P. v. Brothers
Filed 12/12/11 P. v. Brothers CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. PA058905)
APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge. Reversed and remanded.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Beatrice Brothers of first degree murder and found true special allegations she personally used a deadly or dangerous weapon. On appeal Brothers contends the trial court erred in instructing the jury with former CALCRIM No. 400, which erroneously informed the jury it could find her guilty of murder on an aiding and abetting theory based upon the mental state of her codefendants. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Brothers was charged in an information with murder (Pen. Code, § 187, subd. (a)). It was specially alleged that Brothers had personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1), in committing the offense. Brothers pleaded not guilty and denied the special allegations.
2. The Evidence at Trial
Brothers lived in her own home with her adult son, Sidney Cole, and her young granddaughter, Yamisha (“Mimi”. Bobby Ray Gates also lived at the property with his girlfriend, Catherine Hoskins, in a converted garage behind the front house. Hoskins’s sons, 15-year-old Antwan and 12-year-old John, lived in the main house with Brothers and her family. Brothers had known Gates since childhood and had invited him, Hoskins and Hoskins’s sons to live at her property after discovering they were homeless. Brothers’s adult daughter, Lachelle Robinson, lived across the street.
In the early morning hours of December 5, 2005 Brothers was told Gates had molested Mimi and John. Brothers immediately woke up Antwan and John and asked John, “Did Bobby do something to you” John said he had. Brothers became extremely upset. She called Gates into the living room along with Mimi, Antwan and John and began yelling at Gates. Gates denied molesting John or Mimi. Cole went across the street, woke up Robinson and told her to come quickly to the house. Robinson immediately went to her mother’s house.
Samuel Persons, Brothers’s boyfriend, and another man, Christopher Yancy, arrived at Brothers’s house soon after Robinson arrived. The two men tied up Gates with a rope and put a rubber ball in his mouth while Brothers stood just a few feet away and observed. After the ball fell out of Gates’s mouth, Brothers placed it back in, wrapping a sock around Gates’s face to hold the ball in place. Satisfied that Gates had been sufficiently restrained, Brothers hit Gates on the head and face with a broomstick five or 10 times until the stick broke.
Persons, Yancy and Brothers then untied Gates’s legs and walked him, with his hands bound, to the garage. Robinson told police she briefly saw, through the slightly ajar door in the converted garage, Persons kicking Gates. When Yancy saw Robinson, he told her to leave and shut the door to the garage. Robinson left. Brothers returned to the living room by herself 10 minutes later.
On December 6, 2005 firefighters responded to a report of trash burning on the side of the Interstate 210 freeway. They found Gates’s body lying face down with his hands bound behind his back. The body was covered by a blue plastic tarp that smelled of gasoline. Gates’s eyes had been covered by a cloth blindfold and a cloth gag was lodged deep in his throat.
Dr. Paul Gliniecki, the Los Angeles County Deputy Coroner, testified Gates had abrasions and contusions all over his body, suggesting he had been beaten. He opined Gates died of asphyxiation due to airway obstruction and other contributing factors, including the beating and cocaine ingestion. Gates’s back also appeared to have wounds indicative of cigarette burns. The coroner believed each of these wounds had been inflicted before Gates died; the thermal wounds, suffered from the fire, were incurred postmortem.
At trial, the People presented four different theories that justified convicting Brothers of murder: (1) Brothers committed the murder directly; (2) she aided and abetted Persons and Yancy in committing the murder; (3) Brothers committed torture (§ 206), which resulted in Gates’s death, or (4) she aided and abetted torture resulting in death. Either of the last two theories would qualify the offense as first degree felony murder.
Brothers did not testify at trial and did not present any defense witnesses. Her theory at trial was that, at most, she was guilty of voluntary manslaughter because she had been provoked by news Gates had molested her young granddaughter and another boy in her home. Her counsel also argued Gates may have been beaten, but he was not tortured.
3. Jury Instructions, Verdict and Sentence
The jury was instructed with, among other things, CALCRIM Nos. 520 (murder), 521 (degrees of murder, including premeditation and deliberation for first degree murder); 540A and 540B (first degree felony murder based on torture or aiding and abetting torture); 810 (elements of torture); 570 (voluntary manslaughter based on killing in heat of passion); and 3145 (personal use of deadly weapon). The jury was also instructed with former CALCRIM No. 400 (general principles of aiding and abetting), which advised the jury that a “person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it,” and CALCRIM No. 401 (aiding and abetting: intended crimes).
The jury found Brothers guilty of first degree murder and found true the special allegation she had used a deadly weapon, “to wit, a stick.” Brothers was sentenced to an aggregate state prison term of 26 years to life, 25 years to life for first degree murder (§ 190) plus one year for the personal use of a deadly weapon (§ 12022, subd. (b)(1).)
