Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FSB036357. Brian S. McCarville, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
This opinion follows our granting of defendant’s petition for rehearing. As noted in our previous, unpublished opinion filed on June 21, 2007, defendant was charged with the first degree murders of Sue and Jim Moller (Pen. Code, § 187, subd. (a); counts 1 & 2), with special circumstances of multiple murder (§ 190.2, subd. (a)(3)), murder in the commission of a burglary (id., subd. (a)(17)(G)), murder in the commission of a robbery (id., subd. (a)(17)(A)), and murder of a witness (id., subd. (a)(10)). In addition, defendant was charged with one count of first degree residential burglary (§ 459; count 3) and two counts of first degree robbery (§ 211, counts 4 & 5). In each count, it was alleged that a principal was armed with a firearm. (§ 12022, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated.
The robbery charges and robbery special-circumstance allegation were dismissed following the close of the People’s case based on insufficient evidence. (§ 1118.1.) A jury found defendant guilty as charged of the first degree murders and burglary in counts 1, 2, and 3, respectively, and found the multiple murder special circumstance, burglary murder special circumstance, and armed allegations true. The murder of a witness allegations were found not true. Defendant was sentenced to life without parole (LWOP) plus one year.
The jury was instructed that it find defendant guilty of first degree murder based on any one or more of the following three theories: (1) premeditation (CALJIC No. 8.20); (2) the burglary felony murder rule (CALJIC No. 8.21); or (3) or the natural and probable consequence doctrine—that is, that the murders were a natural and probable consequence of the burglary (CALJIC No. 3.02).
Defendant’s total sentence consisted of LWOP on count 1, plus one year for the armed enhancement on count 1. A concurrent, additional LWOP term and one-year armed enhancement were imposed but stayed on count 2, and a four-year term was imposed but stayed on the burglary conviction in count 3.
Defendant was prosecuted as an aider and abettor to the murders and burglary, and the principal issue at trial was whether he aided and abetted these crimes. The evidence showed that, on the evening of Friday, September 20, 2002, defendant’s cousin, Ernestina Bernal, shot and killed the Mollers in their home, then stole a purse, wallet, and traveler’s checks from the home. In testifying at trial, defendant admitted he accompanied Bernal to the scene of the crimes, but he maintained he had no knowledge that she intended to commit murder, or a burglary, and no intention of aiding, facilitating, or encouraging her commission of any of these crimes.
II. SUMMARY OF CONTENTIONS AND CONCLUSIONS
In our previous, June 21, 2007, opinion, we affirmed defendant’s first degree murder convictions in counts 1 and 2, his burglary conviction in count 3, and the multiple murder special-circumstance finding; however, we reversed the burglary felony-murder and burglary special-circumstance findings. Thereafter, defendant petitioned for a rehearing. We requested and received the People’s answer to the petition, granted the petition solely on the issues raised in the petition, and held oral argument on these issues.
In this opinion, we first restate our previous conclusion that substantial evidence supports defendant’s convictions as an aider and abettor to the first degree murders and burglary as charged in counts 1, 2, and 3. We then turn to the principal claims of instructional error raised in defendant’s petition for rehearing. These are that the trial court prejudicially erred in (1) failing to identify and define all potential target offenses of the burglary in the instruction defining burglary; and (2) failing to instruct the jury sua sponte on the merger doctrine relative to the burglary felony-murder instruction.
Defendant claims each of these errors prejudiced his burglary and first degree murder convictions and the multiple murder special-circumstance finding—in addition to the burglary felony-murder and burglary murder special-circumstance findings. We reject the first of these claims. As on our previous opinion, we conclude that the failure to identify and define all possible target offenses of the burglary could not have prejudiced the burglary conviction, based on any factual scenario the jury could have gleaned from the evidence. We agree, however, with defendant’s claim that the failure to instruct on the merger doctrine relative to the burglary felony-murder instructions prejudiced the burglary felony-murder findings, the first degree murder convictions in counts 1 and 2, and the multiple murder and burglary murder special-circumstance findings.
Accordingly, we reverse defendant’s first degree murder convictions in counts 1 and 2 and the burglary felony-murder, multiple murder special-circumstance, and burglary special-circumstance findings. The only part of the judgment we affirm is defendant’s burglary conviction in count 3.
Because we reverse the judgment relative to defendant’s first degree murder convictions and special-circumstance findings, it is unnecessary for us to restate our previous conclusions that (1) a parole revocation fine was erroneously imposed, or that (2) the abstract of judgment erroneously reflects that defendant’s sentence on count 2 was imposed consecutively rather than concurrently to his sentence on count 1.
Regarding the burglary conviction, we consider defendant’s further claim that our previous opinion included “a significant error of fact” and erroneously interpreted Evidence Code section 351.1, relative to his original claim that the trial court erroneously admitted videotapes of his police interviews showing a polygraph chair and sphygmometer in the interview room. We conclude it is not reasonably probable that admission of the videotapes, if erroneous, prejudiced the burglary conviction. We also conclude that the trial court’s given instruction on flight (CALJIC No. 2.52) did not prejudice the burglary conviction. Nor did the cumulative effect of these errors prejudice the burglary conviction.
III. SUMMARY OF EVIDENCE
A. Prosecution Evidence
Bernal worked as an unlicensed realtor and mortgage loan officer under the name Lisa Alvarez. By mid-September 2002, she had either obtained or was in the process of obtaining fraudulent loans on behalf of her various clients, including defendant. The fraud entailed submitting false income and other documentation through Statewide Mortgage, a mortgage broker, to a mortgage lender.
Defendant’s loan was approved and funded before his lender discovered the fraud. Escrow on the purchase of defendant’s $78,900 home closed on August 7, 2002. In connection with his loan application, defendant submitted false W-2 forms, a false social security number, false credit references, false employment information, and a fraudulent prior residence address and landlord information. He also failed to disclose an outstanding $23,000 child support judgment; he represented there were no outstanding judgments or liens against him.
Statewide Mortgage was wholly owned and operated by Sue Moller, her husband Jim Moller, Sue’s daughter Sheri Murray, and Murray’s husband. Jim held the broker’s license for the company. Sheri was the president of the company and oversaw its loan processing operations. The loan processing entailed gathering income and other information from borrowers to verify their loan eligibility. Sue processed loans through the company on behalf of Bernal. By September 2002, Sue had processed 40 to 50 loans for Bernal, including defendant’s loan. Sheri testified that her mother became angry with her in June 2002, when Sheri questioned the authenticity of the employment information in defendant’s loan file. Sue told Sheri to submit the loan to the lender anyway.
By mid-September 2002, Sheri discovered that fraudulent documents had been submitted on “roughly twenty” of Bernal’s loans, including defendant’s loan. Sheri contacted the San Bernardino County District Attorney’s Office, which promptly commenced a criminal fraud investigation. An investigator, Robert Schreiber, contacted Jim and Sue, and both of them began cooperating with the investigation. Defendant’s loan was one of the loans under investigation. Defendant faced foreclosure, the loss of his home, and criminal penalties. Bernal stood to lose a total of $9,000 in deposits paid by her clients, plus lost commissions and criminal penalties.
On September 19, Schreiber arranged to have Sandy Viera, the officer manager for Statewide Mortgage, make a pretext call to Bernal. The purpose of the call was to elicit incriminating statements or other information from Bernal. Two calls were made, and both calls were tape-recorded. During the first call, which lasted about five minutes, Viera told Bernal that investigators were looking into her loans, and asked Bernal about the documentation in some of the loan files. In response to Viera’s questions, Bernal admitted she had submitted fraudulent information in connection with some of her loans, including defendant’s loan. She also indicated she did not mind being investigated, but was upset because the Mollers were not returning her calls. At that point, Bernal’s tone began to change and she ended the call. During the second call, which lasted about 30 seconds, Bernal told Viera “she didn’t know anything” and promptly ended the call.
The Mollers were scheduled to leave on a cruise on Saturday, September 21. Around noon on Friday, September 20, Bernal asked a coworker, Manuel Grijalva, for permission to borrow his car, a Ford Taurus. After she obtained permission to use Grijalva’s car, but before she picked up the car, she visited defendant. She showed defendant her gun, made him promise not to tell anyone about it, and told him she wanted to kill Sue. She expressed anger toward Sue because of the fraud investigation and Sue’s failure to return her phone calls. Defendant asked Bernal what she wanted him to do.
