Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR03-3344 BS
NEEDHAM, J.
Appellant Marcella Lunsford was separately tried before a jury and convicted of first degree murder and conspiracy to commit murder, based on her role in the shooting of her son-in-law by her husband Douglas Lunsford. (Pen. Code, §§ 187, subd. (a), 182, subd. (a)(1).) The jury also found true special circumstance allegations that the murder was committed to prevent a witness from testifying in a criminal proceeding and by means of lying in wait, and an enhancement allegation that a principal was armed with a firearm at the time of the killing. (§§ 190.2, subds. (a)(10) & (a)(15), 12022, subd. (a)(1).) Appellant, who was convicted as an aider and abettor rather than a direct perpetrator, was sentenced to prison for life without the possibility of parole on the murder count, plus one year for the arming allegation, with sentence on the conspiracy count stayed under section 654.
Statutory references are to the Penal Code unless otherwise indicated.
Appellant contends the judgment must be reversed because the prosecutor interfered with her right to call a favorable witness and committed other acts of misconduct during cross-examination and oral argument. She also challenges the jury instructions on the murder count, the conspiracy count, aiding and abetting and the special circumstance allegations, and she argues that the special circumstances should not have been applied in her case because there was no evidence she was the actual killer. Finally, she argues that the witness killing special circumstance must be vacated under principles of collateral estoppel, because that circumstance had been found not true in the separate trial of her husband, the actual killer. We agree with the last contention but otherwise affirm the judgment and sentence.
Factual and Procedural History
Background
Appellant’s son-in-law Nathan was shot and killed by her husband Douglas on August 6, 2002. The killing followed an earlier attempt by Douglas on Nathan’s life, and was prompted by animosity arising from an ongoing child custody dispute between Nathan and appellant’s daughter Chasity.
Many of the individuals involved in this case share the same surnames. We refer to them by their first names, not out of disrespect, but to avoid confusion.
The District Attorney of Humboldt County filed an information bringing charges of murder with special circumstances and conspiracy against appellant, Douglas, and her adult son Charles Lunsford. The prosecution’s theory was that Douglas had committed the murder, that appellant had aided and abetted him by encouraging him to do so and by securing the murder weapon for him, and that Charles had helped plan the killing and had provided the vehicle used to drive to and flee the murder scene. Douglas and appellant were convicted of murder and related charges and enhancements in separate trials, after which Charles pled guilty to voluntary manslaughter. Appellant’s conviction is the only one at issue in this appeal.
Prosecution Evidence
Appellant married Douglas in Arkansas in 1979, when she had three children and was pregnant with a fourth. The family moved to Humboldt County, where Douglas’s mother and several of his brothers and sisters lived. Between 1980 and 1997, Douglas and appellant moved back and forth between California and Arkansas/Missouri a number of times. Appellant bought a house in Hawkins Bar in Trinity County, using money that Douglas received as a disability payment.
Appellant’s three surviving children are Charles, who was charged as a co-defendant, Chasity and J. Appellant has also adopted J.’s daughter A., who was born when J. was a teenager. In 1995, appellant called the police to report that she had seen Douglas molesting A. During the preliminary hearing in that case, appellant testified that she was the dominant one in the relationship and that Douglas usually did not argue with her. Douglas was convicted of a misdemeanor as a result of those proceedings. The couple divorced, but they remarried in 1997.
Chasity married Nathan, the victim in this case, in 1999. She was then pregnant with her son R., who was not Nathan’s biological child. Chasity and Nathan then had their own child in 2000, a girl named M. Appellant was very close to R.
Nathan and Chasity began having marital problems in 2001, and Chasity took the children to Missouri. Nathan’s father Richard went to appellant’s and Douglas’s home to find out where the children were. Douglas answered the door and told Richard, “We want [R.], He’s not yours. And we’ll get blood tests . . . to prove it.” After Chasity was ordered by the family law court to return from Missouri with the children, Nathan and Chasity decided to reconcile and the divorce proceedings were dismissed.
