Filed 8/19/24 P. v. Arroyo CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JAJUAN WELCH ARROYO,

Defendant and Appellant.

 B332413

 (Los Angeles County 

 Super. Ct. No. MA081061)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Hayden A. Zacky, Judge. Affirmed.

Halpern & Halpern and H. Russell Halpern for Defendant 

and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill, Stephanie A. Miyoshi, and 

Sophia A. Lecky, Deputy Attorneys General, for Plaintiff and 

Respondent.

___________________________
2

Jajuan Welch Arroyo (Arroyo) appeals from his conviction 

for first degree felony murder (Pen. Code, § 187, subd. (a))1 and 

second degree attempted robbery (§§ 211, 664). He contends the 

trial court erroneously instructed the jury on a legally inadequate 

theory of felony murder for the “actual killer.” He also contends 

there was insufficient evidence to support his attempted robbery

conviction. We agree the felony murder instructions were 

erroneous but conclude the error harmless beyond a reasonable 

doubt. We conclude Arroyo forfeited his argument as to the 

sufficiency of the evidence for the attempted robbery conviction.

We therefore affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Arroyo arranged to buy marijuana from Tyler Edwards.

Shortly after the sale in the parking lot of Edwards’s apartment 

complex, two men approached Edwards with a gun, demanding

Edwards take them to his apartment and “give them the money.”

Edwards screamed out to his girlfriend, Samantha Mena, who 

ran out of the apartment and chased the men. The men ran to 

Arroyo’s car and got inside. Mena then ran in front of Arroyo’s

stopped car. Arroyo drove forward, hitting Mena with his car and

killing her. 

I. Relevant Prosecution Evidence

A. The attempted robbery and killing of Mena 

during the escape

Edwards lived at the Racquet Club Apartments with Mena. 

Edwards sold large amounts of marijuana and advertised his 

1 All undesignated statutory references are to the Penal 

Code. 
3

products online. He kept the marijuana and cash he earned 

inside his apartment. 

In October 2020, Arroyo texted Edwards for the first time 

about buying marijuana. Edwards sent Arroyo a link to an 

online “menu” that showcased Edwards’s inventory of marijuana 

products. Arroyo asked Edwards, “ ‘You only deal with cash?,’ ” 

to which Edwards responded, “ ‘Yeah, I only deal with cash.’ ” At 

some point, Arroyo asked if Edwards was successful at selling 

marijuana, and Edwards replied that he “ma[d]e some money off 

of it.” 

Over the next five months, Edwards sold marijuana to 

Arroyo “at least 20 times.” Each sale would cost hundreds to 

thousands of dollars. Most of the transactions occurred in the 

parking lot of Edwards’s apartment complex, although a few 

times Edwards went to Arroyo’s house or his workplace to drop 

off items.

On March 26, 2021, Arroyo arranged to buy marijuana 

from Edwards. At 8:12 p.m., Arroyo texted, “ ‘I’m here.’ ” 

Edwards left his apartment and met Arroyo in the parking lot. 

Arroyo was in the driver’s seat of a four-door silver 

Hyundai. No one else was in the vehicle. After the hand-to-hand 

exchange through the open car window, Arroyo drove toward the 

back of the apartment complex. 

As Edwards walked toward his apartment, he noticed two 

men running up behind him. Both men were African American, 

“heavier set,” at least six feet tall, and wearing surgical masks 

and dark clothing. One of them was also wearing a ski mask, 

which was orange or red, “on top of his head, like a beanie.” One 

of the men shoved a gun in Edwards’s face. Both men repeatedly 

told Edwards to take them to his apartment and to “give them 
4

the money.” The man with the gun said, “If he doesn’t cooperate, 

I’m going to smoke him right here.” 

Edwards cried out to his girlfriend Mena to lock their 

apartment door. At that point, the two men hit Edwards in the 

back of the head and face several times, knocking him to the 

ground.2

At some point, Edwards saw Mena run down the stairs 

from their apartment and chase after the men. It took some time 

before Edwards was able to stand up. Eventually, he made his 

way to the driveway area of his apartment complex and saw 

Mena lying on the ground. 

Minutes earlier, Sarah Le and her husband were driving 

near the Racquet Club Apartments. As they approached the 

apartment complex, a four-door silver sedan leaving the driveway 

of the complex almost “T-bone[d]” Le’s car. The sedan braked 

“really hard” to avoid hitting her car. Shortly afterwards, as the 

car Le was in passed the driveway, Le heard what sounded like 

the sedan hitting “something metal” or “[s]omething hard.” The 

sedan stopped but then drove off. 

Le’s mother, Lori Gilroy, was a few cars behind Le’s car, 

driving her own car. As Gilroy’s car approached the apartment 

complex, Gilroy heard a “loud noise.” The car in front of Gilroy’s 

car swerved, and Gilroy did too. Gilroy saw a woman, later 

identified as Mena, lying in the roadway. Gilroy then made a Uturn, parked her car behind Mena to block traffic, and called 911. 

Gilroy saw two African American men on the sidewalk who 

made Gilroy feel “nervous” and “unsafe” because they were 

2 Edwards subsequently was treated at the hospital, where 

he received staples for his head injuries and stitches on the inside 

and outside of his mouth. 
5

“cussing and kind of moving around real quick and sketchy.” One 

of the men was “more heavyset” and was wearing a “dark-colored 

sweatshirt hoodie,” while the other one was wearing a white tshirt. The men yelled “that they had to get out of there.” One of 

the men stated, “Where did he go? We’ve got to go. We’ve got to 

go.” The men “took off running” toward a silver car. Then, Gilroy 

heard two car doors shut and saw a silver car speed away. She 

no longer saw the two men in the vicinity. Gilroy approached 

Mena. It looked like Mena had been hit “pretty hard” because 

her “whole left side” was “bruised pretty bad.” 

