Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUK-CRCR-05-68281
NEEDHAM, J.
Caleb James Flitcroft (Flitcroft) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of second-degree murder of one victim and attempted voluntary manslaughter of another victim. He contends: (1) the verdict of attempted voluntary manslaughter as to one victim precluded a verdict of murder as to his other victim under a theory of transferred intent; (2) the court erred in responding to the jury’s inquiry during deliberations; (3) there was insufficient evidence of malice to support the murder conviction; and (4) a sentence enhancement must be stricken if the murder conviction is reversed. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An information charged Flitcroft with the murder of his girlfriend, Brittany Syfert (Pen. Code, § 187), and the attempted murder of Rudy Flores (§ 187, 189, 664). As to each count, the information alleged an enhancement for the personal and intentional discharge of a firearm. (§ 12022.53, subd. (c), (d).) After a preliminary hearing, the matter proceeded to trial.
Unless otherwise indicated, all statutory references are to the Penal Code.
A. Trial Evidence
Flitcroft lived with his girlfriend Brittany Syfert in a house in Ukiah. Brittany’s mother, Kimberly Bateman, and Brittany’s step-mother, Mercedes Syfert, organized a birthday party for Brittany, which took place at the Ukiah house on the evening of November 12, 2005. A number of Brittany’s friends and relatives attended, including Brittany’s father, John Syfert. Also in attendance were Brittany’s co-worker Gloria Gutierrez, Gloria’s boyfriend Jesse Connolly, Gloria’s cousin Rudy Flores, and a friend named Skylar. Many of the guests, as well as Flitcroft, consumed alcohol.
Because some of these individuals have the same last names, we refer to all of them except appellant by their first names, for purposes of clarity and without disrespect.
Jesse, Rudy and Skylar talked with Brittany and other girls at the party. While everyone else was having a good time, Flitcroft was becoming visibly jealous and upset. At one point when he approached Brittany, she told him to “hold on” because she was “hanging out with the company.” He became more agitated and “pouty” and “sulky” toward the three men. After lighting the sparklers on Brittany’s birthday cake, Flitcroft threw his lighter across the kitchen.
Gloria, along with Jesse, Rudy, and Skylar, eventually said goodbye to Brittany and left the house. As they walked through the front yard and up the driveway, Flitcroft followed them. When they reached the road, Flitcroft made a comment, grabbed Rudy, and, according to some witnesses, swung at him. Skylar promptly punched Flitcroft. Jesse also punched Flitcroft in the face about ten times, with Flitcroft punching him back, until Flitcroft finally let go of Rudy and fell to the ground. Within less than a minute or even a matter of seconds, several people from the party intervened. John finally stopped the fight by pinning Jesse on the ground.
Flitcroft had sustained a bloody nose, and Mercedes wiped his face with a towel and suggested they “go clean [him] up.” Flitcroft told Mercedes he “had had it.” After Mercedes called out, “Brittany, Brittany... Caleb’s been hurt,” Flitcroft purportedly responded: “That’s who I’ve had it with; I’m through with her.” Flitcroft went quickly into the house.
On this point, Mercedes testified as follows: “Q. What did [Caleb] say? [¶] A. He said he had had it. [¶] Q. Okay. So what did you do then? [¶] A. I keep on telling him, ‘Let’s just’ – ‘Let’s” – ‘Let’s just go clean you up.’ [¶] Q. Okay. What happens next? [¶] A. I look over – I look over my shoulder and I seen Brittany, our daughter. She was standing like back here, and she was like hysterical because her dad had one of the other guys pinned on the ground. [¶] Q. So what do you do? [¶] A. I said, ‘Brittany, Brittany,’ you know, ‘Caleb’s been hurt.’ [¶] And then Caleb answered me: ‘That’s who I’ve had it with; I’m through with her.’ [¶] Q. You’re sure of that? [¶] A. Yes. I’m positive.” Later in her testimony, she gave this account: “Q. And as far as things you’re sure of and things you’re not so sure of, this statement by Caleb, ‘That’s’ – ‘That’s who I’m through with’? Or -- [¶] A. Yeah. He said he had had it. And then, after I called Brittany over, he said: ‘That’s who I’ve had it with; I’m through with her.’ [¶] Q. You’re sure of that? [¶] A. I’m positive. I can put my hand on the Bible and say it.”
