Opinion
A159555
04-22-2022
The PEOPLE, Plaintiff and Respondent, v. Christian BIRDSALL, Defendant and Appellant.
Waldemar D. Halka, by appointment of the Court of Appeal Under the First District Appellate Project, for Defendant and Appellant. Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II.A., II.B., and II.D.
Waldemar D. Halka, by appointment of the Court of Appeal Under the First District Appellate Project, for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General, for Plaintiff and Respondent.
STREETER, Acting P. J. A jury convicted defendant Christian Birdsall of the first degree murder of Barbara Latiolais ( Pen. Code, § 187, subd. (a) ) and arson of an inhabited structure (§ 451, subd. (b)). As to the murder charge, the jury found three special-circumstance allegations to be true—that the murder was committed by means of lying in wait and during a robbery and a burglary (§ 190.2, subd. (a)(15), (17)(A), (G)). The trial court sentenced Birdsall, who was 16 years old at the time of the crime, to life imprisonment without the possibility of parole (LWOP) for the murder, plus a consecutive five-year term for arson.
Undesignated statutory references are to the Penal Code.
In this appeal (his second, after we conditionally reversed the judgment and remanded for a juvenile court transfer hearing) (see People v. Birdsall (Nov. 30, 2018, A146666) 2018 WL 6259260 [nonpub. opn.]), Birdsall contends the court erred by failing to suppress inculpatory statements he made to police, which he argues were obtained in violation of Miranda and were involuntary. He also presents several challenges to his sentence on constitutional and other grounds. Finally, in a supplemental brief, Birdsall claims that, in light of recent legislation revising the law of murder, one of the court's instructions to the jury was prejudicially erroneous.
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
In the unpublished portion of this opinion, we conclude the court properly admitted Birdsall's statements to police, and we reject Birdsall's challenges to his sentence. In the published portion of the opinion, we conclude the alleged instructional error was harmless. We therefore affirm.
I. BACKGROUND
On October 17, 2012, Birdsall and a friend, Cody Nicosia, murdered Barbara Latiolais in her home and stole numerous items, including a car. Birdsall, who had a distant family relationship with the victim and had done work at her home, knew her partner Mike Rice would be out of town. Birdsall thought Latiolais might also go out of town on a separate trip. Birdsall proposed a plan to burgle the house, and Nicosia agreed to participate.
Birdsall and Nicosia hid outside the house for several hours, first in the yard and then under the front deck, but when Latiolais did not leave, they decided to kill her and proceed with the planned burglary. Birdsall later told police that he suggested they leave but Nicosia insisted they go through with the crime because they had come that far and were "kind of trapped." Birdsall said, "okay." Birdsall told the officers: "I should've just said, let's go. I let the greed get to me."
Birdsall went to the front door of the house and asked Latiolais if he could do some work. She agreed and let him in. Nicosia entered at the back of the house. Once inside, Birdsall and Nicosia attacked Latiolais and strangled her using chokeholds. They believed she was dead, but she began making sounds, so Nicosia attempted unsuccessfully to break her neck. Nicosia then got a rope from the garage, wrapped it twice around Latiolais's neck, and he and Birdsall pulled on the two ends of the rope until she stopped making sounds. They then broke into a closet and a safe using an ax from the garage, took several guns as well as jewelry, marijuana, and coins, loaded the items into Rice's Volvo, and drove away.
Several hours later, after having dinner with friends and showing them the guns, Birdsall and Nicosia decided to return to the house to cover up evidence. They went back to the house and, using containers of gasoline they found there, set the house on fire. Firefighters responding to the blaze in the early morning hours of October 18, 2012, found Latiolais's body inside the house.
On October 25, 2012, police arrested and interrogated Birdsall, who made inculpatory statements about his planning of and participation in the crimes. Video recordings of the interrogation were admitted into evidence and played for the jury at Birdsall's trial. Birdsall was charged in adult criminal court with murder (count one) and arson (count two), as well as special circumstance allegations in connection with count one. At his trial in 2015, he presented a mental state defense. Dr. Ricardo Winkel, a psychologist, testified that Birdsall, who was a special education student since the second grade, had attention deficit hyperactivity disorder (ADHD), an auditory processing deficit that makes it difficult to process or understand things he hears, and deficits in working memory. Also, due to trauma from childhood neglect and abuse, including sexual abuse by a neighbor, he suffered from severe posttraumatic stress disorder. He was severely depressed.