Deputy Carlos Camargo of the Los Angeles County Sheriff’s 

Department (LASD) happened to be driving near the apartment 

complex and saw Mena lying on the ground, with people 

gathering around her. Camargo exited his car and approached to 

render aid. Mena was unresponsive. After finding a “very weak 

pulse,” Camargo started CPR on Mena. Camargo saw “grease 

marks” on her shirt. Edwards approached, frantic and with a 

“very bloody face,” and said he had been robbed. 

The fire department arrived and took Mena to the hospital. 

She died soon afterward at 8:47 p.m. The cause of death was 

determined to be multiple blunt force trauma. 

Within minutes after witnesses heard the loud noise and 

found Mena injured in the street, three men in the parking lot of 

a nearby restaurant caught Denise Carroll’s attention. The men 

walked “fairly fast” toward Carroll and her boyfriend. One man 

came from the area of the Lancaster Inn, behind the restaurant, 

while the other two came from the area to one side of the 

restaurant. Carroll heard sirens and saw police cars “whipping 

around the corner.” She “knew something wasn’t right” and told

her boyfriend to get in the car. 
6

One of the men, a “light-skinned African American” man 

wearing a “red hoodie,” stood in front of Carroll’s car. The second 

man stood to the left of the first man. The third man came up as 

if he was “deciding which way he wanted to go.” The three men 

then went inside the restaurant. Carroll drove towards the police

cars on the scene with Mena and talked to the police. 

Shortly afterward, LASD Deputy Lia Winter began looking 

for the car that hit Mena. Winter drove to the Lancaster Inn 

parking lot and found a silver sedan in the lot, with a handprint 

on the hood. The car was impounded. 

B. Evidence collected at the scene

LASD Detective Esteban Soliz investigated the crime 

scene. Soliz found blood (from the assault on Edwards) along the 

walkways leading to Edward’s apartment and inside Edwards’s 

apartment. Inside Edwards’s apartment, detectives found a large 

amount of marijuana and a number of guns, including “ghost 

guns,” which are “weapons that are bought through the internet 

with no serial numbers and can’t be traced.”3

Soliz also found a red beanie or mask near the stairs 

leading to Edwards’s apartment. Edwards testified the red mask 

looked like the mask that one of his assailants wore. Deputies 

found Arroyo’s DNA on the mask among four DNA contributors. 

Deputies examined the silver sedan that was impounded 

from the Lancaster Inn parking lot. They found blood stains on 

the “rear passenger side roof” of the vehicle, the driver’s side rear 

wheel area on the undercarriage of the vehicle, and the exhaust 

pipe. Mena’s DNA was on the rear wheel area and the exhaust 

3 Detective Leopoldo Sanchez testified that marijuana, ghost 

guns, and cash are items that “people like to steal.” 
7

pipe. Arroyo’s DNA was found on the driver’s side door handle

and on a water bottle found inside the car. 

C. Surveillance footage 

Surveillance camera footage from the Racquet Club 

Apartments, the Lancaster Inn, and the restaurant was played 

for the jury. 

Footage showed that around 8:00 p.m. a man wearing a 

light-colored hat and a dark-colored sweater drove a silver sedan 

through the north gate of the Racquet Club Apartments. The 

man was identified as the same individual who was later with 

Arroyo at the restaurant. 

Due to camera “blind spots,” the next time the sedan 

appeared on camera was at a carport area inside the apartment 

complex. At some point, the sedan drove through the complex 

and stopped. Shortly after, an individual walked up to the driver, 

appeared to speak with the driver, and then walked away. 

Edwards identified himself as the person who approached the car 

on foot, and he stated at that point Arroyo was the person in the 

driver’s seat. Edwards testified that was the moment he sold 

marijuana to Arroyo. 

The sedan then exited the south gate of the parking lot and 

stopped in the driveway area. Meanwhile, two men, later 

identified as the pair who attacked Edwards, ran through the 

apartment complex, with Mena running behind them. The men 

ran out of the apartment complex through the north gate and ran 

south on the sidewalk, with Mena running behind them.

While the sedan was still stopped in the driveway, a person

with a light-colored hat got into the sedan on the rear driver’s 

side. The video showed “a second shadow, believed to be the 

second individual, come around the vehicle.” Shortly after, Mena 
8

ran in front of the sedan as it was stopped in the driveway with 

its brake lights illuminated. Then the car drove forward into the 

street.4

Footage from the Lancaster Inn showed the silver sedan 

park in the motel parking lot at around 8:31 p.m. Three 

individuals got out of the car. One was wearing a light-colored 

hat. The driver was wearing red. Later, a person with a red 

hoodie walked from the Lancaster Inn parking area towards the 

restaurant. The person with the red hoodie was with a person 

with a light-colored hat and a black sweater. 

Restaurant security camera footage captured three men 

walking into the restaurant. One man wore a dark-colored top 

with a light-colored hat, one wore a black shirt with a red jacket, 

and one wore a red hoodie. Edwards identified the man in the 

red hoodie as Arroyo. Edwards testified that the “upper half” of 

the other two men looked similar to the men who attacked him. 

The three men sat in the lobby of the restaurant for a while 

and then left without getting anything to eat. One of the men 

returned to the sedan and moved it to a different area of the 

Lancaster Inn parking lot—the same area where deputies later 

found the sedan that they impounded. 

D. Expert testimony 

LASD Detective Aaron Percy, an expert in traffic collisions, 

provided a reconstruction of the traffic collision involving Mena. 

