THE PEOPLE, Plaintiff and Respondent, v. AARON ROBERT CAMPBELL et al., Defendants and Appellants.
No. E055528
Court of Appeal, Fourth District, Division Two, California
Jan. 15, 2015
[CERTIFIED FOR PARTIAL PUBLICATION*]
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Xavier James Fort.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant Aaron Robert Campbell.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Arlene A. Sevidal and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KING, J.—
I. INTRODUCTION
Defendant and appellant Aaron Robert Campbell met Silvester Leyva at a hookah bar where they exchanged telephone numbers and discussed buying and selling marijuana. A few days later, Campbell and defendant and appellant Xavier James Fort, among others, went to Leyva‘s house to obtain
A jury convicted defendants of first degree murder and found true a robbery special-circumstance allegation. The jury also convicted them of two counts of robbery based upon the taking of the marijuana. In one robbery count, Leyva was the victim; in the other, De La Torre was the victim.
Regarding the murder charge, the jury was instructed on first degree felony murder only, with robbery as the underlying felony. On appeal, Fort argues that, based on the accusatory pleading, the trial court had a sua sponte duty to instruct on lesser included offenses. We agree. Moreover, there was substantial evidence from which a reasonable jury could conclude that a lesser offense, but not the greater, was committed. Therefore, the court erred by failing to instruct the jury as to lesser included offenses. Because the error was not harmless, we reverse Fort‘s murder conviction. Because the instructional error may have led the jury to convict Fort of the robbery counts, the conviction on those counts are also reversed.
In the nonpublished portion of our opinion we reject defendants’ argument that the evidence was insufficient to support their convictions of the robbery of Leyva.
II. FACTS
A. Prosecution Evidence
1. De La Torre‘s Trial Testimony
De La Torre testified to the following. He had known Leyva for about four to six months before the incident. On the evening of the incident, he arrived at Leyva‘s house between 10:00 p.m. and 10:30 p.m. There were 10 to 15 people present. The garage door was open and there was no power on in the house.
De La Torre brought marijuana and intended “[j]ust to hang out, smoke.” De La Torre owned and possessed the marijuana. He did not plan to sell the marijuana. When he and Leyva were in the backyard smoking and drinking, someone informed them that some men were out front looking to buy marijuana, and that they had been texting or calling Leyva. After talking with Leyva, De La Torre took the marijuana out front to sell.
At some point, Leyva said the price should be around $550 for two ounces, but De La Torre said he wanted to get $600. De La Torre testified that he did not want to sell it for $550 because Leyva “wanted to make some money or something, so I was helping him out.” (The record is not clear as to whether this discussion with Leyva took place before Leyva and De La Torre met the men in the front yard or in the presence of those men.)
The man seeking to buy the marijuana said he did not bring any money and had to go to an ATM. He and the other men left in a red Honda Accord. After they left, the garage door was closed and everyone at Leyva‘s house went inside. There were no lights on in the house or on the front porch. In the house, Leyva, De La Torre, and others continued smoking marijuana and consuming alcohol.
After about 20 minutes, the red Honda and a silver Chevrolet Malibu or Impala pulled up in front of the house. Looking through the front window, De La Torre observed four or five people get out of the silver car and three get out of the red car. The individuals spread out about an arm‘s length apart at the sidewalk area. A few of them were on the sidewalk and a few in the street. Around this time, Leyva received a telephone call or text message.
After waiting about two minutes, De La Torre walked outside. Leyva and others were behind De La Torre. De La Torre believed the men outside the house intended to take the marijuana against his will. He decided he would give them the marijuana without putting up a fight because he did not want any problems. However, he left the marijuana in an office inside the house.
Leyva asked for the person he had met a few days earlier. An individual with orange hair approached and said he was looking for marijuana and had the money. Leyva was “doing the talking.” The conversation occurred on the walkway between the garage and the front door. As Leyva and the ostensible buyer talked, De La Torre went into the house to get the marijuana. When he came back outside, Leyva was still talking with the individual.
