People v. Glukhoy

Full title: The PEOPLE, Plaintiff and Respondent, v. Roman Andreyevich GLUKHOY et al.…

Court: Court of Appeal, Third District, California.

Date published: Apr 18, 2022

77 Cal.App.5th 576 (Cal. Ct. App. 2022)

292 Cal. Rptr. 3d 623

Opinion

C084169

04-18-2022

The PEOPLE, Plaintiff and Respondent, v. Roman Andreyevich GLUKHOY et al., Defendants and Appellants.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant, Roman Glukhoy. Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant, Ruslan Glukhoy. Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Julie A. Hokans, Supervising Deputy Attorneys General, Marcia A. Fay and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.

Certified for Partial Publication.^*

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Parts I – VI and VIII – XI of the Discussion.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant, Roman Glukhoy.

Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant, Ruslan Glukhoy.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Julie A. Hokans, Supervising Deputy Attorneys General, Marcia A. Fay and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.^**

** Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Twin brothers, Roman and Ruslan Glukhoy, led police on two high speed chases, the second of which was in a stolen truck and culminated in a fatal collision killing two people. Separate juries found them guilty of multiple offenses and allegations.¹ Ruslan, who was convicted of first degree murder with felony-murder special-circumstances, was sentenced to two terms of life without the possibly of parole. Roman, who was convicted of two counts of second degree murder, was sentenced to 30 years to life.

1 The prosecution had moved for dual juries to present evidence of statements that Roman and Ruslan had independently given to law enforcement. (See People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, abrogated in part by Cal. Const., art. I, § 28, subd. (d); Bruton v. U.S. (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.)

On appeal, Ruslan raises four contentions: (1) insufficient evidence supports his residential burglary conviction; (2) insufficient evidence supports his conviction for aiding and abetting Roman's evasion with wanton disregard; (3) the trial court erred in excluding expert testimony regarding regressed brain development in youth; and (4) the court erred in denying his motion to continue in order to make a showing of jury misconduct. In the unpublished portion of this opinion, we reject Ruslan's contentions and affirm the judgment as to him.

Roman raises five contentions: (5) the convictions for evading a peace officer with wanton disregard and conspiracy to commit theft must be reversed because his trial counsel inappropriately conceded those counts in closing argument; (6) the murder verdicts must be reversed in light of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which abrogated the natural and probable consequences doctrine for murder; (7) the trial court failed to instruct that an aider and abettor, liable under the natural and probable consequences doctrine, can be guilty of a lesser offense than the perpetrator; (8) the court abused its discretion in imposing consecutive terms for the two murders; and (9) remand is required for a Franklin ² hearing. In a supplemental brief, Roman contends (10) remand is required in light of People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ), and (11) the abstract of judgment must be corrected to accurately reflect an imposed fee. In a second supplemental brief, Roman asserts that based on Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), he need not file a Penal Code section 1170.95 ³ petition to obtain Senate Bill 1437 relief and we must reverse his second degree murder convictions and vacate the sentence.

2 People v. Franklin (2016) 63 Cal.4th 261, 278, 202 Cal.Rptr.3d 496, 370 P.3d 1053 (Franklin ).

3 Undesignated statutory references are to the Penal Code.

In the published portion of this opinion, we conclude that the alternative-theory instructional error in Roman's case brought about Senate Bill 1437 was harmless beyond a reasonable doubt because the evidence establishing the valid theory of direct aiding and abetting implied malice was overwhelming. In addition, that evidence was the same evidence the jury had to have credited to find defendant guilty based on the now invalid natural and probable consequences theory. In the unpublished portion of this opinion, we reject Roman's other contentions and affirm the judgment as to him.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution's Case

The Thefts from Vehicles

In the early morning hours, twin brothers Roman and Ruslan Glukhoy, along with a friend, drove in the rain to Auburn to steal from unlocked cars parked on the street.

Auburn residents soon grew suspicious and called the police. Responding Auburn Police officers saw several suspects return to a BMW automobile parked in a cul-de-sac.⁴ An officer approached the BMW with his gun drawn and held in a low-ready position. He ordered the occupants to show their hands. One passenger, Ruslan, put his hands out the front passenger-side window and raised them. The driver, Roman, however, did not. As the officer approached the back of the driver's door, the BMW sped off. The BMW then made a U-turn in the cul-de-sac, then accelerated "straight towards" the officers and their patrol units, causing one of them to think the BMW was going to run over him. He took cover behind a patrol unit. Then, at the last second, the BMW veered away, jumping the curb onto residential lawns, crossing a driveway, before reentering the roadway and speeding away.⁵

4 About an hour and half before seeing the BMW in the cul-de-sac, officers had seen the same vehicle parked on another residential Auburn street. At that time, the vehicle was unoccupied and the hood, front-brake rotors, and tailpipe were cold to the touch.

5 One officer testified the BMW was approximately 40 to 50 feet away when it veered away. The other officer testified that when the BMW veered away, he was no longer in danger of being hit.

The First Evasion and Pursuit & Theft of the Truck

Thereafter, Roman led police on a high-speed chase, and at various points drove in the direction of officers, ran a stop sign, spun out, drove without lights, and entered Interstate 80 where he reached a speed of approximately 125 miles per hour. This initial chase ended when Roman, trying to make an abrupt freeway exit in Loomis, missed the ramp, spun out and collided into an embankment in a landscaped area. One officer described the collision as "a violent crash. The vehicle was tore up pretty good." Another described it as "extremely violent." This collision took place at 5:12 a.m. By the time the officers reached the BMW, Roman, Ruslan, and their friend had escaped.⁶ Placer County Sheriff's deputies were in foot pursuit. Around an hour later, law enforcement was alerted that a Ford F-150 pick-up truck had been stolen from a neighborhood not far from the BMW's crash site.⁷ Ruslan was driving, with Roman in the rear passenger seat. A second high-speed chase ensued.

6 The friend was separately apprehended and found with $941 in his pocket.

7 The prosecution alleged that the keys to the truck were taken in a residential burglary that took place after defendants fled from the BMW crash and before the truck was stolen.

The Second Evasion and Pursuit & the Fatal Crash

This pursuit included a freeway sprint on Interstate 80 toward Sacramento up to 120 miles per hour through early morning rush hour traffic. During the freeway pursuant, Ruslan made several unsafe lane changes to get around traffic. When the traffic got heavier and began to slow, Ruslan drove the truck from the number one lane onto the emergency lane next to the center divider. One of the pursuing deputies called this the "suicide lane." He described the traffic as "pretty heavy," adding "we're getting into rush hour traffic, a lot of vehicles headed to work." Utilizing the suicide lane, Ruslan passed the traffic in the number one lane. At one point, the pickup moved into the diamond lane, where there was no traffic. As the two brothers approached Antelope Road, the traffic began to spread out and Ruslan abruptly cut across the freeway lanes to the exit at Antelope Road. He then ran a series of red lights on Antelope Road, driving 80 to 90 miles per hour. It was then approximately 6:30 a.m. The chase ended when Ruslan ran a red light at high speed and collided with a small Kia, killing its two occupants. The pursuit of the truck lasted approximately eight or nine minutes. We discuss the portion of the pursuit from the Interstate 80 exit, down Antelope Road to the collision site in more detail in Discussion part V, post .

The Arrests and Statements to Law Enforcement

Ruslan and Roman then ran from the crash site without checking on the occupants of the Kia. Roman was arrested in a nearby neighborhood shortly thereafter.

Before Ruslan was arrested, startled residents in a nearby home discovered him in their home, drinking a glass of water. Ruslan left the house after a resident threatened to get his gun. At a different home, a resident discovered Ruslan trying to pry open her sliding glass door. She yelled to her boyfriend to "grab the gun." A Sheriff's K9 unit soon found Ruslan in the backyard.

Both juries heard that when he briefly talked to the police after his arrest, Ruslan claimed he had been driving both vehicles. Ruslan's jury heard statements he made to medical staff which were overheard by an officer. When asked by medical staff if he had hit the steering wheel, Ruslan replied, "Yeah I think so." He also said he had been involved in two accidents — one at 70 miles per hour and another one at 90 miles per hour.⁸

8 Ruslan apparently did not specify in which of the two accidents he had travelling at 70 and 90 miles per hour.

Roman also gave statements to the police after his arrest. He denied going to Auburn to steal from cars, claiming they went there in the early morning hours because they had "nothing to do" and Auburn was a "pretty cool place." He said it was his idea to go to Auburn. Later, he said they had gone there to steal from cars. But he claimed they had only tried to get into a couple of cars and did not get inside. He also, claimed at first that Ruslan was driving the BMW when they crashed. But later, he admitted he crashed the BMW. He denied going into houses to get keys and claimed the keys were in the truck when they took it. But he said he could not remember where the keys were within the truck. He said Ruslan was driving the truck when it crashed and he was in the backseat. Roman had said earlier that he had a warrant for failing to go to court. When asked whether they were trying to get away from law enforcement during the evasion in the truck, Roman said, "Not from the cops. I just wanted to, not from cops in general. I just, I didn't want to go to jail ." (Italics added.) We discuss additional statements Roman made in Discussion part V, post .