Percy testified that the silver sedan was in the apartment 

4 Officers found Mena’s body near the driveway of the 

apartment complex. The surveillance video does not show the car 

hitting Mena because the camera angle was blocked by a wall. 
9

complex driveway when the incident occurred. The area in front 

of the car was lit up by the car’s front lights and a streetlamp. 

While the car’s brake lights were on, Mena ran in front of 

the car. Mena approached from the front driver’s side of the car 

and ran to the front corner of the passenger’s side. She was 

facing the car, wearing a light blue top, and her skin color was 

“white.” Because of Mena’s appearance and the lighting 

conditions at the time, Mena was “clearly visible at the time the 

incident took place.” Because the driver was attempting to make 

a right turn, he would have been looking towards his left, the 

direction from which Mena had approached. 

Percy opined that as the car turned right, it ran Mena over. 

Her head was on the outside of the car and her body was 

underneath the car. The car dragged her body into the street. 

Mena’s injuries, her “resting” position, the marks on the ground, 

and the tears on Mena’s clothes were all consistent with the car 

running Mena over and dragging her. After the car ran over 

Mena, nothing else struck her. 

II. Defense Evidence

Babak Malek testified for the defense as a traffic collision 

expert. Based on the “frame rate” of the available video footage, 

Malek calculated the timing of the collision. 

He determined that after one of the passengers got into the 

car, it took 8.53 seconds for Mena to first appear on the video. It 

took another 1.13 seconds for Mena to reach the front left corner 

of the car. It then took Mena .86 seconds to move to the front 

center of the car. Thus, Mena was visible for under two seconds. 

During that time, the car’s brake lights were on. The brake 

lights went off .46 seconds later and the car drove forward. 
10

Malek opined that generally, when an “unanticipated 

event” occurs, a driver’s average reaction time is up to 1.5 

seconds. “[S]omeone running in front of your vehicle” is an 

unanticipated event. Malek opined there was not enough time 

for the driver to recognize that Mena was in front of the car and 

stop the car from moving forward. The driver was “still . . . 

trying to perceive what’s happening.” 

III. Felony Murder and Causation Instructions and 

Closing Arguments

At trial, the prosecutor relied on the theory that Arroyo was 

guilty of felony murder as the actual killer. The prosecution 

argued that Arroyo killed Mena by hitting her with his car while 

he escaped the attempted robbery. 

The trial court instructed the jury with the standard felony

murder instruction, former CALCRIM No. 540A, used when the 

defendant is alleged to have committed the fatal act, i.e., is the 

actual killer. The court told the jury that Arroyo was guilty of 

felony murder if the People proved that (1) Arroyo committed or 

attempted to commit robbery; (2) Arroyo intended to commit 

robbery; and (3) while committing or attempting to commit 

robbery, Arroyo “caused the death of another person.” (Former 

CALCRIM No. 540A (Sept. 2019 rev.), italics added).5

5 The jury was instructed that “the perpetration of a robbery 

continues, for felony-murder liability purposes, so long as the 

robbers are in flight from the scene of the crime and have not 

reached a place of temporary safety.” (People v. Bodely (1995) 

32 Cal.App.4th 311, 313 (Bodely I) italics omitted; accord, People 

v. Ainsworth (1988) 45 Cal.3d 984, 1016, disapproved on another 

ground in People v. Sanchez (2016) 63 Cal.4th 665.) The jury was 
11

Two months before Arroyo’s trial, on March 24, 2023, the 

Judicial Council of California revised the third element of 

CALCRIM No. 540A in recognition of changes to the felony

murder rule wrought by Senate Bill No. 1437 (2017-2018 Reg. 

Sess.) (SB 1437). In lieu of stating the defendant “caused the 

death of another person,” the new instruction states “the 

defendant personally committed (an/the) act[s] that directly 

caused the death of another person.” (CALCRIM No. 540A

(March 2023) (rev.2023 ed.), italics added.) Neither defense 

counsel nor the People advised the court of the revised pattern 

instruction or requested the court give it. 

The court also instructed the jury on proximate causation 

with CALCRIM No. 240: “An act causes death if the death is the 

direct, natural, and probable consequence of the act and the 

death would not have happened without the act. A natural and 

probable consequence is one that a reasonable person would know 

is likely to happen if nothing unusual intervenes. [¶] There may 

be more than one cause of death. An act causes death, only if it is 

a substantial factor in causing the death. A substantial factor is

more than a trivial or remote factor. However, it does not have to 

be the only factor that causes the death.” 

During closing arguments, the prosecutor began by saying, 

“On March 26, 2021, while fleeing the scene of an attempted 

robbery, this defendant ran over Samantha Mena with the car he 

also properly instructed that the person killed need not be the 

intended victim of the robbery (People v. Welch (1972) 8 Cal.3d 

106, 118-119), and that an actual killer may be guilty of felony 

murder even if the killing was purely accidental. (People v. Billa

(2003) 31 Cal.4th 1064, 1068; People v. Albert Garcia (2022) 

82 Cal.App.5th 956, 968-969.)
12

was driving, murdering her.” The prosecutor argued that after 

Arroyo bought marijuana from Edwards, Arroyo drove towards 

the exit of the apartment complex, stopped his car, and waited for 

the other two men. At some point, the two men got into Arroyo’s 

car. While the car was stopped, Mena stood in front of the car to 

prevent the men from escaping. “Then the defendant r[an] over 

her.” Later, the prosecutor argued, “He is the actual killer 

because he was the driver. He was the one that drove over her, 

making him the actual killer.” She went on to argue, “Because he 

set [Edwards] up to be robbed, because he lured [Edwards] out to 

be ambushed, and because he was the get-away driver, and 

because he ran over [Mena] while fleeing the scene of that 

attempted robbery, because we have shown all of that, that he 

attempted to commit a robbery, that he intended to commit that 

robbery, and while attempting to commit that robbery he caused 

her death, he is also guilty of murder.” 

