course of the kidnapping; indeed the medical evidence from the pathologist was that J.C. could have lived "some amount of minutes" and even up to one hour after his stabbing and it was possible he could have been saved if treated immediately or "within a certain amount of time."
The jury was entitled to disregard the prosecutor's argument to the contrary as they were instructed that the remarks of lawyers in opening and closing arguments are not evidence. And the fact the People had no physical evidence to tie Muir to the Miles house or the burned vehicle goes to the weight of the evidence, outside this court's purview on a substantial evidence review. (People v. Brown, supra, 59 Cal.4th at p. 106.)
The prosecutor inquired of the pathologist as follows: "[Prosecutor:] . . . [L]et me ask you this. The condition that the body was in, did that prohibit you in making a more definite determination as to how long this wound—or what type of length of time it would have caused this individual to die after this wound? [¶] [Pathologist:] Not really, no. [¶] [Prosecutor:] Why is that? [¶] [Pathologist:] Even in the condition that the body was in, this type of wound would still be some amount of minutes for death. [¶] [Prosecutor:] So is the stabbing to the lung considered an instant wound, an instant death wound? [¶] [Pathologist:] No. [¶] [Prosecutor:] Why is that again? [¶] [Pathologist:] Injury to the lung would cause bleeding or hemorrhaging as well as difficulty in breathing, and these kinds of injuries are not immediate causes of death. It will take some amount of minutes to succumb to this injury. [¶] [Prosecutor:] If treated immediately, could this—could someone be saved from a wound like this? [¶] [Pathologist:] It is possible. [¶] [Prosecutor:] If treated within a certain amount of time, could someone be saved from a wound like this? [¶] [Pathologist:] It's possible."
This evidence demonstrates both a logical nexus between the kidnapping and J.C.'s homicide and establishes that J.C.'s death and the felony were parts of "one continuous transaction." (People v. Cavitt, supra, 33 Cal.4th at pp. 199, 201, 203; People v. Wilkins, supra, 56 Cal.4th at pp. 346-347; People v. Huynh, supra, 212 Cal.App.4th at p. 307.) Under the principles in People v. Stamp, supra, 2 Cal.App.3d 203, we may uphold the felony murder conviction if J.C.'s life was shortened because of Muir's kidnapping. The difference between Stamp and the present case is that J.C.'s "predisposing physical condition" was brought about by a stabbing. In Stamp, the defendants were unaware of the victim's preexisting heart condition, but here, the jury could infer Muir was aware of J.C.'s injured condition. As in Stamp, "it does not matter that [J.C.] might have died soon anyway" (id. at p. 211) because under the law, Muir took J.C. "as he [found] him." (Ibid.) Nor did it matter whether J.C.'s death was deliberate, unforeseeable, or the result of " 'reckless behavior, . . . ordinary negligence, or pure accident.' " (People v. Billa, supra, 31 Cal.4th at p. 1068; Stamp, supra, 2 Cal.App.3d at pp. 209, 210; see Huynh, at p. 306.) Whether Muir or some other individual actually stabbed J.C., it was not wholly speculation for the jury to conclude that Muir's inaction during the course of his kidnapping a seriously injured J.C.—whether it be Muir's failure to call 911, take J.C. immediately for medical treatment, or seek some other assistance to help save J.C.'s life—was a substantial factor in bringing about J.C.'s death.
Distinguishing this case from People v. Brooks (2017) 3 Cal.5th 1, in which the court upheld a felony murder conviction of a defendant who kidnapped an unconscious victim then set her car on fire while she was still alive inside (id. at pp. 62, 66), Muir focuses on the absence of nonspeculative evidence he did an "act" that caused J.C.'s death after J.C. was stabbed and kidnapped. Muir claims the evidence shows only a mere possibility that J.C. might have lived had Muir taken him for medical care. Muir also questions the sufficiency and credibility of the pathologist's testimony about how long it would take for such a stab wound to become fatal as speculative and "an obvious attempt to bolster the prosecution's case." According to Muir, though there was evidence J.C. died after he was kidnapped, "[g]iven the seriousness of the stabbing and [the pathologist's] testimony that [J.C.] could have died within a few minutes afterward, it was only a guess that [he] committed an act causing [J.C.'s] death during the kidnapping" and "[i]t was equally possible that [J.C.] lived only a few minutes after being placed in the car."