In July 2001, Chasity filed for divorce and obtained a temporary restraining order granting her full custody of her children. She alleged that Nathan had been violent toward her and was rough with the children. After Nathan filed papers rebutting these allegations, rumors that he had molested the children arose in the case, though Chasity did not include these allegations in her court papers filed under penalty of perjury.
Appellant’s son Charles Lunsford (who is developmentally disabled) was married to Trina Lunsford, and they lived in the same house as Douglas from March through June 2001. During that time, Trina heard Charles say that he wanted Nathan killed because “he was going to take the kids.” Trina also heard appellant tell Douglas that she wanted Nathan killed, but Douglas told her “it wasn’t the right time.” Sometime in June 2001, Charles gave Douglas a rifle and they said they were going to “get Nathan.” They returned later, telling Trina that Nathan hadn’t been home. Trina moved out of the home and into a women’s shelter on June 14, 2001, after Charles assaulted her.
Lisa White became Charles’s girlfriend in the summer of 2001, when they both lived at the Gambi Hill trailer park. Charles and Lisa sometimes stayed with appellant at the Hawkins Bar house, along with Douglas, Chasity, R., M. and A. R. and A. usually slept with appellant in the master bedroom. On the first night that Lisa stayed at Hawkins Bar, appellant told her that Nathan was trying to take Chasity’s children. A few nights later, appellant mentioned that Nathan was not a very nice person, and, recalling the many times he had been “up on the hill,” said she “would have just kind of pushed him off.” Appellant spoke to Lisa about Nathan almost every day, saying she wished there were a way to get rid of him because it was “not right for a man to molest his son.” Appellant was angry about the situation and often told Charles they needed to find someone to get rid of Nathan. Charles would agree with her.
Lisa and Charles moved back to the trailer park, where Charles started talking about Nathan all the time, sometimes saying he would kill or stab him. When they visited appellant, appellant spoke about Nathan quite often, saying she hated him and wanted to see him “destroyed, dead, hurt.” Appellant showed Lisa a rifle she kept hidden in a closet. She asked Lisa if there was any way of to get rid of Nathan, and Lisa said she would look around, hoping appellant would “forget about it.” Lisa realized appellant was serious when she gave her a picture of Nathan and said she needed him dead. Appellant told Lisa that Nathan left for work at about 4:00 a.m. and returned at 2:00 p.m., and that she wanted Lisa to find someone to kill him.
Nathan and Chasity reached an agreement in the family law case that Nathan could visit the children and that Chasity would never leave them alone with Douglas or Charles. This agreement was memorialized in a negotiated disposition, a written version of which was filed with the court on October 2, 2001. The day after the visitation agreement was filed in court, Nathan noticed Douglas’s old white truck parked across the street from his apartment as he was leaving for work at about 5:00 a.m. The person in the truck fired two shots through the back window of Nathan’s car. Douglas was charged with the attempted murder of Nathan and taken into custody.
Shortly after Thanksgiving, Charles and Lisa White moved with her three children into appellant’s house at Hawkins Bar while appellant was living with Chasity in Chasity’s apartment. Appellant told them that Lisa could live in the house for free for as long as she liked if she found someone to kill Nathan. Appellant mentioned during a telephone conversation with Lisa that she loved her grandchildren too much and asked her, “Are you sure you can get rid of him?” Charles also asked her to find someone to kill Nathan and said he wanted it done now. Lisa’s sons, Jeremy and Michael, both recalled Charles saying that Nathan should not have custody of the children because he was sexually abusing them. Jeremy had heard appellant say that Nathan was a bad person who had sexually abused his children.
Jeremy testified at Douglas’s trial for murder that he heard appellant say she wanted Nathan killed, but his testimony at appellant’s trial varied as to whether he remembered such death threats by appellant.