On the evening of September 20, Bernal, armed with a firearm and accompanied by defendant, drove to the Mollers’ neighborhood in her own vehicle to see whether they were home. Then, shortly before 8:00 p.m., she called Grijalva and told him she was on her way to pick up his Taurus. Between 8:00 and 8:30 p.m., Bernal and defendant arrived at Grijalva’s house in Bernal’s Ford Explorer. While Bernal was talking with Grijalva, defendant moved Bernal’s gun from Bernal’s Explorer to Grijalva’s Taurus.
Bernal and defendant then returned to the Mollers’ neighborhood in the Taurus. Bernal was driving. They parked about a block away from the Mollers’ house, and walked toward the house, which was on a corner lot. They proceeded to the back of the property, jumped over a fence, and climbed up an ice plant-covered embankment toward the house. They went to the French doors on the side of the house, which led into the living room. The French doors were open but were covered by a screen which was closed and locked. The Mollers were sitting in the living room, watching television, as defendant and Bernal walked up to the screen door.
Bernal fired three bullets through the screen door. Two bullets hit Jim in the elbow and abdomen, causing him to fall off the sofa and onto the floor. A third shot went through the love seat next to where Sue had been sitting, and apparently grazed Jim’s right leg. Sue had been perusing through travel documents in preparation for their cruise, but stood up when the shots were fired. Bernal and defendant then tore through the screen door and entered the house. Bernal ordered the Mollers to lie down on the floor. She then shot both Sue and Jim in their heads at close range, killing them instantly.
Bernal quickly rummaged through the Mollers’ belongings and took Sue’s purse, Jim’s wallet, and approximately $2,000 in traveler’s checks. Bernal and defendant then left the house through the front door. Bernal dropped defendant off at his home, and returned the Taurus to Grijalva at around 11:00 p.m.
About 8:30 p.m., the Mollers’ neighbors, David and Shell Rae Hoehn, were outside their house walking David’s mother to her car. As they did so, they noticed a suspicious car parked across the street from their house. David looked inside the car and saw no one there. Between 8:45 and 9:30 p.m., the Hoehns, from inside their house, heard gunshots. They both heard a rapid series of three or four shots, a short pause, then another rapid series of several more shots.
After Bernal dropped defendant off at his house, defendant took his girlfriend and children and went to his mother’s house, where they stayed until the afternoon of the following day, Saturday, September 21. Defendant told police he stayed away from his house because he feared Bernal would go there and kill him. On Sunday, September 22, defendant, his family, and Bernal went to San Diego and spent the day there. On Monday, September 23, Bernal fled to Mexico.
B. Defendant’s Statements to Police
Defendant was interviewed by police throughout most of the day on September 30, 2002. Shortly after the interviews began, defendant was arrested, waived his Miranda rights, and agreed to continue being interviewed. Most of the interviews were videotaped and played for the jury. At one point between interviews, defendant took a partial polygraph test. The polygraph test was not shown to the jury and all references to it were redacted from the videotapes and transcripts of the interviews. At another point, officers took defendant to the scene of the crimes. This portion of the interview was audiotaped and played for the jury.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
In the interviews, defendant initially denied he was present at the Mollers’ house on the night of the murders or that he knew who murdered the Mollers. He suspected, however, that Bernal was involved because, on the day of the murders, she told him about the fraud investigation and that several of her escrows had been frozen. He later admitted he had gone with Bernal to Grijalva’s house to pick up Grijalva’s car, but he claimed Bernal just drove by a casino, then took him back home.
Defendant then told the officers that, on the day of the murders, Bernal told him about the pretext call, that she knew the call had been recorded, and that Sue had been avoiding her. Defendant said he drove by the Mollers’ office on the morning of Friday, September 20. He saw an undercover police car or “smash car” parked in front of the office, and several people speaking to a person who appeared to be an investigator. He told Bernal what he had seen.
Defendant still claimed he had never been to the Mollers’ house and did not know where they lived. But after police told defendant they knew he was at the Mollers’ house on the night of the murders, he again changed his story. First, he admitted he and Bernal had driven by the Mollers’ house in Bernal’s Ford Explorer. Then they picked up Grijalva’s Taurus and returned to the Mollers’ house in the Taurus. He claimed he stayed in the Taurus while Bernal and two other men, who met her there, went to the Mollers’ house for approximately 30 minutes. He said Bernal did not have a gun. When Bernal returned, she did not tell defendant what she was doing or had done at the Mollers’ house. She took defendant home and gave him $40, his usual fee for doing handyman work for Bernal. At this point, defendant “[swore] to God” he was telling the truth.
The officers then told defendant that neighbors of the Mollers had seen Grijalva’s car parked in front of their house with no one in it. At this point, defendant changed his story again. He said he walked with Bernal to the back of the Mollers’ house and waited outside while she climbed up the embankment to the house. While he was waiting outside, he heard gunshots and a woman screaming. Believing Jim had shot Bernal, he ran to the house. Then, he saw that Bernal had a gun. A man was lying on the floor saying he had been shot, and a woman was standing with papers in her hands. He walked away, then heard more shots. Bernal gave defendant “a bag or whatever,” and they walked out the front door. Bernal told him she “had to kill [th]em.”
Defendant also told the officers that, earlier on the day of the murders, Bernal had been talking about how the Mollers owed her money, had frozen 18 of her escrows without telling her, and were avoiding her calls. She told defendant she “ought to . . . smoke those motherfuckers.”
During the final interview, interviewer Robert Heard told defendant he was in “hot water” and in trouble, and it was his last chance to tell the truth about what happened. Defendant said he knew Bernal was angry with Sue and appeared “serious” when she had talked about “smok[ing]” her. Still, when he and Bernal went to the Mollers’ house, he said he believed Bernal was only going to deliver some papers to Sue.
This time, defendant claimed he did not see that Bernal had a gun until she jumped over the fence behind the Mollers’ house. But he later admitted moving her gun from her Explorer to Grijalva’s Taurus, and he saw she was carrying it as they walked toward the Mollers’ house. In response to Heard’s question, defendant admitted it had “crossed his mind” that they were “in for a . . . rumble,” but he still did not believe Bernal was going to kill anyone. Instead, he thought Bernal was only going to demand payment from the Mollers for the money she was owed, and he asked her what she wanted him to do. In response, Bernal told defendant he was not going to do anything.
C. Defense Evidence
Defendant’s defense was that Bernal duped him into going with her on the night of the murders, he knew nothing of her intention to murder the Mollers or steal from them, and he did nothing to aid, facilitate, or encourage her commission of the crimes.
Defendant’s mother and cousin testified that Bernal always carried a gun, bragged about carrying a gun, and often spoke about “killing” or “smoking” people. The cousin testified that Bernal had a domineering personality, acted “[l]ike one of the tough guys,” and was abusive and controlling toward defendant.
Defendant testified on his own behalf. He said Bernal was verbally abusive and “bossy” toward him, and often carried a gun. Although he worked for a carpet cleaning company, he relied on Bernal for additional handyman jobs. Bernal helped him purchase his house and directed him to sign several of the fraudulent documents in connection with his mortgage loan. He signed the documents because he wanted to move out of his mother’s house and provide a home for his girlfriend and children. He did not know that most of the documents submitted in connection with his mortgage loan were fraudulent until he signed them.
Consistent with his statements to police, defendant testified he knew Bernal was angry with Sue because of the fraud investigation, but he claimed he knew nothing about Bernal’s intentions to kill Sue, rob her or her husband, or burglarize their house. He explained that Bernal came to his house on the day of the murders armed with a firearm. She was upset because the Mollers would not answer her phone calls, and she said she wanted to “smoke” Sue.
Early on the evening of Friday, September 20, Bernal called and told defendant she had another handyman job for him. She picked defendant up at his house and explained she was going to pick up a car from Grijalva, because Grijalva owed her money. Defendant initially believed Bernal wanted him to drive her car or Grijalva’s car from Grijalva’s house to her house.
After defendant and Bernal arrived at Grijalva’s house, Bernal told defendant to move her “stuff” from her car to Grijalva’s car. Defendant did as he was told, knowing Bernal’s “stuff” consisted of her sweater, sandals, and a pouch containing her gun. Bernal then got in the driver’s seat of Grijalva’s car and told defendant to get in the passenger seat. When defendant tried to ask questions, Bernal told him to “shut up.”