The outdoor area was illuminated by lights “all over,” enough for one of the guests to know it was Flitcroft who ran by and entered the house. Flitcroft went to his bedroom and retrieved a handgun (a nine millimeter semi-automatic), which contained ten bullets in the clip.
Flitcroft walked quickly out of the house with the gun “like he was on a mission.” Within about 10 feet of Brittany and Rudy, who were standing approximately a foot apart in the driveway, Flitcroft stopped. Rudy was facing towards the house and was wearing a white t-shirt and white cap; Brittany was closer to the house, had her back turned, but was visible because of her light-colored jacket that glowed in the moonlight. Someone yelled, “He [Flitcroft] has a gun.”
Flitcroft raised his gun, aimed, and fired a number of shots in the direction of Rudy and Brittany. Rudy believed Flitcroft was aiming at him, but he also noted that Brittany was standing only about a foot away, and there was nothing between them and Flitcroft. Five shots hit Brittany, in her back, chest, and arm. One bullet grazed Rudy’s right side. Flitcroft took a few more steps and, according to some observers, fired off additional rounds at others.
Kimberly ran up to Flitcroft and put a chokehold on him from behind. Flitcroft tried to turn the gun on her, but John pulled the gun from Flitcroft’s hand. Kimberly assured her daughter, “It’s gonna be okay; Mommy’s here for you; be strong.” Then she punched Flitcroft in the face, knocking him down. Others jumped on Flitcroft and “kick[ed] the shit out of him”: Jesse punched him a few times, Rudy punched and kicked him in the face, and when Flitcroft grabbed Rudy and would not let go, Brittany’s cousin Chad kicked Flitcroft twice.
Flitcroft eventually ran to his truck and fled the scene. A call to 911 provided the dispatcher with a description of Flitcroft’s truck and its direction of travel.
Brittany was taken to a hospital, where she died.
Officers apprehended Flitcroft and took him to the hospital and, later that night, to the sheriff’s station. Flitcroft gave two videotaped statements, in which he admitted the shooting.
Apparently referring to Rudy, Jesse, and Skylar, Flitcroft explained to the police that “macho punk ass bitches” at the party had been trying to “hit on” Brittany and the other girls. Upset because they made derogatory comments about her, he “might have” said something snide to them and grabbed one of them as they were leaving. The three guys then beat him up, making him more angry. He “snapped,” went to the house, and got his gun from his bedroom. He was “pissed off,” livid, and “so red with fucking anger.” He came out of the house, saw one of the guys who jumped him – the one in white (Rudy) – and started shooting from about 10 or 20 feet away. After he fired the shots, he was wrestled to the ground and someone told him he had shot Brittany. He looked for her but, unable to find her, took off in his truck. Flitcroft told the police he only wanted to scare his attackers, and he denied seeing Brittany when he fired the gun.
Flitcroft initially told police that he had fired his gun into the ground. Eventually, he admitted that he had aimed at Rudy. He told the officers: “Look I shot at that individual, the one individual with the white tee shirt. The other two were close by somewhere. I don’t know where. I don’t fucking remember. I never meant to shoot fucking Brittany. I never fucking meant to kill anybody. I don’t know what I was thinking. I was acting irrational pretty much is how it fucking goes down and I had no fucking real thought process on it.” Later in the interview, Flitcroft confirmed he was shooting at Rudy: “Q. What guy were you shooting at? [¶] A. Some guy in a white tee shirt.” [¶]... [¶] ”Yeah. I was shooting towards one individual, but that’s all I fucking remember.” He again admitted that he saw Rudy and shot at him: “Q. Okay. Well, what makes you think that you shot that guy [in the white tee shirt], though? [¶] A. Because I was aiming towards him. [¶] Q. Okay. You were aiming towards him. [¶] A. But not, you know, it wasn’t like -- [¶] Q. Did you see (inaudible) Brittney laying -- [¶] A. – (inaudible) fucking steady dead aim. I was just shooting at him. You know? [¶]... [¶] “Q. Well, you – you think you shot him and I want to know why – why you feel that way. [¶] A. Because that’s the person I was looking at when I came up out of the fucking driveway. I was walking up, that’s the first person I fucking saw and so that’s what I was looking at. [¶] Q. That was the guy you pointed the gun at and tried to shoot? [¶] A. Yeah. [¶] Q. Did you ever see Gloria or Brittney around there? [¶] A. No. Never saw them. I saw a white tee shirt.” Later in the interview he told the police: “Alls I remember is getting up off the ground because I was on the ground and heading straight to the house, right straight to go get my firearm. I came out, looked for the first individual of that trio that I saw. [¶]... [¶] And proceeded to fire at him.”