Under the review standard summarized above, we will not reassess the credibility of the pathologist's conclusion that the stabbing to J.C.'s lung was not an instantaneous death wound but "would [take] some amount of minutes [for death to occur]." (People v. Brown, supra, 59 Cal.4th at p. 106.) The pathologist's testimony on that point was not speculation. Even assuming the jury could draw only one inference from the evidence—that J.C. lived just a matter of minutes into the kidnapping after being placed in the car—that inference is nevertheless sufficient to support the logical nexus and continuous transaction elements needed for a felony murder conviction of a sole perpetrator such as Muir. We see no guesswork or conjecture for the jury to infer from the medical evidence that in addition to the stabbing, Muir's conduct in throwing a severely injured J.C. in the vehicle and driving without seeking medical assistance for him—all of which took place during Muir's act of kidnapping—was a substantial factor in J.C.'s demise.
II. Claim of Instructional Error on Causation
The court instructed the jury as to both malice aforethought murder with CALCRIM No. 520 and felony murder pursuant to CALCRIM No. 540A. The court read CALCRIM No. 540A as follows:
The court jumbled the wording somewhat as it read CALCRIM No. 520 to the jury. The reporter's transcript reads in part: "Malice aforethought does not require hatred or ill will towards the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation of act at any particular period of time [sic], and that causes death if the death is a true act, natural and probable consequence of the act, and definitely would not have happened without the act [sic]. A natural probable consequence is one that a reasonable person would know is likely to if [sic] nothing unusual intervenes. [¶] When deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. There may be more than one cause of death, and that causes death only if it is a substantial factor in causing the death [sic]. A substantial factor is more than a trivial or remote factor; however, it does not need to be the only factor that causes the death."
"The defendant is charged in Count 1 with murder, under a theory of felony murder. To prove that the defendant is guilty of first degree murder under this theory, the People must prove that, one, the defendant committed or attempted to commit kidnapping; two, the defendant intended to commit kidnapping; and three, while committing or attempting to commit kidnapping, the defendant caused the death of another person.
"A person may be guilty of a felony murder even if the killing was unintentional accidental or negligent. To decide whether the defendant committed or attempted to commit kidnapping, please refer to the separate instructions that I will give you on that crime. 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 the felony of kidnapping before or at the time that he caused the death. The crime of kidnapping continues until the defendant has reached a place of temporary safety. It is not required that the person killed be the intended victim or the felon."
Muir contends that even if sufficient evidence supports his felony murder conviction, the conviction must nevertheless be reversed because the court failed to instruct the jury sua sponte on the meaning of causation with regard to that offense, leaving the jury with no guidance on that point. He points out the bench notes to CALCRIM No. 540A (as well as those for CALCRIM No. 730, the special circumstance instruction) state that an instruction on proximate cause via CALCRIM No. 240 should be given if the facts raise an issue as to whether the homicidal act caused the death. Muir argues the homicidal act—his failure to get J.C. care during the kidnapping—raised a significant issue whether the People proved beyond a reasonable doubt that his conduct was a substantial cause of J.C.'s death, and though the court instructed the jury on causation in connection with CALCRIM No. 520 malice murder, that was an entirely different theory of murder such that the jury would not have applied the causation provision to felony murder. Muir maintains the error was prejudicial in view of the absence of nonspeculative evidence he caused J.C.'s death during the kidnapping. Alternatively, he argues he received constitutionally ineffective assistance if his defense counsel was responsible for the omission. A. Legal Principles
CALCRIM No. 240 reads: "An act [or omission] causes (injury/ <insert other description>) if the (injury/ <insert other description>) is the direct, natural, and probable consequence of the act [or omission] and the (injury/ <insert other description>) would not have happened without the act [or omission]. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. [¶] <Give if multiple potential causes.> [¶] [There may be more than one cause of (injury/ <insert other description>). An act [or omission] causes (injury/ <insert other description>), only if it is a substantial factor in causing the (injury/ <insert other description>). A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the (injury/ <insert other description>).]" Muir points out that the bench notes to that instruction state that if causation is at issue, the court has a sua sponte duty to instruct on proximate cause.