As they were leaving Grijalva’s neighborhood, Bernal said she was “going to go pay somebody a visit.” Based on this statement and Bernal’s earlier statements concerning the Mollers, defendant believed Bernal was going to “hit up” or “shakedown” the Mollers, meaning she was going to ask them to pay her the money they owed her and explain what was going on with the fraud investigation. When defendant and Bernal arrived in the Mollers’ neighborhood, Bernal parked down the street from the Mollers’ house, got out of the car, and told defendant to come with her. Defendant got out of the car. As they were walking down the street, he realized Bernal was armed with her gun.
Defendant and Bernal approached the driveway gate of the Mollers’ house. As defendant was trying to open the gate, Bernal began to walk around the corner of the house to the back. Defendant followed her, asked her what she was doing, and told her to go knock on the front door. She did not respond. After she reached the back of the house, defendant again asked her what she was doing. Again, he was told to “shut up.”
Bernal jumped over a fence and walked up an ice plant-covered slope toward the house. Defendant stayed on the street below the house. As he was waiting on the street, he saw that Bernal had gone to the French doors on the side of the house. He thought he heard Bernal say “Sue” and he heard “yelling or mumbling.” The next thing he heard was one or two gunshots, and someone screaming. Defendant fell down, got up, climbed over the fence, and went up to the house. He believed the Mollers may have shot Bernal.
When he got to the house, he did not know what to do and he feared that he, too, would be shot. He went to the porch area in front of the house and started pacing back and forth. Then he saw Bernal “popping” her head out of the French doors on the side of the house. She had her gun in her hand, and told defendant to “[c]ome here.” Defendant followed Bernal into the living room. There, he saw a man lying on the floor and a woman standing. The man was saying he had been shot.
Defendant said he swore at Bernal and again demanded to know what she was doing. Again, Bernal told him to shut up. At this point, Bernal was holding her gun in both hands, looking at defendant, and walking toward the man lying on the floor. Defendant was frightened. He believed Bernal was going to shoot him or the man on the floor. He walked backwards and stepped outside the French doors. From outside, he heard what he believed were two more shots.
Bernal then ordered defendant to come back in the house. He knew that the man and woman had been shot, because “it was quiet.” He stood near the front door and concentrated on the front door, while Bernal quickly went through the house. Then, defendant and Bernal walked out through the front door and left in Grivalja’s car.
Bernal dropped defendant off at his house. On the way there, Bernal kept telling defendant they had to be “best friends” from now on. She put $40 on the seat of the car, defendant’s usual fee for doing a handyman job. Defendant took the money because he believed Bernal would kill him if did not accept it. He took his girlfriend and children to his mother’s house, where they spent the night, because he believed Bernal was going to come back to his house and kill him. Bernal had keys to his house, and a back window of the house was broken.
On Sunday, September 22, two days after the murder, defendant, his girlfriend and children, and Bernal went to San Diego for the day. Defendant explained he went because he “had to pretend in front of [Bernal] [that] [he] wasn’t scared.” Earlier on Sunday, or the day before, he returned from the grocery store to find Bernal sitting on his front porch. Defendant admitted he and Bernal were friends and often socialized together.
IV. DISCUSSION
A. Substantial Evidence Supports Defendant’s Convictions as an Aider and Abettor to the Murders and Burglary
Defendant contends insufficient evidence supports his convictions for the murders and the burglary because the evidence does not support a reasonable inference that he aided and abetted Bernal’s perpetration of the crimes. We disagree.
1. Standard of Review
In considering a claim that insufficient evidence supports a verdict, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a jury comprised of reasonable persons could have found the defendant guilty beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume in support of the judgment the existence of every fact the jury could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Reversal is unwarranted merely because we believe the evidence might reasonably justify a contrary conclusion. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
2. Aider and Abettor Liability
The law imposes criminal liability on all “principals” to a crime. (§ 31; People v. Nguyen (1993) 21 Cal.App.4th 518, 529.) Principals include persons “concerned” in the commission of the crime, “whether they directly commit the act constituting the offense, or aid and abet in its commission . . . .” (§ 31.) “A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Beeman (1984) 35 Cal.3d 547, 560-561.) Intent is rarely susceptible of direct proof, but may be inferred from all the facts and circumstances. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) A person’s mere presence at the scene of a crime, even if he or she knows or suspects a crime is occurring or is about to occur, is by itself insufficient to sustain a conviction based on aiding and abetting. (People v. Nguyen, supra, at pp. 529-530, citing People v. Durham (1969) 70 Cal.2d 171, 181.)
The jury was instructed in accordance with these principles. (CALJIC Nos. 3.00, 3.01, and 3.14.)
3. The Natural and Probable Consequences Doctrine
Under the natural and probable consequences doctrine, “‘[An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury.’ [Citation.] Thus . . . a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (People v. Prettyman (1996) 14 Cal.4th 248, 261.)
Here, the jury was instructed on the natural and probable consequences doctrine relative to the murders being a natural and probable consequence of the burglary. (CALJIC No. 3.02.) The instruction told the jury: “One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime or those crimes, but is also guilty of any other crime committed by a principal which is the natural and probable consequence of the crime originally aided and abetted.
4. Analysis and Conclusions
Defendant claims the evidence fails to support a reasonable inference that he aided and abetted Bernal’s commission of the murders or the burglary. Specifically, he claims the evidence fails to show he knew of Bernal’s criminal intent, or that, with such knowledge, he committed any act with the intent of aiding, facilitating, or encouraging her commission of the crimes. He maintains the evidence shows only that he was present at or near the Mollers’ house when the crimes were committed. He further argues that the prosecution relied solely on his consciousness of guilt as evidenced by his repeated lies to police to “fill the gaps in the evidence” and convince the jury he acted as an aider and abettor to the crimes.
We disagree with defendant’s view of the evidence. Based on all the evidence, the jury could have reasonably inferred that defendant, with knowledge of Bernal’s intent to murder and steal from the Mollers, accompanied Bernal to the Mollers’ house and intentionally aided her in the commission of the crimes. The evidence also permitted an inference that defendant, knowing that Bernal intended to steal from the Mollers, accompanied her to the Mollers’ residence with the intent of aiding and abetting the theft and that the murders were a natural and probable consequence of the theft given that Bernal was armed with a firearm and very angry with the Mollers.
(a) Defendant’s Knowledge of Bernal’s Intent
Several hours before the crimes were committed, Bernal told defendant about the pretext phone call and fraud investigation, and that she stood to lose $9,000 in deposits because 18 of her escrows had been frozen. Defendant drove by the Mollers’ office and told Bernal he saw a “smash car” parked in front and people speaking to a person who appeared to be an investigator, confirming Bernal’s suspicion that the Mollers were cooperating against her in the fraud investigation. Bernal told defendant she wanted to “hit up” the Mollers, which defendant understood as meaning she wanted to demand they account to her for the money she believed they owed her, and explain their role in the fraud investigation. Bernal also told defendant she wanted to “smoke” or “kill” “those motherfuckers,” meaning Sue and Jim.
There was also substantial evidence that defendant knew Bernal was serious about her intentions, notwithstanding his and his relatives’ testimony that Bernal always carried a gun and often talked about “smoking” people. Indeed, defendant admitted that Bernal seemed serious when she said she wanted to “smoke” Sue. He then accompanied her to the Mollers’ house, knowing she was armed with a firearm and knowing she was serious about her intentions to murder the Mollers and take what money she could find as compensation for her losses.
(b) Defendant’s Actions in Aiding Bernal’s Commission of the Crimes
Contrary to defendant’s claim that there is no evidence he did anything to intentionally aid Bernal’s commission of the crimes, there was substantial evidence that he played an intentional role. First, there was evidence that Bernal needed and relied on defendant’s assistance in committing the crimes. Defendant told police he was aware that Jim was an ex-marine. He also knew that Jim had in the past insisted that Bernal speak to him when she called Statewide Mortgage and asked to speak to Sue. Bernal was no more than five feet two inches tall, and female. Defendant and Bernal grew up together, socialized together, and were close. Defendant also knew that the Mollers were cooperating in the fraud investigation against Bernal and that Bernal stood to lose substantial sums of money as a result.
Moreover, the physical evidence of how the crimes were committed, together with the testimony of the Mollers’ neighbors, the Hoehns, and defendant’s pretrial statements to police and his trial testimony, all supported a reasonable inference that defendant intentionally assisted Bernal in the commission of the crimes. The Hoehns heard a series of three or four shots, a short pause, then another series of shots. A total of six bullets were fired in the house, all from the same gun. There were three bullet holes in the screen door, indicating the first three shots were fired from outside the house.