Charles spoke to appellant on the telephone on December 14, 2001 and after hanging up, he told Lisa, “Momma’s upset. If you don’t find somebody, they go to court Monday, and she said to hurry up. Get it done.” Later that day, Charles fought with Lisa’s son, and Lisa called the police. Charles was taken into custody and appellant arrived the next day to evict Lisa from the home.
Appellant began dating Donald Manion around Valentine’s Day 2002, while Douglas was still in custody awaiting trial in the attempted murder case. She did not immediately tell Manion that she was married, but later told him that Douglas was in custody on attempted murder charges and that she planned to divorce him. Manion showed appellant his rifle collection, which included a 30.30 Winchester model that he kept on the wall of his bedroom. Appellant shot the rifle during target practice, and at one point told Manion that if he killed Nathan, she would run away with him. Appellant sometimes spent the night with Manion, but would bring her grandchildren along. She seemed to hate Nathan and talked about him often during her dates with Manion.
During a conversation with Douglas’s brother Jonathan Lunsford, appellant explained that she was “too young a woman” to wait for Douglas, and mentioned during the same conversation that Douglas “always tries to reason with people, but I’ll do it.” In context, Jonathan believed she was talking about killing Nathan.
Douglas was tried before a jury on the attempted murder charges in April 2002. The proceedings ended in a mistrial on May 6, 2002, when the jury failed to reach a unanimous verdict. Douglas was released from custody, and the case was scheduled to be retried.
Meanwhile, Nathan continued to seek greater custody rights of the children. He took a polygraph test in April 2002 to rebut Chasity’s claim that he had abused them, and although he passed, she continued her attempts to limit his visitation. David J., who was dating Chasity and ultimately married her, noticed that although the family was happy Nathan had passed the polygraph test, appellant’s dislike of him did not change. He also noticed that appellant seemed to have an unusually strong interest in her grandchildren, and that she had a special relationship with R. that she did not share with the others.
Following a contested hearing in the family law case on July 31, 2002, Nathan was awarded joint legal and physical custody of the children and would have them every Thursday through Sunday. Chasity seemed disappointed and confused by the ruling.
On August 6, 2002, less than a week after Nathan was awarded joint custody of the children and three days before the retrial in Douglas’s attempted murder case was scheduled to begin, Douglas fatally shot Nathan as Nathan was leaving for work in the morning. Douglas was driving Charles’s car, and the gun he used was the 30.30 Winchester rifle that belonged to Donald Manion. Manion and appellant had stopped seeing each other by that time, and Manion had discovered that the rifle was missing from his house. He had a habit of leaving his front door unlocked, and had noticed appellant parked outside his home one evening as he left for a karaoke show at which he regularly performed. Manion reported the theft of his rifle to the police on August 11, 2002, after he learned about Nathan’s murder and decided that the shooting and his missing rifle were “too much of a coincidence.” He provided the police with a shell casing and spent bullet he recovered from a deer he had shot so they could match the murder weapon to his rifle.
About three weeks after the murder, Chasity and David J. abruptly moved to Missouri after David called in sick at his job and sold his car for $500. Appellant came to Missouri with Chasity’s children a few weeks later, and the family lived in several different houses over the next few months. Douglas stayed at appellant’s house at Hawkins Bar, and, about a year later, moved with Charles to rejoin the family. The family moved to Tennessee, where Charles was arrested and gave a statement in which he admitted that Douglas had committed the murder and that Charles had helped him dispose of the murder weapon near a power plant. The murder weapon was eventually located based on the information that Charles provided.
Defense Evidence
Appellant testified on her own behalf. She denied that she had ever spoken to Trina about Nathan. Although she had been “unsure” about Nathan’s character when Chasity accused him of molesting the children, her feelings about that changed for the better when he passed the polygraph examination, and she “felt fine” with his obtaining joint custody. Appellant claimed she had no involvement in the divorce or custody proceedings other than driving Chasity to and from the hearings and providing babysitting services.