Arroyo’s primary defense was that there was no evidence 

he participated in the robbery or knew the two perpetrators, who 

may have forced him to drive them away from the scene after 

they beat up Edwards. Arroyo did not dispute that he was the 

driver of the car that struck Mena, but instead argued Mena’s 

death was an accident. Further, defense counsel told the jury the 

key question was whether Arroyo’s “act of driving forward” was 

“the reason [Mena] is gone.” He contended Mena “running in 

front of a vehicle” was an “unexpected event” and, as defense 

counsel argued, it takes a person “1.5 seconds to see something 

and react to it.” “[T]he second [Mena] comes into frame, it’s less 

than 1.5 seconds before that car starts to move and hits her. He 

had no time to stop. No time to process the information and not 

hit her.” In sum, defense counsel argued to the jury that because 
13

“something unusual intervene[d]” and Arroyo “didn’t even have 

time to react when that unusual thing happened,” Arroyo did not 

cause Mena’s death. 

During the prosecutor’s rebuttal argument, the prosecutor 

highlighted the instruction that there can be more than one cause 

of death, and that an act causes death if it is a substantial factor 

in causing the death. She then argued, “[E]ven if you think 

Samantha Mena, why did you get in front of that car, why did 

you try to stop them from leaving, even if you thought that, 

[Arroyo] is still legally responsible as long as his action, which is 

driving over her, is a substantial factor in causing that death. 

And it is.” 

IV. Verdict and Sentencing 

In May 2023, the jury convicted Arroyo of first degree 

felony murder and attempted second degree robbery. The trial 

court sentenced Arroyo to 28 years to life in state prison, 

consisting of 25 years to life for the murder and three years for 

the attempted robbery. 

Arroyo timely appealed. 

DISCUSSION

I. The Felony Murder Jury Instruction Was Erroneous, 

but the Error Was Harmless

The court instructed the jury with former CALCRIM 

No. 540A, advising them Arroyo was guilty of felony murder if 

the People proved that (1) Arroyo committed or attempted to 

commit robbery; (2) Arroyo intended to commit robbery; and 

(3) while attempting to commit robbery, Arroyo “caused the death 

of another person.” (Italics added.) Arroyo contends the 

instruction was erroneous because it failed to accurately define 
14

one of the elements—the third element concerning the 

defendant’s homicidal act. Specifically, Arroyo contends the 

instruction omitted the requirement that he be found the actual 

killer, i.e., the individual who “personally” and “directly” caused 

the death of another person.6 Although we agree the instruction 

was erroneous, the error was harmless beyond a reasonable 

doubt.

A. The “actual killer” requirement for felony

murder under section 189, subdivision (e)

By the time of Arroyo’s trial in March 2023, SB 1437 had

revised the felony murder rule. In relevant part, SB 1437

amended section 188 by adding the following language: “Except 

as stated in subdivision (e) of Section 189, in order to be convicted 

of murder, a principal in a crime shall act with malice 

aforethought. Malice shall not be imputed to a person based 

solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) 

It also added section 189, subdivision (e), which provides that 

felony murder liability attaches only if the person was: (1) the 

actual killer; (2) an aider and abettor who acted with the intent 

to kill; or (3) a major participant in the underlying felony who

6 We reject the People’s contention that Arroyo forfeited his 

claim by failing to object to the trial court’s instructions. “ ‘A trial 

court has no sua sponte duty to revise or improve upon an 

accurate statement of law without a request from counsel 

[citation], and failure to request clarification of an otherwise 

correct instruction forfeits the claim of error for purposes of 

appeal.’ [Citation.] ‘But that rule does not apply when . . . the 

trial court gives an instruction that is an incorrect statement of 

the law.’ ” (People v. Javier Ruben Rodriguez Garcia (2020) 

46 Cal.App.5th 123, 154; accord, People v. Vang (2022) 

82 Cal.App.5th 64, 80, fn. 4.)
15

acted with reckless indifference to human life. (§ 189, subds. 

(e)(1)-(3).)

The People contend SB 1437 left “unchanged” the legal 

principles relevant to individuals who were the sole perpetrators 

of the act causing death. They contend the term “actual killer” in 

section 189, subdivision (e), “merely distinguishes who, among 

multiple accomplices, is ‘the actual killer.’ ” They further argue 

“[i]t is plain from the overall context of [SB] 1437 . . . that the 

Legislature did not concern itself with the culpability of and 

punishment for sole perpetrators but sought only to ensure 

proportionate punishment for accomplices of the actual killer.” 

By contrast, Arroyo contends SB 1437 changed the felony murder 

laws to add as an “essential element” under section 189, 

subdivision (e)(1), the fact that the defendant was the actual 

killer who personally caused the victim’s death. 

“The interpretation of a statute is a question of law as to 

which we exercise our independent judgment. [Citation.] As in 

any case involving statutory interpretation, our fundamental 

task is to determine the Legislature’s intent to effectuate the 

purpose of the law. We begin by examining the words of the 

statute, giving them a plain and commonsense meaning, in 

context, keeping in mind the nature and purpose of the statute. 

[Citation.] If the statutory language is clear and unambiguous, 

there is no need for further construction. [Citation.] But if the 

language is unclear or ambiguous, the court may refer to other 

indicia of the intent, such as legislative history.” (People v. Vang 

(2022) 82 Cal.App.5th 64, 85 (Vang).)

In Vang, supra, 82 Cal.App.5th 64, the appellate court

rejected the People’s argument that SB 1437 was intended to 

modify only accomplice liability and not felony murder liability
16

for defendants alleged to have committed the homicidal act. 

