Thongvilay

This is a joint appeal by defendants Pamot Joey Thongvilay (herein Thongvilay) and Done Naly (herein Naly) whom separate juries found guilty of first degree murder in connection with the death of Joann Jacobs (herein Ms. Jacobs) who was killed in an automobile collision with defendants. The murder was prosecuted on a felony-murder theory, specifically, that the death occurred in the course of an automobile burglary in which defendants stole the radio from a car and were pursued by the boyfriend of the owner of the burglarized car. In an effort to evade his pursuer, Thongvilay drove through an intersection against a red light and crashed into the car driven by Ms. Jacobs. As a result of the collision she died.

Procedural Background and Facts

Around 1 a.m., March 30, 1995, Charles Cabral (herein Mr. Cabral) was standing in the driveway of his girlfriend’s house in Riverside when he saw defendants breaking into his girlfriend’s car. He yelled, “I don’t think my stereo’s your style,” but defendants continued committing the crime as if they did not hear him. Mr. Cabral walked into the house to call 911. While he was on the phone, he continued to watch defendants outside the…

I reluctantly agree with the majority’s conclusion, citing People v. Fuller (1978) 86 Cal.App.3d 618 [ 150 Cal.Rptr. 515 ] and People v. Bodely (1995) 32 Cal.App.4th 311 [ 38 Cal.Rptr.2d 72 ], that a killing that occurs during the course of a burglary of a car supports first degree *90 felony-murder liability. 1 I respectfully dissent, however, from the majority’s conclusion that the evidence presented in the trial court is sufficient to support the jury’s finding that the death in this case occurred during the commission of the car burglary. In my view, the evidence presented in the trial court is insufficient to support the jury’s first-degree felony-murder conviction because, unlike Bodely or Fuller, 2 defendants here were not immediately pursued from the car burglary. Therefore, the death in this case did not occur during the defendants’ immediate flight from the scene of that crime and before defendants reached a place of temporary safety. In other words, I would conclude as a matter of law that the death and the burglary were not part of one continuous transaction in this case.

According to the undisputed evidence presented in the trial court, defendants drove away after…

HOLLENHORST, Acting P.J.

This is a joint appeal by defendants Pamot Joey Thongvilay (herein Thongvilay) and Done Naly (herein Naly) whom separate juries found guilty of first degree murder in connection with the death of Joann Jacobs (herein Ms. Jacobs) who was killed in an automobile collision with defendants. The murder was prosecuted on a felony-murder theory, specifically, that the death occurred in the course of an automobile burglary in which defendants stole the radio from a car and were pursued by the boyfriend of the owner of the burglarized car. In an effort to evade his pursuer, Thongvilay drove through an intersection against a red light and crashed into the car driven by Ms. Jacobs. As a result of the collision she died.

Around 1 a.m., March 30, 1995, Charles Cabral (herein Mr. Cabral) was standing in the driveway of his girlfriend's house in Riverside when he saw defendants breaking into his girlfriend's car. He yelled, "I don't think my stereo's your style," but defendants continued committing the crime as if they did not hear him. Mr. Cabral walked into the house to call 911. While he was on the phone, he continued to watch defendants outside the front…