Filed 12/17/19 P. v. Villa CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO VILLA,

Defendant and Appellant.

F076081

(Super. Ct. No. VCF037187C)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.

Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Ian Whitney, for Plaintiff and Respondent.

-ooOoo-

In January 1996, Mario Villa and three codefendants were arrested and jointly charged with murder. A few months later, he was found not competent to stand trial and criminal proceedings were suspended. For most of the next 20 years, Villa was housed at various facilities within the Department of State Hospitals. In 2015, he was found competent to stand trial and criminal proceedings were reinstated. His trial began in 2017.

At trial, the People pursued two alternative theories to prove first degree murder. Consistent with the court’s instructions, they argued the homicide was both willful, deliberate, and premeditated, and the felony-murder doctrine applied because the homicide occurred during kidnapping. The jury, without specifying a theory, convicted Villa of first degree murder. The jury also found true he personally used a firearm. He was sentenced to 29 years to life in prison.

Villa raises various claims on appeal to separately attack his conviction and sentence. Primarily, he argues that, because the felony-murder doctrine was inapplicable to his case, the court’s instructions and the People’s arguments allowed the jury to convict him on a legally invalid theory. The Supreme Court recently termed this issue “alternative-theory error.” (People v. Aledamat (2019) 8 Cal.5th 1, 7, fn. 3 (Aledamat).) We agree the alternative-theory error requires us to reverse the judgment.

BACKGROUND

Trial Proceedings

On New Year’s Day in 1996, Mario Villa, Jose Munoz, Victoriano Perez, and Rutilio Velasquez were arrested, and ultimately charged, with murdering a man in northwestern Tulare County. Although originally charged together, Villa was tried alone in 2017 because he was incompetent to stand trial for nearly 20 years.

The evidence established the following: Just after midnight on New Year’s Day in 1996, the victim drove his van to Villa’s house on Amethyst Avenue. When the victim arrived at Villa’s house, neighbors from across the street saw at least two men attack, chase, and restrain the victim near his van.

One neighbor saw two men carry the victim into the back of the van. He heard one man say, “tie him up,” and the other reply, “do not tie him up. We should kill him once and for all.” The neighbors were unable to identify anyone involved.

Nearly all of the other details were supplied by Villa’s two statements: His 1996 interview with law enforcement, and his 2017 trial testimony. When initially questioned about his involvement, Villa told law enforcement he was “not going to take the blame for something that [he] did not do.”

Villa explained his role in the homicide as follows: At night on New Year’s Eve in 1995, he was home with his roommates Munoz and Velasquez. Perez was also at the house. In 1996, Villa said he was eating in the kitchen that night, “was a little crazy,” and “was high on drugs.” In 2017, he testified he was in his bedroom “high on drugs,” using “[h]eroin, cocaine,” and “crystal,” was “very drugged, high in [his] bedroom,” and “all drugged up.” He did not remember eating in the kitchen.

According to Villa, the victim first arrived around 10:30 p.m. He quickly left after physically fighting with Velasquez. The abduction the neighbors witnessed occurred when the victim returned in his van shortly after midnight, and Munoz, Perez, and Velasquez all attacked the victim. The three men beat him, tied him up, and threw him back in the van.

Villa repeatedly denied any involvement in the onslaught, consistently stating Munoz, Perez, and Velasquez were solely responsible for beating and tying up the victim. But at one point in the initial interview, Villa he apparently said “[w]e used a rope” to tie up the victim and that he threw the rope, which he later showed to law enforcement, in a garbage bin.

After the victim was bound and shoved in the van, Munoz left to retrieve gasoline in a plastic container. Villa was then forced into the van with the victim. Villa inconsistently described how he was forced into the van. In 1996, he said he was taking out the trash when Velasquez called him over towards the van and the three men “picked him up and put him in the van.” In 2017, he testified Velasquez, armed with a revolver and rifle, entered the house and forced him at gunpoint to enter the van. A rifle was later found inside the house.

As Villa was forced into the van, Velasquez told him they were going to shoot the victim. Munoz, Perez, Villa, and the victim traveled in the van towards a canal in the country; Velasquez followed in a separate car.

Once they arrived, Perez threw the victim in the canal. By this point, Villa “was really high” and “drugged.” Velasquez then told Villa to exit the van, handed him the revolver, and gave him a choice: either shoot the victim or die. Villa testified he did not want to shoot the victim but, because “[Velasquez] forced [him] to,” he “had no other choice” and complied. Perez later used the gasoline Munoz brought to set the victim on fire. Villa testified he later buried the gun back at the house because Velasquez told him to; he later showed the buried gun to law enforcement.

No clear motive for the homicide was established. No evidence established any relationship between Villa and the victim.

Verdict and Sentence

The jury found Villa guilty of first degree murder (Pen. Code, § 187, subd. (a)), and found true he personally used a firearm (§ 12022.5, subd. (a)). He was sentenced to serve 29 years to life in prison, calculated as 25 years to life for the murder, and four consecutive years for the firearm finding. He was awarded actual presentence custody credits totaling just over 21 and a half years with zero presentence conduct custody credits pursuant to section 2933.2.

DISCUSSION

Villa was arrested and charged with murder in 1996. A short time later, he was found mentally incompetent to stand trial. Because he was mentally incompetent to stand trial for nearly 20 years, he spent more than 21 years in custody before his trial began in 2017.