(Vang, at pp. 87-88.) The court held, “If the Legislature’s intent 

had been to limit its changes to accomplice liability, the text of 

[SB] 1437 presumably would have said so. Here, the word 

‘accomplice’ is never used in the text and there is nothing in the 

language of section 189, subdivision (e) which limits its 

application to cases involving accomplices. . . . While it is true 

that [SB] 1437 substantially modified the law relating to 

accomplice liability for felony murder, it is equally evident that 

the Legislature was concerned about more than the liability of 

accomplices and wanted to address some of the broader criticisms 

of the felony-murder rule.” (Id. at p. 87.) 

What specifically did the Legislature intend in providing 

that it must be “proven” the defendant was “the actual killer” for 

purposes of felony murder liability under section 189, subdivision 

(e)(1)? The term “actual killer” is not defined in section 189. The

Vang court held that “the term ‘actual killer’ was intended to 

limit liability for felony murder—in cases where section 189, 

subdivision (e)(2) or (3) do not apply—to the actual perpetrator of 

the killing, i.e., the person (or persons) who personally committed 

the homicidal act. In other words, the intent was to conform 

California law to the ‘agency theory’ of felony murder liability, 

under which criminal culpability is restricted to deaths directly 

caused by the defendant or an accomplice, as distinguished from 

the ‘proximate cause’ theory of felony murder, under which a 

defendant is responsible for any death that proximately results 

from the unlawful activity.” (Vang, supra, 82 Cal.App.5th at 

p. 88; accord, People v. Lopez (2022) 78 Cal.App.5th 1, 18-19 

(Lopez); see also People v. Javier Ruben Rodriguez Garcia (2020) 

46 Cal.App.5th 123, 151 (Rodriguez Garcia) [“ ‘[P]roximately 
17

causing and personally inflicting harm are two different 

things.’ ”]; compare People v. Carney (2023) 14 Cal.5th 1130, 1138

(Carney) [proximate cause of death is “ ‘ “an act or omission that 

sets in motion a chain of events that produces as a direct, natural 

and probable consequence of the act or omission the death of [the 

decedent] and without which the death would not occur” ’ ”] with

Vang, at p. 90 [“[t]o personally kill the victim is to directly cause 

the victim’s death”].)

In Vang, the defendant, who had a long history of domestic 

violence, got into an argument with his wife, and the wife fled in 

her car. (Vang, supra, 82 Cal.App.5th at p. 69.) The defendant 

followed her, forced her to stop, and coerced her into his car. 

(Ibid.) As the defendant drove away, his wife jumped from the 

moving car and died. (Ibid.) The trial court instructed the jury 

that it could find defendant guilty of first degree felony murder if 

it found that the defendant “caused” his wife’s death during the 

kidnapping. (Ibid.)

Relying on the legislative history of SB 1437 and 

persuasive authorities, the Vang court held the trial court erred

by instructing the jury with an improper definition of “actual 

killer.” It determined the legislative history of SB 1437 showed 

the Legislature’s intent that the term “actual killer,” as used in 

section 189, means the person who personally killed the victim. 

(Vang, supra, 82 Cal.App.5th at p. 88.) After the Legislature 

removed (without explanation) the phrase “personally committed 

the homicidal act” from SB 1437 and replaced it with the term 

“actual killer,” the Senate Rules Committee still described the 

purpose of the bill as revising the felony murder rule to prohibit 

imputation of malice unless the person “ ‘personally committed 

the homicidal act.’ ” (Vang, at p. 87, citing Sen. Rules Com., Off. 
18

of Sen. Floor Analyses, Rep. on Sen. Bill No. 1437 (2017-2018 

Reg. Sess.), as amended Aug. 20, 2018, p. 7.) 

Vang also drew support from Rodriguez Garcia, supra,

46 Cal.App.5th 123, for the interpretation that the term “actual 

killer” means the person “who personally killed the victim.” 

(Vang, supra, 82 Cal.App.5th at pp. 90-91.) In Rodriguez Garcia, 

the appellate court examined the meaning of “actual killer” under 

section 190.2, the felony murder special-circumstance provision.

7 

(Vang, at p. 90, citing Rodriguez Garcia, 46 Cal.App.5th at 

pp. 151-155.) Rodriguez Garcia concluded that “the meaning of 

‘ “actual killer” ’ under section 190.2 is literal: the actual killer is 

the one who personally killed the victim.” (Vang, at p. 90,

quoting Rodriguez Garcia, at p. 152.) Thus, Rodriguez Garcia 

held “CALCRIM No. 730, the standard instruction for the felonymurder special circumstance, was inconsistent with the law 

because it allowed the jury to find the defendant guilty as an 

‘actual killer’ based on general causation principles.” (Vang, at 

p. 90, citing Rodriguez Garcia, at p. 152, fn. 33.) Vang

additionally found support from Lopez, supra, 78 Cal.App.5th 1, 

which held that “the term ‘actual killer’ [under section 189, 

subdivision (e)] means someone who personally killed the victim, 

not someone who merely commits an act that is a proximate 

7 Vang concluded that “[a]lthough [section 189 and section 

190.2] serve different purposes, nothing suggests the Legislature 

intended the term ‘actual killer’ to have one meaning for 

purposes of the felony-murder rule, and a different meaning 

under the felony-murder special-circumstance statute. To the 

contrary, as the former expressly incorporates language from 

(and references) the latter, the logical implication is that the 

Legislature intended them to be the same.” (Vang, supra, 

82 Cal.App.5th at pp. 90-91.)
19

cause of the victim’s death.” (Vang, at p. 91, citing Lopez, at 

pp. 16-19.) 

