People v. Vang, C090365

• Court: California Court of Appeals
• Citation: 82 Cal.App.5th 64,297 Cal.Rptr.3d 806
• Docket Number: C090365
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerry VANG, Defendant and Appellant.
• Decision Date: 05 August 2022

82 Cal.App.5th 64
297 Cal.Rptr.3d 806

The PEOPLE, Plaintiff and Respondent,
v.
Jerry VANG, Defendant and Appellant.

C090365

Court of Appeal, Third District, California.

Filed August 5, 2022

Certified for Partial Publication.^*

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

KRAUSE, J.

82 Cal.App.5th 69

After a jury trial, defendant Jerry Vang was convicted of numerous crimes against two different victims, including kidnapping ( Pen. Code, § 207, subd. (a) );¹ first degree felony murder with a special-circumstance finding (§§ 187, subd. (a), 190.2, subd. (a)(17)); infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)); two counts of criminal threats with firearm allegations (§§ 422, 1203.06, subd. (a)(1), 12022.5, subd. (a)); and two counts of possession of a firearm by a felon. (§ 29800, subd. (a)(1).)

On appeal, defendant focuses the bulk of his briefing on his conviction for the first degree felony murder of his wife, the facts of which are somewhat unique. In short, defendant, who has a long history of domestic violence, had an argument with his wife. After she fled in her car, defendant followed, eventually forced her to stop, and coerced her (through force or fear) into his vehicle. As defendant was driving away, his wife opened the door and jumped from the moving vehicle, resulting in her death.

Consistent with the prosecution's theory at trial, the jury was instructed that defendant was guilty of first degree felony murder if the prosecution proved defendant committed a kidnapping; defendant intended to commit the kidnapping; and, while committing the kidnapping, defendant caused his wife's death. The jury received a similar instruction on the special-circumstance allegation.

Defendant argues that the trial court erred by permitting the prosecution to proceed on a legally inadequate theory of felony murder. He contends that under the current felony-murder rule, as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), he could be liable for felony murder only if he was proven to be the "actual killer." Because the evidence showed that his wife jumped from the vehicle of her own volition, defendant argues he was not the actual killer and therefore his conviction for first degree felony murder with a special circumstance rests on a legally invalid theory.

297 Cal.Rptr.3d 810

Defendant also challenges his judgment of conviction on grounds that: (1) the evidence was insufficient to support the kidnapping verdict; (2) the trial court committed reversible error by failing to instruct the jury on the limited

82 Cal.App.5th 70

purpose of some of the victim's hearsay statements or, alternatively, that his counsel was ineffective in failing to request such instructions; (3) the trial court erred by failing to instruct the jury on the limited purpose of certain lay opinion testimony or, alternatively, that his counsel was ineffective in failing to request such instructions; and (4) the cumulative effect of the trial court's errors was an unfair trial.

After reviewing the legislative history of Senate Bill 1437 and decisional authority interpreting the term "actual killer," we agree that the defendant's first degree felony murder conviction and special-circumstance finding rests on an invalid legal theory. Accordingly, we shall reverse that conviction and vacate the special-circumstance finding. We otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In late 2014, the victim, Padao Vue, began an intimate relationship with defendant. In August 2015, she moved into defendant's apartment. That same year, she became pregnant with defendant's child, and in July 2016, she gave birth to their daughter. In February 2016, while she was pregnant, Padao and defendant were "culturally married."

Testimony at trial established that in the Hmong community, to which defendant and Padao belonged, marriage is a patriarchy. Hmong women are taught to be "patient" in marriage and to abide by the husband's wishes. Hmong culture also discourages involving law enforcement in family disputes. When problems arise in a Hmong marriage, they are resolved within the community, often through a "cultural meeting" with elders.

A. The December 2014 incident (uncharged)

In December 2014, shortly after ending a relationship with Stephen V., Padao met with him to discuss what they would do about the apartment and car leases they shared. Stephen testified that Padao showed up with a black eye. He asked Padao what happened, and she said that defendant punched her. Stephen told her to report the abuse, but Padao told him she was scared defendant would do something to her family.