The jury could have reasonably inferred that the first set of shots were the shots that hit Jim in his abdomen, elbow, and leg. The medical examiner testified that Jim was alive when he suffered these wounds, but the bullet wounds to the Mollers’ heads killed them instantly. The pooling of blood on the floor near the Mollers’ heads, the absence of blood spatter on the walls or furniture, and the nature of the bullet wounds to the Mollers’ heads showed they must have been lying on the floor when they were shot in their heads. Sue also had a bullet wound on her right hand, indicating her hand was shot away from her head as she was trying to protect herself. According to the Hoehns, the second series of shots was fired very shortly after the first series. Thus, the jury could have reasonably inferred that the second series of shots were the shots that killed the Mollers.
Defendant’s version of events was categorically inconsistent with the Hoehns’ testimony that there was only a short pause between the two series of shots. According to defendant, he was waiting outside on the street below the Mollers’ house when he heard the first series of shots. He fell to the ground, got up, jumped over the fence, ran up the slope to the house, and paced back and forth on the walkway until he saw Bernal “pop her head” out of the screen door. At that point, Bernal waved her gun at him and directed him into the house. There, he saw Sue standing in the living room, and Jim lying on the floor saying he had been shot. Frightened, he backed out of the house through the screen door. Then, he said, Bernal shot and killed the Mollers. According to defendant, several minutes must have passed between the first and second series of shots.
The jury was entitled to believe the Hoehns’ testimony and disbelieve defendant’s story that he was outside waiting on the street and that several minutes must have passed between the two series of shots. Indeed, the jury was entitled to infer that defendant was not waiting on the street when the first shots were fired. Rather, he was with Bernal, standing right outside the screen door, for the purpose of providing her with backup or muscle in dealing with the Mollers and Jim, the ex-marine, in particular. The evidence showed that, after the first shots were fired and Jim was disabled, defendant and Bernal tore through the screen door and ordered the Mollers to lie down on the floor where Bernal shot them in their heads. Defendant and Bernal then took Sue’s purse, Jim’s wallet, and traveler’s checks and quickly got out of the house.
One of the three shell casings from the three bullets that were fired through the screen door was found inside the house. As the People’s firearms expert testified and the prosecutor argued, this indicated that defendant was standing next to Bernal when she fired the three shots through the screen door, and that defendant carried one of the shell casings inside the house on his clothing when he and Bernal tore through the screen door.
Indeed, the evidence showed that Sue’s purse, Jim’s wallet, and $2,000 in traveler’s checks were missing from the house, but the house was not ransacked. Defendant and Bernal left the house through the front door; they did not waste time or risk appearing suspicious by going out the way they came in. Based on this evidence, the jury could have reasonably inferred that Bernal and defendant planned to murder the Mollers and take as much money as they could while getting in and out of the house as quickly as possible.
In sum, the evidence as a whole supports a reasonable inference that defendant aided and abetted the commission of the murders and burglary as charged in counts 1, 2, and 3. The evidence showed that defendant was not merely a passive and unwitting bystander, as he claimed, but that he, with knowledge of Bernal’s intent to murder the Mollers and take their money, intentionally assisted Bernal in the commission of the murders and burglary.
(c) Defendant’s Additional Arguments
Defendant asserts that the prosecutor improperly relied solely on his consciousness of guilt as evidenced by his lies to police as an “‘evidentiary wild card[]’” to fill the gaps in the evidence. He principally relies on People v. Jenkins (1979) 91 Cal.App.3d 579, 585 (Jenkins), where it was held that insufficient evidence supported the defendant’s convictions for manufacturing phencyclidine (PCP) and possessing chemicals with the intent to manufacture PCP. (Health & Saf. Code, §§ 11379, 11383, subd (b).) The evidence of the defendant’s guilt in Jenkins consisted solely of his fingerprints on flasks in a PCP laboratory in his brother’s garage, and his giving police a false name when they questioned him in jail where he had been booked under the same false name on an unrelated charge. The defendant also denied he had touched any of the flasks in the laboratory and denied he was involved in setting it up or operating it. (Jenkins, supra, at pp. 582, 584.)
The jury was given CALJIC No. 2.03 (Consciousness of Guilt—Falsehood), which stated: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”
The People argued that, aside from the fingerprint evidence, “‘[the defendant’s] involvement with the [PCP] laboratory is also shown by his denial of even touching any of the paraphernalia and his continuing denial when confronted with the presence of his fingerprints. Finally, [defendant] used a false name over an extended period in custody, further showing his consciousness of guilt.’” (Jenkins, supra, 91 Cal.App.3d at p. 585.) The People’s argument, the court said, “puts entirely too heavy a burden on the evidence of [the] defendant’s falsehoods,” and drew unreasonable inferences based on the falsehoods. (Ibid.) The court acknowledged that the falsehoods were admissible to show a consciousness of guilt but, by themselves, the falsehoods were insufficient to support a finding on all elements of the crimes. The court said the falsehoods were not “evidentiary wild cards with which the prosecution can turn a pair of deuces into a full house.” (Ibid.) There were simply too many other explanations and reasons for the defendant’s falsehoods. (Id. at pp. 585-586.)
Defendant argues that here, as in Jenkins, “there was no evidence that [he] aided and abetted the murders or the burglary apart from his web of lies to the police.” (Italics added.) We disagree. As discussed, the evidence as a whole, including the evidence of defendant’s close and supportive relationship with Bernal, the Hoehns’ testimony that there was only a short pause between the two series of shots, the physical evidence of how the Mollers were murdered, and defendant’s pretrial statements and trial testimony, all showed defendant had advance knowledge of Bernal’s intent to murder the Mollers and take their money, and that, with that knowledge, he intentionally assisted Bernal in the commission of the crimes.
Defendant also relies on Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262 (Juan H.), where the court found insufficient evidence to support the defendant’s conviction as an aider and abettor to a murder and an attempted murder. The defendant, Juan H., was standing beside his brother when his brother shot and killed one person and shot at another. But there was no evidence that Juan H. knew of his brother’s intention or acted in any way to encourage or facilitate the crimes. In Juan H., as in Jenkins, the convictions were based solely on conjecture. The defendant (who was 13 years old) fled from the scene of the shooting, went home, and lied to police by telling them he was not present at the scene of the crimes. (Juan H., supra, at pp. 1267, 1277.)
Here, in contrast to Juan H., defendant’s convictions are based on much more than his mere presence at the scene of the crimes, his leaving the scene of the crimes, or his initial lies to police concerning his involvement in the crimes. As discussed, the evidence showed defendant had advance knowledge of Bernal’s criminal purpose and played an active role in the commission of the crimes. The evidence of defendant’s consciousness of guilt, as evidenced by his lies to police, bolstered the other evidence of his guilt, but it was by no means the only evidence of his guilt.
The other cases defendant relies on are similarly distinguishable on their facts. (People v. Stankewitz (1990) 51 Cal.3d 72, 91 [mere presence during planning and execution of offenses and failure to prevent their commission insufficient to establish aiding and abetting]; People v. Allen (1985) 165 Cal.App.3d 616, 625 [mere presence at scene insufficient to establish aiding and abetting]; Altamirano v. Gonzales (9th Cir. 2005) 427 F.3d 586, 595 [mere presence in vehicle with knowledge an illegal alien was being smuggled in the vehicle insufficient to establish aiding and abetting].)
Finally, defendant argues that the evidence supported only a “50/50 chance” he played an active role in the crimes, that is, he argues, the evidence shows it is just as probable as not that he aided and abetted the crimes. (See, e.g., People v. Smith (2005) 135 Cal.App.4th 914, 927, citing People v. Allen, supra, 165 Cal.App.3d at p. 626 [evidence insufficient to support felony-murder special circumstance where it was just as probable as not that defendant was an actual killer or intended to kill].) Here, the evidence supported more than a “50/50 chance” that defendant aided and abetted the crimes. As discussed, the evidence supports a reasonable inference that defendant played an active and intentional role in the crimes.