" 'Even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case.' " (People v. Jackson (2014) 58 Cal.4th 724, 765; see People v. Cavitt, supra, 33 Cal.4th at p. 204.) The court however, has no sua sponte obligation to give pinpoint instructions (People v. Anderson (2011) 51 Cal.4th 989, 996-997) nor does it have a duty to provide clarifying or amplifying instructions when the instructions it does give correctly state the law. (See People v. Sanders (1995) 11 Cal.4th 475, 533-534; People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331.) The court may also " ' "properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing, . . . or if it is not supported by substantial evidence . . . ." ' " (People v. Huynh, supra, 212 Cal.App.4th at p. 306.) "We review a claim of instructional error de novo." (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) B. Analysis
We begin by observing Muir's prejudice argument is premised on the notion that the record lacks substantial or nonspeculative evidence to support his conviction for felony murder. Because we have already rejected that claim, we may dispose of Muir's challenge as a threshold matter for his failure to demonstrate prejudice as a result of any asserted misinstruction.
But we conclude the trial court did not misinstruct the jury in any event. In People v. Cavitt, supra, 33 Cal.4th 187, the California Supreme Court explained that the logical nexus requirement of the felony-murder rule is not an element of the offense. (Id. at p. 203.) Thus, on the defendants' challenge to the jury instructions in that case, "the trial court had no sua sponte duty to clarify the logical-nexus requirement. The existence of a logical nexus between the felony and the murder in the felony-murder context, like the relationship between the robbery and the murder in the context of the felony-murder special circumstance [citation], is not a separate element of the charged crime but, rather, a clarification of the scope of an element. [Citation.] . . . [¶] Hence, if the requisite nexus between the felony and the homicidal act is not at issue and the trial court has otherwise adequately explained the general principles of the law requiring a determination whether the killing was committed in the perpetration of the felony, 'it is the defendant's obligation to request any clarifying or amplifying instructions on the subject.' " (Id. at pp. 203-204.)
In People v. Cavitt, the intended target of a burglary/robbery was covered in a sheet, beaten, hog-tied and left face down on a bed, resulting in her either suffocating or unable to resist another defendant's act of suffocating her. (People v. Cavitt, supra, 33 Cal.4th at p. 204.) On appeal, the defendants convicted of felony murder argued the court erred by failing to instruct the jury that the homicidal act be "in furtherance of" the burglary/robbery. (Id. at p. 202.)
On the record in Cavitt, it could not be said the homicide was completely unrelated to the burglary-robbery as the victim was its intended target and the defendants' acts of beating, tying and leaving her resulted in her death. (People v. Cavitt, supra, 33 Cal.4th at p. 204.) The court observed that cases raising a genuine issue as to the existence of a logical nexus were " 'few indeed' " and it would likely not arise where the felony's target was either intentionally murdered by one of the felony's perpetrators, or where the victim was killed negligently or accidentally during the perpetration of the felony. (Id. at p. 204, fn. 5.) Thus, in Cavitt, the court held the jury instructions adequately apprised the jury of the logical nexus requirement by requiring that the killing be committed while the perpetrators were "engaged in the commission" of the underlying crime. (Cavitt, at p. 203.) Such an instruction prevents a conviction for an unrelated or coincidental homicide. (Ibid.) We apply Cavitt's principles only to the circumstances present here, where the defendant is alleged to be the sole perpetrator of the underlying felony and the actual killer.