To prove first degree murder at trial, the People argued two alternative theories. One, they argued the homicide was willful, deliberate, and premeditated. Two, they argued the felony-murder doctrine applied because the homicide occurred during the perpetration of a kidnapping. (§ 189.) Although Villa was not charged with kidnapping, the court was required to, and did, instruct the jury on kidnapping. (See generally People v. Prince (2007) 40 Cal.4th 1179, 1262 (Prince) [“jury may convict on a felony-murder theory if the felony is proved beyond a reasonable doubt even if the underlying felony has not been charged.”].) The jury rendered a general verdict convicting Villa of first degree murder and found true he personally used a firearm during the murder.

On appeal, Villa presents four issues. First, he claims the kidnapping instructions were erroneous. He points out the California Supreme Court redefined the kidnapping law in 1999, three years after the alleged homicide in this case. He argues the court erred by instructing the jury with the new kidnapping definition instead of the definition applicable in 1996.

Second, he claims the felony-murder theory was legally invalid in this case because felony murder is inapplicable when the underlying felony is merely incidental to the homicide. He argues we must reverse his conviction because the resulting alternative-theory error allowed the jury to convict him of first degree murder based on a legally invalid theory, and it is impossible to determine which theory the jury relied on in rendering its verdict. The People contest only the felony-murder issue, and otherwise argue the instructional errors were harmless.

Villa’s next two issues relate to his sentence. He claims he is entitled to presentence conduct custody credits for time he spent in jail awaiting trial. Finally, he believes conditional remand for a limited resentencing hearing is appropriate. The People concede these issues.

After closely examining the evidence and applicable law, we find merit in each contention. Because the errors were not harmless, we reverse the judgment and remand for a new trial. Although technically moot, we also conclude Villa is entitled to presentence conduct custody credits for time spent in county jail prior to trial if he is convicted of murder upon remand.

I. The Kidnapping Instructions Were Erroneous

Villa first claims the court’s kidnapping instructions were erroneous. The People concede the error. We agree.

Kidnapping, as relevant here, requires moving a victim a substantial distance. The court instructed the jury, in deciding whether the victim was moved a substantial distance, it “must consider all the circumstances relating to the movement.” This language is adopted from People v. Martinez (1999) 20 Cal.4th 225 (Martinez) and correctly states today’s law. But “before Martinez … was decided, … ‘the [substantial distance] standard [was] exclusively dependent on the distance involved.’ ” (People v. Castaneda (2011) 51 Cal.4th 1292, 1319.)

“Although purportedly no particular distance was controlling, distance nevertheless became the sole criterion for assessing [substantial distance] ….” (Martinez, supra, 20 Cal.4th at p. 234.) This distance-exclusive standard led to multiple decisions limiting the movement necessary, as a matter of law, to prove kidnapping. Moving a victim more than 90 feet became the benchmark in People v. Green (1980) 27 Cal.3d 1, 67 (Green). (Martinez, supra, 20 Cal.4th at p. 239; see, e.g., People v. Brown (1974) 11 Cal.3d 784, 788-789 [75 feet insubstantial]; Cotton v. Superior Court (1961) 56 Cal.2d 459, 463-464 [movement within barracks and 15 feet outside insubstantial]; cf. People v. Stender (1975) 47 Cal.App.3d 413, 423 [200 feet substantial].)

In 1999, the Supreme Court overruled the distance-exclusive standard and held “factors other than actual distance are relevant to determining” substantial distance. (Martinez, supra, 20 Cal.4th at p. 235.) The court “further concluded that the new standard could not be applied retroactively, because it effected an unforeseeable enlargement of the factual basis for determining what constitutes a ‘substantial distance’ under the kidnapping statute ….” (Castaneda, supra, 51 Cal.4th at p. 1319.)

The events in this case took place in 1996, three years before the Supreme Court changed the kidnapping law in Martinez, supra, 20 Cal.4th 225. Based on the law in 1996, kidnapping required moving a victim more than 90 feet. The court here incorrectly instructed the jury to “consider all the circumstances related to the movement” instead of the correct distance-exclusive standard applicable to Villa’s case. This error is critical to our further analysis.

II. Felony Murder and the Independent Felonious Purpose Rule

“All murder … committed in the perpetration of [specific felonies, including kidnapping,] is murder of the first degree.” (§ 189, subd. (a).) This law is known as the felony-murder doctrine. (See, e.g., People v. Gonzalez (2012) 54 Cal.4th 643, 654.) But when exactly a murder is “committed in the perpetration of” a felony is a complicated question.

“[D]etermining whether a killing occurred during the commission of a felony enumerated under Penal Code section 189 is not ‘ “a matter of semantics or simple chronology.” ’ Instead, the ‘focus is on the relationship between the underlying felony and the killing.’ ” (People v. Jones (2001) 25 Cal.4th 98, 109 (Jones), quoting People v. Hernandez (1988) 47 Cal.3d 315, 348 (Hernandez).)