Verdicts and Sentencing

Ruslan's jury found him guilty of conspiracy to commit theft ( Pen. Code, § 182 ; count 1)⁹ ; evading a peace officer with wanton disregard for safety ( Veh. Code, § 2800.2 ; count 4); first degree burglary with a person present ( § 459 ; count 5); two counts of first degree felony murder, with findings of more than one murder in the first degree, and that the murder was committed during the commission of a burglary ( §§ 187, 190.2, subd. (a)(3) & (a)(17) ; counts 6 & 7); and trespass ( § 602.5 ; count 8). Ruslan's jury deadlocked on one count of assault on a peace officer and acquitted him of another count of the same offense (counts 2 & 3).

9 Undesignated statutory references are to the Penal Code.

Roman's jury found him guilty of conspiracy to commit theft (count 1); evading a peace officer with wanton disregard for safety (count 4) and two counts of second degree murder (counts 6 and 7). It found him not guilty of both counts of assault on a peace officer (counts 2 & 3) and deadlocked on the residential burglary count.

Ruslan was sentenced to two terms of life without the possibility of parole for murder, along with concurrent terms of four years (the middle term) for burglary, two years (the middle term) for conspiracy to commit theft, two years (the middle term) for evading a peace officer, and 180 days for trespass.

Roman was sentenced to two consecutive 15-year-to-life terms for second degree murder, along with concurrent terms of two years (the middle term) for conspiracy to commit theft, and two years (the middle term) for evading a peace officer.

RUSLAN'S CONTENTIONS

I.–VI. ^***

*** See footnote *, ante .

VII. Senate Bills 1437 and 775

Roman originally contended that his convictions for second degree murder must be reversed because Senate Bill No. 1437, enacted after his conviction, abrogated the natural and probable consequences doctrine as it relates to murder. He argued that Senate Bill 1437's amendments should be applied retroactively to him. Subsequently, our high court spoke on the issue, holding that while Senate Bill 1437 barred a conviction for second degree murder under the natural and probable consequences doctrine, "the procedure set forth in section 1170.95 [was] the exclusive mechanism for retroactive relief and thus the ameliorative provisions of Senate Bill 1437 do not apply to nonfinal judgments on direct appeal." ( People v. Gentile (2020) 10 Cal.5th 830, 839, 272 Cal.Rptr.3d 814, 477 P.3d 539.) Thereafter, the Legislature enacted Senate Bill 775, amending section 1170.95 to add subdivision (g), which provides that a defendant whose conviction is not final may "challenge on direct appeal the validity of [a murder] conviction based on" the Senate Bill 1437 amendments. Both sides now agree that defendant is entitled to challenge his second degree murder convictions based on Senate Bill 775. They disagree, however, as to the outcome of that challenge. While Roman argues we must reverse the murder convictions and vacate the sentence based on the Legislature's invalidation of the natural and probable consequences doctrine, the Attorney General argues the alternative-theory instructional error brought about by the retroactive application of Senate Bill 1437 is harmless. We asked the parties to address at oral argument whether, in light of this court's decision in People v. Powell (2021) 63 Cal.App.5th 689, 278 Cal.Rptr.3d 150 ( Powell ), Roman's jury received an erroneous instruction on aiding and abetting second degree murder. Roman argued that, based on Powell , there was prejudicial instructional error as to direct aiding and abetting implied malice murder. The Attorney General did not contest this assertion.

As we shall discuss, we conclude both errors are harmless beyond a reasonable doubt. We begin by detailing additional facts.

A. Additional Background

1. The First Crash, Theft of the Truck and Flight on Interstate 80

Investigators began their interview of Roman by asking what had happened that morning. Roman initially responded, "It's just a stupid choice," adding that when the police tried to stop him in Auburn, "I was stupid when I was running." He said he fled because he had a warrant for not showing up to court. After the BMW crash, he and his brother fled on foot together, jumping some residential fences.

Roman claimed when they came upon the truck, they found it to be unlocked and hid in it for what seemed like 15 to 20 minutes. He got in the rear passenger seat behind the driver's seat where Ruslan sat. Scared by sirens they heard, they started the truck and drove off. When asked their intent in driving the truck away, Roman replied, "Uh, just a stupid choice."

Roman said he looked at the speedometer while fleeing from law enforcement on Interstate 80, and they reached a speed of 90 miles per hour, but he denied going faster. When asked if he remembered telling Ruslan to stop or slow down, Roman said, "I don't remember."

2. The Evasive Flight on Antelope Road and Fatal Collision

Roman told investigators that while they were on Interstate 80, Ruslan asked him where they should go. Roman told him to take the Antelope exit because they were familiar with the area. Roman said, after getting off on Antelope, "[w]e didn't know where to go from there." The testimony from pursuing deputies established that while in the Interstate 80 rush hour traffic, the truck abruptly cut across the freeway lanes to exit at Antelope Road. Vehicles on the offramp were stopped for a red light at the Antelope Road intersection, and traffic there was, "very heavy," with, "a lot of commuter traffic." To get through this traffic, the truck "split" the two lanes of vehicles that had stopped and drove through the red light onto Antelope Road.

The roadway on Antelope Road was wet and heavily congested with traffic. The truck made multiple lane changes in this traffic. There were several major intersections on Antelope Road controlled by traffic lights with cross traffic. There was cross-traffic at almost all of the red lights they ran. When driving through the red lights, the truck took "the fastest path through" the intersections. For example, at one major intersection, to get around traffic, the truck crossed into the left turn lane, went through the red light and then merged back into the traffic lane on Antelope Road on the opposite side of the intersection. One deputy testified it was more dangerous driving at high speeds on surface roads as opposed to the freeway because of intersections, potential pedestrians and bicyclists, especially at 6:30 a.m. on a weekday. He also testified that in his opinion it was luck that the truck did not collide into anybody at those major intersections before the fatal crash.

Pursuing deputies testified that the truck was travelling at speeds up to 80 or 90 miles per hour during the evasion on Antelope Road. And it was putting distance between the pursuing deputies, who, although traffic was moving to the side, had to slow down as they went through intersections.

The pursuit ended when Ruslan drove over an overpass at what deputies testified was 70 to 80 miles per hour, entered the next intersection against the red light and collided into the Kia as it was making a left turn from Antelope Road onto a side street. The primary pursuing deputy testified that as he was descending the overpass, he saw that the truck had collided into the Kia and watched it push the Kia approximately 45 yards.

One motorist, stopped next to the Kia at what was then a red light, observed the Kia drive forward into the intersection when the left turn signal turned green. The motorist then saw the truck come over the overpass in the opposite direction as she proceeded forward on her green light. Thereafter, she heard a crash and looked back to see the truck had collided with the Kia. She estimated the truck came over the overpass at 75 to 85 miles per hour, and described the speed of the truck as "like a bat out of hell." As she saw the truck crest the overpass before the collision, she thought it would flip or cause a collision because the roadway was wet. Another motorist who started to follow the Kia into the intersection from the left turn lane saw the truck speeding toward them from the opposite direction in the right turn lane, only to move into the center lane before entering the intersection and crashing into the Kia. He estimated the truck's speed as 70 to 75 miles per hour.

After the truck and Kia came to a stop, the primary pursuing deputy saw two occupants exit the truck's passenger and driver's side. The driver ran around the wreckage, past the vehicle he had struck. Responding to a question posed by a juror, the deputy testified that the driver did not check on the people in the Kia. The person who got out of the passenger side ran toward the sidewalk toward the person who got out of the driver's side and the two fled into the neighborhood, jumping fences to make their escape.

The posted speed limit on Antelope Road at the intersection where the collision occurred was 45 miles per hour. The traffic lights at the intersection are visible from 800 to 900 feet, just before cresting the overpass. The ambient lighting from sunrise and the artificial lighting in the area illuminated the intersection. Looking at historical crash data and other information for the intersection, an expert civil engineer determined there was nothing indicating the roadway was unsafe. There had been no prior fatalities at the intersection.

Accident reconstruction testimony established that the truck was traveling between 70 and 81 miles per hour at the point of impact.³¹ But based on pre-collision data from the truck's air bag control module, the truck was actually travelling at 93 miles per hour just one and a half seconds before the collision.³² B. Aiding and Abetting Implied Malice Murder

31 Investigator Darrell Nishimi of the California Highway Patrol Multidisciplinary Accident Investigation Team (MAIT) testified as an accident reconstruction expert. Pre-collision information stored in the air bag control module of the truck recorded the truck's speed at 70 miles per hour at the point of impact. Nishimi opined, based on his calculations, that the speed was actually 81 miles per hour at impact. A defense investigator opined, based on his calculations, that at impact, the truck was traveling between 70 to 74 miles per hour. The defense expert also acknowledged that the truck was travelling faster on this surface street than the 65-mile-per-hour speed limit on Interstate 80. Additionally, he acknowledged that the Kia violated no traffic laws.