Nicosia was charged with the same offenses and allegations and was tried separately. In his appellate brief, Birdsall states Nicosia was convicted and sentenced to LWOP.
Dr. Winkel testified that a prominent feature of Birdsall's psychology was a tendency to dissociate under stress, i.e., "to disconnect from the situation or from ... feelings [or] thoughts he himself may have." Dr. Winkel opined Birdsall's behavior at the time of and after the crimes was consistent with his being in a dissociated state and in denial. In particular, it was highly probable the stressful situation created when Nicosia insisted they had to go through with the crimes caused Birdsall to dissociate. Frequently, a person who dissociates during a stressful event can later remember what happened. Defense counsel argued to the jury that Birdsall was in a dissociated state at the time of the crime and did not form the required mental states for conviction.
The jury found Birdsall guilty of first degree murder and arson, and found true the alleged special circumstances that the murder was perpetrated by means of lying in wait and during a robbery and a burglary. At sentencing in September 2015, the trial court (Hon. Jon R. Rolefson) sentenced Birdsall to LWOP for the murder conviction, plus a consecutive five-year term for arson.
Birdsall appealed, raising several challenges to his conviction and sentence. ( People v. Birdsall , supra , A146666.) In November 2018, we conditionally reversed the judgment based on the retroactive application of Proposition 57, which requires that a transfer hearing be held in juvenile court prior to the initiation of adult criminal court proceedings against a minor. ( People v. Birdsall , supra , A146666.) We remanded the case to the juvenile court to hold a transfer hearing and determine whether Birdsall's case should proceed in juvenile or adult court. ( Ibid. ) We directed that, if the court found Birdsall unsuitable for juvenile court adjudication, it should reinstate the judgment, subject to the right of the parties to appeal the reinstated judgment. ( Ibid. ) We did not reach Birdsall's other appellate arguments. ( Ibid. )
In January 2020, after conducting a transfer hearing in December 2019, the juvenile court (Hon. Rhonda Burgess) found Birdsall was not suitable for juvenile court adjudication. Pursuant to this court's directive in remanding the case, the juvenile court reinstated the original judgment, subject to the right of the parties to appeal. Birdsall then initiated the present appeal (A159555) challenging his reinstated conviction and sentence.
Birdsall also filed a writ petition (No. A160201) challenging the juvenile court's ruling at the transfer hearing. This court denied that petition in September 2020.
II. DISCUSSION
See footnote *, ante .
C. The Jury Instruction on Felony Murder
Birdsall contends that, in light of recent legislative enactments, the jury instruction given at his trial on "the felony-murder theory of first degree murder" was prejudicially erroneous, requiring reversal of his first degree murder conviction and the accompanying special circumstance findings. He relies on Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which took effect on January 1, 2019, and Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775), effective January 1, 2022. We conclude that, while Birdsall may seek relief under these enactments in this appeal, he is not entitled to relief on this record and there is no basis for reversal.
1. Senate Bill 1437
Senate Bill 1437 " ‘amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § l, subd. (f).)" ( People v. Gentile (2020) 10 Cal.5th 830, 842, 272 Cal.Rptr.3d 814, 477 P.3d 539 ( Gentile ).) As outlined by our Supreme Court in Gentile , Senate Bill 1437 furthered that purpose by adding three provisions to the Penal Code:
"First, to amend the felony-murder rule, Senate Bill 1437 added section 189, subdivision (e) : ‘A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.’ ....
"Second, to amend the natural and probable consequences doctrine, Senate Bill 1437 added section 188, subdivision (a)(3) ...: ‘Except [for felony-murder liability] as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.’
"Third, Senate Bill 1437 added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above." ( Gentile , supra , 10 Cal.5th at pp. 842–843, 272 Cal.Rptr.3d 814, 477 P.3d 539.)
