First degree murder convictions reversed because jury was instructed it did not have to agree on the theory of the murder, although the prosecution’s two theories of murder supported different degrees of murder. Johnson, Thornton, and two of Johnson’s friends went to an encampment to kidnap Johnson’s estranged wife. On the way, the two friends said they intended to rob the people at the encampment. During subsequent events, two men were shot and one died. Johnson and Thornton were not the shooters. The defendants were convicted of first degree murder and other offenses. In Johnson’s and Thornton’s first appeal, their murder convictions were conditionally reversed for instructional error and the case was remanded. The California Supreme Court granted defendants’ petitions for review and transferred the case back to the Court of Appeal to reconsider its decision in light of People v. Banks (2015) 61 Cal.4th 788. Held: No change in previous disposition. The trial court instructed the jury the defendants were being prosecuted under two different theories: (1) aiding and abetting another who acted with malice aforethought; and (2) felony murder (CALCRIM No. 548). The jury was further told it did not have to agree on the theory of murder. This was error because the prosecution’s two theories of murder supported different degrees of murder (i.e., first degree felony murder and second degree malice murder), as to which jury unanimity is required (Pen. Code, § 1157). The error was prejudicial as to the finding of first degree murder. The first degree murder convictions were reversed and the case remanded to allow the prosecution to either retry the case or accept a reduction of the offenses to second degree murder.
This disposition is not affected by the decision in People v. Banks (2015) 61 Cal.4th 788. In Banks, the California Supreme Court addressed the circumstances required for an accomplice who lacks the intent to kill to be eligible for the death penalty (or LWOP). The court in Banks held that a getaway driver in a robbery case, who was not involved in planning the robbery or obtaining weapons, was not eligible for the death penalty. However, the “court did not address the mental state required for implied malice murder and nothing in its analysis suggests any change to the proof necessary to convict an aider and abettor of murder.” Based on the facts in this case and the jury’s finding that the defendants aided and abetted an attempted robbery, all of the jurors, whether they relied on felony murder or implied malice murder, found the intent required for second degree murder. No change in judgment is required by the Banks decision.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A136120A.PDF