32 The defense accident reconstruction expert acknowledged that the 93 miles per hour speed recorded by the airbag control module was accurate.

1. Elements of Aiding and Abetting Implied Malice Murder

The elements of implied malice murder relative to the actual perpetrator are: "(1) [The perpetrator] intentionally committed an act; (2) the natural and probable consequences of that act were dangerous to human life; (3) At the time [the perpetrator] acted, [he/she] knew [his/her] act was dangerous to human life; and (4) [T]he perpetrator deliberately acted with conscious disregard for human life." (CALCRIM No. 502; People v. Navarette (2016) 4 Cal.App.5th 829, 843-844, 208 Cal.Rptr.3d 757.)

In Powell , we held that aiding and abetting implied malice murder is a valid theory of liability for second degree murder. ( Powell , supra , 63 Cal.App.5th at pp. 710-714, 278 Cal.Rptr.3d 150 ; accord, People v. Superior Court (Valenzuela ) (2021) 73 Cal.App.5th 485, 499, 288 Cal.Rptr.3d 627 [agreeing with Powell that aiding and abetting implied malice murder is a valid theory of culpability for second degree murder]; see also People v. Langi (2022) 73 Cal.App.5th 972, 982, 983, 984, fns. 10 and 12, 288 Cal.Rptr.3d 809 ( Langi ) [acknowledging Powell and Gentile and stating: "Current law thus provides that the actual killer, or a direct aider and abettor of the killing who knew that his (or her) conduct endangered the life of another and acted with conscious disregard for life, may be guilty of second degree murder"].)

In Powell , we explained the actus reus and mens rea elements of direct aiding and abetting implied malice.

The actus reus required of the actual perpetrator is the commission of "a life endangering act." ( Powell, supra , 63 Cal.App.5th at p. 714, 278 Cal.Rptr.3d 150.) By "life endangering act," we mean an act for which the natural and probable consequences are dangerous to human life and proximately caused death. ( Powell , at pp. 713, fn. 27 and 714, 278 Cal.Rptr.3d 150 ; see also People v. Knoller (2007) 41 Cal.4th 139, 143, 59 Cal.Rptr.3d 157, 158 P.3d 731 [describing the required act as "an act, the natural consequences of which are dangerous to life" or stated slightly differently, "conduct that endangers the life of another"]; People v. Watson (1981) 30 Cal.3d 290, 296, 300, 179 Cal.Rptr. 43, 637 P.2d 279 ( Watson ) [same].)

To be culpable as a direct aider and abettor of implied malice murder, the accomplice "must, by words or conduct, aid the commission of the life-endangering act. " ( Powell , supra , 63 Cal.App.5th at p. 713, 278 Cal.Rptr.3d 150.) Thus, the aider and abettor's actus reus "includes whatever acts constitute aiding the commission of the life endangering act." ( Ibid. ; accord Valenzuela , supra , 73 Cal.App.5th at p. 501, 288 Cal.Rptr.3d 627.)

"The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act , intent to aid the perpetrator in the commission of the act , knowledge that the act is dangerous to human life, and acting in conscious disregard for human life." ( Powell , supra , 63 Cal.App.5th at p. 713, 278 Cal.Rptr.3d 150 ; accord Valenzuela , supra , 73 Cal.App.5th at p. 501, 288 Cal.Rptr.3d 627.) 2. Validity of the Theory of Aiding and Abetting Implied Malice Murder

Acknowledging our decision in Powell , Roman nevertheless maintains that aiding and abetting implied malice murder is not a valid theory of liability for second degree murder and that Powell was wrongly decided.

Fundamentally, Roman criticizes our reliance in Powell on our high court's statement in Gentile that: "notwithstanding Senate Bill 1437's elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life." ( Powell , supra , 63 Cal.App.5th at p. 713 and fn. 29, 278 Cal.Rptr.3d 150, quoting Gentile , supra , 10 Cal.5th at p. 850, 272 Cal.Rptr.3d 814, 477 P.3d 539, italics omitted.) Roman asserts our high court's statement in Gentile was dicta, and thus unnecessary to the resolution of the case.³³

33 As Roman notes the Gentile court's statement concerning direct aiding and abetting implied malice murder was made in response to an amicus brief which argued for a hybrid version of the natural and probable consequences doctrine to reach scenarios illustrated in two unpublished opinions. (Powell , supra , 63 Cal.App.5th at p. 713, fn. 29, 278 Cal.Rptr.3d 150, citing Gentile , supra , 10 Cal.5th at pp. 849-851, 272 Cal.Rptr.3d 814, 477 P.3d 539.) According to Roman, because our high court was responding to an argument by amicus, the court's quote was unnecessary to the resolution of Gentile's appeal.

But while statements unnecessary to a court's decision are not binding precedent, it is well-settled that our high court's " ‘dicta generally should be followed, particularly where the comments reflect the court's considered reasoning.’ " ( People v. Tovar (2017) 10 Cal.App.5th 750, 759, 216 Cal.Rptr.3d 750, quoting People v. Rios (2013) 222 Cal.App.4th 542, 563, 165 Cal.Rptr.3d 687 ; See also, United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 835, 209 Cal.Rptr. 16 ["Even if properly characterized as dictum, statements of the Supreme Court should be considered persuasive"]; City of Los Angeles v. San Pedro, L.A. & S.L.R. Co. (1920) 182 Cal. 652, 660, 189 P. 449 ["The statements in the opinions of the Supreme Court of this state ... although obiter dicta , are very persuasive"].) In our view, the Gentile court's observation, in effect, recognizing the validity of aiding and abetting implied malice murder, was reflective of "considered reasoning," and it was persuasive and should be followed. (See also, Valenzuela, supra, 73 Cal.App.5th at p. 499, 288 Cal.Rptr.3d 627 [also relying on the quotation from Gentile and concluding that Powell was "entirely consistent with Gentile in basing murder liability on the aider and abettor's own state of mind—conscious disregard for life"]; Langi , supra , 73 Cal.App.5th at p. 979, 288 Cal.Rptr.3d 809 [also relying on the Gentile quote].) Defendant also asserts that our focus on the life endangering act and making an aider and abettor liable for the result of that act regardless of his intent to achieve that result "simply repackaged [natural and probable consequences] murder as aiding and abetting implied malice murder." We disagree. As we noted in Powell , under the natural and probable consequences doctrine, the prosecution was not required to prove the mental state required for implied malice: the aider and abettor was subjectively aware of the risk of death and acted in conscious disregard thereof. On the other hand, the prosecution must prove those elements to establish direct aiding and abetting implied malice murder. ( Powell , supra , 63 Cal.App.5th at pp. 711-713, 278 Cal.Rptr.3d 150.) This distinction was recognized by the court in Valenzuela in rejecting an argument similar to the one Roman makes here. ( Valenzuela, supra, 73 Cal.App.5th at pp. 503-504, 288 Cal.Rptr.3d 627 [the natural and probable consequences doctrine the Legislature sought to eliminate in Senate Bill 1437 did not require a finding that the aider and abettor know his conduct endangers the life of another and that he acted with conscious disregard for life]; see also People v. Soto (2020) 51 Cal.App.5th 1043, 1056, 1059, 265 Cal.Rptr.3d 571 [the natural and probable consequences for indirect aiding and abetting and the natural and probable consequences for implied malice murder "are distinctly different concepts," the latter of which pertains to the mental state the aider and abettor must share with the actual perpetrator and it "does not transform" an implied malice murder conviction into one for murder under the natural and probable consequences doctrine within the meaning of section 1170.95 ].)

Roman next argues that Senate Bill 1437 actually eliminated aiding and abetting liability for implied malice murder by amending section 188 to provide that malice may not be "imputed to a person based solely on his or her participation in a crime." ( § 188, subd. (a).) According to Roman, the theory of direct aiding and abetting implied malice we discussed in Powell , "indicates that malice is imputed to a person based solely on his or her participation in the crime." (Italics added.) Not so.

Again, for liability under the natural and probable consequences doctrine, the aider and abettor need only have the intent to participate in a target offense; guilt for the charged crime is thereby imputed to him. But for second degree murder based on implied malice, there is no imputation of malice because, as we have explained, the direct aider and abettor must have the same mental state as the actual perpetrator of the charged crime: the direct aider and abettor must act with knowledge that the act is dangerous to human life and with conscious disregard for human life. Given the mens rea requirements for aiding and abetting implied malice, not only is malice not "imputed" on this direct aiding and abetting theory, but liability is not grounded "solely" upon participation in the crime within the meaning of section 188, subdivision (a)(3) as amended in Senate Bill 1437. Liability for murder is grounded upon the requirement that the aider and abettor personally harbor malice.