Specifically, as to the third change noted by the Gentile court, under section 1170.95, the convicted person "may file a petition with the court that sentenced the petitioner to have the petitioner's ... conviction vacated and to be resentenced on any remaining counts" when certain conditions apply. ( § 1170.95, subd. (a).)
2. Senate Bill 775
Senate Bill 775 amended section 1170.95 in several respects, including (1) clarifying that, in some circumstances, the same relief available to persons convicted of murder is also available to persons convicted of attempted murder or manslaughter ( § 1170.95, subd. (a) ; Stats. 2021, ch. 551, §§ 1, subd. (a), 2 ) ; and (2) addressing various aspects of the petition procedure, including the petitioner's right to counsel, the standard for determining the existence of a prima facie case, the burden of proof at the hearing to determine whether a petitioner is entitled to relief, and the evidence a court may consider at that hearing ( § 1170.95, subds. (b)–(d) ; Stats. 2021, ch. 551, §§ 1, subds. (b)–(d), 2 ).
In an uncodified statement of purpose, Senate Bill 775 states that it "[c]larifies that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories." (Stats. 2021, ch. 551, § 1, subd. (a).)
Significantly for the present case, Senate Bill 775 amended section 1170.95 to provide that a person with a qualifying conviction that is not final may challenge the validity of that conviction on direct appeal based on Senate Bill 1437's changes to the murder statutes. ( § 1170.95, subd. (g) ; Stats. 2021, ch. 551, § 2.) Section 1170.95, subdivision (g) states: "A person convicted of murder, attempted murder, or manslaughter whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and 189 by Senate Bill 1437 ...." A defendant whose conviction is not final is not required to use the petition procedure set forth in section 1170.95 to seek Senate Bill 1437 relief, but may instead raise the Senate Bill 1437 claim on direct appeal. (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 775 (2021–2022 Reg. Sess.) as amended July 6, 2021, pp. 1–2 ["[T]his bill: [¶] ... [¶] [(1)] (j) [s]tates that a person convicted of murder, attempted murder, or manslaughter, whose conviction is not final, may challenge the validity of that conviction on direct appeal rather than via the petition ." (Italics added.)]; id. at p. 11; accord, People v. Hola (Apr. 11, 2022, C087459) 77 Cal.App.5th 362, –––– & fn. 7, 292 Cal.Rptr.3d 476, 2022 Cal.App.LEXIS 303, *11 & fn. 7 [under Senate Bill 775, defendants whose convictions are not final may raise Senate Bill 1437 claims on direct appeal as an "alternative" to the petition procedure; further stating, "Nothing in the legislation precludes defendants who do not seek relief on appeal from seeking relief via the section 1170.95 petition procedure after the appeal is completed."].)
Our Supreme Court held in Gentile that "[t]he ameliorative provisions of Senate Bill 1437 do not apply on direct appeal to nonfinal convictions obtained before the law became effective. Such convictions may be challenged on Senate Bill 1437 grounds only through a petition filed in the sentencing court under section 1170.95." (Gentile , supra , 10 Cal.5th at pp. 851–852, 272 Cal.Rptr.3d 814, 477 P.3d 539.) By expressly authorizing defendants whose convictions are not final to seek relief under Senate Bill 1437 on direct appeal (§ 1170.95, subd. (g), enacted by Stats. 2021, ch. 551, § 2 ), Senate Bill 775 has abrogated Gentile .
Because Birdsall's murder conviction is not yet final, he may raise his Senate Bill 1437 claim in this appeal. (See People v. Vieira (2005) 35 Cal.4th 264, 305–306, 25 Cal.Rptr.3d 337, 106 P.3d 990 [conviction is not final while appeal is pending].)