“[A]s part of the felony-murder doctrine [the jury must] find the perpetrator had the specific intent to commit one of the enumerated felonies ….” (Prince, supra, 40 Cal.4th at p. 1259.) “It also is established that the killing need not occur in the midst of the commission of the felony, so long as that felony is not merely incidental to, or an afterthought to, the killing.” ’ ” (Ibid.) “[A killing] occurs in the perpetration of an enumerated felony … if both offenses were parts of ‘one continuous transaction.’ ” (Ibid.) “ ‘ “There is no requirement of a strict ‘causal’ [citation] or ‘temporal’ [citation] relationship between the ‘felony’ and the ‘murder.’ ” ’ ” (Ibid.)

The parties dispute whether the felony-murder doctrine applies in cases where the felony is “merely incidental” to the killing. The “merely incidental” principle clarifies that a murder is not committed in the commission of a felony if the felony is merely incidental to the killing, for example, to conceal or facilitate the homicide. (Green, supra, 27 Cal.3d at pp. 60-61.) The parties agree this principle, also known as an “independent felonious purpose,” applies to section 190.2, subdivision (a)(17), the felony-murder special circumstance statute. (See, e.g., People v. Brooks (2017) 3 Cal.5th 1, 117-118, People v. Burney (2009) 47 Cal.4th 203, 253 (Burney).)

For the reasons that follow, we conclude the independent felonious purpose principle applies equally to the felony-murder doctrine. Our conclusion is consistent with the language in each statute defining felony murder and the felony-murder special circumstance, Supreme Court precedent, and the legislative intent behind felony murder.

A. Felony-Murder and Special Circumstance Statutes Are Synonymous

We begin our analysis by comparing the language in sections 189 and 190.2, subdivision (a)(17). The felony-murder doctrine applies to killings “committed in the perpetration of” specific felonies. (§ 189.) The felony-murder special circumstance applies to killings “committed while … engaged in the commission of” specific felonies. (§ 190.2, subd. (a)(17).) We believe these word variations are “synonymous” and “virtually indistinguishable.” (People v. Castro (1994) 27 Cal.App.4th 578, 585, fn. 7; People v. Asbury (1985) 173 Cal.App.3d 362, 365; Hernandez, supra, 47 Cal.3d at p. 348 [using felony-murder special circumstance law to determine whether killing occurred in perpetration of felony for felony-murder doctrine].)

Several cases treat the statutes’ wording equally. For example, People v. Delgado (2017) 2 Cal.5th 544, 571, describes the felony-murder elements as “an unlawful killing during the commission … of certain listed felonies.”

In Jones, supra, the California Supreme Court was tasked with interpreting “in the commission” as it appeared in different Penal Code sections. (Jones, supra, 25 Cal.4th at p. 108.) To answer the inquiry, the court sought guidance in “cases construing other Penal Code provisions that use the phrase ‘in the commission of’ or substantially similar language—specifically the provisions defining felony murder [and the felony-murder special circumstance].” (Ibid.) In its analysis, the court explicitly acknowledged the statutory “perpetration” and “commission” language in both sections 189 and 190.2, subdivision (a)(17). (Id. at p. 108, fn. 6.)

The Jones court then examined a felony-murder case (Hernandez, supra, 47 Cal.3d 315) and a special circumstance case. The court concluded “ ‘in the commission of’ has the same meaning [in the Jones context] … as it does under the felony-murder provisions.” (Jones, supra, 25 Cal.4th at p. 109.)

Similarly, People v. Frausto (2009) 180 Cal.App.4th 890, 900-902, held “in the commission of” has “same meaning as identical or equivalent language in … felony-murder statutes.” We agree the language in each statute is equivalent.

B. Supreme Court Precedent Consistently Applies the Principle to Felony

Murder

The independent felonious purpose principle originated in Green, supra, 27 Cal.3d 1. There, a man killed his wife after driving her out into the woods. During the murder, he forced her to remove her clothes and placed them in his car. After killing her with a shotgun, he directed an accomplice to remove her wedding rings. (Id. at p. 51.) His undisputed purpose in taking her clothes and rings was to conceal the crime. Although these actions “technically constitute[d] robbery” (id. at p. 61), they did not prove the murder was committed ‘ ‘during the commission’ ” of the robbery for purposes of the special circumstance finding. (Id. at p. 59.)

The Court’s conclusion was based on “the truth [that] this case … was not in fact a murder in the commission of a robbery but the exact opposite, a robbery in the commission of a murder.” (Green, supra, 27 Cal.3d at p. 60.) Because “the robbery [was] merely incidental to the murder” it was not “committed ‘during the commission’ of a robbery within the meaning of the statute.” (Id. at pp. 61-62.)

One year later, the Supreme Court applied this principle to determine whether sufficient evidence proved felony murder in People v. Murtishaw (1981) 29 Cal.3d 733. In its analysis, the Court cited and applied Green’s “merely incidental” principle to the evidence. (Id. at pp. 750-752, fn. 13.)

Multiple other cases have cited and applied the principle to felony murder. In Hernandez, supra, 47 Cal.3d 315, the Supreme Court again applied Green to determine whether sufficient evidence proved felony murder. In its analysis, the court cited and applied Green’s “merely incidental” principle to the evidence. (Hernandez, supra, 47 Cal.3d at p. 348.)

