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Name: People v. Webb
Case #: D073592
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/01/2018
Summary

Although jury instruction defined second degree malice murder and first degree felony murder as different theories and stated unanimity was not required as to the theory of murder, any error in the instruction was harmless. Webb was charged with one count of murder and the jury was instructed on two theories: second degree murder based on malice aforethought and first degree felony murder (the underlying felony was kidnapping during a carjacking). The jury was also instructed that it did not need to agree on the theory of murder (CALCRIM No. 548). Webb was convicted of first degree murder. He appealed, arguing that CALCRIM No. 548 erroneously instructed the jury that it did not need to agree on the theory of murder when the two theories corresponded to different degrees. Held: Affirmed on this point. The version of CALCRIM No. 548 in this case instructed the jury that Webb was charged with murder under two theories and stated, “You do not all need to agree on the same theory, but you must unanimously agree whether the murder is in the first or second degree.” Webb relied on People v. Sanchez (2013) 221 Cal.App.4th 1012 and People v. Johnson (2016) 243 Cal.App.4th 1247 to argue that instructing the jury it did not have to agree on the theory of murder was erroneous because it implied the jury did not have to agree on the degree of murder. Sanchez and Johnson involved a former version of CALCRIM No. 548 and the instruction was amended in response to these cases to add “but you must unanimously agree whether the murder is in the first or second degree” as optional language. The Court of Appeal here recognized that, even though the instruction stated unanimity was required as to degree, it arguably contained an ambiguity by defining second degree malice murder and first degree felony murder as different “theories” and stating unanimity was not required as to the “theory.” However, the court did not decide whether the alleged ambiguity in the instruction was error in this case because any error was harmless beyond a reasonable doubt.