3. Background to Birdsall's Senate Bill 1437 Claim: The Trial Court's Instructions on Murder
The trial court instructed the jury on two theories that could have led to a first degree murder conviction: (1) premeditated murder, i.e., a killing with malice aforethought (CALCRIM Nos. 548, 520), elevated to first degree murder by proof that Birdsall "acted willfully, deliberately, and with premeditation" ( CALCRIM No. 521 ), and (2) first degree felony murder, i.e., a killing during a burglary or robbery (CALCRIM Nos. 548, 540A). As to the felony-murder theory, the court gave an instruction ( CALCRIM No. 540A ) permitting conviction if Birdsall , while committing or attempting to commit a burglary or robbery, "caused the death of another person." The court did not give the related pattern instruction permitting conviction if a coparticipant in the underlying felony "caused the death of another person" ( CALCRIM No. 540B ). Birdsall argues his conviction of first degree murder was based on the felony-murder theory, which he contends is defective in light of Senate Bills 1437 and 775.
The court's instruction stated: "The defendant is guilty of murder under the theory of felony murder if the People have proved that: [¶] 1. The defendant committed or attempted to commit burglary or robbery; [¶] 2. The defendant intended to commit burglary or robbery; [¶] AND [¶] 3. While committing or attempting to commit burglary or robbery, the defendant caused the death of another person . [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent. [¶] The defendant must have intended to commit the felony of burglary or robbery before or at the time that he caused the death. [¶] If you find that the defendant is guilty of murder under a theory of felony murder, it is murder in the first degree." (Italics added.)
In addition to instructing on felony murder as a basis for a first degree murder conviction (CALCRIM No. 540A ), the court instructed on the felony-murder special circumstance (CALCRIM No. 730 ). That instruction, too, required the jury to find "[t]he defendant did an act that caused the death of another person." (Italics added.) Birdsall does not challenge the correctness of the court's instruction on the felony-murder special circumstance.
4. Birdsall Is Not Entitled to Relief
As noted, Birdsall contends the instruction given at his trial on "the felony-murder theory of first degree murder" (based on CALCRIM No. 540A ) was prejudicially erroneous. Specifically, he argues the instruction was defective because it "omi[tted]" "essential elements" that now (under Senate Bill 1437) must be proven to establish felony murder liability, i.e., that he was the actual killer; or, with the intent to kill, he aided in the commission of first degree murder; or, as a major participant in the underlying burglary and/or robbery, he acted with reckless indifference to human life. ( §§ 188, subd. (a)(3), 189, subd. (e)(1)–(3) ; see People v. Merritt (2017) 2 Cal.5th 819, 824, 216 Cal.Rptr.3d 265, 392 P.3d 421 ( Merritt ) [failure to instruct on some of the elements of a charged crime is constitutional error].) The Attorney General partially accepts this premise, stating, "[w]e agree with [Birdsall] that under his assertions, the new statutes [i.e., Senate Bills 1437 and 775] essentially insert ‘omitted element’ error into this record," although the Attorney General argues the error was harmless. We agree any error was harmless.
a. The Framework for Determining Whether There Was Error and, If So, Whether the Error Was Prejudicial
When a trial court instructs on a theory of guilt that "is legally erroneous at the time it was given," a reviewing court "normally assess[es] whether the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. [Citation.] We ‘must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[ ] the error was harmless beyond a reasonable doubt.’ " ( Gentile , supra , 10 Cal.5th at p. 851, 272 Cal.Rptr.3d 814, 477 P.3d 539.) The Chapman standard applies both to "alternative-theory error" (i.e., instruction on multiple theories of guilt, one of which is legally erroneous) and to other errors involving the omission or misdescription of elements of a charged offense. ( People v. Aledamat (2019) 8 Cal.5th 1, 3, 9, 251 Cal.Rptr.3d 371, 447 P.3d 277 ( Aledamat ).)
Birdsall briefly suggests that a different or higher standard applies in the context of alternative-theory error, and that reversal is required here unless this court can determine beyond a reasonable doubt that the jury based its verdict on the legally valid theory of malice-premeditation, rather than the allegedly invalid felony-murder theory. Our Supreme Court rejected this view in Aledamat , holding "that no higher standard of review applies to alternative-theory error than applies to other misdescriptions of the elements." (Aledamat , supra , 8 Cal.5th at p. 9, 251 Cal.Rptr.3d 371, 447 P.3d 277 ; id. at p. 13, 251 Cal.Rptr.3d 371, 447 P.3d 277 ["An examination of the actual verdict may be sufficient to demonstrate harmlessness, but it is not necessary."].)