We also note that there is no indication the Legislature intended to abrogate the concept of aiding and abetting implied malice murder as mentioned in Gentile . In this regard, we think it significant that our high court's statement in Gentile concerning aiding and abetting implied malice was prefaced with: "notwithstanding Senate Bill 1437's elimination of natural and probable consequences liability for second degree murder...." The Legislative history of Senate Bill 775 indicates the Legislature's intent to abrogate the Gentile court's holding that the petition procedure in section 1170.95 was the sole method of challenging the validity of a conviction under Senate Bill 1437.³⁴ But nothing in Senate Bill 775 or its legislative history indicates a rejection of our high court's observation concerning the availability of direct aiding and abetting implied malice murder as a theory of accomplice liability, nor is there any legislative history indicating disagreement with our holding in Powell . If the Legislature intended to abrogate aiding and abetting implied malice murder, we think it would have expressly done so in Senate Bill 775. After all, when enacting legislation, " ‘The Legislature is deemed to be aware of existing laws and judicial decisions ... in effect at the time legislation is enacted, and to have enacted and amended statutes " ‘in the light of such decisions as have a direct bearing upon them .’ " ’ " ( People v. Castillolopez (2016) 63 Cal.4th 322, 331, 202 Cal.Rptr.3d 703, 371 P.3d 216, italics added; People v. Licas (2007) 41 Cal.4th 362, 367, 60 Cal.Rptr.3d 31, 159 P.3d 507 ( Licas ); People v. Overstreet (1986) 42 Cal.3d 891, 897, 231 Cal.Rptr. 213, 726 P.2d 1288.)

34 An Assembly Public Safety Committee analysis states: "In Gentile , the California Supreme Court found that the petition process set forth in Penal Code section 1170.95 is the exclusive remedy for retroactive SB 1437 relief on nonfinal judgments. [Citation.] Generally, the rule is that a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citation.] [¶] This bill would provide that where a conviction is not final, it may be challenged on SB 1437 grounds on direct appeal from that conviction." (Assem. Com. on Public Safety, Analysis of Senate Bill 775 as amended July 6, 2021, p. 11.)

We reject Roman's contention that direct aiding and abetting implied malice murder is not a valid theory of liability for second degree murder. C. Powell Instructional Error

Anticipating our rejection of the arguments immediately above, defendant argues that assuming aiding and abetting implied malice murder is a valid theory, the trial court's instructions were erroneous based on Powell . With this, we agree.

Like the instructions in Powell , the standard instructions given here were not tailored to address direct aiding and abetting liability for implied malice murder. ( Powell , supra , 63 Cal.App.5th at p. 715, 278 Cal.Rptr.3d 150 ; see also Langi , supra , 73 Cal.App.5th at p. 982, 288 Cal.Rptr.3d 809 ["As explained in [ Powell ], the standard aiding-and-abetting instructions are ill suited to the crime of second degree murder," and if "a trial court uses such an instruction without tailoring it to the specifics of that crime, the instruction creates an ambiguity under which the jury may find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice"].)

Given this instructional error, we must determine whether the error was prejudicial. Before we do, we turn briefly to defendant's second claim of error — alternative-theory error — because the evolution of the legal analysis for harmless error has occurred most recently in the context of that form of instructional error.

D. Retroactive Alternative-Theory Error

When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reviewing courts refer to this as alternative-theory error. ( People v. Aledamat (2019) 8 Cal.5th 1, 9, 251 Cal.Rptr.3d 371, 447 P.3d 277 ( Aledamat ).) Both sides agree the enactments of Senate Bill 1437 and 775 effectuated alternative-theory error retroactively. But they disagree as to whether the error was harmless, and indeed disagree on the method for determining harmlessness.

E. Harmless Error

1. Chapman/Neder/Aledamat & Federal Authorities

As the Aledamat court explained, for misdescription of elements and alternative-theory instructional error, we apply the harmless beyond a reasonable doubt standard in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. ( Aledamat, supra, 8 Cal.5th at p. 9, 251 Cal.Rptr.3d 371, 447 P.3d 277.) The court clarified that, "no higher standard of review applies to alternative-theory error than applies to other misdescriptions of the elements. The same beyond a reasonable doubt standard applies to all such misdescriptions, including alternative-theory error." ( Ibid . ) In other words, there is no hybrid standard for determining harmlessness; rather, "the usual ‘beyond a reasonable doubt,’ " Chapman standard applies. ( Aledamat , at p. 3, 251 Cal.Rptr.3d 371, 447 P.3d 277, citing Chapman , at p. 24, 87 S.Ct. 824., italics added.)

Under that standard, "[t]he reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence , and considering all relevant circumstances , it determines the error was harmless beyond a reasonable doubt." ( Aledamat, at p. 3, 251 Cal.Rptr.3d 371, 447 P.3d 277, italics added.) The reviewing court asks: " ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.’ " ( People v. Merritt (2017) 2 Cal.5th 819, 827, 216 Cal.Rptr.3d 265, 392 P.3d 421, quoting Neder v. United States (1999) 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 ( Neder ), italics added; accord Powell , supra , 63 Cal.App.5th at p. 715, 278 Cal.Rptr.3d 150.) As these pronouncements suggest, there is no one exclusive way to determine harmlessness.

Indeed, the Aledamat court cited several federal circuit court opinions that actually applied different methods of determining harmlessness for alternative-theory error under the Chapman beyond a reasonable doubt test. ( Aledamat, supra , 8 Cal.5th at p. 11, 251 Cal.Rptr.3d 371, 447 P.3d 277.) Four of those federal cases are pertinent here, in that they focused on whether the verdict "would have been the same " based the overwhelming nature of the evidence, instead of divining the theory the jury actually relied upon in reaching its verdict.

In United States v. Skilling (5th Cir. 2011) 638 F.3d 480 ( Skilling II ), the circuit court, after examining the record, found the alternative-theory error there was harmless beyond a reasonable doubt because the evidence underlying a valid theory was "overwhelming." ( Id. at p. 483.) In Skilling II , the defendant had been convicted of various federal white-collar crimes, including conspiracy to commit honest-services fraud and securities fraud. ( Id. at p. 481.) The United States Supreme Court subsequently invalidated the honest services fraud theory advanced at trial and remanded the case back to the circuit court to determine whether submitting the invalidated theory to the jury was harmless. ( Ibid . )³⁵ On remand, the Government argued the error was harmless as to the conspiracy conviction, because the evidence established the defendant participated in a scheme to deceive the investing public and based on that, the court could conclude the jury would have convicted him under a valid theory: conspiracy to commit securities fraud. ( Id . at p. 483.) Treating the matter as alternative-theory error, the Skilling II court found the error harmless. ( Skilling II, supra, 638 F.3d at pp. 481, 488.) Consistent with United States Supreme Court precedent, the Skilling II court focused on one way to prove an alternative-theory error harmless: "as set forth in Neder v. United States ..., an error is harmless if a court, after a ‘thorough examination of the record,’ is able to ‘conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error .’ [Citation.] If the defendant ‘raised evidence sufficient to support a contrary finding,’ then the error was not harmless . [Citation.] Thus, under the ... Neder standard, a reviewing court, ‘in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to [an acquittal] with respect to the [valid theory of guilt]. ’ " ( Skilling II , at p. 482, italics added.)³⁶

35 The high court held that the honest-services fraud statute is limited only to schemes involving bribes or kickbacks, neither of which took place in Skilling . (Skilling v. United States (2010) 561 U.S. 358, 408-409, 130 S.Ct. 2896, 177 L.Ed.2d 619.)

36 Another method of determining harmlessness for alternative-theory error, cited in Skilling is when "the jury, in convicting on an invalid theory of guilt, necessarily found facts establishing guilt on a valid theory." (Skilling II , supra , 638 F.3d at p. 482, italics added.) We discuss a similar method, post .

The "crux of the matter,"³⁷ according to the Skilling II court was "whether, under the Neder standard, the evidence presented at trial proves that Skilling conspired to commit securities fraud."³⁸ ( Skilling II , supra , 638 F.3d at p. 483.) It then went on to hold: "Based on our own thorough examination of the considerable record in this case, we find that the jury was presented with overwhelming evidence that Skilling conspired to commit securities fraud, and thus we conclude beyond a reasonable doubt that the verdict would have been the same absent the alternative-theory error." ( Skilling II , at pp. 483-484, italics added.)