B. The Failure to Identify and Define the Target Offenses of the Burglary Did Not Prejudice the Burglary Conviction
In his petition for rehearing, defendant contends that the trial court’s instruction defining burglary (CALJIC No. 14.50) erroneously allowed the jury to convict him of burglary based on his intent to commit or aid and abet Bernal in the commission of “any crime,” including several misdemeanors, or no crime at all. We reject this claim.
Burglary is the unlawful entry of a dwelling with the intent to commit theft or any felony. (§ 459.) In reading the instruction defining burglary to the jury (CALJIC No. 14.50), the trial court told the jury it could find defendant committed burglary based on his entry of the Mollers’ residence with the intent to commit theft or “any felony.” The written version of the instruction differed from the oral instruction in that the written instruction included two blank spaces in lieu of the phrase “any felony” that was twice read to the jury. It is settled that when, as here, there is a discrepancy between oral and written instructions, the written instructions govern. (People v. Osband (1996) 13 Cal.4th 622, 717.)
The trial court’s oral instruction stated, in pertinent part, that: “Every person who enters any residence with the specific intent to steal, take, or carry away the personal property of another of any value, and with the further specific intent to deprive the owner permanently of that property or with the specific intent to commit any felony, is guilty of the crime of burglary . . . . [¶] . . . [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person entered a residence; and [¶] 2. At the time of the entry the person had a specific intent to steal and take away someone else’s property and intended to deprive the owner permanently of that property; or [¶] At the time of the entry the person had the specific intent to commit any other felony crime.” (Italics added.)
Defendant first argues that the written instruction erroneously allowed the jury to find he committed burglary based on his intent to commit “any crime” as opposed to theft or “any felony.” We disagree. When read as a whole, the written instruction told the jury it had to find that a person intended to commit theft or “a felony” in order to convict defendant of burglary. The two sentences in the written instruction that contain the two blank spaces restate each other; both describe the alternative to finding theft as the predicate offense for the burglary. The first sentence states: “with the specific intent to commit _________, a felony. . . .” The second states: “At the time of the entry, that person had the specific intent to commit the crime of ___________.” Although the blank space in the second sentence was not followed by “a felony,” when that sentence is read consistently with the first sentence, both sentences clearly told the jury that “the crime of ______” had to be a felony.
Nevertheless, the trial court failed to define the term “felony” in either the oral or written instructions defining burglary. Defendant claims this was error, because, on this record, it allowed the jury to engage in “unguided speculation” concerning what crimes or even noncriminal conduct constituted “any felony.” (See People v. Hughes (2002) 27 Cal.4th 287, 349, citing People v. Failla (1966) 64 Cal.2d 560, 567-569.) It is settled that, “where the evidence permits an inference that the defendant at the time of entry intended to commit one or more felonies and also an inference that his intent was merely to commit one or more misdemeanors or acts not punishable as crimes, the court must define ‘felony’ and must instruct the jury which acts, among those which the jury could infer the defendant intended to commit, amount to felonies. Failure to do so is error, for it allows the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute.” (People v. Failla, supra, at p. 564.)
Defendant specifically argues that the evidence supported an inference that, upon entering the Mollers’ residence, he intended to commit or aid and abet the commission of one or more misdemeanors, including simple assault (§ 240), extortion (§ 518), criminal threats (§ 422), brandishing a firearm (§ 417, subd. (a)(2)), or no crime at all such as merely demanding to speak to the Mollers. He maintains that, without any guidance on what constituted “any felony” or “any crime,” at least some of the jurors may have voted to convict him of burglary based on his intent to directly commit or aid and abet the commission of conduct amounting to a misdemeanor, or no crime at all. We disagree that the evidence permitted any such inferences, even when viewed in the light most favorable to defendant.
Defendant’s argument is based on isolated portions of the evidence, including his testimony that, although he knew Bernal was armed with her gun as they were approaching the Mollers’ residence, he still believed she only intended to “hit up” or “shakedown” the Mollers, meaning demand they pay her the money she believed she was owed and explain to her their role in the fraud investigation. Defendant and his relatives also testified that Bernal “always” carried a gun and often talked about “killing” or “smoking” people. Thus, there was evidence that Bernal’s “tough talk” and gun-waving conduct was not to be taken seriously. The evidence also showed that Bernal often bullied defendant. Thus, reasonable jurors could have believed he accompanied Bernal to the residence only because she demanded he do so, and he had no intention of helping her commit any crime inside the residence.
Based solely on this isolated portion of the evidence, we agree that reasonable jurors could have concluded that defendant had no intention of committing any crime, or aiding or abetting Bernal in the commission of any felony, as he was accompanying Bernal to the Mollers’ residence. But the question for the jurors was not what defendant intended at the time he accompanied Bernal to the residence. Instead, the question for the jurors was whether defendant intended to commit theft or “any felony”—or, as defendant maintains, “any crime”—at the time he entered the residence.
Defendant’s testimony directly addressed this issue. He testified he did not enter the Mollers’ house until after he heard several shots from the street below, fell down, ran up the embankment, and paced around for a time until Bernal, with her gun in her hand, “popped” her head out of the French doors and ordered him to come inside. And, although he must have heard Sue Moller screaming at that point, he claimed he did not know the Mollers had been shot until after he entered the house. After he came inside the house and saw that the Mollers had been shot, he began yelling at Bernal. Bernal told him to shut up and glared at him as she approached the Mollers with her gun. He feared she was going to shoot him as she ordered the Mollers to the floor and shot them in their heads.
Defendant’s testimony, if believed, supported a reasonable inference that his intent upon entering the house was only to follow Bernal’s orders—and not to commit or aid and abet her in the commission of any crime. But if any of the jurors believed defendant did not intend to commit any crime when he entered the residence, they would not have convicted him of burglary based on an intent to commit theft, “any felony,” or “any crime,” at the time he entered the residence.
Furthermore, no reasonable juror could have believed defendant intended to commit or aid and abet Bernal in the the commission of a misdemeanor, such as simple assault, extortion, criminal threats, or the mere brandishing of a firearm—based on any reasonable interpretation of the evidence. Defendant’s own testimony showed he must have known, before he entered the Mollers’ residence, that Bernal had just fired several shots from her gun. Thus, no reasonable juror could have believed that defendant entered the residence with the intent to commit or aid and abet Bernal in the commission of a crime that did not involve the use of Bernal’s firearm.
Instead, the only reasonable inference the jurors could have drawn was that defendant intended to aid and abet either no crime at all, or conduct amounting to theft or a felony such as assault with a firearm (§ 245, subd. (a)(2)) or murder (§ 187, subd. (a)). (Hughes, supra, 27 Cal.4th at pp. 352-353 [failure to instruct on rape as one possible target offense of burglary was harmless beyond reasonable doubt based on all possible factual scenarios the jury could have gleaned from the evidence].) Accordingly, the trial court’s error in failing to identify and define the target offenses of the burglary, or to specifically define “any felony” or “any crime” in the definitional burglary instruction (CALJIC No. 14.50), could not have prejudiced the burglary conviction.
C. The Failure to Instruct on the Merger Doctrine Prejudiced the First Degree Murder, Multiple Murder, and Burglary Murder Special-Circumstance Findings
Defendant next argues that the trial court erroneously failed to instruct the jury sua sponte on the merger doctrine relative to the burglary felony-murder instruction. He further claims that this error, in combination with the trial court’s failure to identify and define the potential target offenses of the burglary, prejudiced the first degree murder findings. By extension, he argues that the same errors prejudiced the multiple murder special circumstance and burglary murder special-circumstance findings, because these findings may have been based on the burglary felony-murder findings.
The burglary felony-murder instruction (CALJIC No. 8.21) told the jury: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of residential burglary is murder of the first degree when the perpetrator had the specific intent to commit that crime. [¶] The specific intent to commit first-degree residential burglary or the attempted commission of that crime must be proved beyond a reasonable doubt. [¶] If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of first degree residential burglary, all persons, who either directly and actively commit the act constituting that crime, or who with knowlege of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental. [¶] Before a nonkiller may be found guilty of murder pursuant to the felony murder rule, there must be a causal and a temporal relationship between the underlying felony or felonies and the act resulting in death. The causal relationship requires some logical connection between the killing and the underlying felony beyond mere coincidence of time and place. The temporal relationship requires that the felony and the killing be part of one continuous transaction. [¶] In order to be guilty of murder, as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the first degree burglary at the time the fatal blow was inflicted . . . .”