When De La Torre held out the bag of marijuana, the man grabbed it and asked if it was all there. De La Torre said it was. The man then stepped back,
2. Police Interview of Campbell
Leyva‘s death was investigated by Gary Bowen, a special investigator with the Riverside County Sheriff‘s Department homicide unit. Bowen found four text messages on Leyva‘s telephone sent from Campbell‘s telephone on the day of the shooting at 11:14 p.m., 11:15 p.m., 11:47 p.m., and 11:48 p.m. Bowen interviewed Campbell the day after the shooting. Campbell had orange-tinted hair.
Campbell told Bowen that he met a Hispanic male at a hookah lounge in the City of Riverside. He got the man‘s telephone number for the purpose of conducting marijuana transactions. Thereafter, and on the evening of the incident, Campbell planned to obtain marijuana from the person he met at the hookah bar by “tak[ing] it from him.”
Campbell set up the transaction via text earlier in the evening before the first visit to Leyva‘s house. When he later returned to the house, the garage door was closed. He sent a text message to Leyva to get him to come outside. Campbell had a gun with him and said he used the gun. He did not know that anyone else had a gun.
Leyva and De La Torre met Campbell outside Leyva‘s house. When De La Torre produced the marijuana, Campbell took the marijuana with his right hand. He pulled out his gun with his left hand and pointed it at De La Torre and Leyva. He said: “[D]on‘t do anything stupid.” Campbell then got back into his vehicle before any shots were fired.
3. Terence Harris
Harris was in custody as a result of the incident. He testified that two days before the shooting, he and Campbell were at a hookah bar. Campbell and a Hispanic man talked and exchanged telephone numbers.
On the evening of the shooting, Harris was at “J.B.‘s” house, hanging out with people who wanted to smoke marijuana. Campbell, Thurston Stewart, Kelton Pounds, and Christian Baker were there, among others. Fort was not there. Campbell said he knew where they could get some marijuana.
When they got back to J.B.‘s house, the group discussed a plan to return to Leyva‘s house with more people and steal the marijuana, with “some bit of force” if necessary. Harris knew that Baker and Campbell had guns. They discussed getting another gun. Stewart said his “cousin,” Fort, had a gun.
They went to pick up Fort. Harris knew Fort was coming along “to provide a gun.” After picking up Fort, they went back to Leyva‘s house. Harris initially testified that he did not remember if, after Fort got in the car, there was any conversation about what they were going to do at Leyva‘s house. He later testified that after Fort got in the car there was a discussion about committing the robbery.
They took two cars to Leyva‘s house. When they arrived, six people got out of the cars. Someone shouted to the people in the house to come outside. They waited for five or 10 minutes before some people came outside. Campbell talked to them. An individual handed Campbell a bag and Campbell passed it to Harris. Campbell then pulled out a gun. As Campbell and Harris were running to the cars, Harris heard somebody from the other group yell something. After getting into a car, he heard two gunshots. He did not see anyone shooting.
Fort got into the car Harris was in. He had a gun in his hand. This was the first time that evening that Harris saw Fort‘s gun. Fort opened the gun‘s cylinder and looked at the bullets. Fort said the gun did not shoot, and he seemed surprised that the gun had not gone off. When they got back to J.B.‘s house, Fort looked at the gun again and realized it had fired.
Harris did not know what Fort was doing during the incident. The last time he saw Fort before the shooting, Fort was leaning on a fire hydrant across the street from Leyva‘s house.
4. Police Interview of Fort
Bowen interviewed Fort. During the interview, Fort indicated that on the evening of the shooting he received a call from Stewart about “hang[ing] out.” Stewart indicated there would be “loads of grams.” Fort understood that there was going to be a “lick” or a robbery and they were “going to rip off
After arriving at Leyva‘s house, Fort stood across the street. At some point, he moved to the front of the residence by the driveway. He saw Campbell pull a gun. Thereafter, Fort fired his weapon two or three times. Fort said that he was scared, that “[e]verything happened so fast,” and he “had no idea what was going on.”
B. Defense Evidence
Fort testified on his own behalf. His cousin, Stewart, called him about 10:00 p.m. on the night of the incident. Stewart wanted to hang out and said something about “loads of grams,” which Fort understood to mean a lot of weed. Stewart told Fort he would come by and pick Fort up. He did not tell him to get a gun. Fort thought that “something just didn‘t seem right” because his cousin does not normally call him like that.
