People v. Barnes

Full title: THE PEOPLE, Plaintiff and Respondent, v. JUAN JULIUS BARNES, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

Date published: Jul 12, 2017

C078009 (Cal. Ct. App. Jul. 12, 2017)

Opinion

C078009

07-12-2017

THE PEOPLE, Plaintiff and Respondent, v. JUAN JULIUS BARNES, Defendant and Appellant.

MURRAY, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF124679A)

On the morning of July 5, 2013, Aaron Ham and his girlfriend Mary Nguyen returned to the apartment they shared with John Newton and found the apartment had been ransacked. They discovered Newton dead on the floor of his bedroom. Newton had been shot multiple times. Defendant Juan Julius Barnes's fingerprints were found at the scene. Days later, when police were pursuing defendant following a vehicle stop, the pursuing officer observed that defendant was holding a handgun and police retrieved a handgun near where defendant was apprehended. The weapon was later determined to be the murder weapon. Ham and Nguyen identified a mason jar containing marijuana and a pair of Nike Air Jordan sneakers discovered in an apartment connected to defendant as items that had been taken from their apartment.

A jury found defendant guilty of murder in the first degree (Pen. Code, §§ 187, subd. (a), 189)¹ with the special circumstances that he committed the murder in the commission of robbery and burglary (§ 190.2, subd. (a)(17)(A), (G)). The trial court sentenced defendant to life without parole.

1 Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

On appeal, defendant contends that: (1) the trial court erred in instructing the jury with CALCRIM No. 376 on a defendant's possession of recently stolen property as evidence that he committed murder because the instruction allowed the jury to find him guilty of murder based only on possession of stolen property combined with slight supporting evidence; (2) the trial court erred in denying his request to include optional language in its CALCRIM No. 226 instruction directing jurors that they could consider whether witnesses had engaged in " 'other conduct' " that reflected on their believability; (3) the evidence was legally insufficient to support true findings on the felony-murder special circumstances; (4) the probation report must be amended to delete the factor in aggravation that defendant was armed with or used a weapon in the commission of those crimes; and (5) the suspended parole revocation fine imposed by the trial court must be stricken as defendant's sentence does not include a period of parole.

We conclude that the instructional errors claimed by defendant were harmless. We agree with defendant that the felony-murder special circumstances were not supported by legally sufficient evidence because the evidence established that more than one person may have been involved and the evidence was insufficient to establish that defendant was the shooter or, as an aider and abettor, defendant intended to kill or was a major participant and acted with reckless indifference. Therefore the true findings as to both special circumstances must be reversed. We also agree with defendant that the probation report should be amended concerning the aggravating factor that he was armed with or used a weapon. Finally, in light of our determination as to the felony-murder special circumstances, defendant's contention that the suspended parole revocation fine must be stricken has been rendered moot. We remand for resentencing and further proceedings consistent herewith.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

Defendant was charged with murder in the first degree (§§ 187, subd (a), 189; count 1). In connection with count 1, the information alleged that defendant committed the murder while he was engaged in the commission of a robbery (§ 211) within the meaning of section 190.2, subdivision (a)(17)(A), that he committed the murder while he was engaged in first degree burglary (§§ 459, 460, subd. (a)) within the meaning of section 190.2, subdivision (a)(17)(G), and that, in committing the murder, defendant personally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivision (d).² Defendant was not separately charged with robbery, burglary or a theft-related crime.

2 Defendant was also charged in count 4 with possession of an assault weapon (§ 30605, subd. (a)), but that charge was later dismissed as to defendant. Codefendant Deandre Adams was also charged in the same information, but the trial court later granted defendant's unopposed motion to sever. Adams is not a party to this appeal.

The People's Case-in-Chief

As of July 5, 2013, Aaron Ham and his girlfriend Mary Nguyen lived in an apartment at 1408 Marco Polo Drive in Stockton with John Newton and Newton's friend Matthew Odenthal. Ham and Nguyen grew marijuana in a grow tent in their bedroom. They both had "Proposition 215" medical marijuana authorization cards permitting them to grow marijuana. Ham testified that he was growing between 18 and 20 marijuana plants.

On the night of July 4, 2013, Ham and Nguyen were watching television and smoking marijuana with Newton. Later, Newton went out and Ham and Nguyen went to sleep. The following morning, Ham and Nguyen got up early and left the apartment between 7:00 and 7:30 a.m. When they left, Ham did not notice anything unusual about the apartment or the kitchen window in particular, and the window was not broken. Ham testified that they generally left the apartment's front door unlocked. Newton had lost his key, and, because the roommates all had different work schedules, they just left the door unlocked.

Ham and Nguyen went to Ham's mother's house in Weston Ranch, approximately 15 to 20 minutes away. They took their dog Molly with them. Molly was a pit bull, and they were not allowed to have a pit bull in the apartment.

At 10:00 or 10:30 a.m., Ham and Nguyen returned to the apartment. They were going to take Molly up to the apartment, but because a neighbor was outside and they did not want their neighbor to see Molly, they went out to buy food instead. When they returned to the apartment building, Nguyen went upstairs with Molly while Ham parked the car.

Nguyen entered the apartment and saw that it was messy. The door to Nguyen and Ham's bedroom, which they usually locked, was open. Nguyen looked in Newton's room, which was dark, and saw that he was on the floor covered by a blanket. Nguyen thought he was sleeping. She ran downstairs and told Ham that it appeared that someone had broken into the apartment.

Ham and Nguyen went upstairs together and Nguyen showed Ham that a window had been broken. They then looked around the apartment to see what had been taken. Their bedroom door had been forced open. In their bedroom, Ham observed that the bed "was kind of messed up." The marijuana grow tent was open, and it appeared to Ham as though "everything . . . had been thrown around." Ham and Nguyen went to Newton's room. Ham observed Newton lying on the floor with a blanket wrapped around him. They both called out to Newton, but he did not respond. Ham turned on the light and saw that there was "blood everywhere," and that Newton's skin tone was very pale and his lips were "kind of bluish." Newton was not moving, breathing, or making any noise.

In the living room, there was a screen from the window sitting on top of the dog cage and a piece of glass was on top of the screen. These items were not on top of the dog cage when they left the apartment earlier. Ham picked up the screen and the glass on top of it and then set them down in another location.

Ham and Nguyen realized that a Nikon camera had been stolen. A mason jar containing marijuana had also been taken. Additionally, Ham's black and red size nine or nine and a half Nike Air Jordan sneakers were missing. Nguyen noticed that a box containing her jewelry was also missing.

Ham and Nguyen collected some things and decided to go to Ham's mother's house to use Ham's mother's phone. As they were collecting some items, Ham decided to throw away some of the marijuana plants because he knew the police were going to come and investigate. Ham grabbed five or six of the plants, placed them in a trash bag, and threw them out. Ham and Nguyen then loaded items and Molly into their cars and drove to Ham's mother's house. They placed items in Ham's mother's garage and left Molly with Ham's mother.

On the way back from Ham's mother's house to the apartment, before calling police, Ham erased everything from his mobile phone, including outgoing and incoming messages and photographs. Ham testified on re-direct that he wanted to eliminate the photographs of growing and using marijuana. Nguyen also erased items including photographs from her phone.

After Ham and Nguyen arrived back at the apartment complex they called the police. On cross-examination, Ham acknowledged that, when he called the police, shortly after noon, he told them that he had just arrived home to find that his apartment had been broken into. He did not volunteer that he had found his apartment broken into and Newton dead, went to his mother's house, and returned before calling police. Nguyen similarly told the police that they had just arrived home, omitting everything about arriving at the apartment earlier, finding Newton on the floor, and going to Ham's mother's house and returning before calling the police.

Officer Rodger Holscher of the Stockton Police Department arrived at the apartment at approximately 12:19 p.m. In one bedroom, Holscher discovered Newton, partially covered with a blanket, lying face down on the floor between the door and the bed. Holscher checked for a pulse and did not find one.

