Murder conviction reversed where trial court’s erroneous response to a jury question allowed the jury to convict defendant of murder for conduct that constituted no more than accessory after the fact. Defendant was convicted of second degree murder. On appeal he argued the trial court’s erroneous response to a jury question about the duration of the “commission of the offense” misdirected the jury on the law, allowing it to convict on an invalid theory. Held: Reversed. If a defendant’s liability for an offense is predicated upon the theory that he aided and abetted the perpetrator, the defendant’s intent to encourage or facilitate the perpetrator’s acts must be formed prior to or during the commission of the offense. Conduct that occurs after a felony has been committed incurs the lesser liability of an accessory to a crime. During deliberations, the jury asked whether “commission of the crime” included events that occurred after the shooting, thereby seeking clarification about when the commission of the crime ended. The trial court responded: “Factors relevant to the determination of whether defendant is guilty of aiding and abetting include but are not limited to presence at the scene of the crime, companionship, and conduct before and after the offense.” While the court’s response was technically a correct statement of the law, as an answer to the jury’s specific question, it was wrong because it authorized a murder conviction even if the jury found defendant formed the requisite intent and rendered aid only after the commission of the crime. The error was prejudicial under either the Watson or Chapman standard.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B281816.PDF