Fort brought a fully loaded .357-caliber firearm with him. He said he always carries a gun for protection when he leaves the house. He never showed his gun to anyone or told anyone he had it.
After they pulled up to Leyva‘s house and before getting out of the cars, Campbell texted someone. Fort knew something was wrong because he did not see any cars or people and heard no music. Everyone got out of the cars and spread out. His first thought was to walk away. He initially went across the street, away from the house.
After two or three minutes people came out of the house. A Hispanic man was in the lead and said he wanted to speak to the person who wanted the weed. Campbell walked up to meet the person. Campbell and the other person were arguing. Someone handed the marijuana to Campbell, who then handed it to someone else. He did not hear any threats.
Fort moved into the street by the driveway. There were about six people standing on the walkway. He saw Campbell pull a gun out and put it in “the dude‘s face.” At this point, he thought a robbery was going on. Prior to that time, he did not think the group was going over there to commit a robbery.
People in his group started moving towards the cars by walking backwards. He heard someone scream “gun, gun,” and he thought someone was getting a gun and that individuals from the other group were coming after him. He then pulled his gun out and fired it. He explained his action this way: “I see them robbed, I hear ‘gun, gun, gun,’ I think they‘re coming out with guns. I see them screaming coming out of the door. It was a reaction.”
On cross-examination, Fort said he “knew something was up” that night and he “just knew someone had a gun” because that is “how people roll.” He also knew, prior to going to Leyva‘s house, that Campbell did a lot of licks and that Campbell brought a gun with him. He acknowledged that he had answered affirmatively when Bowen asked about how he knew he was “going to do a lick” and “to rip off some weed.” Fort attempted to explain this by testifying that he did not understand what Bowen was asking at that time. Finally, he admitted that he knew that he was shooting at people when he was shooting at the house.
A. Failure to Instruct the Jury on Second Degree Murder and Manslaughter
The jury was instructed solely on the theory of first degree felony murder with no instructions on lesser included offenses. Fort contends the jury should have been instructed on the lesser included offenses of second degree murder, voluntary manslaughter based on imperfect self-defense, and involuntary manslaughter. The Attorney General submits that the court had no duty to instruct on lesser included offenses because second degree murder, voluntary manslaughter, and involuntary manslaughter are not lesser included offenses of first degree felony murder, the sole theory pursued by the prosecution.
We first consider whether second degree murder or manslaughter are lesser included offenses of first degree murder as charged in this case. We then address whether there is sufficient evidence in the record to support instructions on the lesser offenses.
1. Lesser Included Offenses to First Degree Murder Under the Accusatory Pleading Test
“... ‘California law has long provided that even absent a request, and over any party‘s objection, a trial court must instruct a criminal jury on any lesser offense “necessarily included” in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence.’ [Citation.] ‘[T]he rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither “harsher [n]or more lenient than the evidence merits.” [Citations.]’ [Citation.]” (People v. Smith (2013) 57 Cal.4th 232, 239-240 [159 Cal.Rptr.3d 57, 303 P.3d 368], italics added (Smith).)
Courts “have applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory pleading’ test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is
” ‘We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.]’ ” (People v. Licas (2007) 41 Cal.4th 362, 366 [60 Cal.Rptr.3d 31, 159 P.3d 507].)
Fort was charged in count 1 of the information with “a violation of
Initially, we note that the failure to specifically allege felony murder did not prevent the prosecution from pursuing that theory at trial. In People v. Morgan (2007) 42 Cal.4th 593, 616 [67 Cal.Rptr.3d 753, 170 P.3d 129], the defendant was charged in the accusatory pleading with malice murder. The jury was instructed on, and the defendant was convicted of, felony murder. On appeal, the defendant asserted that the court erred in instructing the jury on felony murder in that it was a ” ‘separate uncharged crime[].’ ” (Id. at p. 616, italics omitted.) The Supreme Court disagreed, stating that “a defendant may be convicted of first degree murder even though the indictment or information charged only murder with malice in violation of section 187.” (Ibid.; see People v. Hughes (2002) 27 Cal.4th 287, 369 [116 Cal.Rptr.2d 401, 39 P.3d 432] [“[A]n accusatory pleading charging a defendant with murder need not specify the theory of murder upon which the prosecution intends to rely.“]). The court added that it continued “to reject, ‘as contrary to our case law, the premise underlying defendant‘s assertion that felony murder and malice murder are two separate offenses.’ [Citation.]” (People v. Morgan, supra, at p. 616.)