In People v. Huynh, supra, 212 Cal.App.4th 285, a single perpetrator case, this court addressed a similar claim: that a defendant's first degree felony murder conviction had to be reversed because the trial court did not properly instruct the jury on causation. There, as here, the defendant argued the court erred by failing to instruct the jury with CALCRIM No. 240 on proximate causation. (Id. at p. 306.) We held the contention was without merit in a case in which the prosecution alleged the defendant had committed the act causing death: "[O]ur Supreme Court has made it clear that in a case such as this one, which involves a single perpetrator, application of the felony-murder rule lies outside the context of causation principles, such as proximate causation, natural and probable consequences and foreseeability. In other words, the felony-murder rule imposes a type of strict liability on the perpetrator acting on his or her own. '[F]irst degree felony murder encompasses a far wider range of individual culpability than deliberate and premeditated murder. It includes not only the latter, but also a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident; it embraces both calculated conduct and acts committed in panic or rage, or under the dominion of mental illness, drugs, or alcohol; and it condemns alike consequences that are highly probable, conceivably possible, or wholly unforeseeable.' [Citation.] 'Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning—if a death results from his commission of that felony it will be first degree murder, regardless of the circumstances.' [Citation.] Accordingly, the felony-murder rule generally does not require proof of a strict causal relationship between the underlying felony and the killing if there is one actor, and the felony and the killing are part of one continuous transaction." (Huynh, at pp. 309-310.) We held the trial court did not err by refusing to instruct the jury with CALCRIM No. 240, as "the natural and probable consequences theory of causation was not relevant to the legal principles applicable in this case." (Huynh, at p. 311.) CALCRIM No. 240 "does not apply where death results during felony conduct undertaken by a single perpetrator." (Huynh, at p. 311.)
Under both Cavitt and Huynh, the trial court did not err by omitting CALCRIM No. 240 or other instructions on causation. Here, J.C. was the target of Muir's kidnapping. And the evidence showed both a logical and temporal connection between the kidnapping and J.C.'s death, as it was unrebutted that J.C. was alive after Muir placed him in the car and he died from his stab wounds before Muir set the vehicle on fire. Thus, this is not an instance where there was or could have been a claim J.C.'s death was coincidental, entirely unrelated to the kidnapping or happened at a different time or place, so as to put causation at issue for purposes of instructing the jury. As in People v. Cavitt, this evidence did not raise a "genuine issue" (People v. Cavitt, supra, 33 Cal.4th at p. 204) on the existence of a logical nexus between the kidnapping and J.C.'s homicide. Where, as here, there is no real dispute J.C. died during the course of the kidnapping, there is no requirement that the court sua sponte give an instruction clarifying the requirement of a logical and temporal nexus. (Cavitt, at p. 204.) It was enough that the trial court instructed the jury that Muir caused the death of another person "while committing or attempting to commit kidnapping . . . ." (Ibid.) It was Muir's obligation to request any amplification of that instruction or clarification of the connection between the felony and homicide, as "there is no sua sponte duty to clarify the principles of the requisite relationship between the felony and the homicide without regard to whether the evidence supports such an instruction." (Ibid.)
In sum, the jury was fully advised about the need for a logical and temporal connection with the kidnapping (People v. Cavitt, supra, 33 Cal.4th at pp. 203-204), and thus the trial court did not err in its jury instructions. Reversal is not warranted. Additionally, because Muir's counsel argued to the jury that there was no evidence Muir had anything to do with J.C.'s kidnapping or murder he had a rational tactical purpose for not requesting further instructions on the connection between the kidnapping and J.C.'s murder. Given this record on direct appeal, we cannot say Muir's counsel had no rational tactical purpose for his alleged omission. (People v. Arredondo (2019) 8 Cal.5th 694, 711 [reviewing court may reverse for ineffective assistance on direct appeal only where record affirmatively discloses counsel had no rational tactical purpose for his or her omission or there is no satisfactory explanation]; People v. Torres (2018) 25 Cal.App.5th 162, 171 [same].) Thus, Muir's ineffective assistance of counsel claim likewise fails.
III. Sufficiency of Evidence of Muir's Personal Use of a Deadly or Dangerous Weapon
A. Background
At trial, the prosecutor argued with respect to the allegation that Muir personally used a deadly or dangerous weapon that Muir could have used either a bat or a knife. He further argued: "What do I have to show [to prove the allegation]? That someone personally used a deadly or dangerous weapon and does any of following: Displays a weapon in a menacing manner, which we have zero evidence of that. We have no witness inside that house. We just have the circumstances of how this person was attacked, how he died. The players are going to be drawn from a witness who overhears him say that he hit somebody with a bat. And we know a bat can be a deadly or dangerous weapon, but in this case, it wasn't, but it can be, and that's the personal use allegation.