The Vang court held that the felony murder jury 

instruction given was flawed “because jurors were not provided a 

proper definition of ‘actual killer.’ ” (Vang, supra, 82 Cal.App.5th 

at p. 91.) Thus, the instruction allowed jurors to find the felony

murder special circumstance true if the jury determined the 

defendant “caused” the victim’s death based on general causation 

principles and not based on a finding the defendant “personally 

committed the homicidal act.” (Ibid.) The court reversed the 

conviction “[b]ecause the evidence [did] not permit any inference 

that defendant was the direct cause of [his wife’s] death.” (Ibid.)

We find Vang persuasive and likewise conclude the 

Legislature intended the term “actual killer” in section 189, 

subdivision (e), to mean a person who personally and directly 

committed the act causing the death of another.

B. The felony murder “actual killer” instructions

were erroneous

“We apply a de novo standard when determining whether 

jury instructions were complete and correctly stated the law. 

[Citation.] We consider the challenged instruction in the context 

of the instructions and record as a whole to determine whether it 

was reasonably likely the jury misapplied the law.” (Vang, supra,

82 Cal.App.5th at pp. 84-85; accord, People v. Kelly (1992) 

1 Cal.4th 495, 525 [“the question is whether there is a ‘reasonable 

likelihood’ that the jury understood the charge as the defendant 

asserts”].)

The trial court instructed the jury that it could find Arroyo

guilty of felony murder if it found that while committing the 

robbery, Arroyo “caused” Mena’s death. The court did not 
20

instruct the jury that it had to find Arroyo personally committed

the act that killed Mena. The jury instructions given here thus 

suffered from the same flaw as those in Vang and Rodriguez 

Garcia—they “were inadequate because jurors were not provided 

a proper definition of ‘actual killer.’ The jury was permitted to 

find defendant guilty of felony murder . . . based on an invalid 

legal theory.” (Vang, supra, 82 Cal.App.5th at p. 91.) Further, 

although the prosecutor argued that Arroyo was the “actual 

killer” who ran over Mena, the prosecutor never informed the 

jury that it had to find Arroyo personally committed the 

homicidal act in order to find him guilty of first degree murder. 

The instructions were therefore erroneous.

C. The instructional error was harmless

The People argue the error is harmless beyond a reasonable 

doubt because there is “overwhelming and uncontested evidence” 

that Arroyo “struck Mena with his car, directly causing her 

death.” We agree.

When a trial court instructs the jury on a theory of guilt 

that “is legally erroneous at the time it was given,” we assess

whether the error was harmless under the strict standard of 

Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. 

Gentile (2020) 10 Cal.5th 830, 851, superseded by statute on 

another ground as stated in People v. Wilson (2023) 14 Cal.5th 

839, 869; People v. Birdsall (2022) 77 Cal.App.5th 859, 867-868 

(Birdsall).) The Chapman standard requires us to “ ‘reverse the 

conviction unless, after examining the entire cause, including the 

evidence, and considering all relevant circumstances, [we] 

determine[ ] the error was harmless beyond a reasonable doubt.’ ” 

(Gentile, at p. 851.) This standard applies to “errors involving the 

omission or misdescription of elements of a charged offense.” 
21

(Birdsall, at p. 868; see People v. Merritt (2017) 2 Cal.5th 819,

831.) The Attorney General has the burden to show the error 

was harmless. (People v. Madrigal (2023) 93 Cal.App.5th 219, 

242; People v. Avalos (2022) 85 Cal.App.5th 926, 953.)

An instructional error involving the omission or 

misdescription of an element will be deemed harmless “only in 

unusual circumstances,” such as where (1) the element was 

undisputed, (2) the defense was not prevented from contesting 

the element, and (3) overwhelming evidence supports the 

element. (People v. Merritt, supra, 2 Cal.5th at p. 828; accord,

Birdsall, supra, 77 Cal.App.5th at p. 871.) Stated another way, 

we must review the record to determine “ ‘whether [it] contains

evidence that could rationally lead to a contrary finding’ ” with

respect to the omitted or misdescribed element. (People v. Mil

(2012) 53 Cal.4th 400, 417; see People v. Serrano (2022) 

77 Cal.App.5th 902, 913.) Here we ask, is it possible the jury 

could have determined Arroyo was involved in the robbery that 

resulted in Mena’s death, but was not the person who directly 

killed her by striking her with a car? The answer is no.

1. Arroyo Had the Opportunity To Dispute He Ran 

Over Mena While Driving but Instead Conceded 

the Issue

The defense had every opportunity to contest whether 

Arroyo was the one who ran Mena over and killed her. (Cf. 

People v. Sandoval (2007) 41 Cal.4th 825, 839 [the defendant “did 

not necessarily have reason—or the opportunity—during trial to 

challenge the evidence supporting these aggravating 

circumstances” because aggravating circumstances “were not 

part of the charge and were not directly at issue in the trial”].) 
22

The identity and actions of the person who struck Mena were 

central issues at the trial. 

But at trial, it was undisputed that Arroyo was the one who

hit Mena with his car. The prosecutor argued, “[H]e was the 

driver. He was the one that drove over her . . . .” Defense counsel 

conceded that fact, stating, Mena “ends up running in front of my 

client’s vehicle as it’s trying to exit the parking structure . . . . He 

had no time to stop. No time to process the information and not 

hit her.” At no point during trial or on appeal has Arroyo argued

a juror rationally could have determined one of the other men 

who got into the silver sedan was driving the car at the time it hit 

Mena. It was also undisputed that Arroyo’s act of running Mena 

over with his car killed her.