Although the prosecution could and did pursue a felony murder theory in this case, we still look to the accusatory pleading to determine whether Fort was entitled to instructions regarding lesser offenses. (See People v. Banks (2014) 59 Cal.4th 1113, 1160 [176 Cal.Rptr.3d 185, 331 P.3d 1206].) People v. Anderson (2006) 141 Cal.App.4th 430 [45 Cal.Rptr.3d 910] is on point. There, the defendant was charged with one count of murder under
In reversing the defendant‘s conviction, the Anderson court stated: “We assume for the sake of argument that, as the prosecution argues, the trial court would have had no sua sponte duty to instruct if felony murder were the only crime charged.... In this case, however, felony murder was not the crime charged, at least in the accusatory pleading. The... information contained only a single charge of murder under
Here, as in Anderson, the accusatory pleading alleged malice murder with deliberation and premeditation. Under the accusatory pleading test, the
Smith, supra, 57 Cal.4th 232 is also instructive. There, the defendant was charged with two counts of deterring or resisting an executive officer in violation of
In returning its special verdict on count 2, the jury marked a check box indicating it found the defendant guilty because he violently and forcefully resisted the deputies. The jury did not check the box relative to the defendant willfully and unlawfully attempting to deter an executive officer by means of
The Supreme Court agreed with the defendant. It explained that because
Like violations of
2. Substantial Evidence Shows That Lesser Offenses, but Not the Greater Offense of First Degree Felony Murder, Were Committed
Under Breverman, instructions on lesser included offenses “are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ’ “evidence from which a jury composed of reasonable [persons] could... conclude[]” ’ that the lesser offense, but not the greater, was committed. [Citations.]” (Breverman, supra, 19 Cal.4th at p. 162.) Instructions on lesser included offenses should be given “when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.” (People v. Wickersham (1982) 32 Cal.3d 307, 323-324 [185 Cal.Rptr. 436, 650 P.2d 311], disapproved on another point in People v. Barton (1995) 12 Cal.4th 186, 201 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
Fort was convicted on the basis that he aided and abetted a robbery during which a death causally occurred. For purposes of aiding and abetting liability for felony murder, the jury was properly instructed that the prosecution had to prove: “1. The perpetrator committed the [robbery]; [¶] 2. The defendant knew that the perpetrator intended to commit the [robbery]; [¶] 3. Before or during the commission of the [robbery], the defendant intended to aid and abet the perpetrator in committing the [robbery]; [¶] AND [¶] 4. The defendant‘s words or conduct did in fact aid and abet the perpetrator‘s
Here, there is no doubt whatsoever that the perpetrator (Campbell) committed a robbery. Additionally, it is beyond dispute that Fort‘s conduct did in fact aid and abet Campbell‘s commission of the robbery. (See People v. Cooper (1991) 53 Cal.3d 1158, 1169-1170 [282 Cal.Rptr. 450, 811 P.2d 742] [“For purposes of determining liability as an aider and abettor, the commission of robbery continues so long as the loot is being carried away to a place of temporary safety.“].) However, if there is substantial evidence that Fort did not know that Campbell intended to commit a robbery or that Fort did not intend to aid and abet the robbery, then the evidence raises a question as to whether the greater offense (first degree felony murder) was committed.
We now examine the relevant evidence as to these two elements. The only evidence that Fort did not know of the impending robbery or did not intend to aid and abet the robbery, came from Fort himself. In his statement to Bowen, Fort indicated that when he received the telephone call from Stewart, Stewart did not say anything “about [a] lick“; he called simply to ask about hanging out. Fort told Bowen that no one told him to bring his gun; it was his decision to do so. Lastly, Fort said that at the time of the robbery, everything happened so fast he did not know what was going on.
