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Name: People v. Johnson
Case #: A136120
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 06/30/2015

Where defendants were charged with murder under two different theories (one for first degree and one for second degree), trial court prejudicially erred by instructing jury that it need not be unanimous regarding the theory of murder (CALRIM No. 548). Defendants were convicted of first degree murder and attempted murder. The jury was presented with one theory of first degree murder (felony murder in connection with attempted robbery or attempted kidnapping) and one theory of second degree murder (aiding and abetting another who acted with malice aforethought). The court instructed the jury with CALCRIM No. 548, which informed the jury that the defendants were being prosecuted for murder under two theories and that they need not all agree on the same theory. The defendants challenged this instruction on appeal. Held: Reversed. Where a defendant is charged with first degree murder, the jurors need not be unanimous on which of several theories support a conviction, so long as all jurors find beyond a reasonable doubt the defendant is guilty of that offense. However, the jury must unanimously determine whether murder is in the first or second degree. Relying on People v. Sanchez (2013) 221 Cal.App.4th 1012, the Court of Appeal concluded that trial court erred in giving CALCRIM No. 548 under the circumstances of this case. Because the prosecution put forth theories that supported both degrees of murder, instructing the jury it need not be unanimous on the theory of murder misled the jury into thinking it need not agree as to the degree of murder for which each defendant was liable. The error was not harmless beyond a reasonable doubt, and only affected the degree of the offense. The appropriate remedy is to reverse the first degree murder convictions and remand with directions to allow the prosecution to either retry the case or accept a reduction to second degree murder.