37 Before addressing what it characterized as the "crux of the matter" in its analysis, the Skilling II court addressed what it called "preliminary matters" raised by the defendant. First, it rejected Skilling's claim that the fact the jury was instructed with two theories, one of which had been invalidated, was dispositive of the question of harmlessness. (Skilling II , supra , 638 F.3d at p. 483.) The court reasoned that "the fact that the jury may have relied upon an invalid theory of guilt shows only that an alternative-theory error occurred, not that the error was not harmless." (Ibid . ) Second, the court rejected Skilling's contention that the Government's closing argument made it more likely the jury convicted him of conspiracy based on the invalidated theory. (Ibid . ) The court noted that the Government mentioned the invalidated theory regarding both defendants in rebuttal, but mentioned it only once as to Skilling. (Ibid . ) "Further, it never argued that the jury should convict Skilling solely on the honest-services theory, nor did it tell the jury that it should disregard the evidence of securities fraud in reaching a conviction. This single reference to Skilling ’s honest services, in light of the Government's extensive argument on securities fraud, merely permitted the jury to decide the case on the wrong theory. It did not force or urge it to do so, and therefore, it shows only that an alternative-theory error occurred, not that the error was not harmless." (Ibid. , italics added.) We discuss the prosecution's closing argument in the instant case, post .

38 In Neder , the trial court erroneously omitted an element of the offense. The high court held the erroneous instruction was harmless. (Neder , supra , 527 U.S. at p. 2, 119 S.Ct. 1827.) Based on its reasoning, Neder is often cited for the proposition that where a reviewing court concludes beyond a reasonable doubt that (1) the omitted element or elements were uncontested and (2) the evidence establishing the omitted element was overwhelming, the error is harmless. (See Merritt , supra , 2 Cal.5th at p. 832, 216 Cal.Rptr.3d 265, 392 P.3d 421 ; People v. Mil (2012) 53 Cal.4th 400, 410-411, 417, 135 Cal.Rptr.3d 339, 266 P.3d 1030.) But while this was one way to establish harmlessness, the Neder court did not suggest it was the only way or set out these circumstances out as requirements. The Neder court held: "In this situation , where 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." (Neder , at p. 17, 119 S.Ct. 1827.) The italicized portion of this quote — "In this situation" — suggests reasoning that was situational based on the circumstances in that case. Similarly, the Neder court later stated that if, at the end of the reviewing court's examination of the record, "the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example , where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless." (Id . at p. 19, 119 S.Ct. 1827.) The italicized text — "for example" — again suggests circumstances where the error would not be harmless, but nothing the Neder court said limits a court's analysis in this regard when determining whether "it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." (Id . at p. 18, 119 S.Ct. 1827, italics added.) Indeed, by highlighting the cited circumstances in Neder as an example, the high court implicitly acknowledged there could be other examples or methods of determining harmlessness.

Similarly, in United States v. Black (7th Cir. 2010) 625 F.3d 386 ( Black ), another case involving the invalidated honest services theory, the prosecution had advanced a valid theory related to pecuniary fraud to prove mail and wire fraud. The court explained: "[I]f it is not open to reasonable doubt that a reasonable jury would have convicted [defendants] of pecuniary fraud, the convictions on the fraud counts will stand." ( Id. at p. 388, italics added.) On one count, the Black court concluded that the evidence of pecuniary fraud was "not conclusive" and reversed. ( Id . at pp. 392-393.) However, as to another count, the court concluded, "the evidence of pecuniary fraud [was] so compelling that no reasonable jury could have refused to convict the defendants of it" and affirmed the conviction on that count. ( Id . at p. 393.)

Our high court cited Skilling II and Black with apparent approval in Aledamat . ( Aledamat , supra , 8 Cal.5th at p. 11, 251 Cal.Rptr.3d 371, 447 P.3d 277.)³⁹ Thus, we see Skilling II and Black as examples of a proper method for determining harmlessness based on the nature of the evidence establishing a valid theory beyond a reasonable doubt.⁴⁰

39 In Aledamat , our high court cited Skilling II in rejecting the notion that there should be some hybrid method of determining harmlessness for alternative-theory error different from Chapman . The Aledamat court wrote: "As the court that reviewed the Skilling case on remand recognized, ... the [high] court ‘did not specifically identify the harmless-error standard that is applicable to alternative-theory errors, but it cited to a string of cases that apply a common harmless-error standard to other types of instructional errors’." (Skilling II, supra , 638 F.3d at p. 481 ; see id . at p. 482 [applying the beyond a reasonable doubt standard].)" (Aledamat , supra , 8 Cal.5th at p. 11, 251 Cal.Rptr.3d 371, 447 P.3d 277.) The Aledamat court cited Black along with a string of federal cases for the proposition that the "the same Chapman analysis of harmless error applies to alternative-theory error as applies to other kinds of misdescription of the elements." (Ibid. )

40 Other courts, not cited in Aledamat , have applied the Skilling II overwhelming evidence approach. (See e.g., United States v. Wright (2019) 937 F.3d 8, 30, citing Neder , supra , 527 U.S. at p. 17, 119 S.Ct. 1827 ["we are required to affirm the conviction if the evidence for either [valid] theory of guilt... was so " ‘overwhelming ... that the jury verdict would have been the same absent the error [Citations].’ ...We thus confine our harmless error analysis to determining whether the government has met its burden to show that the evidence [of the valid theory] was "overwhelming’ "].) At least one other court has followed the Skilling II overwhelming evidence analysis in the context of aiding and abetting. In Spriggs v. United States (2012) 52 A.3d 878, the jury was presented with two theories on which the defendant could have been guilty of the charged burglary, either as a principal or as an aider and abettor. The defendant resided at the residence where the burglary occurred, and the jury was misinstructed on the principal theory of liability related to his residence. Citing Skilling II and noting that if "after a thorough examination of the record, [the reviewing court] is able to conclude beyond a reasonable doubt that the jury verdict would have been the same absent error," the Spriggs court found the error harmless given that "the evidence of [defendant's] guilt under an aiding and abetting theory was overwhelming." (Id . at p. 886, italics added.)

Further, in two other federal circuit cases cited in Aledamat , the court employed a similar method for determining harmlessness for alternative-theory error under the beyond a reasonable doubt test: "[I]f the evidence that the jury necessarily credited in order to convict the defendant under the instructions given ... is such that the jury must have convicted the defendant on the legally adequate ground in addition to or instead of the legally inadequate ground , the conviction may be affirmed." ( Bereano v. United States (4th Cir. 2013) 706 F.3d 568, 578, italics added ( Bereano ) [addressing alternative-theory error related to the invalidated honest services theory of mail fraud and concluding that the evidence establishing the valid theory of pecuniary fraud was overwhelming]; United States v. Jefferson (4th Cir. 2012) 674 F.3d 332, 361 ( Jefferson ) [also addressing alternative-theory error based on the invalidated honest services theory].) As the court in Jefferson put it, "a reviewing court is not entitled to reverse a conviction that could rest on either a valid or invalid legal theory if the court can conclude ‘beyond areasonable doubt that a rational jury would have found the defendant guilty absent the error.’ " ( Jefferson , at p. 361, citing Neder , supra , 527 U.S. at p. 18, 119 S.Ct. 1827, italics added.)

In asserting the alternative-theory error was not harmless here, Roman relies upon People v. Thompkins (2020) 50 Cal.App.5th 365, 264 Cal.Rptr.3d 186 ( Thompkins ). There, the issue addressed was whether the alternative-theory error stemming from our high court's clarification of the kill zone theory for attempted murder was harmless.⁴¹ Rejecting the idea of evaluating whether a valid theory was supported by the evidence, the Thompkins court found the error was not harmless. It reasoned: "In assessing prejudice, Aledamat considered the likelihood that the jurors would have applied the erroneous instruction , not simply the strength of the evidence to support a guilty verdict using the correct instruction. [Citation.] This focus on the impact of the erroneous instruction rather than the strength of the evidence of guilt is central to Aledamat ’s reasoning on prejudice. This is not the type of error that can be rendered harmless by ‘overwhelming’ evidence of guilt alone ." ( Thompkins , at p. 399, 264 Cal.Rptr.3d 186, italics added.)

41 See People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686.

The Thompkins court acknowledged that our high court in Aledamat rejected a "more demanding standard of review" for alternative-theory error and instead held that: " ‘The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.’ " ( Thompkins , supra , 50 Cal.App.5th at p. 399, 264 Cal.Rptr.3d 186.) But the Thompkins court went on to reason: "As we understand the standard of review, the question is not whether we think it clear beyond a reasonable doubt that the defendants were actually guilty of five attempted murders based on the valid theory, but whether we can say, beyond a reasonable doubt, the jury's actual verdicts were not tainted by the inaccurate jury instruction. We focus on the likelihood that the jury relied on the kill zone instruction in reaching its verdicts, not simply the likelihood of defendants’ guilt under a legally correct theory ." ( Ibid. , italics added.)