"Evidence that we have of the personal use allegation. We have this: A statement overheard by [J.R.] that the defendant hit [J.C.] with a bat. That is primarily our only evidence. We also have this: The absence of a bat that [J.R.] said was always in the house at the Miles address but was not there after the night we saw the defendant drive off with [J.C.]. The bat that was found, he was asked, 'Was that the bat you're talking about?' [J.R.] said, 'No, that wasn't the bat.'
"The pathologist did testify that [J.C.] died of a stab wound or a sharp instrument. No evidence that the defendant stabbed [J.C.] We have no evidence of that. The pathologist also testified that the blunt force injury was post-mortem. Well, that means whatever injuries he has was after that could be told [sic], but she also testified that [J.C.'s] body was 90 percent burned, and that did have some sort of impact on the way she looked at his body. That does have some sort of effect. It's not very much, but it does. We all know this, not all strikes cause injuries. It doesn't mean he didn't use the bat, based on what was overheard by [J.R.]."
The jury found true the allegation that "in the commission of the offense charged under Count 1 of the information, [Muir] personally used a deadly and dangerous weapons [sic], to wit, a knife and a bat . . . ." B. Contentions
Muir contends there is insufficient evidence to support the section 12022, subdivision (b)(1) enhancement based on the allegation he personally used either a knife or the bat as a deadly or dangerous weapon. Specifically, he argues the evidence is insufficient as a matter of law to prove he used the sharp-edged object that killed J.C., or that he used a bat in a manner capable of causing and likely to cause death or great bodily injury. Muir points out that the prosecutor conceded he had no evidence Muir stabbed J.C., or that he used the bat in that manner. He argues: "Virtually nothing is known about the attack of [J.C.], other than that the fatal wound was inflicted by a sharp-edged object, and that according to [J.R.], [Muir] said he hit [J.C.] with a bat because [J.C.] was acting sheisty."
The People respond that the jury could reasonably infer that Muir either stabbed J.C. or used a bat on him in a way that was dangerous. They argue Muir and Lara were the only ones who could have stabbed J.C. at the Miles house, and the jury could conclude Lara was not in any condition to stab someone, leaving them to find Muir did it. Or, the People argue, the jury could conclude Muir stabbed J.C. after he removed him from the house based on the discovery of J.R.'s pocketknife in the trailer where Muir was found by police. As for the bat, the People argue that the jury could conclude from the blood evidence at the Miles house (where criminalists found J.C.'s DNA on the ceiling) that Muir bashed J.C. hard with the bat or otherwise used it in way that was likely to cause great bodily injury. They maintain that viewed in the light most favorable to the jury's finding, the evidence supports a reasonable inference Muir used either the knife or bat, or both, in a deadly or dangerous manner. C. Standard of Review and Legal Principles
The weapon-use enhancement set forth in section 12022, subdivision (b)(1) provides as follows: "A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense." (§ 12022, subd. (b)(1).)
" ' "In order to find 'true' a section 12022[, subdivision] (b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death." ' " (People v. Beck, supra, 8 Cal.5th at p. 630.) "In determining whether there was substantial evidence of deadly and dangerous weapon use, 'we may properly consult cases construing the term "uses" in other enhancement statutes under " 'The Dangerous Weapons" ' Control Law.' " ' [Citation.] In that context, ' "[u]se" means, among other things, "to carry out a purpose or action by means of," to "make instrumental to an end or process," and to "apply to advantage." ' [Citation.] 'The obvious legislative intent to deter the use' of deadly and dangerous weapons in the commission or attempted commission of a felony 'requires that "uses" be broadly construed.' " (Beck, at p. 630.)
With regard to whether a particular item is a deadly and dangerous weapon, we may apply the same rule for section 245 involving assault with a deadly weapon. (See People v. Aledamat (2019) 8 Cal.5th 1, 6, fn. 2.) " 'As used in section 245, subdivision (a)(1), a "deadly weapon" is "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury." [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.' " (People v. Aledamat, supra, 8 Cal.5th at p. 6; accord, In re B.M. (2018) 6 Cal.5th 528, 533.)