1. It Was Error To Instruct with Former CALCRIM No. 400 in This Case
The trial court instructed the jury without objection on aiding and abetting in accordance with former CALCRIM No. 400: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.”
Citing People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), People v. Samaniego (2009) 172 Cal.App.4th 1148 (Samaniego) and People v. Nero (2010) 181 Cal.App.4th 504 (Nero), Brothers contends the instruction, to the extent it characterizes the perpetrator and the aider and abettor as “equally guilty” of the homicide, was misleading and prejudicial.
In McCoy, supra, 25 Cal.4th 1111, two defendants were tried together on charges of murder and attempted murder arising out of a drive-by shooting. The Court of Appeal reversed the shooter’s conviction for murder and attempted murder, finding the trial court had prejudicially misinstructed the jury on imperfect self-defense, a theory that, if accepted by the jury, would have reduced the perpetrator’s crimes to voluntary manslaughter and attempted voluntary manslaughter. The Court of Appeal also reversed the aider and abettor’s conviction for murder and attempted murder, concluding the aider and abettor could not be convicted in the same trial with the actual perpetrator of an offense greater than that for which the perpetrator was convicted. Because the Court of Appeal could not be confident the perpetrator was properly convicted of murder and attempted murder rather than voluntary manslaughter and attempted voluntary manslaughter, it held the aider and abettor’s convictions must also be reversed. (Id. at pp. 1115-1116.)
The Supreme Court reversed the Court of Appeal and remanded for further proceedings, concluding, in a homicide case in which the degree of the crime depends on various possible mental states, an aider and abettor “may be guilty of greater homicide-related offenses than those the actual perpetrator committed” if the aider and abettor had a more culpable mens rea than the perpetrator. (McCoy, supra, 25 Cal.4th at p. 1114.) As an example, the Court posited a defendant (Iago) who falsely told another person (Othello) that the second person’s spouse (Desdemona) was being unfaithful, hoping he would kill her in a fit of jealousy. “[D]epending on the exact circumstances of the killing, Othello might be guilty of manslaughter, rather than murder, on a heat of passion theory. Othello’s guilt of manslaughter, however, should not limit Iago’s guilt if his own culpability were greater.” (Id. at pp. 1121-1122.) “[W]hen a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person’s guilt is determined by the combined acts of all the participants as well as that person’s own mens rea. If that person’s mens rea is more culpable than another’s, the person’s guilt may be greater even if the other might be deemed the actual perpetrator.” (Id. at p. 1122.) The Court specifically limited its analysis to cases of homicide, expressing “no view on whether or how these principles apply outside the homicide context.” (Id. at p. 1122, fn. 3.)
Extending the Supreme Court’s analysis in McCoy, supra, 25 Cal.4th 1111, Division Two of this court held in Samaniego, supra, 172 Cal.App.4th 1148, a case involving three defendants convicted of first degree murder, that former CALCRIM No. 400’s “equally guilty” language was error to the extent it did not recognize an aider and abettor could be guilty not only of a greater, but also a lesser homicide offense than the perpetrator. (Samaniego, at p. 1164.) The court explained the “equally guilty” language in former CALCRIM 400 “misdescribes the prosecution’s burden in proving the aider and abettor’s guilt of first degree murder by eliminating its need to prove the aider and abettor’s own (1) intent, (2) willfulness, (3) premeditation and (4) deliberation, the mental states for murder.” (Samaniego, at p. 1165.) However, because the Samaniego jury also found true the special circumstance allegation the defendant had acted willfully with intent to kill, the court concluded the error was harmless beyond a reasonable doubt. (Ibid.)
In Nero, supra, 181 Cal.App.4th 504 Division Three of this court similarly found former CALCRIM No. 400’s “equally guilty” language to be error in a homicide trial. In Nero two defendants, Nero and Brown, were tried for murder. The prosecution’s theory at trial was that Nero killed the victim and Brown aided and abetted the killing by handing Nero the knife. The court instructed the jury on principles of first degree murder, voluntary manslaughter and aider and abettor liability. After the jury inquired whether Brown could be guilty of a lesser homicide offense than Nero if she had aided and abetted him, the court reread the instruction (CALJIC No. 3.00) that stated the perpetrator and the aider and abettor are “equally guilty” regardless of the extent or manner of participation.