To the extent that Thompkins can be read as requiring that its approach of focusing on the error's impact on the verdict must be applied in all cases, as Roman seems to argue, we disagree with that view for two reasons. First, reviewing courts must "examin[e] the entire cause, including the evidence , and consider[ ] all relevant circumstances ." ( Aledamat , supra , 8 Cal.5th at p. 3, 251 Cal.Rptr.3d 371, 447 P.3d 277, italics added.) And we must then ask: "Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" ( Neder, supra, 527 U.S. at p. 18, 119 S.Ct. 1827 ; Merritt , supra , 2 Cal.5th at p. 827, 216 Cal.Rptr.3d 265, 392 P.3d 421, italics added.) Accordingly, there is no one way to establish harmlessness for instructional error, including alternative-theory error. Aledamat teaches as much.

In our view, the Thompkins approach, if generically applied in all cases, would focus the analysis through an aperture that is too narrow. Indeed, the Aledamat court specifically rejected a narrow focus on the verdicts. It did so by clarifying its earlier statements in in People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 and In re Martinez (2017) 3 Cal.5th 1216, 226 Cal.Rptr.3d 315, 407 P.3d 1, regarding the harmless error standard applied in alternative-theory error cases. In Martinez , the court stated that alternative-theory error, "requires reversal unless the reviewing court concludes beyond a reasonable doubt that the jury actually relied on a legally valid theory in convicting the defendant of first degree murder." ( Martinez , at p. 1218, 226 Cal.Rptr.3d 315, 407 P.3d 1, Chiu , at p. 167, 172 Cal.Rptr.3d 438, 325 P.3d 972 [same]) But the Aledamat court clarified that the Chiu / Martinez means of determining harmlessness was not exclusive and, " Chiu and Martinez were only a specific application of the more general reasonable doubt test stated in cases like Neder [Citation] and Merritt [Citation]." ( Aledamat , supra , 8 Cal.5th at p. 12, 251 Cal.Rptr.3d 371, 447 P.3d 277.) "[T]he reviewing court is not limited to a review of the verdict itself. An examination of the actual verdict may be sufficient to demonstrate harmlessness, but it is not necessary. In both Chiu and Martinez , we examined the record and found that it affirmatively showed the jury might have based its verdict on the invalid theory. Because no other basis to find the error harmless beyond a reasonable doubt was at issue, we did not explore whether other ways of finding the error harmless existed. Those cases merely provide one way in which a court might evaluate harmlessness. They do not preclude other ways ." ( Id . at p. 13, 251 Cal.Rptr.3d 371, 447 P.3d 277, italics added.)

Similarly, the Aledamat court's method of determining harmlessness in the circumstances of that case — a method it characterized as "[a] nonexclusive way the error can be found harmless beyond a reasonable doubt" — only illustrates one example of how harmlessness can be determined. ( Aledamat , supra , 8 Cal.5th at pp. 14-15, 251 Cal.Rptr.3d 371, 447 P.3d 277.)⁴² Second, the federal circuit court cases cited by our high court in Aledamat with apparent approval identified different methods for determining harmlessness. As we have seen, those methods focused on whether the verdict "would have been the same " based the overwhelming nature of the evidence, as opposed to divining the theory the jury relied upon in arriving at its verdict. Because the Aledamat court cited these federal circuit court cases, we apply their persuasive analysis here.

42 Moreover, our high court in Aledamat did not focus on the likelihood that the jury "would have applied the erroneous instruction" as suggested in Thompkins . In Aledamat , the alternative-theory error related to the trial court's instruction on the definition of "deadly weapon" in the assault with a deadly weapon instruction. It was alleged that a box cutter wielded by the defendant was the deadly weapon. The instruction told the jury an implement could be a deadly weapon either because it is "inherently deadly or deadly in the way defendant used it." (Aledamat , supra , 8 Cal.5th at p. 6, 251 Cal.Rptr.3d 371, 447 P.3d 277, italics added.) Because a box cutter is not inherently deadly, it was error to give the jury that alternative theory. (Ibid . ) The circumstances the Aledamat court focused upon in concluding that the error was harmless related primarily to the elements for assault with a deadly weapon in the instructions. It reasoned that defendant's argument on appeal for prejudice presupposed that under the instructions, the jury would believe there were two ways it could find the box cutter to be a deadly weapon – inherently deadly and how the defendant used it. (Id . at p. 13, 251 Cal.Rptr.3d 371, 447 P.3d 277.) However, the court concluded it was "unlikely" the jury would so view the instructions. (Ibid . ) It reasoned that under the instructions (we need not detail here), it seemed "unlikely the jury would simply view the box cutter as inherently deadly without considering the circumstances, including how defendant used it." (Id. at p. 14, 251 Cal.Rptr.3d 371, 447 P.3d 277.) The opinion, contrary to the interpretation of the Thompkins court, did not consider "the likelihood that the jurors would have applied the erroneous instruction." (See Thompkins , supra , 50 Cal.App.5th at p. 399, 264 Cal.Rptr.3d 186.) It considered whether under the instructions given, the jury would have found the weapon inherently dangerous without also finding it was deadly in the way defendant used it. (Aledamat , at pp. 14-15, 251 Cal.Rptr.3d 371, 447 P.3d 277.)

2. Analysis – Harmlessness of the Alternative-Theory Error

We regard the evidence of Roman's culpability as a direct aider and abettor of implied malice murder to be overwhelming, such that the jury would have found him guilty absent the error. We first examine some fundamental rules concerning circumstances supporting a finding of aider and abettor liability and then examine the evidence establishing the elements of aiding and abetting implied malice murder.

a. Aiding and Abetting Circumstances to Consider

Aiding and abetting may be shown by circumstantial evidence. It is well-settled that the presence at the scene of the crime and failure to prevent it, companionship and conduct before and after the offense, including flight, are relevant to determining whether a defendant aided and abetted in the commission of the crime. ( People v. Lara (2017) 9 Cal.App.5th 296, 322, 215 Cal.Rptr.3d 91 ( Lara ); People v. Campbell (1994) 25 Cal.App.4th 402, 409, 30 Cal.Rptr.2d 525 ; People v. Singleton (1987) 196 Cal.App.3d 488, 492, 241 Cal.Rptr. 842 ; See also CALCRIM No. 401.)⁴³

43 It is also well-settled that mere presence at the scene of a crime is not sufficient in and of itself to constitute aiding and abetting, nor is the failure to take action to prevent a crime. (Lara , supra , 9 Cal.App.5th at p. 322, 215 Cal.Rptr.3d 91.)

Regarding companionship, Ruslan and Roman are brothers who, according to Roman, lived together. As for conduct before the murders, the two brothers conspired to commit early morning auto burglaries and took property from vehicles (along with a third person). Together, they then evaded law enforcement in an effort to escape apprehension. During this earlier evasion, Roman drove the get-away vehicle, engaging in the same type of reckless and dangerous driving conduct Ruslan later employed. Together, the two brothers were involved in a serious crash resulting from Roman's dangerous driving conduct and thereafter fled the crash scene together. Then, together they commandeered a second get-away vehicle, stealing a truck. After the crash resulting in the murders, they again fled the crash scene together. Regarding failure to prevent the crime, at no time prior to the fatal crash did Roman try to stop Ruslan's reckless and dangerous driving. Even though the evidence establishes that Roman's own life was endangered by his brother's driving conduct, he could not remember ever asking Ruslan to stop or slow down.

Motive is another circumstance to be considered in determining aiding and abetting liability. (See People v. Rogers (1985) 172 Cal.App.3d 502, 514, 217 Cal.Rptr. 809 [helping the actual perpetrator because of a "familial concern" is a motive to aid and abet].) Aside from avoiding apprehension for the auto burglaries, Roman had a personal motive to aid and abet his brother's reckless driving conduct; Roman, by his own admission, did not want to go to jail on his own outstanding warrant.

The evidence establishing all of these circumstances is uncontroverted. We shall now discuss the evidence that is pertinent to the elements of aiding and abetting implied malice murder.

b. The Actus Reus

Again, "to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act ." ( Powell , supra , 63 Cal.App.5th at p. 713, 278 Cal.Rptr.3d 150.) Here, the life-endangering act Roman aided was Ruslan's driving conduct during the brothers’ ongoing effort to evade law enforcement and avoid apprehension.

There can be no serious argument that Ruslan's driving conduct constituted an act, the natural and probable consequences of which were dangerous to human life and that this conduct was the proximate cause of the death of two people. As noted, one pursuing deputy opined that it was more dangerous to drive at high speeds on surface roads as opposed to the freeway because of intersections, potential pedestrians and bicyclists, especially at 6:30 a.m. on a weekday. He further opined that it was luck that the truck did not collide into a vehicle crossing the several intersections they went through on Antelope Road before the crash.