Here, of course, Birdsall does not contend the felony-murder instruction given at his 2015 trial was legally erroneous "at the time it was given." ( Gentile , supra , 10 Cal.5th at p. 851, 272 Cal.Rptr.3d 814, 477 P.3d 539.) He argues the instruction is erroneous in light of Senate Bill 1437's changes to the law of murder (specifically, §§ 188 and 189 ), which took effect on January 1, 2019. As noted, prior to the enactment of Senate Bill 775, such claims could only be presented by filing a section 1170.95 petition in the sentencing court. ( Gentile , supra , 10 Cal.5th at pp. 851–852, 272 Cal.Rptr.3d 814, 477 P.3d 539.) But now, pursuant to Senate Bill 775, a person in Birdsall's situation (i.e., a person whose murder conviction is not final) may contend on direct appeal that the conviction is invalid based on Senate Bill 1437's changes to the law of murder. ( § 1170.95, subd. (g), as amended by Stats. 2021, ch. 551, § 2.)
We agree with the parties that, in light of Senate Bill 775, an appropriate method for analyzing Birdsall's claim in this direct appeal is to include Senate Bill 1437's changes to the law of murder as part of the body of law against which the correctness of the trial court's felony-murder instruction is measured. If the instruction omitted or misdescribed the elements that now must be proven to establish felony murder as a basis for a first degree murder conviction, we will treat the instruction as having been "legally erroneous at the time it was given" ( Gentile , supra , 10 Cal.5th at p. 851, 272 Cal.Rptr.3d 814, 477 P.3d 539 ), and we will proceed to "assess whether the error was harmless beyond a reasonable doubt" under Chapman . ( Gentile , supra , at p. 851, 272 Cal.Rptr.3d 814, 477 P.3d 539 ; Aledamat , supra , 8 Cal.5th at p. 9, 251 Cal.Rptr.3d 371, 447 P.3d 277 ; see People v. Hola , supra , 77 Cal.App.5th at p. –––– & fn. 14, 292 Cal.Rptr.3d 476, 2022 Cal.App.LEXIS 303, at p. *22 & fn. 14 [reversal may be warranted "when there is a change in the law during an appeal that invalidates a previously valid legal theory relied upon by prosecution," but "[r]eversal would not be warranted where the error is harmless beyond a reasonable doubt"].)
See People v. Chun (2009) 45 Cal.4th 1172, 1201, footnote 8, 91 Cal.Rptr.3d 106, 203 P.3d 425 ("When we say the trial court erred, we mean, of course, only in light of our reconsideration of past precedents. As of the time of trial, ..., ample authority supported the trial court's decision to instruct on felony murder.").
b. The Alleged Error
As to the alleged error here, Birdsall contends the court's instruction was defective because it did not state the rule in section 189, subdivision (e) (added by Senate Bill 1437) that a participant in an enumerated felony in which a death occurs is liable for murder "only if one of the following is proven": (1) "[he] was the actual killer," (2) "[he] was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree," or (3) "[he] was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." ( § 189, subd. (e), italics added.)
We note initially that the statute sets forth three alternative bases for imposing felony murder liability, only some of which might be appropriately included in an instruction in a given case, depending on the evidence presented and the theories pursued by the prosecution. ( § 189, subd. (e) ["one of the following" must be proven]; see CALCRIM Nos. 540A, 540B [allowing presentation of fewer than all theories of liability].) To the extent Birdsall suggests that all three of these separate grounds for conviction are "essential elements" that must be included in a felony-murder instruction, we disagree. But he is correct that the felony-murder instruction given at his trial ( CALCRIM No. 540A ) did not present, in the current language of the statute, any of the three grounds that can now form the basis for a felony-murder conviction.