Appellant denied that she had anything to do with Douglas’s decision to kill Nathan. Her relationship with Douglas had soured, and he moved out of the Hawkins Bar house. Douglas was jealous and “stalked” her. When the attempted murder was committed, Douglas was living with his mother in McKinleyville and appellant had not seen him for several weeks, although they spoke “a lot.”
Appellant testified that she did not make any statements to Lisa White about wanting Nathan dead. She did not like Lisa and did not want her involved with Charles, because Lisa was an older woman who was dirty and had no teeth. Nor did she ask Donald Manion to kill Nathan while they were dating. Appellant was not very interested in maintaining a relationship with Manion. She never spent the night with him or shot one of his guns, although he did show her the 30.30 rifle. Charles had been to Manion’s house, but appellant never told him about the rifle or Manion’s habit of keeping his house unlocked. Two days after Nathan’s murder, Manion telephoned her and mentioned that his rifle was missing, but he thought the former boyfriend of his new girlfriend had taken it.
Asked about her move to Missouri/Tennessee after the murder, appellant explained that she just wanted a fresh start. The family moved frequently once there because of issues with the landlords. When Douglas arrived in Missouri, he told her he was no longer a suspect in Nathan’s murder, and she allowed him to live with her because she needed his income.
Chasity testified as a defense witness and denied that her mother was overly involved with R. and M., or that she had interfered in the family law case. After Nathan passed the polygraph, Chasity did not mind his having the children. According to Chasity, appellant was devastated to learn Nathan had been killed. Chasity moved with her family to Missouri because she thought it would be better financially.
Discussion
I. The Prosecutor Did Not Commit Misconduct by Interfering With Appellant’s Right to Compulsory Process, and Defense Counsel Was Not Ineffective in Failing to Raise the Issue
Appellant argues that reversal is required because the prosecutor committed misconduct by interfering with her ability to call Charles as a defense witness at trial. Acknowledging that the issue was not raised below, she claims defense counsel was ineffective in failing to seek a new trial on this basis. (See Strickland v. Washington (1984) 466 U.S. 668.) We disagree.
A. Factual Background
On August 8, 2002, two days after Nathan was murdered, Charles gave a recorded statement to police in which he claimed that he and Douglas had gone fishing on the day of the murder. A year later, after he and Douglas and appellant had moved to Tennessee, Charles was again interviewed and acknowledged that Douglas had shot and killed Nathan. Charles stated that “mainly” he and Douglas knew about the shooting, but that appellant had “kind of” and “more or less” known about the shooting and “more or less” wanted it done. During an August 24, 2003 interview in the Humboldt County jail, after he had been taken into custody, Charles said that appellant had been very upset about the order awarding Nathan 50 percent custody of his children and that she was probably angry enough to kill Nathan that day. He said appellant was the boss of the house and that after the murder Douglas told her he took a couple of shots at Nathan but did not know whether he had hit him.
The prosecution filed charges of first degree murder and conspiracy to commit murder against Douglas, appellant and Charles, but the cases were severed. Douglas was separately tried and convicted of all charges except the witness killing special circumstance in early 2005. Charles was declared incompetent to stand trial between March 2005 and September 2005. Appellant’s trial was held between November 2005 and February 2006. In March 2006, after appellant had been convicted, but before she was sentenced, Charles was offered an open plea to voluntary manslaughter with an indicated term of six years.
We have taken judicial notice of the judgment, court file and unpublished appellate opinion in People v. Douglas Mark Lunsford (Humboldt County Super. Ct. No. CR033447AS; Court of Appeal No. A110349). (See Evid. Code, §§ 452, subd. (d) [judicial notice may be taken of the records of any court of this state], 452.5 [pertaining to court records relating to criminal convictions].)
On March 22, 2006, Charles was interviewed by the probation officer who prepared the pre-plea report in his case. Charles told the officer that appellant had been very angry with Nathan because she believed he was molesting his children. Charles had overheard appellant and Douglas discussing plans to kill Nathan, with appellant pressuring Douglas to do so. Charles commented that no one in the family said “no” to his mother, and that she was threatening to divorce Douglas if he did not kill Nathan. He believed that even if Douglas had refused, his mother would have found a way to commit the crime. She “borrowed” a rifle from Donald Manion and gave it to Douglas to use in the murder. She had also asked Lisa White to kill Nathan.