For an object to qualify as a deadly weapon based on how it was used, "the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury. The extent of any damage done to the object and the extent of any bodily injuries caused by the object are appropriate considerations in the fact-specific inquiry required by . . . section 245[, subdivision] (a)(1). But speculation without record support as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate." (In re B.M., supra, 6 Cal.5th at p. 530.) "[T]he determination of whether an object is a deadly weapon under section 245[, subdivision] (a)(1) must rest on evidence of how the defendant actually 'used' the object." (B.M., at p. 534.) "Although it is inappropriate to consider how the object could have been used as opposed to how it was actually used, it is appropriate in the deadly weapon inquiry to consider what harm could have resulted from the way the object was actually used. Analysis of whether the defendant's manner of using the object was likely to produce death or great bodily injury necessarily calls for an assessment of potential harm in light of the evidence." (Id. at p. 535.)
Muir's challenge requires us to decide " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying [section 12022, subdivision (b)(1)] enhancement beyond a reasonable doubt.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1197, disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; see also People v. Alvarez (1996) 14 Cal.4th 155, 225.) D. Analysis
We need not decide whether the evidence supports the personal use allegation with regard to the sharp object used to stab J.C. Here, the record contains evidence from J.R. relating Muir's admission as to how he actually used the baseball bat: to hit J.C. with it. Thus, this is not a situation where the People relied upon "speculation without record support as to how the [bat] could have been used" (In re B.M., supra, 6 Cal.5th at p. 530) or where the nature of the bat's use was unknown, as Muir maintains. Further, we agree evidence of J.C.'s DNA on the ceiling of the Miles house permitted the jury to conclude without speculation that Muir inflicted the blow there, and, given the spatter, that the degree of force used was sufficiently hard to be likely to produce significant or substantial injury within the meaning of great bodily injury. (See People v. Blake (2004) 117 Cal.App.4th 543, 556 [defining "great bodily injury" for purposes of 12022, subdivision (b) as " 'injury which is significant or substantial, not insignificant, trivial or moderate' "]; compare People v. Beasley (2003) 105 Cal.App.4th 1078, 1087 [declining to decide whether a broomstick might be wielded in a manner capable of producing and likely to produce great bodily injury because victim's testimony did not describe " 'the degree of force [defendant] used in hitting [her] with the stick' "], discussed in In re B.M., supra, 6 Cal.5th at p. 534.)
Muir challenges whether the bat constituted a dangerous and deadly weapon, arguing: "Here, nothing specific is known about [the] use of a bat, and there was no evidence the bat caused any injury. The evidence showed at most, if [J.R.] is to be believed, that [Muir] said he hit [J.C.] with a bat, but it is not known if [Muir] hit him more than once, or so hard, or on a part of his body, so as to be capable of causing and likely to cause death or great bodily injury. There was a complete lack of evidence that the bat was used as a deadly or dangerous weapon." Muir also points to the pathologist's testimony that J.C.'s blunt-force injuries were post-mortem.
The contention fails in view of the evidence recounted above as to how Muir used the bat. And, the prosecutor was not required to prove Muir personally inflicted physical harm on J.C. for the section 12022, subdivision (b)(1) personal use enhancement to apply. (People v. Beck, supra, 8 Cal.5 at p. 631.) The section "imposes an enhancement for a defendant who 'personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony,' not for his or her conduct in personally inflicting injury on a victim. As explained above, 'use[ ]' is broadly construed to include acts other than the physical infliction of injury." (Ibid.) While we must scrutinize the record for some evidence that Muir used the bat in such a manner as to make it a dangerous and deadly weapon, to support the jury's finding of personal use in the commission of a felony there is no need to present evidence that the victim was physically harmed. Applying the broad definition of "use" described in Beck as meaning "to carry out a purpose of action by means of" or to "apply to advantage" (id. at p. 630, some quotations omitted), there is substantial evidence for the jury to conclude that Muir's use of the bat "facilitated [his] plan" (ibid.) to kidnap J.C.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. I CONCUR: HALLER, Acting P. J. Dato, J. Concurring.