Ham gave a statement to the police. Initially, he was not forthcoming, and, in describing the events, he omitted throwing away his marijuana plants because he feared that he would get in trouble even though he had the card authorizing him to grow marijuana. He said he basically just panicked. On cross-examination, Ham acknowledged that he sometimes sold marijuana to other people, including Newton. Ham testified that, eventually, he was truthful with police.

Stockton Police Detective Damian Underwood, assigned as the scene detective, did not observe any signs of forced entry on the apartment's front door. As Underwood entered the apartment, he noticed that the screen was missing from the kitchen window. Upon closer inspection, Underwood saw that there was a large piece of the window missing near the locking mechanism.

In one of the bedrooms, Underwood saw several mason jars, a marijuana grow tent, several marijuana plants, and other growing equipment such as lamps. On the grow tent, there was a "Prop 215 card[]," authorizing Nguyen to have medical marijuana. Additionally, there was a mattress on the floor which appeared as though it had been moved. The door to the bedroom appeared to have been broken in a manner consistent with someone breaking a locked door, such as by kicking it in.

Newton's body was in the other bedroom. In that bedroom, police found expended bullets and nine expended .40-caliber cartridge casings.

In the living room, Underwood discovered what appeared to be the missing piece of glass from the kitchen window. He did not find any more glass anywhere else in the apartment. He also found what appeared to be the screen from the kitchen window. On cross-examination, Underwood testified that, when he first saw the kitchen window, it was in the locked position, and the blinds were closed.

On a bar stool, Underwood found a wallet containing Newton's identification. There was a purse on the floor of the living room. On a table, Underwood found several items used for smoking marijuana. In a dumpster in the parking lot of the apartment complex, Underwood found a garbage bag containing marijuana clippings and stems. There were also several full marijuana plants in the dumpster.

Dr. Bennet Omalu, San Joaquin County Medical Examiner, testified as an expert in forensic pathology. Omalu performed an autopsy on Newton. Four bullets or bullet fragments were recovered from Newton's body. Newton sustained 10 gunshot wounds, three to his trunk, three to his upper extremities, and four in his lower extremities. Dr. Omalu clarified that this did not necessarily mean that Newton had been shot 10 times, as bullets could have passed through his extremities and traveled into other parts of his body. Gunshot wounds on Newton's hands were consistent with defensive wounds. Omalu further testified that Newton sustained a collapsed lung and bled massively into his lung. Omalu opined that the three gunshot wounds to Newton's trunk caused his death. Death would not have been instantaneous; Omalu opined Newton would have gone into a coma within three to five minutes and it was likely Newton died within ten to fifteen minutes. Omalu further testified that "pragmatically," Newton could not have been saved by medical intervention.

Steven Stayrook testified as an expert in latent fingerprint examination. Stayrook testified that fingerprints found on the exterior kitchen window of Newton's apartment matched defendant's fingerprints. However, two prints on the same window did not match defendant's prints. Additionally, fingerprints found on the piece of glass recovered from inside the apartment also matched defendant's fingerprints. The pattern of defendant's fingerprints found on the piece of glass suggested that he had held the glass with his fingers on one side and his thumb on the other. Stayrook also testified that seven other fingerprints found on the glass did not match defendant's fingerprints.

On July 10, 2013, five days after Newton was discovered dead, Stockton Police Officer Eric Morrison was in an unmarked vehicle with his partner, James Padilla, in a Food 4 Less parking lot in Weston Ranch when he saw a newer SUV enter the parking lot. Very loud music being played in the SUV caught Morrison's attention. As the SUV drove past the officers, Morrison saw three males inside. The SUV parked near the officers' location. The three males got out of the SUV, walked towards the Food 4 Less store, and stood in the walkway near the store. The men then paced around the area.

At some point, a San Joaquin Sheriff's Office marked vehicle entered the parking lot. Morrison radioed the deputies in the vehicle, directing them to stay out of sight. However, Morrison saw one of the three males walk into the parking lot and look in the direction of the marked car. A few minutes later, a light-colored Nissan driven by a heavy set male entered the parking lot and stopped near the three men. The men talked to the driver of the Nissan for less than a minute. The Nissan parked near the SUV, one of the men grabbed a backpack from the SUV, and then the three men entered the Nissan.

Morrison became suspicious because there was only a paper license plate on the SUV, and Morrison did not see any registration information on the windshield. Morrison followed the Nissan in his unmarked vehicle and radioed for assistance. After a few minutes, the marked vehicle that responded activated its overhead lights to stop the Nissan. However, it did not appear as though the driver of the Nissan intended to pull over immediately.

The Nissan pulled into a school parking lot and continued moving. A person in the backseat of the Nissan was looking back at the police vehicle. As the Nissan continued driving at a slow rate of speed, two of the three males from the SUV got out of the Nissan and ran. The Nissan then stopped. Morrison ran after one of the men, who ran south, whom Morrison identified at trial as defendant. The other individual, who was carrying a backpack, fled to the north. As Morrison chased defendant, he saw that defendant was holding a gun. Defendant ran to a fence and jumped over it. Morrison did not pursue defendant over the fence, but instead returned to his vehicle.

Morrison and Padilla drove around the area until they again spotted defendant, running in the school playground. Morrison jumped out of the car and shouted at defendant to stop, but defendant did not comply. Morrison again observed what he believed to be a gun in defendant's hand. Just as Morrison was going to jump the fence in pursuit of defendant, he heard gunfire, though it was not defendant firing a weapon. The sound of the gunfire came from the north "and it was close." Morrison lost sight of defendant again. Padilla drove to the street, and Morrison finally went over the fence.

Eventually, Morrison and another officer located defendant on top of a one of the school's portable buildings. Within approximately one hour, a SWAT team arrived and took defendant into custody.

Officer Paul Dona was among the officers dispatched to the area to search for suspects. Dona did not locate any suspects, but, between two portable classrooms, he found a black Glock 23 firearm. Rocky Edwards, who testified as an expert in the field of firearms and tool mark comparisons, testified that the .40-caliber Glock 23 recovered from between the portable classrooms ejected the cartridge casings found in Newton's room.³

3 Diagrams apparently showing the locations where defendant and the firearm were found were introduced into evidence, but neither party made them part of the record on appeal. Consequently, the record is not clear specifically where the gun was found relative to where defendant was arrested.

Stockton Police Detective Phirun Var participated in executing a search warrant at 9202 Waco Drive in Stockton six days after the murder. Among the items found were a glass mason jar containing a green, leafy substance that appeared to be marijuana and a pair of size nine and a half black and red Nike Air Jordan sneakers. The mason jar was found in a kitchen cabinet. The Air Jordans were found in a bedroom. Police found mail to or from defendant in the kitchen and a California identification card in defendant's name in the bedroom where the Air Jordans were found. Defendant's left thumbprint was found on the mason jar. Ham and Nguyen both identified the shoes as Ham's sneakers and the mason jar as having been taken from their bedroom.

According to cell phone records, on the morning of July 5, 2013, a cell phone recovered from defendant upon his arrest placed at least one call originating from a cell phone tower approximately one-quarter of a mile from Marco Polo Drive. Such a cell phone tower picks up calls within a range of approximately one mile.

Defendant's Case

Jose Gonzalez testified that, on the afternoon of July 10, 2013, he drove his silver Nissan Altima into the Food 4 Less parking lot in the area of Weston Ranch. An individual whose brother Gonzalez knew approached him with two other people and asked Gonzalez for a ride. Gonzalez agreed to give the three men a ride to one of their houses. Defendant was one of the three men, and he got into the passenger-side back seat. The man who got into the front passenger seat had a backpack that he had brought from another car in the parking lot. Gonzalez did not believe defendant had anything in his hands.

As Gonzalez began to drive, a police officer pulled up behind his vehicle. Gonzalez noted that there was a police officer behind him, and the man with the facial tattoos instructed Gonzalez to "[j]ust keep going." Gonzalez testified on cross-examination that all of his passengers told him to keep going, and that they told him, " '[y]ou better not fucking stop.' " The officer activated his vehicle's lights, and Gonzalez pulled over into a school parking lot and stopped his car. The passengers jumped out of the vehicle. The front-seat passenger with facial tattoos pulled a black handgun out of the backpack and handed it to defendant and said, " 'Here, here, take it,' " which he did. The men then ran away.