2. The Evidence That Arroyo Personally and 

Directly Ran Over Mena Is Overwhelming 

Overwhelming evidence establishes Arroyo personally 

killed Mena by striking her with the car he was then driving,

inflicting fatal injuries. At 8:12 p.m., Arroyo texted Edwards that 

he had arrived at Edwards’s apartment complex. Edwards’s

testimony, supported by surveillance video, established Edwards

sold Arroyo marijuana while Arroyo was in the driver’s seat of 

the silver sedan in the apartment complex parking lot. Edwards 

had personally sold marijuana to Arroyo approximately 20 other 

times, and thus a jury could credit his identification of Arroyo as 

the person in the driver’s seat during the March 26, 2021 handto-hand transaction.

Edwards testified that immediately after the sedan drove 

off after the exchange, two other men approached on foot and 

assaulted him, before Mena came down from the apartment and 

began chasing the two men on foot. Surveillance video captured
23

Mena chasing the two men until the men caught up to the sedan 

in the driveway of the apartment complex and got into the car. 

While the sedan was stopped in the driveway, Mena ran in front 

of the car. The car then ran Mena over, dragged her body into 

the street, and drove off. No other cars hit Mena, and she died of 

blunt force trauma shortly after the collision. 

Immediately after the collision, Gilroy saw two men (who 

did not match the description of Arroyo) running toward a silver 

car. All the evidence suggests these two men were the same men 

who had assaulted Edwards. After the two men ran down the 

street, Gilroy heard two car doors shut and saw a silver car speed 

away, suggesting a third person was in the driver’s seat already. 

The timeline leaves no room for Arroyo to have left the 

driver’s seat prior to the time Mena was struck. Moreover, video 

surveillance showed a person resembling Arroyo park the car at 

the Lancaster Inn a few minutes after the car struck Mena.

Arroyo’s DNA was on the driver-side front door handle. 

We find instructive People v. Bodely (2023) 95 Cal.App.5th 

1193 (Bodely II), which concerned whether the trial record 

conclusively established the defendant was the actual killer such 

that the denial of a section 1172.6 petition was proper. In Bodely 

II, the defendant was fleeing a robbery when a man ran in front 

of the defendant’s car to stop the defendant from fleeing. (Id. at 

p. 1196.) The man went to the driver’s side window of the 

defendant’s car, put his arm inside the car, and told the 

defendant to stop. (Ibid.) The defendant hit the man with his 

car, knocking the man to the ground and killing him. (Ibid.) The 

jury convicted the defendant of first degree felony murder and 

found true the special allegation that the defendant personally 

used a deadly and dangerous weapon (a car) in the commission of 
24

the murder. (Ibid.) The jury had been instructed that it could 

find the defendant guilty of murder if the killing “occur[red] 

during the commission . . . of the crime or as a direct causal 

result” of the robbery. (Id. at p. 1197.) After SB 1437 went into 

effect, the defendant petitioned under section 1172.6 to be 

resentenced based in part on his argument the record did not 

establish as a matter of law that he was the “actual killer.” 

(Bodely II, at p. 1199.) The trial court denied the petition, finding 

the defendant failed to make a prima facie showing of 

entitlement to relief because the jury necessarily determined the 

defendant was the “direct perpetrator” and the record contained 

no suggestion there was an accomplice. (Id. at p. 1198.)

The Bodely II court affirmed the trial court’s denial, finding 

the record conclusively established the defendant was the actual 

killer. (Bodely II, supra, 95 Cal.App.5th at p. 1201.) The court 

distinguished the case from Vang, in which the victim had 

jumped out of the defendant’s moving car, thereby causing her 

own death. The court stated, “Here, by contrast, defendant 

directly hit [the victim] with a car, and [the victim] died from 

head trauma because his head struck the payment after being hit 

by the car. This was not disputed at trial. No other contributing 

factor was alleged to be involved in [the victim’s] death, and the 

record contains no indication that [the victim] played any role in 

contributing to his own demise analogous to the victim in Vang.” 

(Bodely II, at p. 1202.) The court found once the jury determined 

that appellant was the driver, it had to conclude that he was the 

actual killer because the record “conclusively established that 

defendant did more than set in motion a chain of events that 

produced [the victim’s] death,” and instead directly caused the 

death. (Id. at pp. 1204-1205; see id. at p. 1202 [“the record 
25

conclusively established that defendant ‘personally killed’ [the 

victim], instead of merely proximately causing [his] death”]; 

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1247 [finding 

“no legal route [defendant’s] jury could have taken to convict him 

without finding he was [the] actual killer”].)

As in Bodely II, the facts here demonstrated that Arroyo

directly hit Mena with his car, and Mena died from blunt force 

trauma due to the car accident. There is no evidence in the 

record that could rationally lead a jury to find that Arroyo did not 

personally kill Mena. (Compare Birdsall, supra, 77 Cal.App.5th 

at pp. 870-871 [error in allowing jury to convict defendant of 

felony murder if it found defendant merely “caused” the victim’s 

death was harmless because defense did not contest that 

defendant personally strangled the victim to death; defense 

counsel contested only “ ‘what was going on in [the defendant’s] 

mind’ ”; and there was “overwhelming evidence” that defendant 

personally strangled the victim] with Vang, supra, 

82 Cal.App.5th at p. 80 [error in giving similar jury instruction

was not harmless where the defendant’s wife jumped from the 

defendant’s vehicle “of her own volition,” and there was no 

evidence that the defendant’s actions personally and directly 

caused the wife’s death] and Rodriguez Garcia, supra, 

46 Cal.App.5th at pp. 149, 156-157 [error in giving similar jury 

instruction was not harmless because defense contested that 

defendant personally put duct tape over victim’s mouth, resulting 

in victim’s asphyxiation, and prosecutor expressly relied on 

theory that defendant “caused” the victim’s death solely by 

handing duct tape to a co-perpetrator].)