Flitcroft had a blood alcohol level of 0.12 about three hours after the shooting. As explained by Matthew Kirsten of the Department of Justice laboratory in Eureka, Flitcroft’s blood alcohol level could have been as high as a 0.17 or 0.18 at the time of the shooting.
A few days later, officers took Flitcroft to his house. They videotaped Flitcroft while he described and reenacted the shooting.
B. Jury Instructions and Closing Argument
The jury was instructed on first degree and second degree murder, voluntary manslaughter, express and implied malice, provocation and self-defense, and attempted murder and attempted manslaughter, in accordance with the pattern jury instructions. (CALCRIM Nos. 520, 521, 522, 571, 600, 601, 603, 604.) The jury was also instructed on the theory of transferred intent. (CALCRIM No. 562.)
The court instructed: “If the defendant intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person has been killed.”
In closing argument, the prosecutor urged the jury to find Flitcroft guilty of first degree murder of Brittany and attempted premeditated murder of Rudy under either of two theories: (1) that he intended to kill Brittany and intended to kill Rudy; or (2) under a theory of transferred intent, that he intended to kill Rudy, with this intent also serving as the intent with which he shot the rounds that killed Brittany.
The prosecutor made these two alternative theories clear: “I would put to you that there are two ways you can reach that conclusion of murder regarding Brittany, and either way you go, it does not matter.” (Italics added.) She started with the theory that Flitcroft harbored an intent to kill both Brittany and Rudy: “ So the first way you can go is that you can believe, based on the evidence presented to you over the last few days, that [Flitcroft] intended to kill Brittany.... [¶] So if you find that he shot her three times in the body, square in the chest, twice in the back, that he meant to kill Brittany, then you can return a guilty verdict for murder of Brittany.” (Italics added.) In this regard, the prosecutor explained how the evidence demonstrated implied malice, which would satisfy the element of malice necessary for a murder conviction.
The prosecutor also argued her second theory, based on transferred intent: “The second theory that you could find first degree murder on in this case with Brittany is called transferred intent.” (Italics added.) The prosecutor explained the court’s instruction in this regard, without objection.
In the defense’s closing argument, counsel asserted that the shooting was not premeditated and was instead a result of provocation or alcohol impairment. Counsel additionally argued that the case was about manslaughter, not murder, because Flitcroft acted in the heat of passion or imperfect self-defense. Referring to the prosecutor’s discussion of transferred intent, defense counsel simply said, “I don’t think I need to talk to you about that.”
On rebuttal, the prosecutor responded to defense counsel’s arguments, urging in part that Flitcroft acted with “careful consideration.” The prosecutor also told the jury: “The bottom line, ladies and gentlemen, is it’s not an accidental shooting. It’s not an accidental shooting. It’s [] very intentional, considered, premeditated. It was – it was a goal-oriented shooting. That’s what it was. It may not have been intended to hit Brittany, but the bottom line is that this is – was [] goal-oriented.” The prosecutor concluded her rebuttal argument by saying: “So, again, I’m not here to say he meant or didn’t mean to kill Brittany, but what I am here to say is that it’s very clear that he absolutely intended to kill Rudy and planned it and sought it out and did the very best he could to accomplish that. And that’s why it’s first-degree murder, and attempted first-degree murder in this case.” (Italics added.)
