Reversal was required for error under People v. Chiu (2014) 59 Cal.4th 155 because Court of Appeal could not conclude beyond a reasonable doubt that jury rejected natural and probable consequences doctrine as basis for first degree murder conviction. Brown was charged with first degree murder in connection with a gang fight that turned into a fatal shooting. The jury was instructed on three first degree murder theories: (1) Brown was the actual killer, (2) he aided and abetted the actual killer with the intent to kill, and (3) he aided and abetted fighting and a first degree murder was the natural and probable consequence of the fight. The jury convicted Brown of first degree murder with a number of special allegations. He appealed, arguing that reversal was required under People v. Chiu, which held that the natural and probable consequences theory of aider and abettor liability cannot serve as a basis of a conviction for first degree murder. Held: Reversed. The Court of Appeal agreed that the trial court erred based on Chiu and rejected the Attorney General’s argument that the error was harmless beyond a reasonable doubt because the jury convicted Brown based on a valid theory. Although the jury found true a special circumstance allegation that the victim was “intentionally killed” while the defendant was an active gang member and that the murder was carried out to further the activities of a criminal street gang (Pen. Code, § 190.2, subd. (a)(22)), the jury was not required to find that Brown was the actual killer (see Pen. Code, § 190.2, subd. (c)). Late in its deliberations the jury asked for further guidance on the natural and probable consequences theory, reflecting that at least one juror expressed hesitation in finding Brown guilty based on the theories that he was the actual shooter or shared the shooter’s intent and aided and abetted the shooter. Furthermore, the evidence that Brown was the actual shooter was not overwhelming.

Trial court erred by providing ex parte supplemental jury instructions to the deliberating jury. In reviewing the jury’s verdict forms the court noticed that the not guilty form for first degree murder had been signed and dated, but the signature and date had been crossed out and the words “withdrawl [sic]” and “void” were written across it. Without consulting counsel or making counsel aware of the situation, the court sent the jury a note and a new not guilty form asking it to sign and date the appropriate form for the verdict they had reached. On appeal, Brown argued that dismissal was required because the court’s conduct amounted to requiring the jury to reconsider its previously rendered not guilty verdict. The Court of Appeal disagreed, reasoning that the words “withdrawl [sic]” and “void” negated any inference that the jury intended to acquit. However, the Court of Appeal concluded that the trial court erred by providing ex parte supplemental jury instructions to the deliberating jury without consulting with counsel. A court should not entertain communications from the jury except in open court, with prior notification to counsel. A defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant’s case. Counsel may have been able to suggest instructions that would amplify, clarify, or modify the court’s instruction. In light of the reversal on other grounds, the court found it unnecessary to determine whether this error also required reversal.

Trial court erred by disregarding signed not guilty verdict form. After receiving the new not guilty verdict form from the trial court, the jury resumed deliberations. It signed and dated both the guilty and not guilty forms, but this time it did not write “withdrawl [sic]” or “void” across the not guilty form. Without bringing this to counsel’s attention, the trial court simply disregarded the not guilty form and read the guilty verdict. On appeal, Brown argued that dismissal was required and retrial precluded because the verdict was equivalent of a verdict of acquittal. The Court of Appeal agreed that the error required reversal, but disagreed that retrial was barred. When a jury states it has a verdict and submits signed and dated guilty and not guilty verdicts on the same count, the flaw is not merely one of inconsistency in the verdicts; the jury’s verdict on that count is simply unintelligible. (See People v. Carbajal (2013) 56 Cal.4th 521.) The court’s failure to notify counsel of the problem implicated the defendant’s right to counsel as counsel could have guided the court to the proper response: informing the jury that it cannot find defendant guilty and not guilty of the same first degree murder. The error was prejudicial. However retrial is not precluded because the jury’s unintelligible verdict was not the equivalent of a verdict of acquittal.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G049867.PDF