Felony murder conviction reversed because trial court failed to sua sponte instruct the jury that liability does not attach to a defendant who began aiding and abetting an enumerated felony only after the killing occurred. Defendants Hill and her mother Mei were convicted of the attempted murder of Hill’s former husband, Eric, and the first degree murder of Eric’s grandmother, Selma. The crimes occurred when Hill went to Eric’s house intending to take her daughter, although she did not have legal custody. Evidence reflected that Mei arrived at Eric’s house after Hill killed Selma, but did participate with Hill in an attack on Eric. On appeal Mei faulted the trial court for not instructing the jury that she could only be found culpable for Selma’s murder based on felony murder (during a burglary/kidnaping) if she aided and abetted Hill prior to the killing. Held: Reversed. CALJIC No. 8.27 (aider and abettor liability) appears to tell the jury that one who aids and abets an enumerated felony, without any temporal or causal qualification, is liable for first degree murder committed by anyone who is also engaged in the felony. Mei claimed the jury should also have been given the optional “complicity” portion of CALJIC No. 8.27, which clarifies that the accused and the killer must be jointly engaged in the target felony at the time the fatal blow occurs; the instruction given regarding the scope of aider and abettor liability for felony murder failed to inform the jury of this requirement. The error is akin to misinstruction on an element of the offense, invoking the federal harmless error standard, and mandating reversal.

Even if the defense did not rely on the “late joiner” theory at trial, the court should still give the “complicity” portion of CALJIC No. 8.27 when supported by the evidence. At trial Hill claimed that Mei knew nothing about Hill’s intent to take her daughter. Based on this evidence, the Attorney General contended the “complicity” portion of the aider and abettor instruction was not required as this was not the defense. However, the defense offered is not determinative. The “complicity” portion of the instruction must be given sua sponte when substantial evidence warrants it, as it did here, where there was evidence that Mei was not present when Hill killed Selma.