During its deliberations, the jury sent the following query to the court: “We would like clarification whether or not defendant could be guilty of attempted voluntary manslaughter in Count 2 and murder in second degree in Count 1.” Over defense objection, the trial court responded: “Depending on what theory of the case the jury relies on, the result suggested by your question in this case is possible.”
C. Jury Verdict, New Trial Motion, and Sentence
The next day, the jury found Flitcroft guilty of second degree murder of Brittany and attempted voluntary manslaughter of Rudy. It also found both firearm enhancements true.
Flitcroft moved for a reduction in the verdict on count one from murder to manslaughter, on the ground he could not be guilty of the murder of Brittany under a theory of transferred intent since the jury found that he committed only attempted voluntary manslaughter as to Rudy. Rebuffing the assumption that the verdict was based on a transferred intent theory, the prosecutor responded that the jury’s verdict on count one could stand as long as there was substantial evidence in support of the prosecutor’s theory that Flitcroft harbored an independent intent to kill Brittany. The court agreed, found the evidence sufficient, and denied the motion.
Flitcroft was sentenced to an aggregate term of 40 years to life, comprised of the maximum term of 40 years to life on the count one murder of Brittany (15 years to life plus a consecutive 25 years to life for the firearm enhancement) and a concurrent three-year term on the count two attempted voluntary manslaughter of Rudy (18 months plus a consecutive 18 months for the enhancement).
This appeal followed.
II. DISCUSSION
As mentioned, Flitcroft contends: (1) the verdict of attempted voluntary manslaughter as to Rudy precludes a verdict of murder as to Brittany under a theory of transferred intent; (2) the court erred in responding to the jury’s inquiry during deliberations; (3) there was insufficient evidence of intent to commit murder to support the second-degree murder conviction; and (4) a sentence enhancement applied to count one must be stricken if count one is reversed. We need not address the latter issue, because we conclude count one should not be reversed. Each of the other issues we address, but under different headings and in a different order.
A. The Prosecutor’s Direct Intent Theory Supported The Verdict
One of the prosecutor’s stated theories was that Flitcroft was guilty of murder as to Brittany, and attempted murder as to Rudy, because he intended to kill Brittany and also intended to kill Rudy. The jury’s eventual verdict – second degree murder as to Brittany and attempted voluntary manslaughter as to Rudy – is consistent with the theory that Flitcroft harbored separate intents to kill Brittany and Rudy, and is supported by the evidence.
1. Murder of Brittany Based on Flitcroft’s Direct Intent to Kill Brittany
Although acknowledging the prosecutor proffered two theories of guilt, Flitcroft maintains “[t]he only viable theory of appellant’s liability with respect to the death of Brittany was that of transferred intent,” because the evidence was insufficient to show he harbored towards Brittany the malice required for murder. (Italics added.) He is incorrect.
Multiple eyewitnesses testified without contradiction – and Flitcroft himself admitted as much to the police – that Flitcroft emerged quickly from his house, stopped about 10 feet from where Rudy and Brittany were standing, aimed his loaded gun in that direction, and fired several shots.
Respondent insists that this evidence, combined with other evidence at trial, was sufficient to prove that Flitcroft harbored express malice towards Brittany. Respondent refers to testimony that Flitcroft’s relationship with Brittany had become more tense than usual by the time of the party, he became upset when Rudy and others were flirting with Brittany, Brittany rebuffed Flitcroft when she told him, “Hold on, I’m hanging out with company,” and he became visibly anxious and jealous, throwing his lighter across the kitchen. After he made a snide remark to Rudy’s group and they beat him up, he was undisputedly angry. This anger, respondent urges, could have been directed toward Brittany (who displayed a preference for “hanging out” with the guys who were flirting with her) as well as Rudy (who flirted with her and had struck Flitcroft) when Flitcroft got his loaded gun, pointed it in their direction, and repeatedly fired. In fact, Mercedes testified that before Flitcroft went into the house and retrieved his gun, he said he was “through with her,” referring to Brittany. Although Flitcroft claimed he did not see Brittany when he repeatedly fired his gun, the area was sufficiently illuminated for him to recognize Rudy and for others to recognize him, Brittany was only about a foot from Rudy in a light-colored jacket that was “light enough that the moon grabbed it and made it glow,” and Flitcroft was only about 10 feet away with no obstacles between them. The fact that Brittany was struck and killed with five bullets, while Rudy was only grazed by one bullet, suggests to respondent that Flitcroft was aiming at Brittany.