After that meeting, Stephen sent a Facebook message to one of Padao's brothers, Seemaown. Seemaown e-mailed Padao and asked what happened. Padao explained that defendant thought she was cheating on him. She asked Seemaown to avoid text messaging her or sending Facebook messages because defendant had all her passcodes. Months later, Padao—discussing this same incident—told her sister Paduacee that defendant hit her "very

82 Cal.App.5th 71

hard" and slammed her into a wall because he was mad that she was talking to Stephen. Padao also discussed the incident with her friend and mother.

B. The September 26, 2016 incident (uncharged)

On September 26, 2016, Padao went to a store with her baby and asked an employee to hide her because she was fleeing her abusive husband. Padao was crying and sounded afraid. The employee and a security guard suggested she call the police, but she did not want to because she was too scared. The employee took Padao to the store's break room, where Padao called friends to come get her.

297 Cal.Rptr.3d 811

When her friends arrived at the store, Padao was holding her baby and was acting nervous and scared. Padao told them that she and defendant had argued the night before, and defendant had pulled out a gun and threatened her and the baby. Padao said she was scared and had to make up an excuse to get out of the house.

Padao and her baby stayed with friends for a few days. While there, Padao left a voicemail message for her sister, Pahouang, telling her that she had left defendant and not to answer the door if defendant came looking for her because defendant was being "very violent."

At some point, Stephen visited the home where she was staying, and Padao told him that defendant had pointed at gun at her and her daughter. Padao also told her mother.

Padao reunited with defendant on September 30. Later, in a series of text messages with her sister (Pahouang), Padao explained that she did not seek the family's help because she was scared for them. She wrote, "[Defendant] gets crazy when he's crazy," and "I thought he would actually hurt or kill me."

C. The November 2016 incident (counts three and four)

On the morning of November 15, 2016, Padao appeared at her sister's place of work with her baby. Padao was crying and "very scared." Padao told her sister (Paduacee) that defendant had pointed a gun at her and threatened to kill her and the baby. Padao said that she was afraid of defendant. Padao told Paduacee that she was able to calm defendant down and they went to bed. She escaped with the baby early the next morning. Padao left her phone at home because she had to leave so quickly. Paduacee suggested Padao call the police, but Padao did not want to out of fear and cultural pressure.

82 Cal.App.5th 72

Paduacee arranged for Padao and the baby to stay with Paduacee's boyfriend, Sok, for a few days. Padao told Sok that she was concerned for her baby's safety because defendant had pointed a gun at her and threatened to kill her and the baby. Padao also told her mother.

On November 19, Padao text messaged her sister Pahouang that defendant had hit her and wanted to kill her. Pahouang told Padao that the elders of the two families were going to have a cultural meeting about the situation.

Later that day, Padao text messaged her brother, Samuel. In one of the messages, Padao wrote, "Damn, bro[,] what if I go this time and die?" Samuel indicated that he would meet with defendant. Padao warned, "Don't let him drink," "He gets crazy and violent." Later, she added, "Sorry, bro. I didn't plan this. [¶] I just ran for safety. I was so scared I was going to die that night he hit me. [¶] ... He said he was a changed man and look where I'm at. I'm going through the same [things] as all the other girls in his life." Samuel indicated that he still would talk to defendant, but Padao tried to dissuade him: "Just stop contacting him. I'm scared for everyone in my family already." She continued, "Don't contact him and don't see him. He is not in his right mind and he can burst at any minute. He's put [people] in the hospital before, and [it's] very difficult to calm him down."

On November 20, a cultural meeting of the elders was held at the home of Padao's parents. While preparing for the meeting, Padao told a family member, C.T., that defendant threatened to kill her if she ever left him. In response to an objection from defense counsel, the court gave a limiting instruction that Padao's statement was to be considered only to show her state of mind.

297 Cal.Rptr.3d 812

At the cultural meeting, Padao told the elders that defendant had hit her and put a gun to her face while she was holding their baby. She explained that defendant told her to put the baby down and threatened that if she did not, she would see what was going to happen next. She said that defendant also told her to text everyone in the family and "let them know that she was leaving and not to look for her." Padao told the elders that she was afraid of defendant.

After Padao spoke, defendant had an opportunity to respond and said there was...