The multiple murder special-circumstance instruction (CALJIC No. 8.81.3) told the jury that, in order to find the multiple murder special-circumstance finding true, it must be proved that “defendant has in this case been convicted of at least one crime of murder of the first degree and one or more crimes of murder of the first or second degree.”
The burglary murder special-circumstance instruction (CALJIC No. 8.81.7) told the jury: “To find that the special circumstance referred to in these instructions as murder in the commission of first degree residential burglary is true, it must be proved: [¶] 1. The murder was committed while the defendant was engaged in or was an accomplice in the commission of a first degree residential burglary; [¶] 2. The murder was committed in order to carry out or advance the commission of the crime of first degree residential burglary or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the first degree residential burglary was merely incidental to the commission of the murder.”
We agree that the failure to instruct on the merger doctrine was error. We also agree that the error prejudiced not only the burglary felony-murder and burglary murder special-circumstance findings, but also prejudiced the first degree murder and multiple murder special-circumstance findings. We explain.
1. The Failure to Instruct On the Merger Doctrine Was Error
The merger doctrine holds that a burglary that is predicated solely on an intent to unlawfully kill or commit a felonious assault cannot support burglary felony murder or burglary murder special circumstance. “Although the intent to commit any felony or theft, including the intent to unlawfully kill or to commit felonious assault, would support a burglary conviction, the felony-murder rule and the burglary-murder special circumstance do not apply to a burglary committed for the sole purpose of assaulting or killing the homicide victim.” (People v. Seaton (2001) 26 Cal.4th 598, 646, italics added; People v. Ireland (1969) 70 Cal.2d 522, 538-540.)
Where, however, a defendant harbors an intent to assault or kill concurrently with an intent to commit another, independent crime, such as theft, the defendant may be convicted of burglary felony murder and, by extension, burglary murder special circumstance, based on the intent to commit theft. (People v. Clark (1990) 50 Cal.3d 583, 607-609 [concurrent intent to kill and to commit an independent felony will support a felony-murder special circumstance]; see also People v. Murtishaw (1981) 29 Cal.3d 733, 751-752 & fn. 13 [same].)
A trial court has a duty to instruct sua sponte “‘“on the general principles of law relevant to the issues raised by the evidence.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154, italics added.) These principles include “‘“those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’” (Ibid., italics added; accord, People v. Kimble (1988) 44 Cal.3d 480, 503.)
Here, the merger doctrine was closely and openly connected with the facts before the court—that is, whether, in entering the Mollers’ residence, defendant intended to commit or aid and abet Bernal in the commission of only murder or felonious assault, or these crimes in addition to another, independent crime, such as theft. This error is reviewable under the Chapman standard. (Hughes, supra, 27 Cal.4th at p. 350 [applying Chapman standard of review to trial court’s failure to instruct on all alleged target offenses of burglary for purposes of first degree felony murder]; People v. Bejarano (2007) 149 Cal.App.4th 975, 989-990 [erroneous instructions on first degree felony murder must be harmless beyond a reasonable doubt].)
Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].
2. The Error Was Not Harmless Beyond a Reasonable Doubt
The jury was properly instructed that it could find defendant guilty of first degree murder based on any one of three theories: (1) defendant premeditated the murders; (2) defendant committed or aided and abetted the commission of the murders during the course of a burglary (the burglary felony-murder instruction), and (3) the murders were natural and probable consequences of the burglary. The jury found that the murders were in the first degree; however, it is not clear how the jury arrived at this conclusion.
Regarding the first alternative theory of premeditation, the jury was not given a verdict form on premeditation and did not expressly find that defendant premeditated the murders. Nor did the jury necessarily find that the murders were premeditated. Based on defendant’s testimony and the evidence as a whole, there is a reasonable possibility the jury concluded that defendant did not know Bernal intended to murder the Mollers until he was inside the house and Bernal shot them in their heads at close range. Indeed, the evidence permitted a reasonable inference that defendant did not premeditate the murders, even if he aided and abetted Bernal in their commission once he was inside the house.
Regarding the burglary felony-murder theory, the jury expressly found that the murders were committed during the course of a burglary (the burglary felony-murder findings). But as noted, a burglary predicated solely on an intent to unlawfully kill or commit a felonious assault cannot support burglary felony-murder or burglary murder special-circumstance findings. (People v. Seaton, supra, 26 Cal.4th at p. 646.) And here, reasonable jurors could have based the burglary felony-murder and burglary murder special-circumstance findings on a determination that, at the time of entry, defendant intended to commit or aid and abet Bernal in the commission of a felonious assault or murder, and no other crime.
Indeed, the jurors could have inferred that defendant’s and Bernal’s sole intent in entering the Mollers’ residence was to shoot and kill the Mollers, and that the theft of Jim’s wallet, Sue’s purse, and the traveler’s checks was an afterthought—notwithstanding Bernal’s statements before the burglary to the effect that the Mollers owed her money. For this reason, the burglary felony-murder and burglary murder special-circumstance findings must be reversed.
Although the jurors also could have reasonably inferred that defendant entered the house with Bernal with the concurrent intent of committing felonious assault or murder and theft (People v. Clark, supra, 50 Cal.3d at pp. 607-609 [concurrent intent to kill and to commit an independent felony will support burglary felony-murder and burglary murder special-circumstance findings]), there is no indication the jurors necessarily and unanimously based their burglary felony-murder and burglary murder special-circumstance findings on this conclusion.
Finally, and contrary to our previous conclusion, the jury did not necessarily find that the murders were a natural and probable consequence of the burglary. In our previous opinion, we concluded that the trial court’s erroneous failure to instruct on the merger doctrine did not prejudice the first degree murder findings or the multiple murder special-circumstance finding. We reasoned that any juror who based his or her burglary felony-murder finding upon a burglary based solely on an intent to kill or a felonious assault would also have necessarily found that the murders were a natural and probable consequence of such a burglary. Upon further consideration, we believe our previous conclusion is unsound.
As noted, the jury was instructed that, in order to find defendant guilty of first degree murder based on the natural and probable consequences doctrine, it had to find: “1. The crime of burglary of a residence or first-degree residential burglary was committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a coprincipal in that crime committed the crimes of murder; and [¶] 4. The crimes of murder were a natural and probable consequence of the commission of the crime of burglary of a residence in the first degree.” (CALJIC No. 3.02.)
The jurors could have inferred that defendant entered the Mollers’ residence with the intent to aid and abet Bernal in the commission of an armed, felonious assault, but not murder. Indeed, the evidence permitted an inference that defendant accompanied Bernal to the residence and stood nearby as she fired several shots through the screen door, injuring Jim Moller and causing Sue Moller to stand up and begin screaming. But even at that point, reasonable jurors could have believed that defendant entered the house with the intent of aiding and abetting Bernal in continuing the armed, felonious assault that began outside the house, but not with the intent of aiding and abetting her in murdering the Mollers.
To be sure, the evidence as a whole, including defendant’s testimony, permitted a reasonable inference that defendant did not know Bernal intended to murder the Mollers and did not intend to aid and abet her in the commission of the murders until after he and Bernal were inside the house. And, in light of all of the circumstances surrounding the incident, a reasonable person in defendant’s position (CALJIC No. 3.02) would not have necessarily believed that Bernal was going to murder the Mollers at the time defendant and Bernal entered the house. Instead, a reasonable person in defendant’s position could have believed that the felonious assault would continue inside the house, but that the Mollers would not be murdered.
At oral argument on defendant’s petition for rehearing, and in a supplemental brief we requested following that oral argument, the People argued that the jury must have unanimously agreed that defendant entered the house with intent to kill, based on its finding that the burglary felony-murder special-circumstance allegation was true (CALJIC Nos. 8.80.1 & 8.81.17.) On this basis, the People argue that the jurors must have unanimously agreed that the murders were natural and probable consequences of the burglary. We disagree.
The People note that CALJIC No. 8.80.1 (Special Circumstances—Introductory) told the jury, in pertinent part, that: “If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree. [¶] . . . [¶] In order to find a special circumstance alleged in this case to be true or untrue, you must agree unanimously.” (Italics added.)
The People also rely on CALJIC No. 8.81.17, which told the jury that, to find the burglary felony-murder special-circumstance allegation true, it also had to find: “[1.] The murder was committed while the defendant was engaged in or was an accomplice in the commission of a first degree residential burglary; 2. The murder was committed in order to carry out or advance the commission of the crime of first degree residential burglary or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the first degree residential burglary was merely incidental to the commission of the murder.” (CALJIC No. 8.81.17.)