Although the defense expert disagreed with the prosecution expert as to the precise speed at the point of impact, the defense expert nevertheless agreed that the truck was travelling on this surface street at a speed in excess of the speed limit on the freeway they had just exited. And both experts agreed that just one and one half seconds before the collision, the truck was travelling at 93 miles per hour; the posted speed limit was 45 miles per hour. As one eyewitness put it, the truck was travelling like "a bat out of hell." Indeed, before the crash that witness thought the truck might flip over because of its speed and the wet pavement.

But as our high court has stated, " ‘[a]n aider and abettor must do something’ " to be culpable. ( Powell , supra , 63 Cal.App.5th at p. 712, 278 Cal.Rptr.3d 150, quoting McCoy , supra , 25 Cal.4th at p. 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) So, what did Roman do? The evidence established, through his own admission, that when his brother asked where they should go, he said they should get off the freeway at Antelope Road because they knew the area. The evidence conclusively satisfies the actus reus requirement for an aider and abettor here. c. The Mens Rea

As noted, "[t]he mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act , intent to aid the perpetrator in the commission of the act , knowledge that the act is dangerous to human life, and acting in conscious disregard for human life." ( Powell , supra , 63 Cal.App.5th at p. 713, 278 Cal.Rptr.3d 150 ; accord Langi , supra , 73 Cal.App.5th at p. 983, 288 Cal.Rptr.3d 809 ; Valenzuela , supra , 73 Cal.App.5th at p. 501, 288 Cal.Rptr.3d 627.) Like all elements of a crime, the mens rea elements of implied malice murder can be proven by circumstantial evidence. ( Valenzuela , at p. 502, 288 Cal.Rptr.3d 627.) We find the evidence of the required mens rea elements to be overwhelming here.

The evidence establishes that Roman knew his brother intended to continue driving recklessly when he offered the advice about where to go. In fact, when he gave that advice, Ruslan was driving recklessly on the freeway, including at some point, attempting to evade the police by using the emergency lane next to the center divider. Nothing suggests Roman expected Ruslan to change his behavior when he told him to exit at Antelope. As for their plans once on Antelope, all Roman said was "[w]e didn't know where to go from there." (Italics added.) Roman's reference to "where to go from there" without any qualification of how they would get there shows he expected Ruslan to continue his evasion of the pursuing deputies. Indeed, Roman never told his brother to slow down. His own statement explains why. Asked whether they were trying to get away from law enforcement during the evasion in the truck, Roman said, "Not from the cops. I just wanted to, not from the cops in general. I just, I didn't want to go to jail." (Italics added.)

The totality of this evidence gives rise to only one reasonable inference: Roman expected his brother to continue their reckless flight to avoid apprehension for their earlier crimes and keep himself from going to jail on his warrant. Likewise, Roman's advice to get off at Antelope could only have been done with intent to aid Ruslan's reckless and dangerous driving conduct.

We further conclude the evidence is also overwhelming as to Roman's knowledge that Ruslan's driving conduct was dangerous to human life and that Roman acted in conscious disregard for human life when he advised Roman where to go. Again, Roman had earlier driven them into what was described as an "[e]xtremly violent crash." This was less than an hour and a half before the fatal collision in the 6:30 a.m. commuter traffic. This circumstance is significant in establishing Roman's risk awareness and conscious disregard. (See Watson , supra , 30 Cal.3d 290, 293-294, 301, 179 Cal.Rptr. 43, 637 P.2d 279 [that the defendant had nearly collided with another vehicle before the fatal crash was considered significant proof of risk awareness and conscious disregard].) Moreover, we may look to the reason Roman gave for the specific advice he gave his brother in determining his awareness of the risk of death to people in their flight path. Roman said they knew the area. This means that he had to have known that Antelope Road was a surface street with traffic lights controlling major intersections. Indeed, Roman's own accident reconstruction expert testified that the two brothers lived only a little more than a mile from the collision scene. And on cross-examination, the expert opined that a hypothetical person living in the proximity of the collision scene would be familiar with the roadway, and when going over the overpass, would know about the existence of the intersection where the collision occurred.

Additionally, Roman admitted to investigators that he knew it was dangerous to speed and evade the police. He said he saw lights flashing and when asked what a person is supposed to do when they see police lights, Roman said, "You're supposed to pull over." He said they were scared because "there's so much [sic ] cops after us." But he claimed they were only travelling at 50 to 60 miles per hour on Antelope Road. He knew this because he looked at the speedometer. And, according to Roman, after Ruslan hit the brakes, they slowed to "about like thirty-five" at the point of the collision. Asked whether he thought it was safe to drive at 50 or 60 miles per hour in that area, Roman said, "at some points, no." When then asked if Ruslan also knew it was dangerous, Roman said he did and added, "I mean, I'm sure. He's not stupid."

Notably, all witnesses testified the truck was travelling much faster than Roman admitted and indeed, the air bag module recorded the speed at 93 miles per hour just a second and a half before the collision. Giving a false statement evincing consciousness of guilt is another circumstance tending to prove aiding and abetting. ( Lara , supra , 9 Cal.App.5th at p. 322, 215 Cal.Rptr.3d 91.) More to the point here, regarding risk awareness, Roman's false statement as to speed demonstrates he personally appreciated the risk of death posed by his brother's excessive speed and tried to downplay it by claiming they were not going as fast as they were.

Finally, the brothers’ conduct after the fatal collision show their disregard for the risk their conduct presented to human life. In response to a question from one of the jurors, the primary pursuing deputy testified that after colliding into the Kia at a high rate of speed and pushing it an estimated 45 yards, the two occupants of the truck fled from the scene without checking on the occupants of the Kia. This conduct was consistent with the prosecutor's closing argument theme: Roman and Ruslan did not care whether they endangered or hurt anyone during the flight from law enforcement.

In our view, no reasonable inference can be drawn from this evidence other than Roman aided and abetted implied malice murder. Stated differently, we see no evidence "sufficient to support a contrary finding," i.e., no evidence "that could rationally lead to [an acquittal] with respect to the’ " valid theory of aiding and abetting implied malice. ( Skilling II , supra , 638 F.3d at p. 482.) It is thus clear "beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error" occasioned by the retroactive alternative-theory error here. (See Neder , supra , 527 U.S. at p. 18, 119 S.Ct. 1827 ; Merritt, supra, 2 Cal.5th at p. 827, 216 Cal.Rptr.3d 265, 392 P.3d 421 ; Powell , supra , 63 Cal.App.5th at p. 715, 278 Cal.Rptr.3d 150, italics added.)

d. The Facts Supporting the Jury's Verdict of Willful Evasion of a Peace Officer with Wanton Disregard

Not only is the evidence supporting the valid theory here overwhelming, but that evidence is the very same evidence the jury had to have credited in finding that defendant aided and abetted the target crime for the natural and probable consequences theory — evading a peace officer with wanton disregard for safety. Thus, we conclude from this additional circumstance that the jury would have convicted the defendant on the legally valid ground in addition to the legally invalid theory. (See Bereano, supra, 706 F.3d at pp. 578-579 [Reasoning that "[a] conviction based on honest services fraud necessarily acknowledges that the jury accepts as true the scheme the Government has alleged, that Bereano knowingly took advantage of his client[s’] trust by sending them false bills. In accepting that this scheme took place, the jury also necessarily accepted that Bereano knowingly obtained his clients’ money by false pretenses, a finding that equates to a conviction for pecuniary fraud "].)

First, we note that Roman's jury was instructed it had to find beyond a reasonable doubt that Ruslan committed second degree murder before it could convict Roman based on the natural and probable consequences theory. And given that there was no evidence of intentional murder and the prosecutor argued the murder was based on implied malice, Roman's jury necessarily concluded Ruslan committed implied malice murder and in doing so necessarily concluded that his driving conduct was life endangering and that it caused the death of the victims.

Second, the jury had to have found that Roman did something to aid and abet the target crime. The act Roman performed to aid that crime is the same act supporting culpability for aiding and abetting implied malice murder – he advised Ruslan to get off the freeway at an exit where they knew the area.

While we note the element of wanton disregard in the evading offense is not limited to the safety of persons — it can be either the wanton disregard of the safety of persons or property and the jury was so instructed — no rational jury could have concluded from the evidence here that the driving conduct in the truck only risked the safety of property; many people on Interstate 80 and Antelope Road that morning were clearly endangered during the flight in the truck and two people were ultimately killed.

We also acknowledge that the wanton disregard element can be established by the commission of three or more Vehicle Code violations and those violations need not be life endangering in the abstract.⁴⁴ But the evidence demonstrated that the commission of those offenses here was life endangering. Consequently, it is clear that the evidence the jury must have credited and relied upon to find culpability for the target offense under any theory of that offense, was the same evidence establishing Roman's culpability for implied malice murder.⁴⁵ (See in Bereano, supra, 706 F.3d at p. 578.) e. The Prosecution's Closing Argument

44 Regarding evading a peace officer with wanton disregard for safety, the jury was instructed in pertinent part: "A person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, [and] (2) he or she intentionally ignores that risk. [¶] Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point . [¶] Driving at an Unsafe Speed (Vehicle Code § 22350 ), Driving in Excess of Posted Speed Limit (Vehicle Code § 22348 ), Unsafe Lane Change (Vehicle Code § 21750 ), and Failure to Drive on the Right Side of the Roadway (Vehicle Code § 21650 ) are each assigned a traffic violation point." (Italics added.)