The trial court shared these perspectives at a post-trial hearing. At one point, the court observed: “It’s difficult for me to accept the proposition that he couldn’t see who he was shooting at.” The court also stated: “I just wonder if [Flitcroft] was after [Rudy] so much. This guy dived for the ground and he was only 10 feet away. Why didn’t he walk up and finish him off?” Defense counsel responded, “I don’t know.”
Flitcroft counters that it is unreasonable to conclude he harbored an actual intent to kill Brittany merely because the guys who flirted with her beat him up. He suggests other evidence, alternative inferences from the evidence, and the lack of credibility of certain testimony from prosecution witnesses makes it unlikely the prosecution proved express intent. He also points out that he displayed anguish that Brittany was dead and denied having any ill will toward her.
For example, Flitcroft argues, Mercedes’ testimony that Flitcroft said he was “through with her,” purportedly referring to Brittany, was not credible because she did not tell the police about it when she first spoke with them. At trial, however, Mercedes explained that she was upset when she first spoke with the police and had not yet made the connection between his statement and the shooting. Furthermore, Mercedes testified that she did mention the statement in a report she gave to the district attorney’s office on the night of the shooting, and Lieutenant Miller told Flitcroft on the night of the shooting that someone had said he made that statement. Flitcroft denied making such a statement about Brittany, claiming he was referring to a guy.
Flitcroft’s argument lacks merit, because it is not our role in this appeal to reweigh the evidence. To the contrary, we consider the evidence in the light most favorable to the judgment and determine whether the evidence was sufficient for a reasonable jury to reach the verdict. (People v. Lee (1999) 20 Cal.4th 47, 58.) Substantial evidence supports a finding of express malice to support the murder conviction.
Moreover, even if there had not been sufficient evidence of express malice, there was overwhelming evidence of implied malice.
As the jury was instructed, implied malice requires proof that the defendant (1) intentionally committed an act, (2) the natural consequences of which were dangerous to human life, (3) knowing at the time that his act was dangerous to human life, and (4) deliberately acting with conscious disregard for human life. (People v. Taylor (2004) 32 Cal.4th 863, 867; CALCRIM No. 520.) Implied malice does not require hatred or ill will toward the victim. In fact, it may exist if the perpetrator is unaware of the identity of a victim or even her existence. (Taylor, at p. 868; People v. Scott (1996) 14 Cal.4th 544, 555 (conc. opn. of Mosk, J.); People v. Albright (1985) 173 Cal.App.3d 883, 887.) As our Supreme Court has explained: “When a defendant commits an act, the natural consequences of which are dangerous to human life, with a conscious disregard for life in general, he acts with implied malice towards those he ends up killing. There is no requirement the defendant specifically know of the existence of each victim.” (Taylor, at p. 868.)
Here, Flitcroft admitted that he intentionally, repeatedly, and angrily shot his gun toward Rudy. Substantial evidence supports the conclusion that he knew Brittany – or someone – was standing a foot away from Rudy when he fired his gun. But even if he did not notice the person standing next to Rudy, he knew there were other party guests in the vicinity when he fired his gun multiple times. Under the circumstances, the natural consequences of Flitcroft’s acts were dangerous to human life, and he displayed a conscious disregard for life in perpetrating them. There was ample proof of implied malice to support the murder conviction.
In the final analysis, the jury could have reasonably determined, consistent with the evidence, the law, and the trial court’s instructions, that Flitcroft harbored malice when he fired the shots that killed Brittany.