At trial, Fort again stated that Stewart called him for purposes of hanging out. He thought they were going to a party, and he took his fully loaded firearm with him because he always takes it for protection when he leaves the house. On the ride over to Leyva‘s house, nobody said anything about marijuana or a “lick.” He testified he did not go to the residence to help commit a robbery. It was not until he saw Campbell pull out his gun that he thought the group was going to commit a robbery. At some point, after Campbell and others started returning to the cars, he heard someone yell “gun, gun,” and thought people were coming after him. It was only then that he pulled out his gun and shot it as “a reaction” to seeing people “coming out with guns,” and because he feared for his life.
Fort‘s testimony was contradicted or impeached by other evidence. Fort told Bowen that he took his gun because he had a “feeling something was up.” In response to Bowen‘s question in which he asked Fort if he knew it was going to be a “lick,” Fort responded in the affirmative and admitted knowing that they were going to “rip off some weed.” Harris testified that on the way over to Leyva‘s house with Fort in the car, people discussed taking the marijuana. Fort testified that he knew “something was up” because his cousin did not normally call him. He also knew somebody would have a gun that night because he “know[s] how people roll.” In particular, he knew that
While the above evidence strongly suggests that Fort knew Campbell intended to commit a robbery and intended to aid and abet the robbery, that is not our inquiry. “The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. [Citations.] That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. [Citations.] To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 744-745 [31 Cal.Rptr.3d 485, 115 P.3d 1145].) Here, if Fort‘s testimony about his knowledge and intent and his corroborating comments to Bowen are believed, a jury could have concluded that Fort did not know that Campbell was going to commit a robbery or that Fort did not intend to aid and abet a robbery and, therefore, that Fort was not guilty of first degree felony murder.
There is also substantial evidence that the lesser offense of second degree murder was committed because Fort admitted shooting at people as a “reaction” to the situation and with “no idea what was going on.” (See People v. Memro (1985) 38 Cal.3d 658, 700 [214 Cal.Rptr. 832, 700 P.2d 446] [second degree murder lies when the defendant engages in an act in conscious disregard for human life involving a high degree of probability that it will result in death], overruled on another point in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2 [92 Cal.Rptr.3d 627, 205 P.3d 1074]; People v. Pearson (2013) 56 Cal.4th 393, 443 [154 Cal.Rptr.3d 541, 297 P.3d 793] [a premeditated and deliberate intentional killing occurs as ‘the result of preexisting thought and reflection rather than unconsidered or rash impulse.’ “].) There is also substantial evidence from which the jury could have concluded that Fort committed voluntary manslaughter. Voluntary manslaughter may be committed when one kills with the honest but unreasonable belief of the need to defend oneself. (People v. Blakeley (2000) 23 Cal.4th 82, 88-89 [96 Cal.Rptr.2d 451, 999 P.2d 675].) Fort‘s testimony that he thought that people from the opposing group of people were “coming out with guns,” if believed by the jury, would support a conviction of voluntary manslaughter.9
B. The Instructional Error Was Not Harmless
“[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.” (Breverman, supra, 19 Cal.4th at p. 165.) Under the state standard, “such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (Ibid., citing
As discussed above, there is substantial evidence that Fort did not intend to aid and abet a robbery and did not know that Campbell intended to commit a robbery. Fort testified no one told him they were going to commit a robbery and he believed they were going to a party. Although he figured out there was no party as they arrived at Leyva‘s house, it was not until he saw Campbell point a gun at De La Torre that he realized Campbell was there to commit a robbery. He then heard someone yell, “gun, gun” and believed that people were coming after him. According to Fort, he “had no idea what was going on” and fired his gun out of fear for his life. If Fort‘s testimony is believed, jurors could reasonably conclude he was guilty of second degree murder or voluntary manslaughter based on unreasonable self-defense.
Fort‘s testimony could, of course, have been rejected by the jury. There was also ample evidence in the record to support inferences that Fort knew
if believed, could support findings he acted without premeditation and deliberation or with an honest but unreasonable belief of the need to defend himself, there is no evidence suggesting that he fired the gun negligently.