45 To be clear, we do not conclude that because the jury found the target offense, it necessarily found implied malice murder as a matter of law. As noted, evading a peace officer with wanton disregard for safety can be committed without endangering people. Risk of danger to and damage to property or three or more Vehicle Code violations are sufficient. Thus, the elements of the target offense and implied malice do not align in the abstract and a finding of culpability as to the target offense here does not necessarily equate to a finding of implied malice. (See People v. Howard (2005) 34 Cal.4th 1129, 23 Cal.Rptr.3d 306, 104 P.3d 107.) Our conclusion here is based on the evidence the jury must have accepted in the context of this case to conclude Roman aided and abetted the target offense, not on the elements the jury necessarily found as to the target offense. Accordingly, while we employ an analysis here that is similar to the analysis in Aledamat , we do not employ the precise method that court used to determine harmlessness: "The reviewing court examines what the jury necessarily did find [as to specific elements] and asks whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well." (Aledamat , supra , 8 Cal.5th at pp. 14-15, 251 Cal.Rptr.3d 371, 447 P.3d 277, italics added [Concluding that no reasonable jury that made all of the findings necessary to find the elements of assault with a deadly weapon could have failed to find that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury].)

In arguing that the alternative-theory error here was not harmless beyond a reasonable doubt, Roman relies upon two isolated excerpts of the prosecution's initial closing argument. He argues that because the prosecutor argued the natural and probable consequences theory was the "easiest" and "cleanest" way to second degree murder, he was prejudiced because we cannot say beyond a reasonable doubt that the jurors did not rely on that now invalidated theory to arrive at their verdict.

But while a showing that the jury did not rely on the invalidated theory in reaching its verdict would establish harmlessness, again that is not the only way harmlessness can be established. ( Aledamat , supra , 8 Cal.5th at p. 13, 251 Cal.Rptr.3d 371, 447 P.3d 277.)

The prosecutor's argument, is nevertheless a pertinent circumstance that should be considered in determining whether an error is harmless. ( Powell , supra , 63 Cal.App.5th at p. 712, 278 Cal.Rptr.3d 150 [concluding that the instructional error as to aiding and abetting implied malice murder was harmless as to the defendant because the prosecutor did not argue he was culpable under that theory and argued implied malice only as to the codefendant].) But rather than focus on the two snippets highlighted by defendant, we have examined the entirety of the prosecutor's argument concerning the two second degree murder theories. Our review reveals his discussion focused on direct aiding and abetting implied malice at least as much as the natural and probable consequences theory. Moreover, his theme from the beginning of the trial was that Roman and his brother did not care about the risks posed to others by their flight, a theme consistent with the conscious disregard for the risk of death element of implied malice murder.

The prosecutor began his initial closing argument with this same theme: "The defendant and his brother could care less who was on the roadway at 6:30 in the morning as they were driving ... at almost 100 miles per hour through commute traffic. Certainly didn't care that the road they were about to get off on was much more congested and ... was much more higher likely [sic] to end in the tragedy that we've got in this case. [¶] The defendant and his brother could care less as they drove this truck into this small car at speeds between 74 to 80 miles per hour. They didn't care that [the victims] were dying in that car as they got out and they kept running."

Later, in discussing the murder counts, the prosecutor explained there were two degrees of murder the jury was to consider, first degree felony murder based on the burglary during which the keys for the truck were stolen and second degree murder based on implied malice murder. In describing the second degree murder theory, the prosecutor told the jury there were "two different ways that a defendant is guilty of second-degree murder. One is he is an aider and abettor to Ruslan's implied malice murder. He is directly aiding and abetting Ruslan in committing a second-degree murder. [¶] And the other way is this natural and probable consequence. This is sort of the least common denominator under these facts. I think it is the easiest to get to and it's clearest to get to second-degree murder for Defendant Roman under this aider and abettor to natural and probable consequence. [¶] But in order to determine ... the defendant is guilty, you have to determine if Ruslan's guilty of second-degree murder because you can't aid and abet a crime that never happened. So you have to first say, ‘Did Ruslan commit a second-degree murder by implied malice?’ "

After discussing the relevant evidence establishing Ruslan's culpability for implied malice murder, the prosecutor then turned to Roman's culpability as a direct aider and abettor by first posing the following questions: "[W]hat was Roman's state of mind? Did Roman encourage this?" He then discussed some of the circumstances we discussed ante answering these questions and establishing Roman's culpability for aiding and abetting implied malice murder, including Roman's advice to get off the freeway at Antelope. The prosecutor emphasized that it was this advice "that brought Ruslan's driving in direct conflict with" the Kia. The prosecutor argued Roman "didn't care any more than Ruslan did" and further argued, "[t]hey don't care if they kill. That's murder under the second degree."

Turning to the alternative theory, the prosecutor then stated, "so that's one way. It's even easier to get to second-degree murder through what's known as a natural and probable consequence doctrine." After discussing the evidence establishing the target offense of evading a peace officer with wanton disregard, the prosecutor again posed the question, "did Roman encourage that?" He answered his question by telling the jury, "Again, look at the at the same thing " and reiterated the argument he had made concerning implied malice murder, emphasizing Roman's advice to get off at Antelope Road. He told the jury the brothers went from the freeway to "a more congested road" and argued it was "just a matter of time when there is an awful tragedy, and that's exactly what happened."

Critically, the prosecutor's argument as to each second degree murder theory focused on the same evidence — or as the prosecutor put it, "the same thing." Similar to Skilling II , we conclude that the fact the argument permitted the jury to decide the case based on two theories, one of which was later invalidated, "shows only that an alternative-theory error occurred, not that the error was not harmless." ( Skilling II , supra , 638 F.3d at p. 483.) And like in Skilling II , the evidence of the valid theory was overwhelming. Moreover, the evidence the prosecutor focused upon and that the jury must have credited to conclude that defendant aided and abetted the target crime was the same that established his culpability for aiding and abetting implied malice murder. (See Bereano, supra, 706 F.3d at p. 578 and Jefferson, supra, 674 F.3d at p. 361.)

Accordingly, we are not persuaded by Roman's contention that the prosecutor's argument here prejudiced him. f. Conclusion – Retroactive Alternative-Theory Error

Applying Chapman , Neder , Aledamat and the federal circuit cases we have discussed, we conclude beyond a reasonable doubt that a rational jury would have found Roman guilty absent the retroactive alternative-theory error occasioned by Senate Bill 1437.

3. Analysis – Harmlessness of the Powell Error

As our high court has noted, the same standard of review that applies to alternative-theory error applies to other misdescriptions of the elements. ( Aledamat , supra , 8 Cal.5th at p. 9, 251 Cal.Rptr.3d 371, 447 P.3d 277.) Erroneous aiding and abetting instructions are treated the same as misdescription of elements. (See Neder , supra , 527 U.S. at p. 14, 119 S.Ct. 1827, quoting California v. Roy (1996) 519 U.S. 2, 5, 117 S.Ct. 337, 136 L.Ed.2d 266 [noting that the failure to instruct that the jury could convict the defendant as an aider and abettor only if it found that the defendant had the intent or purpose of aiding the perpetrator's crime is an error that " ‘could be ‘as easily characterized as a ‘misdescription of an element’ of the crime, as it is characterized as an error of ‘omission’ " ’].)

Accordingly, we apply the same analysis in determining harmlessness as to the Powell instructional error we discussed ante and conclude the error was harmless. Again, we ask: "Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" ( Neder , supra , 527 U.S. at p. 18, 119 S.Ct. 1827 ; Merritt , supra , 2 Cal.5th at p. 827, 216 Cal.Rptr.3d 265, 392 P.3d 421 ; Powell , supra , 63 Cal.App.5th at p. 715, 278 Cal.Rptr.3d 150.) And we conclude, based on the overwhelming evidence discussed ante that Roman's jury would have convicted him of second degree murder based on a properly instructed implied malice theory if it had not been instructed on the now invalidated natural and probable consequences theory.

4. Conclusion

We conclude that both the retroactive alternative-theory error and Powell instructional error here are harmless beyond a reasonable doubt.

VIII.–XI. ^†

† See footnote *, ante .

DISPOSITION

As to Roman Glukhoy, the trial court is directed to prepare a corrected abstract of judgment reflecting the imposition of a $160 court operations assessment ( Pen. Code, § 1465.8 ). As to both defendants, we otherwise affirm the judgments.

We concur:

HOCH, Acting P. J.

KRAUSE, J.