People's Rebuttal Case

Detective Charles Harris testified that Gonzalez told him that, after the police car pulled in behind him, defendant as well as the man with the facial tattoos told him, " ' "You better not fucking stop." ' "

Verdict and Sentencing

The jury found defendant guilty of murder in the first degree. (§§ 187, subd. (a), 189.) The jury further found that defendant committed the murder while engaged in robbery (§ 211) within the meaning of section 190.2, subdivision (a)(17)(A), and while engaged in burglary in the first degree (§§ 459, 460, subd. (a)) within the meaning of section 190.2, subdivision (a)(17)(G). The jury was unable to reach a verdict on the firearm use enhancement (§ 12022.53, subd. (d)), and the trial court subsequently granted the prosecutor's motion to dismiss that allegation.

The trial court sentenced defendant to life without parole for his conviction of first degree murder with the robbery-murder special circumstance. The court imposed a second sentence of life without the possibility of parole based on the burglary-murder special circumstance, but stayed execution of that sentence pursuant to section 654.

DISCUSSION

I. CALCRIM No. 376 - Possession of Recently Stolen Property

A. Additional Background and Defendant's Contentions

At a jury instruction conference, defense counsel objected to the court instructing the jury with CALCRIM No. 376 ("Possession of Recently Stolen Property as Evidence of a Crime"). Defense counsel's objection was based on certain internal inconsistencies in the proposed instruction.⁴ Otherwise, defense counsel stated, "I'm objecting to this being given, but [t]he Court -- I understand [t]he Court is going to give it, but it's over my objection." The trial court indicated that it would remedy the internal inconsistency and that it believed that the instruction was supported by sufficient evidence. The trial court instructed the jury with CALCRIM No. 376.⁵

4 Counsel pointed out that the first line of the draft instruction "says first or second degree murder, doesn't include the special circumstances. The second line has it all in there. I feel like to be consistent, we just have to say it all the way through."

5 The trial court instructed the jury as follows: "If you conclude the defendant knew he possessed property and you concluded the property had, in fact, been recently stolen, you may not convict the defendant of first degree or second degree murder, the special circumstance of murder in the commission of a residential burglary and/or murder in the commission of a robbery based on those facts alone. [¶] However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed first degree or second degree murder or the special circumstance of murder in the commission of a residential burglary and/or murder in the commission of a robbery. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, when and where the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of first or second degree murder or the special circumstance of murder in the commission of a residential burglary and murder in the commission of a robbery. [¶] Remember, you may not convict the defendant of any crime unless you are convinced each fact essential to the conclusion the defendant is guilty of that crime has been proved beyond a reasonable doubt." (CALCRIM No. 376, italics added.)

On appeal, for the first time, defendant asserts that the trial court erred in instructing the jury with CALCRIM No. 376 because the incorporation of the murder count into that instruction allowed the jury to find him guilty of murder on only slight supporting evidence. Defendant emphasizes that neither robbery nor burglary were charged in this case, and asserts that CALCRIM No. 376 has no application to a charge of murder. Defendant asserts that this instruction "told the jury that if [defendant] knew he possessed property and that property was recently stolen, these facts were sufficient to find him guilty of murder if there was only 'slight' supporting evidence that tended to prove his guilt." Defendant asserts that this error reduced the prosecution's burden of proof and violated his due process right to a fair trial, and that, if this contention has been forfeited, he was deprived of the constitutionally effective assistance of counsel.

We conclude that the trial court erred in instructing the jury with CALCRIM No. 376. However, we further conclude that this error was harmless.

B. Applicable General Principles of Law

" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.)

The California Supreme Court has specifically stated that "when 'an instruction simply informs the jury that a fact or cluster of facts is not, without more, substantial evidence of guilt under the ordinary legal rules set forth elsewhere in the instructions,' there is no 'duty on trial courts to provide such an instruction sua sponte.' [Citation.] Thus, instructions as to consciousness of guilt, motive, possession of recently stolen property, and evidence of other sexual offenses or domestic violence, 'while helpful in various circumstances, are not vital to the jury's ability to analyze the evidence and therefore are not instructions that must be given to the jury even in the absence of a request.' " (People v. Rangel (2016) 62 Cal.4th 1192, 1223-1224, quoting People v. Najera (2008) 43 Cal.4th 1132, 1139.) However, "[e]ven if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)

C. Analysis

The People assert that defendant has forfeited this contention. However, following our high court's lead regarding forfeiture related to the recent possession of stolen property instruction, we shall "assume defendant's failure to object to this instruction at trial" on the specific grounds at issue here "did not forfeit his appellate claim." (People v. Moore (2011) 51 Cal.4th 1104, 1130 (Moore), citing People v. Kelly (2007) 42 Cal.4th 763, 791 [a claim that an instruction is not "correct in law" may be raised on appeal despite the failure to object below].)

Our high court has stated that CALJIC No. 2.15, which is substantially similar to CALCRIM No. 376, "is based on the long-standing rule allowing a jury to infer guilt of a theft-related crime from the fact that a defendant is found in possession of recently stolen property when such evidence is accompanied by slight corroboration of other inculpatory circumstances tending to show guilt. [Citation.] It is a permissive, cautionary instruction 'generally favorable to defendants; its purpose is to emphasize that possession of stolen property, alone, is insufficient to sustain a conviction for a theft-related crime.' " (People v. Rogers (2013) 57 Cal.4th 296, 335 (Rogers), italics added.)

On the other hand, our high court has " 'cautioned that the instruction is inappropriate for non-theft-related crimes, and instructing that possession of stolen property may create an inference that a defendant is guilty of murder . . . is error.' " (Rogers, supra, 57 Cal.4th at p. 335, italics added; see Moore, supra, 51 Cal.4th at p. 1130; People v. Prieto (2003) 30 Cal.4th 226, 248-249 (Prieto) [trial court's application of CALJIC No. 2.15 to nontheft offenses like rape or murder was improper]; People v. Barker (2001) 91 Cal.App.4th 1166, 1176 (Barker) [proof a defendant was in possession of recently stolen property does not lead naturally and logically to a conclusion that he committed a murder to obtain the property; therefore, trial court's inclusion of non-theft offense in CALJIC No. 2.15 was error].)

As defendant notes, here, there were no theft-related crimes charged. Defendant was charged with one count in the information -- murder in the first degree -- with special circumstance and enhancement allegations. The trial court specifically tailored the language of CALCRIM No. 376 to apply it to first and second degree murder and the special circumstances. We conclude that the trial court's CALCRIM No. 376 instruction improperly informed the jury that defendant's possession of recently stolen property may create an inference that defendant was guilty of murder, and the trial court's instruction was therefore error.⁶ (Rogers, supra, 57 Cal.4th at p. 335; Moore, supra, 51 Cal.4th at p. 1130; Prieto, supra, 30 Cal.4th at pp. 248-249; Barker, supra, 91 Cal.App.4th at p. 1176.)

6 We note that the then-effective 2014 Bench Notes for CALCRIM No. 376 (as well as the current version) specifically stated that "[u]se of this instruction should be limited to theft and theft-related crimes." (Judicial Council of Cal., Crim. Jury Instns. (2014) Bench Note to CALCRIM No. 376, pp. 150-151, citing Barker, supra, 91 Cal.App.4th at p. 1176.)