The Supreme Court again applied the principle in People v. Proctor (1992) 4 Cal.4th 499. While citing Hernandez, supra, 47 Cal.3d 315, the court concluded the evidence sufficiently proved felony murder because “the [felony] was not a mere incident of the murder.” (Proctor, supra, 4 Cal.4th at pp. 532-533.)

Likewise, in People v. Elliot (2005) 37 Cal.4th 453 (Elliot), the Supreme Court applied the principle in another evidentiary sufficiency challenge to felony murder. After citing to Proctor, supra, 4 Cal.4th 499, for the “merely incidental” principle, the Court analyzed the evidence and determined sufficient evidence supported inferring the felony had an independent purpose to the killing. (Elliot, supra, 37 Cal.4th at pp. 469-470; see Prince, supra, 40 Cal.4th at pp. 1261-1262 [citing Green’s principle in felony-murder context].)

Most recently, in People v. Mora and Rangel (2018) 5 Cal.5th 442 (Mora and Rangel), the Supreme Court held the standard CALJIC instructions for felony murder are equivalent to the independent felonious purpose principle. There, one defendant requested a pinpoint instruction “seeking to instruct the jury that a nonhomicidal felonious intent must exist to support a felony murder conviction.” (Id. at p. 497.) The full pinpoint instruction explained:

“To prove the felony murder of first degree murder, the prosecution must prove beyond a reasonable doubt that the attempted robbery was done for the independent purpose of committing the felony rather than for the purpose of committing the homicide. [¶] If the defendant’s primary purpose was to kill or if he committed the attempted robbery to facilitate or conceal the homicide, then there was no independent felonious purpose. If from all the evidence you have a reasonable doubt that the defendant committed the attempted robbery for such independent felonious purpose, you must find the defendant not guilt[y] on the felony murder theory.” (Id. at p. 497, fn. 18, emphasis added.)

The trial court refused the instruction because it was “duplicative” of CALJIC Nos. 8.21 and 8.27. (Id. at pp. 497-498.)

The Supreme Court concluded the independent felonious purpose principle was duplicative of the felony-murder instructions, holding the “requested [pinpoint] instruction expressly stated that first degree felony murder required proof ‘beyond a reasonable doubt that attempted robbery was done for the independent purpose of committing the felony rather than for the purpose of committing the homicide.’ The jury received precisely this instruction, albeit in slightly different language. The content of the instruction was adequately conveyed to the jury ….” (Mora and Rangel, supra, 5 Cal.5th at pp. 498-499, emphasis added.)

C. Legislative Intent and Supreme Court Guidance Support Our Conclusion

“ ‘The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.’ ” (People v. Farley (2009) 46 Cal.4th 1053, 1121 (Farley).) “ ‘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 (2004) 33 Cal.4th 187, 197 (Cavitt), quoting People v. Burton (1971) 6 Cal.3d 375, 387-388 (Burton).)

“ ‘[T]his deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental …. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.’ ” (Cavitt, supra, 33 Cal.4th at p. 197, quoting Burton, supra, 6 Cal.3d at p. 388.)

By contrast, the person who sets out to commit murder “has [not] embarked upon a course of conduct for one of the enumerated felonious purposes ….” (Cavitt, supra, 33 Cal.4th at p. 197.) He has instead “embarked upon a course of conduct” to murder. The felony-murder doctrine is irrelevant to the murderer. This deterrent limitation is consistent with Supreme Court cases decrying the felony-murder doctrine’s logic.

The felony-murder rule “ ‘is a “highly artificial concept” which “deserves no extension beyond its required application.” ’ ” (People v. Burroughs (1984) 35 Cal.3d 824, 829 (Burroughs).) The Supreme Court “has long held the felony-murder rule in disfavor.” (Ibid.) The “rule has been criticized [because] in almost all cases in which it is applied it is unnecessary and” because it “relieves the prosecution of the burden of proving … malice aforethought.” (People v. Washington (1965) 62 Cal.2d 777, 783 (Washington); People v. Henderson (1977) 19 Cal.3d 86, 92 (Henderson).) It is disfavored “ ‘not only because it artificially imposes malice as to one crime because of [another’s commission] but because it anachronistically resurrects from a bygone age a “barbaric” concept that has been discarded in the place of its origin.’ ” (Burroughs, supra, 35 Cal.3d at p. 829, fn. 3; see People v. Chun (2009) 45 Cal.4th 1172, 1213-1214, Moreno, J., concurring and dissenting.)

The felony-murder rule serves no purpose in cases where a person’s sole intent from the outset is to kill. A sole intent to kill renders the felony-murder rule “unnecessary.” (Farley, supra, 46 Cal.4th at p. 1120; Washington, supra, 62 Cal.2d at p. 783.) There is no reason to extend the rule “ ‘beyond its required application,’ ” thereby relieving the People of their burden to prove malice aforethought, to cases where the enumerated felony serves no purpose independent to facilitating the murder. (Burroughs, supra, 35 Cal.3d at p. 829, Henderson, supra, 19 Cal.3d at p. 92.)

In sum, we hold Green’s independent felonious purpose principle applies with full force to felony murder. Our conclusion is consistent with the statute’s plain language, Supreme Court precedent, and legislative intent.