Relying on McCoy, supra, 25 Cal.4th 1111 and Samaniego, supra, 172 Cal.App.4th 1148, the Nero court found the “equally guilty” instruction an erroneous statement of law because an aider and abettor could be guilty of a lesser homicide offense than the perpetrator if the aider and abettor had a less culpable mens rea. To illustrate its conclusion, the court proffered the following example from Professor Dressler: “‘[S]uppose that S and P walk into S’s house and discover S’s spouse in an act of adultery with V. If S, in [a] sudden heat of passion, provides a gun to P, who calmly kills V, S may be guilty of voluntary manslaughter, although P is guilty of murder.’” (Nero, supra, 181 Cal.App.4th at p. 516, citing Dressler, Understanding Criminal Law (4th ed. 2006) § 30.06[C], p. 524.) Likening the circumstances of the case before it to the example posited by Professor Dressler, the court found the instruction erroneously foreclosed the jury from finding Brown guilty of a lesser homicide offense than Nero if it found she had acted with a lesser culpable mental state. (Nero, at pp. 515-516.)
Brothers’s case is akin to Professor Dressler’s example, as well as the facts of the Nero case itself. Whatever the mental state of her confederates, Persons and Yancy, Brothers claimed she had acted in the heat of passion after hearing that Gates had molested her granddaughter and John. Yet the jury was told in this case, as in Nero, if Brothers had aided and abetted the homicide, she and the perpetrator were “equally guilty” without any explanation she could be guilty of a lesser offense if the jury found she had a different, and less culpable, mental state (provocation/heat of passion) than the perpetrators. The “equally guilty” language misdescribed the prosecutor’s burden and permitted the jury to convict Brothers of first degree murder without consideration of her own mental state. (See, e.g., Nero, supra, 181 Cal.App.4th at p. 518; Samaniego, supra, 172 Cal.App.4th at pp. 1164-1165; cf. McCoy, supra, 25 Cal.4th at p. 1119.)
The erroneous language in former CALCRIM No. 400 was not negated or cured by other instructions given in this case. (See Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385] [court considers instructions as whole to determine whether there is a “reasonable likelihood” jury applied the challenged instruction in a way that violates the Constitution]; People v. Campos (2007) 156 Cal.App.4th 1228, 1237 [“In determining the correctness of jury instructions, we consider the instructions as a whole. [Citation.] An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words.”].) Contrary to the People’s contention, CALCRIM No. 401, which states someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she aids, facilitates, promotes or encourages the commission of that crime, did not eliminate the potential error created by former CALCRIM No. 400’s “equally guilty” language. Nothing in CALCRIM No. 401 precluded the jury from finding Brothers guilty of first degree murder based on the mental state of Persons and Yancy if it found they had intended to kill Gates even if the jury also concluded Brothers had aided and abetted the homicide while acting in the heat of passion or under reasonable provocation. (See Nero, supra, 181 Cal.App.4th at p. 518 [fact that jury was also instructed with CALJIC No. 3.01, the precursor to and functional equivalent of CALCRIM No. 401, did not negate misleading nature of instruction; “[w]e believe that even in unexceptional circumstances CALJIC No. 3.00 and [former] CALCRIM No. 400, can be misleading].)
2. Use of Former CALCRIM No. 400 Was Not Harmless Error
An instruction that “omits or misdescribes an element of a charged offense violates the right to jury trial guaranteed by our federal Constitution” and thus constitutes reversible error unless it is harmless beyond a reasonable doubt. (People v. Williams (2001) 26 Cal.4th 779, 797; see Samaniego, supra, 172 Cal.App.4th 1148, 1165 [former CALCRIM No. 400’s “equally guilty” language constitutes a misstatement of an element of the charged offense and is subject to harmless error review under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; Nero, supra, 181 Cal.App.4th at p. 519 [same].)
The People in this case advanced four different theories for finding Brothers guilty of first degree murder: She perpetrated the murder with deliberation and premeditation; she aided and abetted her confederates in a deliberate, premeditated murder; she committed torture resulting in death; or she aided and abetted the torture resulting in death. As to three of these theories, the error in former CALCRIM 400 is immaterial. If the jury rejected the provocation defense and found Brothers had herself killed Gates with deliberation and premeditation or concluded she had directly committed torture, the aiding and abetting instructions were irrelevant to the first degree murder verdict. Similarly, if the jury found Brothers had aided and abetted the torture of Gates, a first degree felony murder, her mens rea in connection with the homicide is of no import. (See § 189 [listing torture as among felonies where, if death results, the offense is first degree felony murder]; People v. Cavitt (2004) 33 Cal.4th 187, 197 [to find defendant guilty of first degree felony murder, jury need only conclude defendant committed or aided and abetted commission of underlying felony enumerated in section 189; mental state for homicide not at issue]; People v. Pollock (2004) 32 Cal.4th 1153, 1175.)