Appellant’s trial counsel sent an investigator to interview Charles on July 19, 2006. Contrary to what he had told the probation officer in his case, Charles stated that he did not know where Douglas had obtained the murder weapon, that Douglas killed Nathan because he has “raped the children,” that he had never heard appellant discuss the murder with Douglas and that appellant had appeared shocked when Charles told her that Douglas killed Nathan. Charles said he had not testified at appellant’s trial because his attorney told him that if he did he would probably get life in prison. His attorney also told him he would get life if he testified at his own trial, and advised him to avoid going to trial. Charles could have testified that as far as he knew, appellant did not know anything about the killing.
Appellant filed a motion for new trial, arguing that Charles’s statement to the defense investigator was newly discovered evidence, and that since Charles had entered a plea and was no longer facing a life sentence, he was willing to testify to facts that would contradict the incriminating testimony given by Lisa White about appellant’s statements. The trial court denied the motion, noting that Charles had made other statements to the probation officer in his own case that directly contradicted his proposed testimony and implicated appellant in the crimes. The court characterized Charles’s proposed testimony as “a belated attempt by Charles to assist or protect his mother in these proceedings,” and concluded a different result was not reasonably probable if a new jury heard the testimony.
Appellant does not challenge the trial court’s ruling on the motion for new trial per se. Instead, she argues that the evidence presented in support of the motion shows that the prosecutor violated appellant’s right to compulsory process and due process when it employed intimidating tactics to discourage Charles from testifying. She claims her trial attorney provided ineffective assistance of counsel when he failed to assert this as a ground for a new trial.
As to the substance of her argument, appellant relies primarily on an e-mail message that was written by the prosecutor to Charles’s attorney on December 9, 2005, two days before the prosecution completed its case-in-chief in appellant’s trial:
“Let me know when Charles is ready to be [polygraphed] and I will get it set up. For the record, it has never been our position that Charles was the shooter. That doesn’t make him innocent.
“Here is how it’s going to have to be: he can come talk to us, we’ll poly him and, if he passes, sit down and talk about what sort of a deal we’ll make him. But right now, he knows about the murder of Nathan, he’s a co-conspirator, and he is doing absolutely nothing to assist us in bringing Nathan’s murderers to justice. Charles isn’t scoring any points.
“I’ve won and I’ve lost cases, it’s all the same to me. So, trying Charles is no skin off my back and, frankly, the strongest case is the one against him.
“You’re a good attorney and might be able to get him off or a hung jury, but I’m planning on something a little different and, if he goes to trial and is convicted, Charles will have a long time to think about whether he should have come forward.”
The prosecutor subsequently advised the court and defense counsel that the People were considering calling Charles as a witness against appellant, but that Charles would be taking a polygraph test before a final decision was made. Charles took the polygraph test, which, according to the prosecutor, indicated that some of his statements were not accurate. The prosecution did not call him as a witness.
B. Discussion
A defendant has the right to call witnesses on her own behalf under the compulsory process and due process clauses of the federal and state constitutions. (U.S. Const., 5th, 6th & 14th Amends.; Cal. Const., art. I, § 15.) A prosecutor may violate these rights by threatening or intimidating a potential defense witness and preventing her from testifying. (People v. Harris (2005) 37 Cal.4th 310, 343; In re Martin (1987) 44 Cal.3d 1, 30-31.) Conditioning a plea agreement on a promise that the witness will not testify in favor of a codefendant is a form of witness intimidation. (People v. Woods (2006) 146 Cal.App.4th 106, 119-120 (Woods).)