Our conclusion applying the independent felonious purpose rule to felony murder conflicts with the Fourth District’s opinion in People v. Andreasen (2013) 214 Cal.App.4th 70 (Andreasen). We believe Andreasen’s contrary conclusion is dicta. We also disagree with its logic for two reasons. First, the conclusion rests solely on the CALCRIM jury instructions but ignores the CALCRIM comments which explicitly state the conclusion we reach today. Second, Andreasen predates Mora and Rangel, supra, 5 Cal.5th 442, where the Supreme Court held the standard felony-murder jury instructions are equivalent to the independent felonious purpose rule.

III. The Evidence Did Not Warrant Felony-Murder Jury Instructions

Having concluded the kidnapping instructions were erroneous and the independent felonious purpose principle applies to felony murder, we next apply the conclusions to the evidence in this case. We find the evidence did not warrant felony-murder jury instructions because there was no evidence Villa specifically intended to kidnap the victim, or aid and abet kidnapping, for a purpose independent of the homicide.

“ ‘ “It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, [substantial] evidence must appear in the record which, if believed by the jury, will support the suggested inference.” ’ ” (People v. Canizales (2019) 7 Cal.5th 591, 609.) “Whether [a] particular instruction [is appropriate] in any particular case entails” resolving a “predominantly legal” “mixed question of law and fact ….” (People v. Waidla (2000) 22 Cal.4th 690, 733.) The question is “examined without deference” to the trial court. (Ibid.)

Felony murder requires a specific intent to commit an enumerated felony. (Prince, supra, 40 Cal.4th at p. 1259.) To properly warrant felony-murder instructions in this case, there must exist evidence in the record that Villa specifically intended to kidnap the victim, or aid and abet kidnapping, and that the kidnapping was not merely incidental to the homicide.

Here, the flaw in the felony-murder theory is revealed in the erroneous kidnapping instructions. As explained previously, at the time these events took place, removing a person from a vehicle, attacking the person, throwing the person back into the vehicle, and tying the person up with a rope was not enough, standing alone, to prove kidnapping. Kidnapping instead required additional proof the victim was moved more than 90 feet. (Martinez, supra, 20 Cal.4th at p. 239-240.) With this required understanding, the felony-murder theory begins to unravel.

The evidence presented in this case is readily divided into two phases. In the first phase, the victim arrives at the house. In the second phase, the victim is moved a substantial distance to the canal. Neither phase warranted felony-murder instructions.

A. The First Phase Was Insufficient to Prove an Intent to Kidnap

In the first phase, after arriving at the house in his van, the victim is attacked, beaten, and captured in the area immediately surrounding the van. No evidence was presented concerning any actual distance the victim was moved. Absent any affirmative defense, these actions were obviously criminal, but legally did not constitute kidnapping because the conduct did not satisfy the distance-exclusive standard to prove substantial distance.

The instructions in this case correctly informed the jury felony murder requires the specific intent to commit kidnapping. No evidence was presented concerning a motive in this case. Even were we to assume, without any evidentiary basis in the record, there existed a plan to lure to the victim to the house for a purpose independent of killing him, there was no evidence to support that the conspirators intended to move the victim more than 90 feet. Consequently, there was no evidence to reasonably infer a specific intent to commit kidnapping (as opposed to an intent to commit other crimes like assault, battery, or false imprisonment).

Even if we continued to assume, without any evidentiary basis in the record, the plan was to capture the victim and bring him inside the residence for a purpose independent of killing him, there was still no evidence to reasonably infer the conspirators intended to specifically commit kidnapping by moving the victim more than 90 feet. There is no direct or circumstantial evidence in the record reasonably indicating the distance from the victim’s van to the home’s interior was more than 90 feet.

There was evidence during this phase, on the other hand, indicating the victim’s fate was not sealed. This evidence exists in prior testimony admitted at trial. After the victim was thrown in the back of the van, one man suggested they “tie him up.” The other man replied, “Do not tie him up. We should kill him once and for all.” At best, this evidence suggests two men, while still at the residence, debated the victim’s fate. It is reasonable to believe the men attacked and captured the victim without intending to kill him. But absent any evidence the victim was moved more than 90 feet during the incident outside the house, there was no kidnapping. More pointedly, there was no evidence the perpetrators specifically intended to move the victim more than 90 feet to constitute kidnapping.

The evidence during this first phase outside the house would warrant felony-murder instructions if the evidence reasonably indicated an intent to kidnap the victim by moving him 90 feet. But no evidence supports that conclusion during the first phase.

B. The Second Phase Kidnapping Was Not Independent to The Homicide

The second phase began when the men left the house, traveling towards the canal in the country. This act sufficiently proved kidnapping. But it was merely incidental to the homicide. There is no disputing at the point the men departed the residence for the canal, the victim’s fate was sealed. The prosecution argued as much.

Prior to embarking on their fatal journey, the men waited several minutes for Munoz to bring gasoline. They then left the residence and drove to the canal with gasoline, a lighter, a firearm, ammunition, and a getaway vehicle. Velasquez even stated their purpose was to shoot the victim. Unquestionably, their purpose was to kill the victim and conceal the crime.

To properly warrant felony-murder instructions in this second phase, the real question is what evidence would lead a reasonable juror to infer the kidnapping served an independent felonious purpose. During this phase, we find no evidence to support that conclusion.