CALCRIM No. 540A as given by the court did state that, to convict Birdsall of felony murder, the jury had to find that, "[w]hile committing or attempting to commit burglary or robbery, the defendant caused the death of another person ." (Italics added.) We need not address the parties’ arguments (which they present indirectly as part of their discussion of prejudice) about whether this or similar language sufficiently conveys the current rule that a defendant may be guilty of felony murder if he is "the actual killer." ( § 189, subd. (e)(1) ; see People v. Garcia (2020) 46 Cal.App.5th 123, 149, 155, 259 Cal.Rptr.3d 600 [prosecutor argued felony-murder special circumstance should apply to defendant as an "actual killer" if he handed a roll of duct tape to a coperpetrator; appellate court held the instruction on the special circumstance ( CALCRIM No. 730 ) should have required that "the prosecution prove[ ] beyond a reasonable doubt that [the defendant] ‘personally killed ’ [the victim]," rather than requiring "only that the prosecution ... prove that [the defendant] ‘did an act that caused the death of another person,’ " italics added] ( Garcia ).) Even assuming the challenged instruction did not sufficiently convey this rule (or the other alternative bases for imposing felony murder liability under current law), we conclude below that the error was harmless beyond a reasonable doubt.
As noted, the court did not instruct on the alternative theory that a coparticipant in the underlying felony caused the victim's death (CALCRIM No. 540B ). That instruction has since been modified to describe the grounds for felony-murder liability for nonkillers, i.e., that the defendant acted with the intent to kill and aided the commission of first degree murder, or was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e)(2)–(3) ; see CALCRIM No. 540B, as revised Apr. 2020 and Sept. 2020; see also CALCRIM No. 540C, as revised Apr. 2020 [felony murder where victim's death resulted from "other acts"].)
We note the current versions of CALCRIM Nos. 540A (felony murder as a basis for a first degree murder conviction) and 730 (felony-murder special circumstance), like the versions of these instructions that were given at Birdsall's trial, include as an element that the defendant "caused," or "did an act that caused," "the death of another person." (CALCRIM No. 540A, as revised Sept. 2019; CALCRIM No. 730, as revised Mar. 2021.)
c. Prejudice
As noted, applying the Chapman standard to the alleged instructional error here, we "must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[ ] the error was harmless beyond a reasonable doubt." ( Aledamat , supra , 8 Cal.5th at p. 13, 251 Cal.Rptr.3d 371, 447 P.3d 277.) In Merritt , our Supreme Court applied the Chapman standard where the trial court failed to instruct on several elements of the charged crime of robbery. ( Merritt , supra , 2 Cal.5th at pp. 822, 824–825, 831–832, 216 Cal.Rptr.3d 265, 392 P.3d 421 ; see Aledamat , supra , at p. 9, 251 Cal.Rptr.3d 371, 447 P.3d 277.) The Merritt court found the instructional error harmless based on several circumstances, including that defense counsel conceded the two charged robberies occurred (contesting only the defendant's identity as the perpetrator); there was overwhelming evidence the robberies occurred; and the jury was properly instructed on, and resolved, several key issues, including the defendant's identity as the perpetrator, and that he acted with the required mental state for robbery and used a firearm during the offense. ( Merritt , supra , 2 Cal.5th at pp. 831–832, 216 Cal.Rptr.3d 265, 392 P.3d 421.)
Similarly, here, we conclude the alleged instructional error was harmless. As discussed, under current law, a proper ground for a conviction of felony murder is that Birdsall "was the actual killer." ( § 189, subd. (e)(1).) It is clear beyond a reasonable doubt that a rational jury would have adopted this theory, and thus would have found Birdsall guilty of felony murder, even absent the purported error. ( Merritt , supra , 2 Cal.5th at pp. 827, 831, 216 Cal.Rptr.3d 265, 392 P.3d 421.) Birdsall's trial counsel stated at the outset of her closing argument that she was "not contesting that Ms. Latiolais was killed, the manner in which she was killed, what happened." Counsel stated she was "only here to talk to you about why it happened, and what was going on in Christian Birdsall's mind"; as noted, counsel argued Birdsall was in a dissociated state and did not form the required mental states for conviction. Counsel's decision not to contest the prosecution's account of how Latiolais was killed was virtually compelled by the overwhelming evidence on that point in the form of Birdsall's confession, in which he described in detail how he and Nicosia assaulted and strangled Latiolais.