2. Attempted Voluntary Manslaughter Verdict as to Rudy (Count 2)
The prosecution’s theory of separate intents as to the two victims also supports the jury’s verdict on count two. Flitcroft admitted to police that, when he shot the round that hit Rudy, he was angry at Rudy and was aiming at him. Assuming the jury accepted defense counsel’s arguments with respect to provocation and heat of passion, or imperfect self-defense, the jury could have returned a verdict of attempted voluntary manslaughter on count two.
In sum, the jury’s verdict is consistent with, and supported by, the prosecutor’s separate intent theory.
C. Transferred Intent Theory
The prosecutor’s second murder theory was that, even if Flitcroft did not intend to shoot or kill Brittany, he shot the gun with malice toward his intended target, Rudy, and this intent may be deemed to be the intent with which he shot his unintended victim. On this basis, she argued, Flitcroft should be found guilty of murder in regard to Brittany and attempted murder as to Rudy. As of the time of closing argument and the instruction of the jury before deliberations, there was no error in permitting the jury to consider these alternative theories: defense counsel did not object at trial, and Flitcroft does not assert error on this particular ground now. (See People v. Scott, supra, 14 Cal.4th at p. 550 [transferred intent theory applies where defendant shot at intended victim and killed someone else].)
The problem, in Flitcroft’s view, is not that the jury should never have heard about the transferred intent theory at all, but that the verdict the jury eventually reached cannot be supported by the theory of transferred intent. On this narrow point, respondent agrees, and Flitcroft is correct.
Under a transferred intent theory, whatever the defendant’s mens rea is found to be with respect to the intended victim, it usually can be used as the mens rea with respect to the unintended victim. (People v. Bland (2002) 28 Cal.4th 313, 319-333.) Similarly, under a transferred intent theory, defenses that negate a defendant’s mental state with regard to the intentional killing or attempted killing will transfer to the unintended victim. (People v. Mathews (1979) 91 Cal.App.3d 1018, 1023-1024 [whether self-defense justifies killing of unintended victim depends on whether it would have justified the killing of the intended victim].) In reducing count two from attempted murder to attempted manslaughter, the jury necessarily found that the shooting of Rudy was done in the heat of passion in response to provocation, or in imperfect self-defense. As a legal matter, either of these defenses negates malice, and this mens rea, transferred to Flitcroft’s act of shooting Brittany, would preclude a conviction for the malice murder of Brittany.
We therefore have a situation in which the jury could have reached its verdict on a direct intent theory that was supported by the law and the evidence, but it could not have lawfully reached its verdict under a transferred intent theory. Rather than accepting the logical inference – that the jury followed the law and reached its verdict under the separate intent theory – Flitcroft argues that the verdict compels reversal. As we shall explain, his argument is meritless. Neither the prosecutor, the court, nor the jury instructions ever suggested to the jury that it could reach a verdict of second degree murder and attempted voluntary manslaughter based on a transferred intent theory, and there is no reason to suspect that it did.
Where a prosecutor offers a jury two theories of guilt, and the jury reaches a verdict legally permissible under only one of those theories, whether the verdict must be reversed depends in part on whether there was some error that could have led the jury to rely on the inadequate theory in reaching its particular verdict. If there was such error, we usually must reverse unless we can determine that the jury did not, in fact, rely on the inadequate theory in reaching its verdict (and there is no other basis for finding the error harmless). If there was no such error, and it is simply that the facts as found by the jury do not support the verdict under one of the prosecutor’s legal theories, we must affirm unless we can determine that the jury did, in fact, rely on the inadequate theory in reaching its verdict. (See People v. Guiton (1993) 4 Cal.4th 1116, 1125-1130.)
As mentioned, no error is claimed or apparent in the presentation of the transferred intent theory to the jury initially. At no time did the court instruct the jury that it could find Flitcroft guilty of the attempted voluntary manslaughter of Rudy and, under a transferred intent theory, find him guilty of second degree murder of Brittany. Nor did the prosecutor ever make that argument. Flitcroft’s only claim of error is that the jury was misled by the court’s response to their inquiry during deliberations. To that issue we now turn.