This murderous plot necessarily included a decision to kill the victim at the canal as opposed to in the van or in the house. Once they decided to kill him, the victim was still not moved more than 90 feet until several minutes later when Munoz returned with gasoline. Once all instrumentalities for the homicide (and its concealment) were in place, legally sufficient kidnapping finally commenced. Most importantly, the intent to move the victim the 90 feet necessary to constitute kidnapping was not formed until the men decided to kill the victim away from the residence. The evidence is subject to no other reasonable interpretation.

Whether a homicide occurs in the perpetration of a felony is not mere semantics. (Jones, supra, 25 Cal.4th at p. 109.) We focus intently “ ‘on the relationship between the underlying felony and the killing’ ” because the consequences for first degree murder are drastic. (Ibid.) The difference is whether a person is entitled to have the People prove deliberation and premeditation beyond a reasonable doubt or whether we eliminate the burden. (Cavitt, supra, 33 Cal.4th at p. 197; People v. Ghobrial (2018) 5 Cal.5th 250, 279 [“ ‘For felony murder, the required mental state is the specific intent to commit the underlying felony.’ ”].)

Here, the relationship between the homicide and the kidnapping is undeniable. The kidnapping was merely incidental to the homicide. No other conclusion is reasonable. (Cf. People v. Raley (1992) 2 Cal.4th 870, 902-903 [sufficient evidence proved kidnapping independent felonious purpose because defendant “may have been undecided as to [victims’] fate at” time of kidnapping, and may have “formed the intent to kill after” kidnapping commenced, “so that the kidnapping could not be said to be merely incidental to the murder.”].)

We conclude the court erred in providing felony-murder instructions to the jury because insufficient evidence supported the theory. (See Canizales, supra, 7 Cal.5th at pp. 609-612 [kill zone theory instruction only warranted if supported by substantial evidence].) Because the court also correctly instructed on the alternate theory that first degree murder is willful, deliberate, and premeditated, the felony-murder error is reversible only if prejudicial.

IV. Alternative-Theory Error

Villa contends the errors require reversal. The People argue the errors were harmless because the court correctly instructed on the alternative theory the first degree murder was willful, deliberate, and premeditated.

Alternative-theory error requires us to first determine “whether a jury has been presented with a legally invalid or factually invalid theory.” (People v. Perez (2005) 35 Cal.4th 1219, 1233; see Aledamat, supra, 8 Cal.5th at pp. 6-13.) The answer to that inquiry determines the correct reviewing standard. The second step is to apply that standard to the harmlessness analysis.

A. The Felony-Murder Theory Was Legally Invalid
B.
To determine whether the theory was legally or factually invalid, “we must ask whether there is a ‘ “reasonable likelihood” ’ that the jury understood the [felony-murder] theory in a legally impermissible manner. [Citations.] In doing so, we consider the instructions provided to the jury and counsels’ argument to the jury.” (Canizales, supra, 7 Cal.5th at p. 613.)

In its kidnapping instructions, the court informed the jury to “consider all the circumstances relating to the movement” when determining substantial distance. As we previously explained, these instructions were erroneous. The prosecutor expressly argued the error in closing statements by stating substantial distance was proven by simply pulling the victim out of the van. At the same time, the prosecutor conceded it was “[n]ot a lot of distance,” “a few inches.” Certainly, a jury considering “all the circumstances” might well conclude those acts constituted a substantial distance.

“A reasonable jury, given no specific guidance regarding the required distance [necessary to prove substantial distance], could have found [the events outside the house at the van] sufficient [to prove substantial distance for kidnapping], and could have relied on that … in its verdict.” (People v. Guiton (1993) 4 Cal.4th 1116, 1128 (Guiton).) The instructions and arguments here combined to mislead the jury it could believe the events outside the house constituted kidnapping.

The jury also may have concluded that the victim’s fate was not yet decided as he lay captive in his van. If the jury believed Villa aided and abetted the kidnapping at any point before the men decided to kill, then a felony-murder conviction was a foregone conclusion—Villa participated in the kidnapping and the victim later died. Premeditation and deliberation are irrelevant to that determination. The prosecutor expressly urged this result: “[I]f you have several men that are pulling him out of his driver’s seat and you have several men that are pushing into his van or who knows which one tied him, and all of that who pulled him out of the van, who threw him in the canal, whichever stage of that kidnapping you want, as long as you believe that Mr. Villa acted in that very specific language in the [aiding and abetting] instruction, then he’s responsible for it. And then he would be responsible for the resulting death that took place during that kidnapping as an aider and abettor.”

It is entirely understandable, of course, how and why a reasonable jury instructed with today’s law could and would conclude the events outside the house constituted kidnapping. But we have already explained that the events outside the house were not kidnapping as a matter of law. For these reasons, we conclude “there is a ‘ “reasonable likelihood” ’ that the jury understood the [felony-murder instruction] in a legally impermissible manner,” and the felony-murder theory constituted a legal invalidity. (Canizales, supra, 7 Cal.5th at p. 614; see Guiton, supra, 4 Cal.4th at p. 1128 [discussing legally invalid theory involving kidnapping and substantial distance in Green, supra, 27 Cal.3d 1].)