To prevail on a claim that the prosecutor interfered with her right to call a witness, a defendant must establish three things: “ ‘First, [s]he must demonstrate prosecutorial misconduct, i.e., conduct that was “entirely unnecessary to the proper performance of the prosecutor’s duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify.” [Citation.] Second, [s]he must establish the prosecutor’s misconduct was a substantial cause in depriving the defendant of the witness’s testimony. [Citation.] The defendant, however, “is not required to prove that the conduct under challenge was the ‘direct or exclusive’ cause. [Citations.] Rather, [s]he need only show that the conduct was a substantial cause. [Citations.] The misconduct in question may be deemed a substantial cause, when, for example, it carries significant coercive force [citation] and is soon followed by the witness’s refusal to testify.” [Citation.] Finally, the defendant must show the testimony [s]he was unable to present was material to [her] defense.’ ” (People v. Lucas (1995) 12 Cal.4th 415, 457.)
Appellant argues that the prosecutor’s e-mail to Charles’s defense counsel was a threat that if he testified on appellant’s behalf, he would be prosecuted for murder and sentenced to 25 years to life. But Charles was already being prosecuted for murder, which carried a life sentence, and was being considered as a prosecution witness against appellant based on statements he had previously made to investigators. The prosecutor’s message advised defense counsel that he believed Charles was guilty, but that he would consider a deal if Charles was willing to assist the prosecution by providing them with information about his co-defendants’ guilt assuming he passed a polygraph test. The prosecutor’s e-mail message did not threaten retaliation against Charles if he testified in favor of appellant, nor did it promise any benefit to Charles if he refrained from testifying for appellant. To the contrary, it does not appear the prosecutor had any reason to believe Charles could truthfully testify favorably for appellant, given his statements to police investigators in 2002 and 2003.
This is not a case like Woods, supra, 146 Cal.App.4th at pp. 119-120, on which appellant relies. In Woods, the prosecutor conditioned a cohort’s plea bargain on an agreement that he would not testify at the defendant’s trial, and threatened to have that plea bargain set aside if such testimony was given. There was no similar coercion in this case. Although the prosecutor was obviously interested in securing Charles’s cooperation, it is not misconduct to advise a less culpable witness that a favorable plea agreement will be considered in exchange for truthful testimony against a cohort. (See People v. Gurule (2002) 28 Cal.4th 557, 615 [immunity agreement requiring that witness testify truthfully is valid and not impermissibly coercive].)
Even if the prosecutor’s e-mail message could be construed to contain a veiled threat that Charles would not receive a good plea bargain if he testified in appellant’s favor, appellant cannot demonstrate prejudice. Because this issue was not raised below, we apply the standard of harmless error applicable to claims of ineffective assistance of counsel, which requires the defendant to demonstrate a “reasonable probability” that, but for counsel’s omission, the defendant would have obtained a better result. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008-1009.) There is no reasonable probability that a jury hearing Charles’s proposed testimony would credit his claim that appellant knew nothing of the plan to murder Nathan when his previous statement to the probation officer in his own case was in direct conflict on many points and provided a number of details about appellant’s involvement in the crime.
II. Counsel Did Not Provide Ineffective Assistance in Failing To Object to Alleged Prosecutorial Misconduct During Cross-Examination and Closing Argument
During closing argument, the prosecutor urged the jury to find that Chasity was not a credible witness because she had taken contradictory positions about her son R.’s paternity. This argument was based on Chasity’s acknowledgement during cross-examination that she had identified Nathan as R.’s father when she was attempting to collect social security benefits after Nathan’s death, even though she had sought a declaration in family court that R.’s biological father, James B., was his legal father. Appellant argues that this line of questioning and argument was improper because Nathan was R.’s presumed father as that status is defined under California law (Fam. Code, § 7611, subd. (a)); thus, Chasity was not dishonest when she identified Nathan as R.’s father for one purpose but not another.