Although three of the four theories presented to the jury were not tainted by the error in former CALCRIM No. 400, the jury also could have improperly convicted Brothers of first degree murder because she had aided and abetted premeditated murder while she, unlike her codefendants, was acting under reasonable provocation or in the heat of passion. We cannot tell from the record whether any of the jurors relied on this theory in reaching his or her verdict. Accordingly, reversal is required: “‘“[W]hen the prosecution presents it case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.”’” (People v. Morales (2001) 25 Cal.4th 34, 52-53; accord, People v. Morgan (2007) 42 Cal.4th 593, 612-613 [kidnapping case submitted to jury on several theories, one of which was legally erroneous; because court could not determine from the record which of the prosecution’s theories served as the basis for the jury’s verdict, “we must reverse the conviction for simple kidnapping”]; see also People v. Calderon (2005) 129 Cal.App.4th 1301, 1306-1307; People v. Barnes (1997) 57 Cal.App.4th 552, 553-554.)
The judgment is reversed, and the matter remanded for further proceedings not inconsistent with this opinion.
PERLUSS, P. J.
 Statutory references are to the Penal Code.
 The record does not indicate who made the allegations or how Brothers learned of them. The court admitted evidence of the molestation allegations not for their truth, but for the effect on Brothers’s state of mind and gave a limiting instruction to the jury to that effect.
 Brothers was not charged with torture, and the People did not disclose its intention to rely on a theory of first degree felony murder based on torture until the close of evidence. Brothers argues on appeal, as she did in the trial court, that this delay violated her due process right to notice of the charges against her. Because we reverse Brothers’s conviction based on instructional error, we need not consider this alternative ground for challenging the judgment.
 The People insist Brothers has forfeited the issue by failing to object to the instruction at trial. But we review any claim of instructional error that affects a defendant’s substantial rights whether or not trial counsel objected. (§ 1259 [“[t]he appellate court may also review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”]; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Of course, we can only determine if the defendant’s substantial rights were affected by deciding if the instruction as given was flawed, and, if so, whether the error was prejudicial. That is, if Brothers’s claim has merit, it has not been forfeited. Thus, we necessarily review the merits of her contention there was instructional error.
 The McCoy Court also expressly distinguished aider and abettor liability when homicide is the target offense from aider and abettor liability for a homicide under the natural and probable consequences doctrine. (See McCoy, supra, 25 Cal.4th at p. 1117 [“[n]othing we say in this opinion necessarily applies to an aider and abettor’s guilt of an unintended crime under the natural and probable consequence doctrine.”]; see generally People v. Prettyman (1996) 14 Cal.4th 248, 262 [under the natural and probable cause doctrine, if the defendants shared the same specific intent with respect to the target crime and the homicide is a natural and probable consequence of that crime, an aider and abettor and the perpetrator are equally guilty regardless of their respective mental states in connection with the homicide].)
 CALCRIM No. 400 was revised in 2010 to eliminate the “equally guilty” language. It now provides, “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.”
 CALJIC No. 3.00, used in Nero, is substantially the same as former CALCRIM No. 400: “‘Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include those who directly and actively commit or attempt to commit the acts constituting the crime, or two, those who aid and abet the commission or attempted commission of a crime.’” (Nero, supra, 181 Cal.App.4th at p. 510.)
 Pursuant to CALCRIM No. 401, the jury was instructed, “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
 As in Nero, supra, 181 Cal.App.4th 504, the jury plainly struggled with the instructions on the various theories of murder. At one point the jury asked if it could rely on the visual aid used by the prosecutor in closing argument listing the different requirements for the various murder theories because the instructions were confusing. The court quite properly denied that request.
 McCoy, supra, 25 Cal.4th 1111, Samaniego, supra, 172 Cal.App.4th 1148 and Nero, supra, 181 Cal.App.4th 504, each involved multiple defendants tried together. Brothers, in contrast, was tried separately from her codefendants following a successful severance motion. Former CALCRIM No. 400, however, is no less misleading in this situation. When evidence is presented from which the jury can infer the mental state of the defendant’s confederates, the instruction, to the extent it permits a jury to convict a defendant of murder based on the mental state of others, is erroneous and prejudicial.
 The jury was properly instructed it was not required to unanimously agree on the theory of first degree murder to find Brothers guilty of that offense. (See People v. Guerra (1985) 40 Cal.3d 377, 386 [“[i]t is settled, however, that ‘in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute’”].) Because torture was not charged and the jury, therefore, returned no verdict on that offense, we have no way of knowing if the jury believed she committed that crime, either as a direct perpetrator or an aider and abettor, and based its verdict on a felony murder theory. Moreover, although the jury found Brothers had personally used a deadly weapon—it was undisputed at trial she had hit Gates with a stick before he was brought to the garage—that finding does not assist us in determining which theory the jury applied in reaching its first degree murder verdict.