C. The Legally Invalid Theory Requires Reversal
D.
We presume the legally invalid theory infected the verdict because jurors are not “ ‘ “equipped to determine whether a particular theory of conviction submitted to them is contrary to law ….” ’ ” (In re Martinez (2017) 3 Cal.5th 1216, 1224.) We must reverse Villa’s conviction “unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that” Villa willfully, deliberately, and with premeditation killed the victim. (People v. Chiu (2014) 59 Cal.4th 155, 167.)

In “[a]pplying that test, we ask ‘whether it is clear beyond a reasonable doubt that a reasonable jury would have rendered the same verdict absent the error’ [Citations.] In making that determination, we examine the entire record.” (Canizales, supra, 7 Cal.5th at p. 615; Aledamat, supra, 8 Cal.5th at p. 13.)

There are multiple approaches to the harmlessness analysis in alternative-theory error cases. (Aledamat, supra, 8 Cal.5th at pp. 13-15.) We will apply two distinct approaches in analyzing harmlessness in this case. The first approach, adapted to this case, “asks whether it would be impossible, on the evidence, for the jury to find [first degree murder] without also finding [deliberation and premeditation] as well.” (Id. at p. 15 [referencing test derived from Justice Scalia’s concurring opinion in California v. Roy (1996) 519 U.S. 2, 7.) The second approach asks “whether it is clear beyond a reasonable doubt the jury would have found [Villa guilty of first degree murder] had it been given only the correct instruction ….” (Aledamat, supra, 8 Cal.5th at p. 19, Cuéllar, J., concurring and dissenting.) We find the error prejudicial under either one.

Our first inquiry focuses on the more specific approach. We ask whether a reasonable jury could have found Villa guilty based on felony murder but simultaneously entertained reasonable doubts about deliberation and premeditation.

A jury could have reasonably concluded Villa aided and abetted tying up the victim outside the house. At trial, there was evidence Villa possessed the rope outside the house, threw it in the garbage bin, and then later showed it to law enforcement. There was also testimony that Villa told law enforcement “[w]e used a piece of rope.” The victim was found with rope binding his wrists. We have previously explained this conduct could not legally constitute aiding and abetting kidnapping, but the arguments and instructions could certainly mislead a jury to believe otherwise.

There was also evidence two men debated whether to kill or tie the victim up. With this evidence, a jury could conclude that when the victim was tied up, his fate was not yet decided. Because no eyewitness identified Villa, and there was no connection established between Villa and the victim, a jury could conclude Villa was not one of the two men debating the victim’s fate. In fact, Villa repeatedly denied his participation, and he named who was responsible. A jury could then reasonably conclude that Villa intended to aid and abet the tying (which the jury would likely and incorrectly conclude aided and abetted kidnapping) but did not intend to aid and abet a deliberate and premeditated homicide (because an active debate means there was not yet an intent to kill).

Next, there was no evidence Villa aided and abetted any crimes while riding as a passenger in the van. There are numerous plausible reasons that would explain why he rode along in the van unrelated to a deliberate and premeditated homicide. Villa himself testified, albeit inconsistently, he was forced to ride along. He also testified he was heavily intoxicated. Villa testified repeatedly he was intoxicated and not thinking clearly. For example, he said he “was a little crazy,” “high on drugs,” “all drugged up,” and using “[h]eroin, cocaine” and “crystal.” Any reason for his presence in the van other than to commit or aid and abet a deliberate and premeditated murder reasonably undermines the felony-murder theory.

Additionally, there was significant evidence Villa did not intend to kill the victim. He stated numerous times, with varying degrees of color, he did not want to shoot and was instead forced to shoot the victim. He specifically testified Velasquez threatened him with a rifle. A rifle was later found at the house.

Finally, there was no clear motive for the homicide. There was no evidence establishing a connection between Villa and the victim. Without this evidence, a reasonable jury might well struggle with why Villa would want to kill the victim. Villa himself testified he was heavily intoxicated. For all these reasons, a jury could reasonably conclude Villa did not deliberate and premeditate the homicide. But the jury would not stop there.

A reasonable jury would then circle back to the initial tying. Having been misled to conclude the tying aided and abetted kidnapping, and the victim thereafter died, the jury would find the felony-murder elements satisfied, rendering the more arduous task to determine deliberation and premeditation irrelevant. We cannot confidently say beyond a reasonable doubt the jury did not adopt this or similar logic in rendering its verdict.

Under the broader approach, we ask simply whether it is clear beyond a reasonable doubt the jury would have found deliberation and premeditation absent the erroneous instructions. For the same reasons articulated above, especially the evidence pertaining to intoxication, duress, and Villa’s insistence he did not intend to kill the victim, we cannot conclude beyond a reasonable doubt the jury would have found deliberation and premeditation.

We also note that during deliberations, the jury asked the court to define second degree murder. “[T]he questions the jurors ask and the areas in which they focus their deliberations can be revealing.” (People v. Carrillo (2004) 119 Cal.App.4th 94, 104.) Here, the instructions explained second degree murder was relevant only in contrast to willful, deliberate, and premeditated first degree murder. The jury’s request to define second degree murder tends to suggest they were not entirely convinced Villa committed willful, deliberate, and premeditated murder.