As defendant and the People both observe, Division One of the Court of Appeal, Fourth Appellate District, has held that it was not error for the trial court to instruct a jury with CALJIC No. 2.15 in connection with felony-murder special circumstances of robbery and burglary. (People v. Harden (2003) 110 Cal.App.4th 848, 856-857 (Harden).) However, Harden is materially distinguishable from the circumstances here. First, in Harden, the defendant was also charged with robbery and burglary. (Id. at pp. 855-856.) Second, although the instruction was modified to add reference to the special circumstance allegations, it was not modified to refer to the murder count itself, as was the instruction here. (Ibid.) Indeed, the trial court in Harden specifically recognized the recent possession instruction should not be given as to the murder charge. (Id. at p. 856.) In our view, the central thrust of the holding of Harden is that the instruction can be given as to theft-related allegations.⁷ (Id. at p. 857 ["there appears to be no valid reason to preclude its use regarding theft-related allegations," italics added].) Harden does not support allowing the instruction to apply to a charge of murder. Thus, Harden does not undermine our conclusion.⁸

7 The 2014 CALCRIM No. 376 Bench Notes (as well as the current version) cited Harden, supra, 110 Cal.App.4th 848, but specifically noted that the case held it was not error to give a modified version of the instruction in relation to the special circumstance of murder committed during a robbery. Although the Bench Notes did not highlight the central thrust of Harden -- that the instruction can be given as to theft-related allegations -- nothing in the Bench Notes suggested it is appropriate to give a modified instruction that the commission of murder can be inferred from recent possession of stolen property. (Judicial Council of Cal., Crim. Jury Instns. (2014) Bench Note to CALCRIM No. 376, p. 151, citing Harden, at p. 856.)

8 In a footnote in the respondent's brief, the People write: "Respondent accedes to the general rule that murder is not a permissive inference from knowing possession of recently stolen property." However, the People "posit[] that where, as here, the murder and the taking occurred at the same time and in the same transaction, and where the murder was perpetrated to further the theft, a felony-murder or special circumstances murder involving burglary and robbery is a theft-related offense for which the permissive inference instruction should be allowed. In any event, as will be shown below, [defendant] suffered no prejudice." (Italics added.) We gather the People are suggesting that the instruction could be given to establish murder under a felony murder theory. But what the People "posit[]" is not supported by citation to any authority or further analysis. We may disregard contentions perfunctorily asserted in footnotes without development. (People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn. 5; Placer Ranch Partners v. County of Placer (2001) 91 Cal.App.4th 1336, 1343, fn. 9.) Also, we may disregard points raised in a footnote rather than being properly presented under a discrete heading with appropriate analysis. (Cal. Rules of Court, rule 8.204(a)(1)(B); Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 160.) Moreover, the People's perfunctory argument ignores the actual instruction given here. The trial court did not instruct that the jury could conclude defendant committed felony murder from his possession of recently stolen property. Rather the trial court told the jury it could conclude that defendant committed first or second degree murder from his possession of that property. At trial, in addition to felony murder, the prosecution advanced deliberation and premeditation as a separate theory of first degree murder and advanced an express malice theory as to second degree murder. Consequently, the instruction essentially told the jury it could conclude defendant committed any theory and degree of murder from his possession of recently stolen property.

D. Prejudice

As the People assert, our high court has stated that, in reviewing an error of this sort for prejudice, " 'it is well established the People v. Watson (1956) 46 Cal.2d 818, 836 [(Watson)], test applies.' " (Rogers, supra, 57 Cal.4th at p. 336.)⁹ Under Watson, we determine whether it is reasonably probable that, but for the error, the jury would have reached a result more favorable to defendant. (Watson, at pp. 835-836.)

9 Defendant asserts that the error reduced the prosecution's burden of proof. As defendant acknowledges, however, our high court has rejected the contention that such an instruction reduced the People's burden of proof. (People v. Montes (2014) 58 Cal.4th 809, 876; Rogers, supra, 57 Cal.4th at p. 336.) Defendant states he expressly raises this issue "to federalize it." We need not address this contention further. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction"].) And as we discuss, post, the error is harmless under any standard in any event.

The People candidly point out, however, that at least one unpublished federal case suggests that instructing the jurors with the permissive inference instruction on a murder count amounts to a due process violation and thus an error of constitutional dimension. In considering an error of federal constitutional dimension, we would review the matter to determine whether the error was "harmless beyond a reasonable doubt" under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711] (Chapman). Chapman's harmless-beyond-a-reasonable-doubt standard is generally applicable to error under the United States Constitution. (People v. Neal (2003) 31 Cal.4th 63, 86 (Neal).) "The beyond-a-reasonable-doubt standard of Chapman 'requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' [Citation.] 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is 'whether the . . . verdict actually rendered in this trial was surely unattributable to the error.' " (Neal, at p. 86.)

We conclude that the trial court's error in giving CALCRIM No. 376 as it did in this case was harmless under any standard.

Newton, who was discovered dead in the apartment, was shot multiple times and shell casings were found nearby. Defendant's fingerprints were discovered on the exterior kitchen window of the apartment, as well as on both sides of the piece of glass that appeared to come from the window found inside of the apartment, and, according to Ham, that window was not broken when he left the apartment earlier in the morning. On the morning of the murder, defendant's cell phone placed a call from a location in the vicinity of Newton's apartment.

Five days after the murder, police apprehended defendant after he ran from a car that police had pulled over. The police officer chasing defendant saw that defendant was holding a gun. After evading capture for some time, police located defendant on the roof of a portable school building. A SWAT team arrived and took defendant into custody approximately an hour after he was first seen on the roof. Police discovered a black Glock 23 firearm nearby between two of the portable classrooms. Cartridge casings discovered in Newton's bedroom were ejected by that .40-caliber Glock 23.

At an apartment associated with defendant, police found a glass mason jar containing a green, leafy substance that appeared to be marijuana. Defendant's thumb print was discovered on the mason jar. Ham and Nguyen both testified that a mason jar containing marijuana had been taken from the apartment. Police also found a pair of size nine and a half black and red Nike Air Jordan sneakers at that address. Ham and Nguyen both identified the shoes as Ham's sneakers.

On these facts, the trial court's error in instructing the jury with the modified CALCRIM No. 376 was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) The trial evidence overwhelmingly established defendant's guilt of murder in the first degree on a felony murder theory.

Defendant emphasizes certain unknown matters, such as the number of people involved in the intrusion into Newton's apartment and in the killing of Newton, and the roles of the individuals involved. However, as the People note, even if defendant did not himself kill Newton, his involvement, based on the trial evidence, rendered him liable as an aider and abettor. " 'All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.' " (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117, quoting § 31.) "Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (McCoy, at p. 1117.) The trial court instructed the jury on general principles of aiding and abetting (CALCRIM No. 400) and on aiding and abetting intended crimes (CALCRIM No. 401). Defendant would be liable for killing Newton whether he personally shot Newton, or he was an aider/abettor in robbery or burglary when someone else shot and killed Newton. Felony-murder liability may be imposed "on a nonkiller 'if a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery,' " or first degree burglary " 'whether such killing is intentional, or unintentional, or accidental.' " (People v. Cavitt (2004) 33 Cal.4th 187, 200.) "[T]he felony-murder rule is intended to eliminate the need to plumb the parties' peculiar intent with respect to a killing committed during the perpetration of the felony." (Id. at pp. 197-198.)¹⁰

10 We address the sufficiency of the evidence on the special circumstances allegations, post.

Defendant also emphasizes the fact that the apartment's front door was unlocked on the morning of the murder, asserting that this undermined the prosecution's theory of how the perpetrators entered the apartment. However, the prosecutor argued in closing that defendant broke the window but then decided to try the front door. Ham testified that the apartment's front door was generally left unlocked. Newton had lost his key, and, because the roommates all had different work schedules, they just left the door unlocked. The fact that the apartment's front door was left unlocked is consistent with the intruder or intruders attempting to enter through the window before deciding to check the front door, as argued by the prosecutor in closing. In any event the manner of the unauthorized entry does not undermine a finding that there was a robbery and burglary. And to the extent that defendant implies that his fingerprints on the kitchen window and on the broken glass found inside of the apartment may have been unrelated to the murder, we find this contention unpersuasive, particularly in light of the fact that both Ham and Nguyen testified that they did not know defendant, had never seen him before, and that they had not given him permission to enter the apartment. Also, Ham testified that, when he and Nguyen left the apartment early on the morning of July 5, he did not notice anything out of the ordinary with regard to the kitchen window, it was not broken at that time, and the screen and the piece of glass were not on top of the dog cage. These facts nullify any inference that defendant could have left his fingerprints on the window and on both sides of the glass found inside the apartment at some time other than on the morning of the murder.

