Rapist of Woman, 85, Was Properly Convicted Of Murder in Unintended Death

Tuesday, May 5, 2026

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Rapist of Woman, 85, Was Properly Convicted Of Murder in Unintended Death—C.A.

Justices Say Felony-Murder Rule, as Narrowed by Legislation, Applies

By a MetNews Staff Writer

SERGIO GONZALEZ HERRERA

murderer

A man who broke into the home of an 85-year-old woman whom he violently raped was properly convicted under a vestige of the felony-murder rule where the victim died following a fall in her home while still traumatized by the attack, fractured her hip, and experienced complications from surgery, the Fifth District Court of Appeal has determined.

Friday’s unpublished opinion affirms the Sept. 19, 2024 first-degree murder conviction of Sergio Gonzalez Herrera in connection with the death of Maria Garcia. The attack began at about 4:30 a.m. on Nov. 24, 2021, and the woman died in a Bakersfield hospital on Dec. 6 of that year.

Under the felony-murder rule, which is said to date back to English common law of the Twelfth Century, the requisite mental state for murder—malice aforethought—is fictionally imputed to a person who committed a felony without an actual intent to kill. Largely abrogated by 2018 legislation in California, it is still applied under three circumstances, one of which is where the defendant was the “actual killer.”

Wording of Statute

Penal Code §189(a) declares a murder to be in the first degree where it was committed during perpetration of enumerated felonies which include rape and burglary. Sec. 189(e) sets forth:

“A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer.”

Gonzalez Herrera contested on appeal having been the “actual killer,” maintaining that the attack on Garcia was “one of many proximate causes” of death.

In his opinion affirming the judgment of conviction and a life sentence without possibility of parole,. Acting Presiding Justice Herbert I. Levy said:

“[W]e conclude the evidence supported the jury’s finding that appellant was the ‘actual killer’ under section 189. subdivision (e)(1). because he personally assaulted and raped Maria, which…directly contributed to and were a substantial factor in causing her death….For purposes of assessing actual killer liability, it is immaterial that other factors, including Maria’s preexisting health conditions, fall, and complications from surgery, also substantially contributed to her death. Accordingly, appellant’s conviction under the actual killer theory of felony murder was supported by substantial evidence….”

Natural, Probable Consequence

He went on to say:

“An act causes death if the death is the direct, natural, and probable consequence of the act. and the death would not have occurred without it….A natural and probable consequence is one that a reasonable person would know is likely to occur if nothing unusual intervenes….[M]urder liability does not require that the defendant’s actions be the sole cause of death….”

The jurist added:

“[W]e are unpersuaded that Maria’s fall, hospitalization, and death from surgical complications and underlying health conditions were not reasonably foreseeable consequences of appellant’s brutal rape and assault of an already frail 85-year-old woman.”

The case is People v. Gonzalez Herrera, F088818.