Ultimately, the evidence and instructions presented three paths to prove first degree murder: 1) a legally erroneously perceived kidnapping near the van when the intent to kill was questionable; 2) an actual but merely incidental kidnapping from the house to the canal when the intent to kill was unquestionable; and 3) willful, deliberate, and premeditated murder. Only the third path was legally correct.

“ ‘However reprehensible the conduct of an accused, he is entitled to have its legal consequences determined from competent evidence by a jury properly instructed.’ ” (Green, supra, 27 Cal.3d at pp. 69-70.) Because we are unable to conclude the jury followed the correct path, the alternative-theory error was prejudicial and requires reversal.

V. Villa Is Entitled to Presentence Custody Conduct Credits

To encourage good behavior in local jail, the Legislature allows pretrial inmates to earn up to a 50 percent presentence custody credit bonus for actual time spent in custody awaiting trial. (People v. Dieck (2009) 46 Cal.4th 934, 943; § 4019.) In other words, good behavior results in less time incarcerated.

The presentence custody credit scheme is subject to various exceptions. Villa claims the court erred in applying the exception applicable to convicted murderers to his case. The People concede the error. We agree.

At sentencing, the court awarded Villa 7,878 actual days of custody credit. The court awarded zero presentence conduct custody credits pursuant to section 2933.2, which is an exception to the general presentence custody credit scheme and denies such credits to convicted murderers. (People v. Chism (2014) 58 Cal.4th 1266, 1336; § 2933.2, subd. (d).) By its own terms, the credit limitation applies only to murders committed after June 2, 1998. (Ibid.)

The homicide charged in this case allegedly occurred on January 1, 1996. Villa is entitled to presentence conduct custody credits even if convicted of murder. He is not entitled to presentence conduct custody credits for time spent in a Department of State Hospitals facility. (People v. Waterman (1986) 42 Cal.3d 565, 568-569.)

CONCLUSION

“It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.” (Guiton, supra, 4 Cal.4th at p. 1129.) “[U]nsupported theories should not be presented to the jury. [Citation.] Trial courts have [a] duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place.” (Id. at p. 1131.)

We find the court prejudicially erred in providing felony-murder instructions to the jury. The prosecutor exacerbated the error by arguing the erroneous instructions proved first degree murder.

DISPOSITION

The judgment is reversed and remanded for further proceedings consistent with this opinion.

SNAUFFER, J.

I CONCUR:

SMITH, J.

POOCHIGIAN, Acting P.J., Dissenting.

The majority concludes the court erred in instructing the jury on felony murder because there was insufficient evidence defendant harbored the requisite intent. Specifically, there was insufficient evidence defendant intended to move the victim a substantial distance – an element of kidnapping in 1996. Conversely, I conclude there was sufficient evidence of the requisite intent to support the felony-murder instructions.

A. Law and Issue Presented
B.
The trial court must instruct the jury on the elements of all charged offenses. (People v. Cummings (1993) 4 Cal.4th 1233, 1311, abrogated on other grounds in People v. Merritt (2017) 2 Cal.5th 819, 831.) However, “[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. [Citation.]” (People v. Guiton (1993) 4 Cal.4th 1116, 1129; maj. opn., ante, at p. 25.) “ ‘ “[B]efore a jury can be instructed that it may draw a particular inference, [substantial] evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].” [Citation.]’ [Citations.]” (People v. Canizales (2019) 7 Cal.5th 591, 609; maj. opn., ante, at p. 15.)

Here, the question is whether there was sufficient evidence from which the jury could infer defendant harbored the intent required for felony murder (i.e., specific intent to commit the enumerated felony). The majority concludes there was “no evidence to reasonably infer” the conspirators intended to move the victim 90 feet during the “first phase” of the night. (Maj. opn., ante, at pp. 16–17.) Therefore, the intent element of felony murder was unsupported, and the trial court’s instruction on felony murder contravened its duty to screen out unsupported theories before they reach the jury. (Id. at pp. 25–26.)

As explained below, I disagree with the evidentiary premise that there was no basis to reasonably infer the conspirators intended to move the victim 90 feet during the first phase. (Maj. opn., ante, at pp. 16–17.)

C. Analysis
D.
“An inference is a deduction of fact that may logically and reasonably be drawn from another fact ….” (Evid. Code, § 600, subd. (b).) There is rarely direct evidence of a defendant’s intent, so it is usually shown by actions. (People v. Vu (2006) 143 Cal.App.4th 1009, 1025.)

Here, the act of placing the victim in a vehicle – as opposed to, say, a bedroom – clearly supports an inference the men intended to move him a substantial distance. (See People v. Fields (1976) 56 Cal.App.3d 954, 956–957 [when a defendant seeks to forcibly move the victim into a vehicle, intent to move the victim a substantial distance may be inferred]. ) That is, logic and reason suggest that when assailants force a victim into a vehicle, they do so with intent to move the victim a substantial distance. There may be other possible explanations, but it remains that these circumstances at least support a reasonable inference of intent to move the victim more than 90 feet Therefore, the court did not err in presenting the felony-murder theory to the jury. (See maj. opn., ante, at p. 17 [“The evidence during this first phase … would warrant felony-murder instructions if the evidence reasonably indicated an intent to kidnap the victim by moving him 90 feet”].)

For these reasons, I respectfully dissent from the majority’s contrary conclusion.

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POOCHIGIAN, Acting P.J.