Additionally, we do not agree with defendant that the jury's determination is undermined by the fact that Newton's precise time of death could not be fixed. Based on the facts presented in this case, Newton's approximate time of death is clear; the exact time of death is not material to any consideration before the trier of fact.

We also do not agree with defendant that the case against him was undermined by questions concerning Ham and Nguyen's credibility in light of Ham having previously sold marijuana out of the apartment and Ham and Nguyen's questionable behavior after discovering Newton on the floor of his bedroom. The jury had all of this information before it, as well as defense counsel's repeated arguments to the effect that the prosecution's case was "only as strong as the credibility of those witnesses and their credibility [was] in doubt." Moreover, the evidence against defendant that we have discussed ante was overwhelming and Ham and Nguyen's conduct did not diminish or compromise that evidence.

As defendant acknowledges, neither the prosecutor nor defense counsel referenced the permissive inference of CALCRIM No. 376 in arguments to the jury. Thus, the prosecutor did nothing to exacerbate the error and neither attorney called attention to the erroneous instruction.

Thus, we conclude, beyond a reasonable doubt, that the trial court's error in instructing the jury with CALCRIM No. 376 did not contribute to the first degree murder verdict. (Chapman, supra, 386 U.S. at p. 24.) In our view, the jury's guilty verdict was surely unattributable to the trial court's error in instructing the jury with CALCRIM No. 376. (Chapman, at p. 24; Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 189]; Neal, supra, 31 Cal.4th at p. 86.)

Because we have assumed defendant did not forfeit this issue, we need not discuss in detail defendant's contention that he was deprived of the constitutionally effective assistance of counsel by his trial counsel's failure to object to CALCRIM No. 376 on the grounds discussed here. It is enough to say that because the error in instructing the jury with CALCRIM No. 376 was harmless beyond a reasonable doubt, defendant suffered no prejudice under the ineffective assistance of counsel test. Defendant has not shown a reasonable probability that, but for counsel's failure to object to the instruction on the correct grounds, he would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 693-694 [80 L.Ed.2d 674, 697-698] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 217-218 (Ledesma).)

II. CALCRIM No. 226 - Conduct Reflecting on Witness Believability

A. Additional Background and Defendant's Contentions

At the instruction conference, defense counsel requested that the court instruct the jurors with optional, bracketed language in CALCRIM No. 226 stating that, in evaluating a witness's credibility, the jurors could consider whether "the witness engaged in other conduct that reflects on his or her believability." The trial court responded: "That generally, I have found is specifically referenced through when you impeach with misdemeanor conduct." Defense counsel stated that she was requesting this language in light of Ham and Nguyen's conduct, asserting that their actions reflected on their believability. Defense counsel also asserted that the instruction and the "use notes" did not indicate that this optional language was only to be included where the conduct constituted a misdemeanor or crimes of moral turpitude. Defense counsel distinguished this optional language with the instructions set forth in CALCRIM No. 316 addressing the use of felony convictions and other prior criminal conduct in assessing witness credibility. According to defense counsel, CALCRIM No. 226 "encompasses all the different factors the jurors can look at to determine the believability of a witness. It's not just as to their priors for impeachment." The trial court instructed the jury with CALCRIM No. 226, omitting the bracketed optional language requested by defense counsel.¹¹

11 The trial court instructed the jury with CALCRIM No. 226 as follows: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. [¶] You may believe all, part or none of any witness'[s] testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness'[s] testimony, you may consider anything that reasonably tends to prove or disprove the accuracy of that testimony. Among the factors you may consider are how well could the witness see, hear or otherwise perceive the things about which the witness testified; how well was the witness able to remember and describe what happened; what was the witness'[s] behavior while testifying; did the witness understand the questions and answer them directly; was the witness'[s] testimony influenced by factors such as bias or prejudice, a personal relationship with someone involved in the case or a personal interest in how the case is decided; what was the witness'[s] attitude about the case or about testifying; did the witness make a statement in the past that is consistent or inconsistent with his or her testimony; how reasonable is the testimony when you consider all the evidence in the case; did other evidence prove or disprove any fact about which the witness testified; did the witness admit to being untruthful; has the witness been convicted of a felony. [¶] Do not automatically reject testimony just because of inconsistencies or conflict. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. [¶] Also, two people may witness the same event yet see or hear it differently. [¶] If you do not believe a witness'[s] testimony he or she no longer remembers something, that testimony is inconsistent with the witness'[s] earlier statement on that subject. [¶] If you decide the witness deliberately lied about something significant in this case, you should consider not believing anything that witness says, or if you think the witness lied about some things, told the truth about others, you may simply accept the part you think is true and ignore the rest." (Italics added.)

Defendant asserts that the trial court erred in denying his request to include the "other conduct" optional language from the CALCRIM No. 226 instruction. Defendant points to Ham and Nguyen's peculiar and suspicious conduct in the aftermath of discovering the break-in and Newton on the floor of his room, their initial lack of candor with police, and the fact that Ham was selling marijuana out of the apartment. Defendant notes that, unlike CALJIC No. 2.20, the optional language of CALCRIM No. 226 at issue here is not expressly limited to misdemeanor conduct, but, by its terms, applies to "[other] conduct that reflects on [the witness's] believability." (CALCRIM No. 226.) Defendant asserts that this error was not harmless under any standard, particularly in light of the fact that this was a case based on circumstantial evidence, much of which was derived from Ham and Nguyen, the two witnesses whose testimony was subject to doubt. In the event that we deem the error forfeited, defendant contends that he was denied the constitutionally effective assistance of counsel.

We agree the trial court erred by refusing to give the optional bracketed language, but conclude the error was harmless.

B. Applicable Law

" 'A trial court must instruct the jury "on the law applicable to each particular case." [Citation.] "[E]ven in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence." [Citation.] Therefore, a claim that a court failed to properly instruct on the applicable principles of law is reviewed de novo. [Citation.] In conducting this review, we first ascertain the relevant law and then "determine the meaning of the instructions in this regard." [Citation.] [¶] The proper test for judging the adequacy of instructions is to decide whether the trial court "fully and fairly instructed on the applicable law . . . ." [Citation.] " 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]' " [Citation.] "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." ' " (People v. Mathson (2012) 210 Cal.App.4th 1297, 1311-1312.)

C. Analysis

CALCRIM No. 226 sets forth factors for the jury to consider in evaluating witness credibility. An instruction on the credibility of witnesses must be given by the court in every criminal case. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883; see Evid. Code, § 780 [setting forth some of the various factors a jury can consider in deciding the truthfulness of witness testimony].) Bracketed paragraphs in CALCRIM No. 226 provide additional, optional factors which may be included with the instruction, but the trial court has no sua sponte duty to include those bracketed factors which are not relevant based on the evidence. (Rincon-Pineda, at pp. 883-884 [the substance of the instruction set forth as CALJIC No. 2.20 should henceforth always be given, but those paragraphs that are inapplicable under the evidence may be omitted]; see Judicial Council of Cal. Crim. Jury Instns. (2014) Bench Note to CALCRIM No. 226, p. 58 ["Give all of the bracketed factors that are relevant based on the evidence"].) At issue here is the bracketed, optional factor which instructs that in evaluating witness credibility, the jury may consider: "Has the witness engaged in [other] conduct that reflects on his or her believability?" (CALCRIM No. 226.)