The Attorney General asserts that the error in failing to instruct the jury on lesser included offenses is harmless because of the jury‘s true finding on the robbery-murder special-circumstance allegation and the guilty verdict on the robbery count.10 The Attorney General relies on the following cases: People v. Castaneda (2011) 51 Cal.4th 1292 [127 Cal.Rptr.3d 200, 254 P.3d 249] (Castaneda), People v. Horning (2004) 34 Cal.4th 871 [22 Cal.Rptr.3d 305, 102 P.3d 228] (Horning), People v. Elliot (2005) 37 Cal.4th 453 [35 Cal.Rptr.3d 759, 122 P.3d 968] (Elliot), People v. Koontz (2002) 27 Cal.4th 1041 [119 Cal.Rptr.2d 859, 46 P.3d 335] (Koontz), and People v. Earp (1999) 20 Cal.4th 826 [85 Cal.Rptr.2d 857, 978 P.2d 15] (Earp). These cases hold that a true finding on a felony-murder special circumstance means that the jury would have convicted the defendant of felony murder even if it was instructed on lesser included offenses; therefore, the failure to instruct on the lesser offenses was necessarily harmless. (See, e.g., Castaneda, supra, at p. 1328; Elliot, supra, at p. 476.) For the reasons that follow, we do not believe these cases are controlling here.
The rule relied upon by the Attorney General and applied in the cited cases finds its source in People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913] (Sedeno), overruled in Breverman, supra, 19 Cal.4th at page 165.11 In Sedeno, the trial court erred by failing to instruct on involuntary manslaughter as a lesser offense to the charge of murder. (Sedeno, supra, at p. 720.) In discussing whether the error was prejudicial, the Supreme Court stated that prejudice cannot be evaluated “by weighing the evidence” and considering the probability that the jury would have convicted the defendant
In People v. Flood (1998) 18 Cal.4th 470 [76 Cal.Rptr.2d 180, 957 P.2d 869], the Supreme Court explained that Sedeno should not be read as “delineat[ing] circumstances in which such instructional error categorically may be deemed harmless“; rather, the prejudicial effect of such instructional error under California law must ultimately be determined under the Watson test. (People v. Flood, supra, at p. 490, italics added.) This view was reinforced in Breverman when, one month after Flood, the court overruled Sedeno to the extent that it established a bright line for reversal and held that the failure to give a required lesser included instruction “is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (Breverman, supra, 19 Cal.4th at p. 165, citing
In light of Flood and Breverman, it is clear that while a jury‘s determination on a factual issue under other instructions is relevant to determining whether an instructional error is harmless, it does not categorically establish that the error was harmless; the court must still determine whether, based on an examination of the entire record, it is reasonably probable that the error affected the outcome. (Breverman, supra, 19 Cal.4th at pp. 174–176.) With this in mind, we consider the cases cited by the Attorney General.
First, we note that in each of the cited cases the jury was instructed on felony murder and premeditated and deliberate murder. (Castaneda, supra, 51 Cal.4th at p. 1328; Horning, supra, 34 Cal.4th at p. 906; Elliot, supra, 37 Cal.4th at p. 476; Koontz, supra, 27 Cal.4th at p. 1078; Earp, supra, 20 Cal.4th at p. 884.) Thus, each jury had an option of finding the defendant guilty of first degree murder (based on premeditation and deliberation) without having to find the special circumstance true. When, in that situation, the jury does make the special circumstance finding, it can be said with confidence that the jury would have convicted the defendant of felony murder even if it had been
The distinction is suggested in Horning, supra, 34 Cal.4th 871. In that case, the court stated the rule relied on by the Attorney General, then explained its rationale: “Here, the jury was instructed on both premeditated first degree murder and first degree felony murder, as well as on both the burglary-murder and robbery-murder special circumstances. In addition to finding defendant guilty of first degree murder, the jury found both special circumstances true. If the jury had had any doubt that this was a felony murder, it did not have to acquit but could have simply convicted defendant of first degree murder without special circumstances. Instead, it found that defendant killed the victim in the perpetration of robbery and burglary, which means it necessarily found the killing was first degree felony murder.” (Id. at p. 906, italics added.) However, when, as here, the jurors are not given the choice of convicting the defendant of premeditated murder, and are erroneously given only the choice of felony murder or acquittal, the decision to convict the defendant of murder essentially compels them, even if they harbor doubt as to guilt of the underlying felony, to further find the special circumstance allegation true. In this situation, the special circumstance finding may indicate nothing more than that the jury did not want to acquit the defendant of murder, not that they found the killing was first degree felony murder.13
The Supreme Court, without addressing whether there was substantial evidence to support the lesser crime but not the greater, indicated that any error in failing to give the lesser instruction was harmless because the jury, by finding the special circumstance true, found that the first degree murder conviction was necessarily premised on felony murder. (Castaneda, supra, 51 Cal.4th at p. 1328.) Given the facts of Castaneda, we do not feel that the court‘s discussion of the issue is particularly helpful to our analysis. The facts overwhelmingly demonstrated that the perpetrator committed the murder during the commission of numerous felonies. The defense was that the defendant was not the perpetrator. Once the jury concluded that the defendant was the perpetrator, the Supreme Court could easily conclude that the special circumstance finding meant that the jury would not have found the defendant guilty of a lesser included offense.