In his supplemental brief on the Senate Bill 1437 issue, Birdsall reiterates his argument that his confession should have been suppressed, and he suggests the confession therefore should not be considered in assessing whether the alleged instructional error was prejudicial. We have concluded in part II.A., ante , that the confession was properly admitted.
" ‘[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.’ " ( Merritt , supra , 2 Cal.5th at p. 832, 216 Cal.Rptr.3d 265, 392 P.3d 421, quoting Neder v. United States (1999) 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35.) In light of the overwhelming and uncontested evidence as to how Latiolais was killed (by an attack in which Birdsall and Nicosia used chokeholds and then jointly strangled her to death with a rope), we are persuaded beyond a reasonable doubt that a rational jury instructed under current law would have found Birdsall was "the actual killer" ( § 189, subd. (e)(1) ), because he and Nicosia " ‘personally killed’ " Latiolais. ( Garcia , supra , 46 Cal.App.5th at pp. 151–152, 259 Cal.Rptr.3d 600.)
Because the jury would have found Birdsall guilty of felony murder as an actual killer, we need not consider the parties’ arguments as to whether the jury also would have found him guilty on one of the alternative grounds permitted under current law (i.e., as a direct aider and abettor of first degree murder who had the intent to kill, or as a major participant in the underlying felony who acted with reckless indifference to human life). (§ 189, subd. (e)(2)–(3).) We also need not address the parties’ arguments as to whether the alleged error was harmless on other grounds.
Birdsall asserts in a footnote that the evidence here "does not necessarily establish that Birdsall, as opposed to [Nicosia], killed Latiolais." We are not persuaded by this undeveloped argument. As discussed, based on Birdsall's own uncontested account of the murder, we conclude beyond a reasonable doubt that a rational jury would have found Birdsall (along with Nicosia) personally killed Latiolais. (See Garcia , supra , 46 Cal.App.5th at p. 150, 259 Cal.Rptr.3d 600 ["under the facts of this case, only the person (or people) who placed the duct tape on [the victim's] mouth were actual killers" (italics added) under the special circumstance statute, § 190.2 ].) Also of significance here, the court correctly instructed on the remaining elements of felony murder. The court instructed that, to find Birdsall guilty of first degree murder on a felony-murder theory, the jury had to find (1) he "committed or attempted to commit burglary or robbery," (2) he "intended to commit burglary or robbery," and (3) "[w]hile committing or attempting to commit burglary or robbery, [Birdsall] caused the death of another person." The court also instructed on the elements of burglary and robbery and on attempt. To adopt the felony-murder theory of first degree murder, the jury would have had to find these elements to be true. (See Merritt , supra , 2 Cal.5th at p. 832, 216 Cal.Rptr.3d 265, 392 P.3d 421 [proper instructions and findings on contested elements supported conclusion that omission of other elements was harmless].)
In his supplemental appellate brief, Birdsall emphasizes that, at trial, his mental state (including whether he acted with malice) was a contested issue. But that does not affect our conclusion the jury would have found Birdsall liable as an actual killer under current law. Under sections 188 and 189 as amended, if a death occurs during a burglary or a robbery, an actual killer is guilty of first degree felony murder without the need to prove he acted with express or implied malice. ( §§ 188, subd. (a)(3) ["Except as stated in [ § 189, subd. (e) ]," malice is now required for a murder conviction], 189, subd. (e)(1) [actual killer is liable if death occurs during specified felony].)
We also note that, as to the mental state element that the prosecution did have to prove, i.e., that Birdsall intended to commit burglary or robbery, the court instructed on that point, and the jury found it to be true, as reflected in the true findings on the felony-murder special circumstances. It is clear the jury rejected the defense view that, due to dissociation, Birdsall did not form those mental states.
In addition, although it is not necessary to our conclusion as to prejudice, the Attorney General correctly notes the jury's true finding on the lying-in-wait special circumstance establishes the jury found Birdsall acted with the intent to kill. The instruction on the lying-in-wait special circumstance (CALCRIM No. 728 ) required the jury to find Birdsall "intentionally killed" Latiolais and that he "intended to kill [Latiolais] by taking [her] by surprise."
See footnote *, ante .
III. DISPOSITION The judgment is affirmed.
WE CONCUR:
BROWN, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.