In denying defense counsel's request to include the bracketed language, the trial court stated its belief that the subject language "is specifically referenced through when you impeach with misdemeanor conduct." It appears that the trial court believed that the phrase "any other conduct" in the bracketed language of CALCRIM No. 226 referred to misdemeanor conduct as contemplated in People v. Wheeler (1992) 4 Cal.4th 284. (See Wheeler, at p. 297, fn. 7 [moral turpitude conduct is admissible for impeachment purposes, whether or not it produced a felony or misdemeanor conviction].) In other words, it appears that the trial court viewed the bracketed language from CALCRIM No. 226 as the equivalent of the bracketed paragraph in CALJIC No. 2.20 which identifies "[p]ast criminal conduct of a witness amounting to a misdemeanor," as a factor which may be considered in assessing credibility. The trial court denied defense counsel's request over counsel's contention that the bracketed factor was not limited to misdemeanor conduct, crimes of moral turpitude, or prior convictions admitted for impeachment purposes.

We conclude that under the particular circumstances of this case, the trial court erred in not including the bracketed language upon defense counsel's request. "A party is entitled to a requested instruction if it is supported by substantial evidence. [Citation.] Evidence is '[s]ubstantial' for this purpose if it is 'sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' " (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050 (Ross).)

The bracketed language requested by defense counsel was supported by substantial evidence. Even if the bracketed language is limited to misdemeanor or felony conduct or conduct involving moral turpitude, such conduct is present here. Possession of marijuana for sale and sale of marijuana involves moral turpitude. (People v. Standard (1986) 181 Cal.App.3d 431, 435.) Ham and Nguyen both testified that Ham sold marijuana out of his apartment. According to Nguyen, she and Ham were growing more marijuana plants than were authorized by their "Proposition 215" medical marijuana cards. Additionally, both Ham and Nguyen, by their own admissions, deliberately deleted items from their mobile phones in anticipation of a police investigation. Their actions in this regard may have constituted violations of former section 135, destroying or concealing documentary evidence, which was classified as a misdemeanor.¹²

12 Former section 135, in effect at the time of the charged offenses, entitled "Destroying evidence," provided: "Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor." This section was amended in 2015. The amended statute, entitled "Destroying, erasing, or concealing evidence," was amended, among other things, to more clearly apply to digital images. It now reads: "A person who, knowing that any book, paper, record, instrument in writing, digital image, video recording owned by another, or other matter or thing, is about to be produced in evidence upon a trial, inquiry, or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor." (§ 135, as amended by Stats. 2015, ch. 463, § 1.)

Thus, we conclude that the bracketed language of CALCRIM No. 226 requested by defense counsel was supported by substantial evidence and therefore should have been given. (Ross, supra, 155 Cal.App.4th at pp. 1049-1050.)

D. Prejudice

In any event, we conclude that the trial court's error in refusing to give the bracketed language was harmless. As a general matter, we review a trial court's erroneous denial of a request for a pinpoint instruction under the Watson standard. (People v. Wharton (1991) 53 Cal.3d 522, 571.) "[T]he Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (People v. Beltran (2013) 56 Cal.4th 935, 956.)

The jurors were instructed that, in evaluating a witness's testimony, they could consider "anything that reasonably tends to prove or disprove the accuracy of that testimony." (CALCRIM No. 226, italics added; see fn. 11, ante.) Notwithstanding the trial court's error in refusing to give the bracketed language as requested, this instruction to the jury largely subsumed the content of the bracketed language at issue. Additionally, in her opening statement to the jury, defense counsel told the jury that the prosecution's "entire case is dependent on two witnesses . . . Aaron Ham and Mary Nguyen." She further informed the jury that the "evidence will show that not only are these witnesses not credible, but they moved, tampered and destroyed evidence in this case." Defense counsel repeatedly emphasized Ham and Nguyen's conduct in altering the crime scene, moving evidence, and deleting items from their mobile phones, and that they were growing marijuana in the apartment. In her closing arguments, defense counsel reprised her assertion that the prosecution's case was completely dependent upon Ham and Nguyen, and that the case was "only as strong as the credibility of those witnesses and their credibility is in doubt." Defense counsel again emphasized that they moved and destroyed evidence, including their marijuana plants.

Defendant is correct that "arguments of counsel cannot substitute for instructions by the court." (Taylor v. Kentucky (1978) 436 U.S. 478, 488-498 [56 L.Ed.2d 468, 477].) However, quite unlike the circumstances where a court refuses to instruct on the presumption of innocence and thus violates a defendant's right to a fair trial (see id. at p. 490), counsel's arguments here, urging jurors to consider Ham and Nguyen's conduct insofar as it was relevant to their credibility focused the jury on that conduct and that conduct fell into the general category of "anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." (CALCRIM No. 226, italics added.) Thus, the combination of the instruction given and counsel's comments to the jury contribute to the conclusion that the trial court's error in refusing to give the pinpoint bracketed instruction was harmless. In addition we note that the trial court instructed that in deciding the truthfulness of witness testimony, the jury could consider whether the witness made a statement in the past that was inconsistent with his or her testimony.

Under these circumstances, and in light of the overwhelming evidence of defendant's guilt discussed ante, it is not reasonably probable defendant would have achieved a more favorable result had the trial court included in its CALCRIM No. 226 instruction the language requested by defense counsel. (Watson, supra, 46 Cal.2d at pp. 835-836.)

Defendant asserts that the omission of the bracketed optional language violated his due process rights, and that therefore we must review the trial court's error under the Chapman standard. (Chapman, supra, 386 U.S. at p. 24.) Defendant did not raise this due process contention before the trial court. Nonetheless, defendant may argue for the first time on appeal that the asserted error by the trial court in denying his request for the optional language had the legal consequence of violating due process. (See People v. Partida (2005) 37 Cal.4th 428, 431 [a defendant may argue that the asserted error in overruling a trial objection had the legal consequence of violating due process].) However, defendant has pointed to no case that holds a defendant is entitled to the bracketed optional language he requested as a matter of due process. Furthermore, even if we were to conclude that the Chapman harmless error analysis applies, for the same reasons as those discussed ante, we conclude that the trial court's error was harmless beyond a reasonable doubt. Based on the overwhelming evidence of defendant's guilt and the other instructions provided to the jury, we conclude, beyond a reasonable doubt, that the trial court's omission of the optional language from its CALCRIM No. 226 instruction did not contribute to the guilty verdict. (Chapman, at p. 24.)

Defendant's contends that the cumulative effect of this error and the error discussed in part I of the Discussion, ante, were prejudicial. However, we conclude the two errors combined do not amount to prejudicial error under any standard. (See People v. Ngo (2014) 225 Cal.App.4th 126, 163.)

Defendant also asserts that, to the extent his due process/constitutional error contention was forfeited by trial counsel's failure to raise it, he was denied the constitutionally effective assistance of counsel. However, as we have noted, defendant has not cited any case that holds the omitted optional language here is required by due process, so we do not see how counsel's performance was deficient. In order to establish ineffective assistance of counsel, defendant must first show counsel's performance was deficient by showing it fell below an objective standard of reasonableness under prevailing professional norms. (Strickland, supra, 466 U.S. at pp. 688, 691-692; Ledesma, supra, 43 Cal.3d at pp. 216-217.) Counsel cannot be faulted for failing to make a due process argument not supported by case law. Moreover, in light of our determination that the trial court's error was harmless beyond a reasonable doubt, and for the same reasons, we conclude that defendant cannot show a reasonable probability that, but for counsel's failure to raise constitutional objections to the omission of the bracketed language from the instruction, he would have obtained a more favorable result. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.)

III. Felony Murder Special Circumstance

A. Additional Background and Defendant's Contentions

At the prosecution's request, the jury was instructed on both of the prosecution's liability theories as to murder (CALCRIM No. 400) and as to the special circumstance allegations (former CALCRIM No. 703).¹³ During its argument to the jury, the prosecution theorized that defendant was the shooter and did not argue aiding and abetting. The defense argued that defendant was not the actual shooter and that the prosecution did not prove that defendant was present and did something to aid in the murder. During his rebuttal argument, the prosecutor acknowledged that he did not know whether someone else was involved.¹⁴ The prosecutor went on to argue that an aider and abettor to felony murder is guilty of murder.¹⁵ However, the prosecutor never mentioned liability for the special circumstances allegations.