Because her trial counsel did not object to this alleged misconduct in the trial court, the issue is framed as one of ineffective assistance of counsel. (See, e.g., People v. Chatman (2006) 38 Cal.4th 344, 384-385.) Failure to assign misconduct to a prosecutor’s actions does not amount to ineffective assistance when there is no reasonable probability the outcome would have been different. (People v. Osband (1996) 13 Cal.4th 622, 691.) Here, the outcome would not have been different if counsel had objected because it is not reasonably probable the objection would have been sustained. The prosecutor was entitled to explore the issue of Chasity’s credibility on cross-examination. Her decision to claim that Nathan was R.’s father when it was beneficial to do so, but to dispute paternity when that would give her an advantage in a custody dispute, was fair game and was not legally inaccurate. The prosecutor’s point was not that Nathan was or was not R.’s legal father, it was that Chasity took whatever position on that issue was expedient at the moment.
Appellant also complains that the prosecutor committed misconduct by arguing that Chasity and appellant were not credible because they testified that Charles could not read when, in fact, he had passed a California driver’s license examination that required him to read. Appellant notes that the California Driver’s Handbook only requires that licensed drivers be able to read traffic signs in English, and makes audio examinations available for applicants. Assuming the prosecutor misrepresented the literacy requirement for a California driver’s license, the point was a minor one in a trial that lasted over two months and in which evidence of much greater strength was presented against appellant. Given the lack of an objection, we address this claim as one of ineffective assistance of counsel and conclude that it is not reasonably probable the jury would have reached a different result if defense counsel had objected to this portion of the prosecutor’s closing argument.
III. The Jury Instructions on First Degree Murder Do Not Require Reversal of that Count
A. “Witness Killing” Theory of First Degree Murder
The trial court instructed the jury with a version of CALCRIM 521 that stated, “The defendant has been prosecuted for first degree murder under three theories: (1) the murder was willful, deliberate, and premeditated and (2) the murder was committed while lying in wait or immediately thereafter, and (3) the murder was committed to kill a witness.” The instruction goes on to state that the jury need not agree on the particular theory, and to define the elements of premeditated first degree murder and murder by lying in wait. Appellant argues that her murder conviction must be reversed because there is no such thing as first degree murder “committed to kill a witness.” (See People v. Iniguez (2002) 96 Cal.App.4th 75, 79 [defendant cannot be convicted of non-existent crime].)
As the People acknowledge, a murder is not automatically elevated to murder in the first degree when a witness is killed. The instruction was erroneous to the extent it suggested otherwise. However, the jury unanimously found true the special circumstance allegation that appellant had committed the murder by means of lying in wait. The requirements for the lying in wait special circumstance are more stringent than those for lying in wait murder, and in finding the special circumstance allegation true the jury also necessarily found that appellant was guilty of first degree murder under the legally proper theory of lying in wait. (People v. Moon (2005) 37 Cal.4th 1, 22.) This rendered harmless the instruction on the legally invalid theory of first degree murder by killing a witness. (See People v. Guiton (1993) 4 Cal.4th 1116, 1130.) Having concluded that appellant was necessarily convicted under a lying-in-wait theory, we need not address her other challenges to the erroneous theory of murder by killing a witness.
B. First Degree Murder by Lying in Wait
Appellant argues that the instructions on first degree murder under a lying-in-wait theory were defective because they did not require that appellant personally intend that the murder be carried out by such means. We disagree. The jury was instructed on the elements of lying in wait murder and on aiding and abetting as defined in CALCRIM No. 401, which provides in relevant part: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” This instruction adequately sets forth the principles of aiding and abetting. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1123; People v. Beeman (1984) 35 Cal.3d 547, 560.) Appellant cites no authority requiring an additional instruction to the effect that she must have personally intended the murder be carried out by means of lying in wait.