Based on CALJIC Nos. 8.80.1 and 8.81.17 and the true finding on the burglary felony-murder special-circumstance allegation, the People argue that the jury “had to conclude that [defendant] harbored the specific intent to kill as part and parcel to his aiding and abetting Bernal in the commission of the burglary.” We agree; however, this is not the same as a unanimous finding that defendant harbored an intent to kill when he entered the residence. A burglary felony-murder special-circumstance finding does not require a finding of an intent to kill at the time of entry. (People v. Loustaunau (1986) 181 Cal.App.3d 163, 172-173.) And here, the jury was not instructed that, in order to find the burglary felony-murder special-circumstance allegation true, it had to find he had an intent to kill when he entered the residence.
Furthermore, the evidence permitted a reasonable inference that defendant entered the house with the intent to commit or aid and abet Bernal in the commission of a felonious assault, and only later formed an intent to kill or aid and abet Bernal in committing murder after he was inside the residence. After defendant entered the residence, he could have decided that Bernal had gone too far and encouraged her to kill the Mollers in order to facilitate his and Bernal’s escape or avoid detection. (CALJIC No. 8.81.17.) For these reasons, the failure to instruct on the merger doctrine relative to the burglary felony-murder instructions prejudiced the first degree murder findings and, by extension, the multiple murder and burglary murder special-circumstance findings.
Still, based on CALJIC No. 8.81.17 and the jury’s true finding on the burglary felony-murder special-circumstance allegation, the jury necessarily found that, if defendant was not the actual killer, he aided and abetted Bernal in the commission of the murders with intent to kill. Thus, the jury necessarily found that defendant was at least guilty of second degree murder. (CALJIC Nos. 8.11 (“Malice Aforethought”—Defined) and 8.30 (Unpremeditated Murder of the Second Degree).) As discussed, however, substantial evidence supports defendant’s first degree murder convictions and the multiple murder and burglary felony-murder special-circumstance findings.
Thus, it would be inappropriate for this court to exercise its power under sections 1181, clause 6, and 1260 and reduce defendant’s first degree murder convictions to second degree murder. (In re Kemp (1969) 1 Cal.3d 190, 196.) Instead, we reverse defendant’s first degree murder convictions in counts 1 and 2, together with the multiple murder and burglary felony-murder special-circumstance findings, and remand the matter to the trial court for further proceedings consistent with this opinion.
D. The Videotapes of Defendant’s Police Interviews Were Properly Admitted
In his original opening brief, defendant contended the trial court violated Evidence Code section 351.1, abused its discretion under Evidence Code section 352, and deprived him of his right to a fair trial in admitting, over his objection, videotapes of his interviews with police which he claims indicated he had just taken and failed a polygraph examination. In our previous opinion, we concluded that the videotapes were properly admitted over defendant’s objection.
In his petition for rehearing, defendant argues that our original opinion’s analysis of the polygraph issue was erroneous because it contained “a significant error of fact” and and “relie[d] on an erroneous interpretation of the statute.” For the reasons set forth below, we again conclude that the videotapes were properly admitted.
1. Background
Several police officers and other persons interviewed defendant throughout most of the day on September 30, 2002. Most the interviews were videotaped, and the videotapes were played to the jury. At one point between interviews, defendant took a partial polygraph examination in the same room in which the interviews were conducted. The partial polygraph examination was not shown to the jury, but the videotapes of the police interviews showed defendant seated next to a polygraph chair (a chair with wide, flat arms) and also showed a sphygmometer (a device for measuring blood pressure) on a desk in the interview room. At one point during the last interview, defendant is also shown briefly pointing at the polygraph chair while insisting he had previously told the truth.
Defendant made a motion in limine to play audiotapes of the interviews in lieu of the videotapes. The trial court denied the motion, but “sanitized” the videotapes by redacting all verbal references to the polygraph examination. The People argued, and the trial court agreed, that the videotapes were probative of whether defendant was telling the truth during the interviews, because they allowed the jury to observe defendant’s demeanor as he was answering questions. The trial court thus concluded that the probative value of the videotapes outweighed their “speculative” prejudicial effect.
2. Request for Judicial Notice Regarding the Polygraph Chair
Defendant previously requested that this court take judicial notice of the fact that a polygraph chair is a distinctive type of chair which has wide, flat arms. (Evid. Code, §§ 451, subd. (f), 459, subd. (a).) In our previous opinion, at page 18, footnote, 10, we said it was “unnecessary to grant the request. We assume, as the trial court did, that the jurors may have recognized the polygraph chair and sphygmometer in question as equipment used in polygraph examinations.”
In his petition for rehearing, defendant claims that this was an erroneous statement of fact. He says our previous opinion cited no evidence that the trial court ever indicated that the chair was a distinctive polygraph chair. To the contrary, he notes that the trial court referred to the chair only as a “black chair.” He argues that this error is “highly significant” because of the standard of review.
He specifically argues that, “[i]f the trial court had grasped that this was a distinctive polygraph chair (and therefore grasped that jurors might have recognized it as well), it was arguably exercising informed discretion in ruling that the videotape was nonetheless not prejudicial. But because the court did not grasp this critical fact, its exercise of discretion is entitled to no deference whatsoever. [Citation.]”
This argument misses the mark. Based on the trial court’s comments, it is abundantly clear that the trial court “grasped” that the “black chair” to which it was referring was a polygraph chair—that is, it was a distinctive chair used in polygraph examinations. The trial court’s analysis also assumed that the jury may have also “grasped” that the black chair and the sphygmometer were used in polygraph examinations. Again, therefore, it is unnecessary for this court to take judicial notice of the fact that a polygraph chair is a distinctive type of chair which has wide, flat arms. (Evide. Code, §§ 451, subd. (f), 459, subd. (a).)
2. Additional Argument
In his opening brief, defendant argued that the admission of the videotapes, even as redacted to exclude all verbal references to the polygraph examination, violated Evidence Code section 351.1, which prohibits the admission of “any reference” to “the results of a polygraph examination, the opinion of a polygraph examiner,” or “an offer to take, failure to take, or taking of a polygraph examination” in a criminal proceeding. He also argued that the admission of the videotapes violated Evidence Code section 352 because they were substantially more prejudicial than probative.
In his petition for rehearing, defendant further argues that the mere presence of the polygraph chair in the interview room constituted a (nonverbal) “reference” to the taking of a polygraph examination within the meaning of Evidence Code section 351.1, and that this court erred in concluding that mere presence of the polygraph chair did not constitute a “reference” to “the taking of a polygraph examination” or “an offer to take . . . a polygraph examination” within the meaning of the statute.
Defendant specifically argues that, based on the mere presence of the polygraph chair and the sphygmometer in the interview room, at least some of the jurors could have reasonably inferred he had taken and failed a polygraph exam, or had offered to take a polygraph examination; otherwise, he would not have been subjected to further questioning and would not be on trial. Defendant also notes that during the last interview he is shown pointing his finger at the polygraph chair while asserting he had already told the truth. He argues that his gesture toward the polygraph chair only solidified the impression in the jurors’ minds that he must have just taken and failed a polygraph test, or offered to take a polygraph examination.
3. Analysis
As noted, Evidence Code section 351.1 prohibits the admission of “any reference” to the “taking of a polygraph examination.” More broadly, under Evidence Code section 352, a trial court has discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial effect. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.)
As the trial court noted in denying defendant’s motion to exclude the videotapes, all verbal references to defendant’s polygraph examination were redacted from the videotaped interviews. And, even if, as defendant argues, the trial court erroneously concluded that the mere presence of the polygraph chair and sphygmometer in the interview room did not constitute a “reference” to the “taking of” or an “offer to take” a polygraph examination within the meaning of Evidence Code section 351.1, the error did not prejudice defendant’s burglary conviction—the only conviction still in issue on this appeal.
Even if, as defendant argues, a polygraph chair and sphygmometer are commonly or universally recognized as equipment used in taking polygraph examinations, the mere presence of the equipment in the room did not reasonably suggest that defendant had just taken and failed or offered to take a polygraph examination. Indeed, it would have been speculative for the jury to conclude, based on the mere presence of the polygraph chair and sphygmometer, that defendant had taken and failed a polygraph examination, or had offered to take a polygraph examination.