To the extent Arroyo contends Mena’s act of running in 

front of the car was an unusual intervening act that could raise a 
26

reasonably doubt whether Arroyo personally and directly caused 

Mena’s death such that he was not the “actual killer,” Arroyo is 

incorrect.

The trial court properly instructed the jury that “[a]n act 

causes death if the death is the direct, natural, and probable 

consequence of the act and the death would not have happened 

without the act. A natural and probable consequence is one that 

a reasonable person would know is likely to happen if nothing 

unusual intervenes. [¶] [T]here may be more than one cause of 

death. An act causes death, only if it is a substantial factor in 

causing the death. A substantial factor is more than a trivial or 

remote factor. However, it does not have to be the only factor 

that causes the death.” (CALCRIM No. 240, italics omitted.) 

Arroyo does not contend that the causation instructions given to 

the jury were erroneous in any respect.

“When there is more than one contributing cause of death 

in a murder case, the law is clear: ‘[A]s long as the jury finds 

that without the criminal act the death would not have occurred 

when it did, it need not determine which of the concurrent causes 

was the principal or primary cause of death. Rather, it is 

required [only] that the cause was a substantial factor 

contributing to the result.’ ” (Albert Garcia, supra, 

82 Cal.App.5th at p. 964; accord, Carney, supra, 14 Cal.5th at 

p. 1139.)

In arguing to the jury that Mena’s act of running in front of 

the car was “something unusual [that] interve[ed],” the defense 

suggested Mena’s act was a “superseding cause,” i.e., “an 

independent event [that] intervenes in the chain of causation, 

producing harm of a kind and degree so far beyond the risk the 

original [wrongdoer] should have foreseen that the law deems it 
27

unfair to hold him responsible.” (People v. Dawson (2009) 

172 Cal. App. 4th 1073, 1094, cleaned up.) However, “[o]nly ‘an 

unforeseeable intervening cause, an extraordinary and abnormal 

occurrence,’ rises to the level of ‘an exonerating, superseding 

cause.’ [Citation.] Absent such conduct, evidence the victim ‘may 

have shared responsibility or fault for the accident does nothing 

to exonerate [a] defendant for [his] role and is not relevant.’ ” 

(People v. Zemek (2023) 93 Cal.App.5th 313, 348-49.) Moreover, 

“if an intervening cause is a reasonably foreseeable result of a 

defendant’s initial act, ‘ “the intervening act is . . . not a 

superseding cause, and will not relieve [the] defendant of 

liability.” ’ ” (Carney, supra, 14 Cal.5th at p. 1143, italics added.)

These concurrent causation principles have not been 

amended by SB 1437. “With respect to felony-murder liability, 

[SB] 1437 . . . contains no expressed intent to modify the felonymurder rule’s application to a perpetrator whose acts were a 

concurrent cause of the death.” (Albert Garcia, supra, 

82 Cal.App.5th at pp. 966–971 [rejecting defendant’s argument 

that a robber should not be deemed an ‘actual killer’ under 

section 189, subdivision (e)(1) when an unintended and accidental 

death with a concurrent cause occurs; even though victim’s 

preexisting heart condition contributed to his death, record 

unequivocally established defendant was the “actual killer” 

because his own actions of robbing and assaulting 82-year-old 

victim were a substantial factor in the death].)

Pursuant to the causation instructions it properly received,

the jury here “necessarily consider[ed], in its determination of 

proximate cause, whether there was any intervening cause that 

was unforeseeable and constituted a superseding cause.” 

(Carney, supra, 14 Cal.5th at p. 1143.) Because the jury returned 
28

a guilty verdict on the felony murder charge, it necessarily 

rejected the defense theory that Mena’s act of running in front of 

the car was a superseding cause that should relieve Arroyo of 

liability. Indeed, Arroyo’s participation in the violent armed 

robbery (as the person luring Edwards out of the apartment and 

serving as the getaway driver) foreseeably led to Edwards’ 

girlfriend Mena trying to stop from fleeing the men who had just 

pistol-whipped her boyfriend. No reasonable juror could have 

determined that Mena’s actions were an independent 

supervening cause of her death, such that Arroyo did not “cause” 

Mena’s death by running her over.

Thus, we conclude that the instructional error was 

harmless beyond a reasonable doubt.

II. There Was Sufficient Evidence of Attempted Robbery 

In one single paragraph at the end of Arroyo’s opening 

brief, Arroyo contends there is insufficient evidence to support his 

conviction for attempted robbery. He argues that “[n]o evidence 

was presented to show that the defendant had been with the two

robbers before the robbery.” In support of his argument, Arroyo

cites neither to the record nor to any legal authority. 

“[W]hen a criminal defendant claims insufficiency of the 

evidence on a particular element of the crime of which he was 

convicted, we presume the evidence of that element was 

sufficient, and the defendant bears the burden of convincing us 

otherwise.” (People v. Battle (2011) 198 Cal.App.4th 50, 62.) 

Providing only “[a] brief, conclusory allegation” with no

“substantial argument or citation to authority” to support a 

defendant’s contention “constitutes a waiver of the point on 

appeal.” (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1364, 

fn. 6; see Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 
29

1458 [“ ‘Mere suggestions of error without supporting argument 

or authority . . . do not properly present grounds for appellate 

review.’ [Citation.] ‘Hence, conclusory claims of error will fail.’ ”]; 

In re S.C. (2006) 138 Cal.App.4th 396, 408 [When a point is 

asserted without argument and authority for the proposition, “ ‘it 

is deemed to be without foundation and requires no discussion by 

the reviewing court.’ ”].) Accordingly, we treat as forfeited 

Arroyo’s claim of insufficiency of the evidence for the attempted 

robbery conviction. 

DISPOSITION

The judgment is affirmed.

STONE, J.

We concur:

MARTINEZ, P. J.

SEGAL, J.