243 Cal. App. 4th 1247
Cal. Ct. App.2016Background
- July 20, 2011: four men (Schnebly, Crocker, Johnson, Thornton) drove into a Lake Mendocino campground; Crocker (masked) and Schnebly (shotgun) confronted campers; Crocker shot and killed Joe Litteral and shot Brandon Haggett.
- Crocker was the shooter (his fingerprint on the shotgun); Johnson and Thornton were tried as non-shooting defendants on theories of aiding and abetting / felony murder and implied-malice murder; both convicted of first degree murder and attempted murder; acquitted of attempted kidnapping.
- Johnson admitted driving the perpetrators to the campsite, told police he knew they were "going out there to rob" people and helped dispose of weapons; Thornton made jail calls and pre-/post-incident statements suggesting involvement and disposal of evidence and testified inconsistently at trial.
- Trial court instructed the jury with CALCRIM No. 335 (accomplice as a matter of law), CALCRIM No. 548 (no unanimity required on theory of murder), and CALCRIM No. 404 (voluntary intoxication) — objections were limited or absent at trial.
- On appeal the court held (a) giving CALCRIM No. 335 was error but harmless, (b) CALCRIM No. 548 improperly allowed nonunanimity as to degree (first v. second) and was prejudicial as to first-degree murder, and (c) the intoxication instruction was garbled but not prejudicial. Court conditionally reversed first-degree murder convictions and remanded for retrial or reduction to second degree; otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CALCRIM No. 335 (accomplice as matter of law) was proper | AG: No forfeiture; instruction permissible given mutual blaming; any error invited or harmless | Defs: It was error to characterize them accomplices as matter of law because testimony created a factual dispute; instruction forced jury to view their testimony with caution | Error to give 335 because factual dispute existed; but error harmless — jury would inevitably find them accomplices on the evidence (instruction should have been CALCRIM 334) |
| Whether CALCRIM No. 548 (no unanimity on theory) improperly permitted nonunanimity as to murder degree | AG: Instruction allowed because multiple felony-murder bases and jurors not likely confused given other instructions | Defs: Telling jury they needn’t agree on the same theory allowed jurors to disagree on degree (1st v 2d), violating unanimity | Instruction was erroneous and prejudicial as to first-degree murder; conditional reversal: remand for retrial on first-degree murder or allow reduction to second degree |
| Whether CALCRIM No. 404 (voluntary intoxication) was properly given | AG: Any defect waived; instruction as a whole adequate and did not preclude consideration of intoxication for aiding-and-abetting mental state | Def (Johnson): Instruction incomplete and contained a garbled sentence reversing the proper relationship of crimes, depriving him of intoxication defense | Instruction imperfect (garbled sentence) but not reasonably likely to have misled jury or to have prejudiced verdict; no reversible error |
| Whether Banks (and related sentencing/mental-state principles) requires a different outcome on implied-malice or remedy | AG: Banks inapplicable to guilt-phase malice/inferred mental state for aiders/abettors; felony-murder and implied-malice findings supported second-degree murder unanimity | Defs: Banks alters the required subjective mental state (reckless indifference) and undermines the court's conditional-reversal reasoning | Banks concerns death-penalty eligibility and a higher subjective standard; it does not change the proof required to convict an aider-and-abettor of implied-malice murder here; remedy (conditional reversal) remains appropriate |
Key Cases Cited
- People v. Banks, 61 Cal.4th 788 (Cal. 2015) (distinguishes death-penalty eligibility standard from guilt-phase implied malice; requires major participation + reckless indifference for death-penalty eligibility)
- People v. Coffman & Marlow, 34 Cal.4th 1 (Cal. 2004) (accomplice-testimony instructions and when jury should view accomplice testimony with caution)
- People v. Hill, 66 Cal.2d 536 (Cal. 1967) (caution on instructing a testifying codefendant is an accomplice as a matter of law)
- People v. Sanchez, 221 Cal.App.4th 1012 (Cal. Ct. App. 2013) (instruction permitting jurors not to agree on the same theory of murder is prejudicial when theories support different degrees; remedy: conditionally reverse first-degree conviction)
- People v. Chun, 45 Cal.4th 1172 (Cal. 2009) (harmlessness test when jury misinstructed on an element; imputing malice via felony-murder rule)
- People v. Mendoza, 18 Cal.4th 1114 (Cal. 1998) (voluntary intoxication relevance to aider-and-abettor mental state; no sua sponte duty to instruct but any given instruction must be correct)
- People v. Beeman, 35 Cal.3d 547 (Cal. 1984) (elements for aiding and abetting; mental state required of aider/abettor)