"While it is true that under California law there is no strict requirement of 'causation' between a 'killing' and the commission of a felony under the felony-murder rule under Penal Code section 189[] [citations], section 189 does require a 'killing' in the perpetration of one of the designated felonies. A simultaneous or coincidental 'death' is not a 'killing.' " (People v. Gunnerson (1977) 74 Cal.App.3d 370, 378 (Gunnerson); see People v. Wilkins (2013) 56 Cal.4th 333, 346 [application of the felony murder rule hinges on "whether the murder was 'committed in the perpetration of the felony"].) If death would have occurred at the same time regardless of the felony, a defendant is not liable for felony murder. (Gunnerson, at p. 378; People v. Stamp (1969) 2 Cal.App.3d 203, 210 [homicide must be "the direct causal result of the [felony]"].)
All statutory references are to the Penal Code.
If the evidence showed merely that Andrew Muir arrived at the house to discover the already-stabbed victim, and for some reason agreed to drive him to the desert and burn the car, I might be inclined to say there was insufficient evidence for a reasonable jury to find that J.C.'s death was caused by the kidnapping. (See Gunnerson, supra, 74 Cal.App.3d at pp. 378-379 [no murder liability if death was merely simultaneous or coincidental to the robbery]; see also People v. Pulido (1997) 15 Cal.4th 713, 729 ["felony-murder liability attaches only to those engaged in the felonious scheme before or during the killing"].) After all, the prosecution offered no specific evidence of how long J.C. could have lived after the stabbing, how long after the stabbing Muir loaded him into the SUV, the location of the nearest hospital, or the likelihood treatment would have prolonged J.C.'s life.
But despite Muir's best efforts to characterize it as such, that is not our record. Prosecution witness J.R. lived with Ceferino Lara in the house where J.C. was stabbed. Muir was seen driving an unharmed J.C. in an SUV at 3:00 in the afternoon. When J.R. returned to the house around 10:00 that night, the same SUV was backed up to and blocking the front door. Muir closed the back cargo door, told J.R.'s son to " 'get the fuck out of here,' " got in the driver's seat, and sped off. J.C. was still alive at that point—J.R. saw his head pop up in the back. J.R. saw his roommate, Lara, standing outside the front door after the SUV drove off. J.R. argued with Lara and left, returning around midnight. When J.R. entered the house, he noticed fresh paint and saw Lara mopping up the entrance. A baseball bat had been moved from its usual spot near the couch.
A few days later, J.R. saw news reports of a burnt-out vehicle that looked like the SUV he had seen. Sometime later, Muir visited the home of J.R.'s cousin. As Muir spoke to the cousin, J.R. overheard him say J.C. was "acting sheisty" and that Muir had "hit him with a bat or something." Muir added that as he was driving J.C. away, he told him to "stay down, stay down" and that he would take him to the hospital. But J.C. died, and Muir burnt the car in the desert.
After the incident, Muir absconded, paranoid that police were looking for him. He was ultimately found hiding in a trailer. Police recovered a pocketknife on the bed in an adjacent room. J.R. said the pocketknife was probably his. The pathologist said J.C. died by a four-inch stab wound and that the recovered pocketknife could have been the murder weapon.
Taken together, the evidence presented at trial supports a reasonable inference that Muir was either the one who inflicted the fatal stab wound, or that he aided and abetted Lara or some other person in the fatal attack by hitting J.C. with a baseball bat. " 'The res gestae of a crime includes not only the actual facts of the crime and the circumstances surrounding it, but also the acts immediately before and immediately after the crime that are so closely connected with it as to form in reality a part of the occurrence.' " (People v. Huynh (2012) 212 Cal.App.4th 285, 308, fn. 12, italics added, quoting People v. Cipolla (1909) 155 Cal. 224, 227-228.) Muir's role in the assault immediately preceding the kidnapping establishes a logical nexus between his felony and the homicidal act, even if his asportation of the victim, viewed in isolation, may not have hastened the victim's death.
On this basis I concur in the affirmance of Muir's conviction for first degree murder.
DATO, J.