13 The trial took place in 2014, before the California Supreme Court's decision in People v. Banks (2015) 61 Cal.4th 788 (Banks). After Banks was published, CALCRIM No. 703 was amended to set forth various factors to be considered in deciding special circumstance liability as an aider and abettor. We discuss those factors, post.

14 The prosecutor told the jury: "Was there somebody else? I don't know. There's no physical evidence to support that. There [were] no other prints that were compared that were found that were able to do anything [sic]. You've heard no evidence of that. I do know that it was [defendant]."

15 The prosecutor told the jury: "The law says, and the judge will instruct you, you can find somebody guilty on all three theories. Okay. I rob a bank. I'm guilty. I'm the [wheelman] that helped somebody rob the bank, I'm guilty. I rob a bank, somebody dies, I'm guilty of murder. That's the law."

During deliberations, the jury asked the court if it could find the defendant guilty of murder and the special circumstances without a finding the firearm use enhancement was true, and whether the gun enhancement required personal use of the firearm. The court answered in writing with the word, "yes" to both questions. As we have noted, the jury was unable to reach a verdict on the firearm use enhancement allegation.

Defendant asserts that the evidence is legally insufficient to support the felony-murder special circumstance findings reached by the jury, and therefore those true findings must be reversed. Specifically, defendant asserts that the evidence was insufficient to prove that he was either the killer or "an aider and abettor who acted in the underlying felonies with intent to kill or with reckless indifference for human life." Defendant emphasizes that the number of perpetrators involved is unknown, that the jury was unable to reach a verdict on the allegation that he personally used a firearm causing great bodily injury or death, that there were no eyewitnesses, and that the evidence presented in his defense demonstrated that someone gave him the murder weapon five days after the crime. According to defendant, there is too much uncertainty concerning his role, if any, to support the true findings on the special circumstance allegations.

As we shall explain, we conclude the evidence was insufficient to prove the special circumstance allegations.

B. Standard of Review

"When reviewing a challenge to the sufficiency of the evidence, we ask ' "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' [Citations.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for ' "substantial evidence—that is, evidence which is reasonable, credible, and of solid value' " that would support a finding beyond a reasonable doubt. [Citation.] These same standards apply to challenges to the evidence underlying a true finding on a special circumstance." (Banks, supra, 61 Cal.4th at p. 804.)

C. Felony Murder Special Circumstance

The felony-murder special circumstance applies to the perpetrator who actually committed acts resulting in death (actual killer) and to aiders and abettors who either act with intent to kill (§ 190.2, subd. (c))¹⁶ or who are major participants and act with reckless indifference to human life (non-killer aider and abettors). (§ 190.2, subd. (d).)¹⁷ As our state Supreme Court noted in Banks, supra, 61 Cal.4th at page 798, the elements in section 190.2, subdivision (d), come from Tison v. Arizona (1987) 481 U.S. 137 (Tison). In Tison, the United States Supreme Court held that the death penalty cannot be constitutionally imposed on a nonkiller aider and abettor unless that person either intended to kill or was a major participant who acted with reckless indifference to life. (Tison, at p. 158, fn. 12.) This language was codified in section 190.2, subdivisions (c) and (d), by the electorate as part of Proposition 115 and it applies to both the imposition of the death penalty and life without possibility of parole. (Banks, at pp. 797-798, 800, 804.) As a shorthand, we will refer to the elements in section 190.2, subdivision (d), as "the Tison elements" and the combination of the elements as "Tison liability."

16 Section 190.2, subdivision (c), provides: "Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4." (Italics added.)

17 Section 190.2, subdivision (d), provides in pertinent part: "Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4." (Italics added.)

Major participation requires that a "defendant's personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder." (Banks, supra, 61 Cal.4th at p. 802.)

As for reckless indifference, the Banks court observed, "[r]eckless indifference to human life 'requires the defendant be "subjectively aware that his or her participation in the felony involved a grave risk of death." ' " (Banks, supra, 61 Cal.4th at p. 807.) "Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a 'grave risk of death' satisfies the constitutional minimum." (Id. at p. 808.) Recently, our high court adopted the Model Penal Code definition of reckless indifference, which requires that the defendant " 'consciously disregard[] a substantial and unjustifiable risk' " of death and that the risk " 'be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.' " (People v. Clark (2016) 63 Cal.4th 522, 617, 622 (Clark).) This definition recognizes that, in addition to the subjective element of reckless indifference, there is also an objective element. (Ibid.) "[R]ecklessness is not determined merely by reference to a defendant's subjective feeling that he or she is engaging in risky activities. Rather, recklessness is also determined by an objective standard, namely what 'a law-abiding person would observe in the actor's situation.' " (Id. at p. 617.)

The Tison elements "often overlap." Major participation, while not sufficing to establish reckless indifference, can still "often provide significant support for such a finding." (Tison, supra, 481 U.S. at p. 158, fn. 12; accord, Clark, supra, 63 Cal.4th at pp. 614-615 [noting the "interrelationship" between the two Tison elements and that they often overlap]; People v. Medina (2016) 245 Cal.App.4th 778, 788 [noting that "[t]hese two requirements—having a reckless disregard for human life and being a major participant—will often overlap"].)

Whether there is substantial evidence supporting establishment of the Tison elements is a question that requires consideration of the totality of the circumstances. (Banks, supra, 61 Cal.4th at p. 802.) In Banks, our high court set forth a list of non-exclusive circumstances to consider: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major.' " (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)

Acknowledging overlap between the major participant and reckless indifference elements (Clark, supra, 63 Cal.4th at pp. 614-615), our high court recently considered a number of factors in determining whether the evidence was sufficient to establish reckless indifference: (1) knowledge of weapons, and use and number of weapons; (2) physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) duration of the felony; (4) defendant's knowledge of cohort's likelihood of killing; and (5) defendant's efforts to minimize the risks of the violence during the felony. (Clark, at pp. 618-623.)

D. Analysis

Here, viewing the evidence in the light most favorable to the prosecution (Banks, supra, 61 Cal.4th at p. 804), we conclude that substantial evidence does not support true findings on the felony murder special circumstance allegations.

Defendant's personal role in the home invasion is unknown. It is unknown whether defendant was the actual killer or whether someone else was the shooter, as the jury failed to reach a verdict on the firearm enhancement. (§ 12022.53, subd. (d).) There were fingerprints of an unknown person on the outside of the kitchen window and the same piece of glass defendant touched and there were items of property taken during the burglary -- a Nikon camera and a box of jewelry -- that were not recovered from the apartment associated with defendant. Consequently, the evidence suggests someone else may have been involved and it does not otherwise establish defendant was the actual killer. Furthermore, there is no evidence indicating that defendant, acting as an aider and abettor, intended that the victim be killed.

Looking to Tison liability and the factors identified by our high court in Banks, supra, 61 Cal.4th at page 803, it is unknown whether defendant had a role in planning the crime.¹⁸ Defendant's role, if any, in supplying murder weapon is unknown. Defendant's awareness of the particular dangers posed by the nature of the crime, the weapon or weapons used, or past experience or conduct of his co-participants is unknown. Indeed, the record does not establish how many co-participants were involved, if any, or how many guns were used during the robbery/burglary. Also unknown on this record is whether defendant was present in the apartment at the moment when the victim was shot, the duration of the offense, whether defendant was in a position to facilitate or prevent the murder, or whether his actions or inactions played a role in Newton's death. Furthermore, this was a daytime burglary and there was no evidence indicating defendant anticipated anyone would be home, circumstances that cut against a finding of reckless indifference. As for what defendant did after lethal force was employed, the evidence shows that he had some of the victim's property at an apartment associated with him and he was the last one to have possession of the murder weapon. However, the totality of the circumstances in the record simply does not shed sufficient light on the nature of defendant's involvement in the killing of Newton beyond the fact that he was an aider and abettor in the felony murder, a fact defendant does not dispute.¹⁹ Thus, it cannot be said on this record that defendant's actions constituted the actus reus and mens rea necessary for a true finding on the felony murder special circumstances: (1) that he was the actual killer, or (2) that as an aider and abettor, he acted with an intent to kill, or (3) that as an aider and abettor, he was a major participant and acted with reckless indifference for human life.