In the videotapes, defendant was shown seated next to the polygraph chair, not in it, and the sphygmometer was disregarded throughout the interviews. At one point, another officer came into the room, sat in the polygraph chair, and participated in the interview. Based on this evidence, it appeared that the polygraph chair and sphygmometer were always present in the interview room and the room was routinely used for polygraph examinations and police interviews.
Furthermore, the trial court did not abuse its discretion under Evidence Code section 352 in refusing defendant’s request to play audiotapes in lieu of the videotaped interviews. As the trial court indicated, defendant’s demeanor as shown on the videotapes was highly probative of whether he was telling the truth at critical points during the interviews and in his trial testimony. In contrast, and as discussed, the danger of undue prejudice to defendant based on the presence of the polygraph chair and sphygmometer was speculative.
Defendant also argues that his act of pointing at the polygraph chair during the final interview, while insisting he had just told the truth, indicated to the jury that he had just taken a polygraph examination. He notes that, just before he pointed at the chair, the interviewer, Robert Heard, told him, “This is your last chance to tell us what happened and for me to verify it.” (Italics added.) He argues the jurors “would have immediately grasped that the ‘verification’ that Heard referred to was a polygraph exam,” or that he would be taking a polygraph examination to verify his statements to Heard. We disagree.
Defendant reads far too much into his brief gesture toward the polygraph chair and Heard’s remark about verifying defendant’s statements. Shortly after the final interview began, Heard told defendant he was “in trouble” and “in a little bit of hot water.” Defendant responded, “I know[,] that’s why I told them the truth.” As defendant said those words, he pointed at the polygraph chair. His gesture toward the chair is barely noticeable on the videotape. He very briefly pointed at the chair, and did not extend his arms or fingers toward the chair. He kept his arms and fingers in front of his chest. He also kept his eyes on Heard and did not look at the chair as he pointed at it.
It is just as plausible that the jury inferred that as defendant pointed at the chair he was referring to an officer who sat in the polygraph chair during an earlier interview, and not at his partial polygraph examination. It was also just as plausible for the jury to infer that Heard intended to “verify” defendant’s final statements during the final interview itself, and not during a polygraph examination. As far as the jurors could see, defendant never took a polygraph examination, because the polygraph chair and sphygmometer were disregarded throughout the videotaped interviews.
E. The Failure to Limit the Flight Instruction Was Harmless
Finally, we reiterate our previous analysis and conclusion that the trial court’s failure to limit the instruction on flight (CALJIC No. 2.52.) was harmless. In his original brief, defendant argued that the trial court prejudicially erred in giving a flight instruction, because there was no evidence he fled or attempted to flee after the commission of the crimes, although there was evidence that Bernal fled to Mexico only three days after the crimes. He argued that the flight instruction, as given, allowed the jury to infer he had a consciousness of guilt based on Bernal’s actions rather than his own. Again, we find no prejudicial error.
The trial court gave a modified version of CALJIC No. 2.52 (Flight After Crime), which told the jury: “The flight or attempted flight of a person after the attempted commission of a crime or after he or she is accused of a crime is not sufficient in itself to establish his or her guilt but is a fact which, if proved, may be considered by you in light of all the other pertinent facts. In deciding whether the defendant is guilty or not guilty, the weight to which this circumstance is entitled is a matter for you to decide.”
The standard version of CALJIC No. 2.52 states: “The [flight] [attempted flight] . . . of a person [immediately] after the commission of a crime, or after [he] [she] is accused of a crime, is not sufficient in itself to establish [his] [her] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
Section 1127c requires a flight instruction to be given when there is evidence of flight. “In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ . . . ‘“[F]light requires neither the physical act of running nor the reaching of a far-away haven. . . . Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ . . . ‘Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt . . ., but the circumstances of departure from the crime scene may sometimes do so.’ . . .” (People v. Bradford (1997) 14 Cal.4th 1005, 1055, citations omitted.)
Here, defendant’s actions following the commission of the crimes warranted giving the flight instruction. Immediately after Bernal drove defendant home after the crime, he took his girlfriend and children to his mother’s house, where they stayed until the afternoon of the following day. Defendant admitted he stayed at his mother’s house to avoid his home. Although he claimed he did so because he feared Bernal would come to his house and kill him, the jury could have reasonably inferred that defendant was attempting to create an alibi for himself by staying at his mother’s house.
And, on Sunday two days after the crimes, defendant, his family, and Bernal went to San Diego for the day. Although defendant claimed he went to San Diego with Bernal to convince her he was not “scared” and would be loyal to her, the jury could have reasonably inferred that defendant’s purpose in going to San Diego was to avoid being seen at his home after the crimes. In sum, defendant’s own conduct supported giving the flight instruction.
But as defendant points out, a flight instruction should not permit an inference that a person had a consciousness of guilt based on the flight of another person. (See, e.g., People v. Mora (1956) 139 Cal.App.2d 266, 274 [where substantial evidence showed only two of three defendants fled, flight instruction should have excluded third defendant]; accord, People v. Pitts (1990) 223 Cal.App.3d 606, 878.) Here, although defendant’s own conduct warranted giving a flight instruction, reasonable jurors could have read the given flight instruction as permitting them to infer that defendant had a consciousness of guilt based, at least in part, on Bernal’s flight to Mexico. The generic wording of the instruction permitted this impermissible inference to be drawn.
Nevertheless, the failure to limit the flight instruction was harmless. (People v. Silva (1988) 45 Cal.3d 604, 628; People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of Bernal’s flight to Mexico did not logically indicate that defendant had a consciousness of guilt; only the evidence of his own flight did. Moreover, it is highly improbable that the given flight instruction prejudiced the burglary conviction, in light of the evidence as a whole and the specific instructions defining burglary. The evidence strongly indicated that, if defendant entered the Mollers’ residence with any criminal intent at all, it was to aid and abet Bernal’s murder or her continued commission of assault with a firearm or murder. Thus, it is not reasonably probable that the failure to limit the flight instruction affected the burglary conviction.
F. No Cumulative Error
To the extent defendant argues that the cumulative effect of the error, if any, in admitting the videotape evidence or in giving the broadly-worded flight instruction prejudiced his burglary conviction, we disagree. The test for cumulative error is whether defendant received due process and a fair trial. (People v. Hill (1998) 17 Cal.4th 800, 844-845.)
For the reasons discussed, it would have been speculative for the jury to conclude that defendant had taken and failed or had offered to take a polygraph examination, based on the mere presence of the polygraph chair and sphygmometer in the interview room. Nor is it reasonably possible that any error in admitting defendant’s videotaped police interviews affected the burglary conviction, either alone or in combination with the given instruction on flight, in view of the strength of the evidence that defendant harbored a felonious criminal intent when he entered the Mollers’ house.
V. DISPOSITION
Defendant’s burglary conviction in count 3 is affirmed. Defendant’s first degree murder convictions in counts 1 and 2, and the multiple murder and burglary felony-murder special-circumstance findings are reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion.
We concur: McKinster, Acting P.J., Miller, J.
The jury expressly found that the murders were committed during the course of a burglary (burglary felony murder). (CALJIC No. 8.21.) The jury did not expressly find that the murders were willful, deliberate, or premeditated, or that the murders were a natural and probable consequence of the burglary.
“In order to find the defendant guilty of the crime of murder as charged in Counts 1 and 2, you must be satisfied beyond a reasonable doubt of the following: [¶] 1. The crime of burglary of a residence or first-degree residential burglary was committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a coprincipal in that crime committed the crimes of murder; and [¶] 4. The crimes of murder were a natural and probable consequence of the commission of the crime of burglary of a residence in the first degree.
“In determining whether a consequence is natural and probable, you must apply an objective test based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all the circumstances surrounding the incident. A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. Probable means likely to happen.”
Furthermore, it was reasonable for the jury to infer that Bernal did not tear through the screen door by herself, with her gun in her hand and while still accosting the Mollers, while defendant was outside waiting on the street. Rather, it was reasonable to infer that defendant helped Bernal tear through the screen door and helped her order the Mollers to the floor and find the purse, wallet, and traveler’s checks.
Where the oral instruction is first italicized, the written instruction stated, “or with the specific intent to commit _________, a felony.” Where the oral instruction is last italicized, the written instruction stated: “At the time of the entry, that person had the specific intent to commit the crime of __________.” (Italics added, brackets omitted.) Defendant reads the preceding sentence as allowing the jury to find he committed burglary based on his intent to commit “any crime.”