In murder case, jury need not unanimously agree whether defendant was the shooter or aided and abetted the killer. Appellant was convicted of first degree murder in the shooting death of his childhood friend, Szostek, who was acting as a police informant. The jury hung on the gun use enhancement. On appeal Quiroz claimed the trial court prejudicially failed to instruct the jury that it must unanimously agree whether he was the killer or aided and abetted the shooter. Held: Affirmed. A unanimity instruction as to the theory of murder is not required based on United States Supreme Court cases such as Apprendi v. New Jersey (2000) 530 U.S. 466. Here, there was only one discrete criminal event. The fact that it may have been committed in different ways does not require unanimity because the jury’s guilty verdict reflects its unanimous agreement that Quiroz committed a single crime. Apprendi does not require a different approach because the choice between alternate theories does not trigger a higher maximum sentence.
Identification of the principal is not a prerequisite to instructing on aiding and abetting culpability. Quiroz claimed that aiding and abetting instructions should not have been given until the prosecution produced sufficient evidence regarding the identity of the principal. This is not required, however, because the intent of the shooter may be determined based on the evidence without identifying the killer.
Quiroz had adequate notice the prosecution would alternatively rely on a theory of aiding and abetting. Quiroz argued the prosecution’s late request for an aiding and abetting instruction interfered with his right to have his attorney respond to this new theory. Under California’s short form pleading, however, charging a defendant as a principal is deemed to charge him as an aider and abettor (Pen. Code, § 971). Although no case holds this practice, without more, provides constitutionally sufficient notice of the alternate charges, here, the prosecution requested aiding and abetting instructions during voir dire. This provided adequate notice of the alternative theory.