First degree murder conviction reversed where jury was improperly instructed it did not have to unanimously agree on the theory of murder, which sanctioned a verdict that was not unanimous as to degree. A jury convicted Sanchez of first degree murder for a killing committed during a dispute over drugs. Sanchez was not the shooter. The prosecution proceeded on two aiding and abetting theories: (1) first degree felony murder during a kidnapping; and (2) second degree murder if the killing was a natural and probable consequence of an assault or a kidnapping. In response to a jury question on second degree murder, the court instructed, pursuant to CALCRIM No. 548, that it must agree Sanchez committed murder under one of the two theories, but need not agree on the same theory. On appeal Sanchez challenged this instruction. Held: Reversed. When a crime is divided into degrees, the jury must unanimously find the degree of the crime. Here, instructing the jury with CALCRIM No. 548 was error because it told the jury it did not have to agree as to the degree of murder. Unanimity was required because each theory of murder presented a different degree. While it is not necessary for all jurors to agree on one or more of several theories of first degree murder presented by the prosecution, this rule did apply in Sanchez’s case because there was only one theory of first degree murder. Further, the error was prejudicial as to the finding of first degree murder. The case was remanded to allow the prosecution to either retry Sanchez for first degree murder or allow a conviction for second degree murder to be entered.

The instruction that directed the jury to consider whether defendant acted with malice under the natural and probable consequences theory of guilt was erroneous. The malice instructions given during deliberations directed the jury to consider whether Sanchez, and not the shooter, acted with malice under the natural and probable consequences theory. However, this theory required the jury to find that the shooter, not Sanchez, acted with malice. This definition of second degree murder did not fit the facts and was inconsistent with the prosecution’s theory of guilty. This may have left the jury with a theory of first degree murder by default.