In Horning, supra, 34 Cal.4th 871, the victim was a marijuana dealer who kept large amounts of cash in his rural home. The victim had been shot in the head, his body dismembered and his body parts thrown into the San Joaquin River Delta. (Id. at p. 880.) The defendant, who lived nearby, left the area around the time the victim was killed. (Id. at pp. 881, 884.) He was arrested six months later in Arizona for committing a bank robbery. (Id. at p. 882.) The defense at his murder trial was that he did not kill the victim; the killing was committed by others and was related to the victim‘s drug dealing. (Id. at pp. 885-886.) The defendant was convicted of first degree murder with the special circumstances of robbery murder and burglary murder. Also found true was the allegation that the defendant personally used a firearm. (Id. at p. 879.)
On appeal, the defendant argued that the court erred in failing to instruct on second degree murder as a lesser included offense. Significantly, the
In Elliot, supra, 37 Cal.4th 453, the victim was killed between 2:00 a.m. and 3:00 a.m. as she was closing the Black Stallion bar. (Id. at p. 457.) The defendant had been in and out of the bar all evening and interacting with the victim. The victim‘s body was found in a back room of the establishment with over 82 stab wounds. (Id. at p. 460.) Money was found missing from the bar. The victim‘s keys, including a key to the front door of the bar, were found on the ground outside the bar. (Id. at p. 459.) Throughout the course of the investigation, the defendant made various incriminating statements. (Id. at p. 462.) The defense presented no evidence. The defendant was convicted of first degree murder and attempted robbery. (Id. at p. 457.) The jury also found true the special circumstance allegation that the murder was committed during an attempted robbery. (Ibid.) While the jury was told it could convict the defendant of second degree murder, it was not fully informed of the elements of second degree murder. (Id. at pp. 474-475.) The verdict form included a space where the jury could return a second degree murder verdict. (Id. at p. 474.)
Notes
“Q ([DEFENSE COUNSEL]) He said that he just had a feeling. He just knew something was up.
“A Yes. ‘So I had a feeling something was up, so I just took it, and we went over there.’ Referring to his gun.
“Q So he never tells you at that point in time that he knows there‘s going to be this robbery at Mr. Leyva‘s house; right?
“A Well, the next line where I ask him if he‘s going to do a lick, ‘Something, I just knew something was up.’
“Q He didn‘t tell you, I knew a robbery was up, he said he ‘knew something was up.’
“A He knew a lick was up.
“Q Where does he say that?
“A In the line directly—well, I asked him if he‘s going to do a lick, and his response was, ‘Something, I just knew something was up.’
“Q So when you asked Mr. Fort, ‘Were you going to do a lick?’ He doesn‘t say yes, does he? [¶]...[¶]
“THE COURT: It‘s obvious at that point in time he did not say that.”
During the redirect examination of Bowen, the following transpired:
“Q ([PROSECUTOR]) So, again, going back to that statement, you asked him if he knew that there—‘You already know it‘s going to be about a lick,’ he actually says, ‘Uh-huh‘—
“A Yes.
“Q —in the affirmative? [¶] And then, ‘Yes?’
“THE COURT: No. Just—
“THE WITNESS: Yes.
“([PROSECUTOR]) And then, again, you say, ‘Yes?’
“A Yes.
“Q And then he confirms, ‘Yeah?’
“A Yes.”