18 At oral argument, the People asserted that the cell phone call evidence that placed defendant in the vicinity of the crime showed there was communications involving planning. This is pure speculation. There was no evidence concerning any phone conversations, so we do not know if any such conversations even involved the crime, let alone that defendant discussed anything related to the planning of the crime. As the People pointed out no less than four times in their briefing, the import of the cell phone call evidence was that it showed that defendant was in the vicinity of the crime at the approximate time the crime was committed.

19 In his reply brief, defendant stated, "[Defendant] does not argue that there was insufficient evidence to connect him to the entry into the apartment and felony murder."

The People assert that "the record established at least that [defendant] was a major participant who acted with reckless disregard for human life, and was much more culpable than a mere getaway driver" such as in Banks, supra, 61 Cal.4th at pages 804-805. The People further assert that "it can be fairly inferred that the shooter intended to kill Newton because Newton was shot nine times." We do not disagree with the People's assertion that a reasonable inference can be made from the evidence that the shooter intended to kill Newton based, among other things, on the number of times Newton was shot. Indeed, defendant "does not dispute that the shooter had intent to kill Newton." However, because defendant's role is unknown, the evidence does not support a finding that he acted with an intent to kill; nor does the evidence establish that he was a major participant or that he acted with reckless disregard for human life. " 'A reasonable inference . . . "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." ' " (People v. Raley (1992) 2 Cal.4th 870, 891.)

The People also argue that, "even if [defendant] was not the shooter, his conduct of being present while a confederate shot the victim nine times and then leaving with stolen items without offering any help to the dying victim was reckless indifference to human life." But the evidence is not even sufficient to establish that defendant was present inside the apartment when the victim was shot. Although the evidence is certainly sufficient to support a reasonable inference that defendant was present in the apartment at some point during the burglary/robbery, it is speculation to conclude that defendant was in the apartment when the victim was shot.

For these reasons, we conclude that the evidence was insufficient as a matter of law to support the felony murder special circumstances. Therefore, we must reverse the life without parole sentences.

IV. Error in the Probation Report

A. Additional Background and Defendant's Contentions

California Rules of Court, rule 4.421,²⁰ sets forth circumstances in aggravation related to the crime and the defendant to be considered in sentencing. Among the enumerated factors in the probation report here relating to the crime is: "[t]he defendant was armed with or used a weapon at the time of the commission of the crime." (Rule 4.421(a)(2).)

20 Undesignated rule references are to the California Rules of Court.

At sentencing, defense counsel requested that this factor, which appeared on his probation report, be deleted. Defense counsel noted that the personal use of a firearm enhancement causing great bodily injury or death (§ 12022.53, subd. (d)) had been dismissed. The prosecutor asserted "just because I dismissed a charge doesn't mean they didn't happen. They were, obviously, hung up on it. The caselaw is pretty clear it's the facts of the case that guide in the sentencing. [¶] Now, obviously, you can't enhance anybody for those charges but you can consider those facts."

In denying the motion to strike, the trial court said, "Well, it was an arming. Doesn't have to be personal use. Arming can mean the accomplice was armed, if that's what the theory was, but I believe [the prosecutor] is correct in that a jury doesn't have to decide the aggravating factors, that [t]he Court can use the facts of the case."

Defendant asserts that the trial court erred in denying his request to modify the probation report to delete the factor in aggravation that defendant was armed with or used a weapon at the time of the commission of the crime. Defendant asserts that the trial court seems to have denied the request on the ground that, in the legal sense, defendant was armed at the time of the crime because he was a principal in the commission of a crime and an accomplice was armed. However, defendant asserts that the probation report will likely be read in the future as indicating that he was personally armed with or used a weapon in the murder, and this could be relevant in potential future considerations such as parole determinations.²¹ Defendant argues that "[s]tating [he] was armed with or used a gun makes him appear far more culpable for the murder than the jury found." Defendant further asserts that the evidence was legally insufficient to establish that he was personally armed with a firearm. In his reply brief, defendant asserts that, even if it would be proper to consider in aggravation that an accomplice was armed with a weapon, this is not what the probation report says. Rather, the probation report says that "defendant was armed with or used a weapon at the time of the commission of the crime." (Italics added.) Defendant asserts that the trial court erred in denying his request to strike this statement. We agree.

21 Defendant also points out that after he filed his opening brief, amendments to the youthful parole provisions in section 3051 became effective, applying the provisions in that section to offenders who were under age 23 when the crime was committed. (See also People v. Franklin (2016) 63 Cal.4th 262, 284 [requiring remand to make a record for the youthful offender parole hearing].)

B. Analysis

Trial courts have the discretion to correct or strike a probation report, in whole or in part. (People v. Municipal Court (Lopez) (1981) 116 Cal.App.3d 456, 458-459.) Additionally, "[i]n the event the parties dispute the facts on which the conviction rested, the court must conduct a presentence hearing and make appropriate corrections, additions, or deletions in the presentence probation report or order a revised report." (Rule 4.437(e).) "[F]undamental fairness demands that such reports be founded on accurate and reliable information." (People v. Bloom (1983) 142 Cal.App.3d 310, 320.) A probation report "should not in any way be misleading or inaccurate." (People v. Lutz (1980) 109 Cal.App.3d 489, 497.)

We note that even when a jury finds a weapons enhancement not true, the court may still find that the defendant was armed with or used a weapon as an aggravating circumstance. (People v. Lewis (1991) 229 Cal.App.3d 259, 264.) This is because aggravating circumstances need only be established by a preponderance of the evidence. (Ibid.) However, on this record it appears the trial court did not find that defendant was personally armed or personally used the firearm, only that the evidence established vicarious arming.

Thus, the trial court's finding did not support the statement in the probation report that, during the commission of the crime, "defendant was armed with or used a weapon at the time of the commission of the crime." Therefore, the trial court erred in declining to strike or modify this entry in the probation report.

The People correctly point out that the trial court is not limited to the aggravating factors listed in the rules of court. Thus, citing People v. Black (2007) 41 Cal.4th 799, 817, and rule 4.408(a),²² the People assert the trial could have found, as an aggravating factor, arming based on an accomplice being armed. But again, that is not what the probation report says. It reads that "defendant was armed with or used a weapon at the time of the commission of the crime." (Italics added.) Upon remand, the trial court shall strike or modify this factor in the probation report.

22 Rule 4.408(a) allows a trial court to find aggravating circumstances not set forth in rule 4.421. Rule 4.408(a) provides: "The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge." (Italics added.)

V. Parole Revocation Fine

Defendant had contended that the trial court erred in imposing and staying a parole revocation restitution fine since he had been sentenced to life without parole. In light of our determination that defendant is not eligible for a sentence of life without parole and must be resentenced, this contention has been rendered moot.²³

23 "Penal Code section 1202.45 requires imposition of a parole revocation restitution fine '[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole.' " (People v. Battle (2011) 198 Cal.App.4th 50, 63, italics added.) Because defendant's original sentence included no period of parole and he was not sentenced to a determinate term, it was improper to impose the parole revocation restitution fine. (See People v. Brasure (2008) 42 Cal.4th 1037, 1075; Battle, at p. 63.) However, now that he must be sentenced to a term that includes a possibility of parole, the parole revocation restitution fine must be imposed and stayed as required by section 1202.45. --------

DISPOSITION

We vacate the true findings on the special circumstances allegations, reverse the sentences of life without parole, and remand to the trial court for resentencing. At resentencing, the trial court shall strike or modify the entry in the probation report which states that "[t]he defendant was armed with or used a weapon at the time of the commission of the crime," and forward the modified probation report to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.

MURRAY, J. We concur: NICHOLSON, Acting P. J. RENNER, J.