D. The Trial Court’s Response to the Jury’s Inquiry Was not Erroneous
The jury asked the court: “We would like clarification whether or not defendant could be guilty of attempted voluntary manslaughter in Count 2 and murder in second degree in Count 1.”
In the course of discussing a potential response to this inquiry – outside the presence of the jury – the trial court incorrectly opined that verdicts of second-degree murder as to Brittany (count one) and attempted voluntary manslaughter as to Rudy (count two) were actually possible under a transferred intent theory. The court reasoned to counsel that the jury could have been leaning toward attempted voluntary manslaughter on count two if it found there was no premeditation, and yet the absence of premeditation would not preclude the jury from reaching a second degree murder conviction on count one. The jury, however, was never apprised of this idea. Instead, the jury was simply told: “Depending on what theory of the case the jury relies on, the result suggested by your question in this case is possible.”
The court’s statement to the jury was correct: if the jury relied on one of the prosecutor’s theories – that Flitcroft harbored malice toward Brittany and also harbored malice toward Rudy – it could properly conclude that he committed second degree murder as to Brittany, but only attempted voluntary manslaughter as to Rudy.
Flitcroft contends the court’s response was prejudicially inadequate because it did not offer the jury sufficient guidance to complete its task. In particular, he urges, the court should have referred the jury back to the jury instructions dealing with transferred intent and attempted murder (as suggested by defense counsel) or delineated a specific approach for the jury to come to a conclusion.
We disagree. In its inquiry, the jury did not refer to the doctrine of transferred intent. The jury simply asked whether two particular verdicts could be rendered in the case, and the correct answer undisputedly was that they could be, “depending on what theory of the case the jury relies on” – precisely what the trial judge said. To refer the jury to instructions on transferred intent and attempted murder might have actually suggested to the jury, erroneously, that a transferred intent theory could be used to reach the verdict the jury inquired about. Besides, the jury already had the instructions pertaining to transferred intent and attempted murder, as well as all the other instructions pertaining to murder and malice. It is unreasonable to suppose that the jury relied on the court’s statement that it could reach a certain verdict depending on the theory it accepted, without looking at the jury instructions pertaining to those theories. Indeed, the instruction on transferred intent plainly stated that “the crime, if any, is the same as if the intended person had been killed,” which would have made it unnecessary for the jury to ask their question if they were considering a transferred intent theory. (See People v. Phillips (1985) 41 Cal.3d 29, 58 [appellate courts assume that jurors are intelligent persons capable of understanding, correlating, and following all instructions].)
Because there was no error in the court’s response to the jury’s inquiry, there was no error leading the jury to use a transferred intent theory in reaching its verdict. Because the first of the prosecutor’s theories was sufficient in law and fact to support the verdict, we would reverse the verdict only if we could determine that the jury reached its verdict on the transferred intent theory.
There is no indication the jury relied on a transferred intent theory in rendering its ultimate verdict. Flitcroft’s argument that the transferred intent theory was the only viable theory is incorrect, as discussed ante. His contention that the prosecutor emphasized the transferred intent theory in closing argument is exaggerated, as the prosecutor plainly set forth both theories. His insistence that the jury’s inquiry shows reliance on a transferred intent theory is also flawed: he supposes that, by the time the jury made its inquiry of the court, the jury had passed on count one, found provocation as to count two, and was in the process of considering whether it could find murder on count one under the theory of transferred intent. As the trial court and prosecutor opined, however, the jury more likely first resolved count one – the murder charge against Brittany – before considering Flitcroft’s intent toward Rudy relevant to count two. Then, finding provocation as to count two, the jury inquired of the court because it wanted to make sure it still could find murder on count one.
Under the entirety of the circumstances, the only reasonable conclusion is that the jury followed the court’s lawful instructions and reached its verdict under the prosecutor’s theory of separate intents, rather than ignoring the court’s instructions and reaching a verdict contrary to the law. Flitcroft has failed to establish reversible error.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., BRUINIERS, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.