Appellant also claims the instruction on lying-in-wait first degree murder was defective because it failed to advise the jurors that the period of watching and waiting necessary to establish that offense must be “substantial.” Although CALCRIM No. 521 did not use the term “substantial” to define the period of watching and waiting necessary for lying-in-wait murder, it does state, “The lying in wait does not need to continue for any particular period of time, but its duration must show a state of mind equivalent to deliberation and premeditation.” This was sufficient to demonstrate the requisite period of watching and waiting. (See People v. Poindexter (2006) 144 Cal.App.4th 572, 584-585.) Additionally, CALCRIM No. 728, defining the lying-in-wait special circumstance, advised the jury that the duration of the period of lying in wait “must be substantial and must show a state of mind equivalent to deliberation or premeditation.” By finding the special circumstance true, the jury necessarily found that the period of lying in wait was “substantial,” rendering harmless the omission of this term in the instruction on the lying-in-wait theory of first degree murder.
IV. The Alleged Errors in the Conspiracy Instructions Do Not Require Reversal of that Count
A. Failure to Instruct on Overt Acts
Appellant argues that her conviction for conspiracy to commit murder must be reversed because the jury instructions did not identify the overt acts supporting that crime. We disagree that reversal is required.
“A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree to conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.” (People v. Lee (2006) 136 Cal.App.4th 522, 528-529.) An overt act is an element of the crime of conspiracy “in the sense that the prosecution must prove it to a unanimous jury’s satisfaction beyond a reasonable doubt. But that element consists of an overt act, not a specific overt act.” (People v. Russo (2001) 25 Cal.4th 1124, 1134.) Due process requires that the overt acts be pleaded with particularity to give a defendant notice of the nature of the charge. (People v. Cook (2001) 91 Cal.App.4th 910, 921.)
Here, the second amended information alleged eight overt acts by Douglas, appellant and Charles in support of the conspiracy count against appellant. The trial court gave CALCRIM No. 563 defining conspiracy, which provided, in relevant part, “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intended to and did agree with Douglas Lunsford or Charles Lunsford to commit murder; [¶] 2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit murder; [¶] 3. The defendant, or Douglas Lunsford or Charles Lunsford, or all of them committed the overt act alleged to accomplish the murder; [¶] AND [¶] 4. At least one of these overt acts was committed in California. . . . [¶] [¶] An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.” The instruction did not list any of the specific overt acts that had been alleged in the second amended information on which appellant was tried, and the court did not read the information in the course of the instructions. The prosecutor discussed those overt acts during closing argument.
Appellant argues that the failure to instruct on the particular overt acts amounted to a failure to instruct on each essential element of the offense, and enabled the jury to rely on overt acts that were not pleaded and as to which she had no notice. She claims the prosecutor’s discussion of the overt acts during closing argument did not cure the harm, because the jury was told that argument was not evidence, and some of the acts discussed during that argument were improperly considered because they took place after the target offense of murder was committed. (See People v. Brown (1991) 226 Cal.App.3d 1361, 1368.)
Any error regarding the instructions on overt acts was harmless beyond a reasonable doubt in light of appellant’s conviction of the target offense of murder. (See People v. Hoyos (2007) 41 Cal.4th 872, 915.) The commission of the target offense in furtherance of a conspiracy necessarily satisfies the overt act requirement. (People v. Jurado (2006) 38 Cal.4th 72, 121-122.) Although the murder itself was not pled as a specific overt act in the second amended information, the charge of murder was sufficient to give appellant the notice necessary for her to prepare her defense on that issue. The court’s instructions properly defined an overt act and the other elements of conspiracy, and the jurors necessarily agreed that appellant had committed such an act in furtherance of the conspiracy when they convicted her of the murder count. (Hoyos, supra, 41 Cal.4th at p. 915; see also People v. Prieto (2003) 30 Cal.4th 226, 251 [in case where conspiracy was theory of the offense, but not charged as a substantive crime, the court did not err in failing to specify overt acts when proper definition of overt act was given].)
B. Failure to Instruct on Withdrawal From Conspiracy
Appellant argues that the trial court should have instructed the jury sua sponte that she was not guilty of conspiracy if she withdrew from the conspiracy before any overt act was committed. (People v. Crosby (1962) 58 Cal.2d 713, 731.) She relies on evidence that (1) she had severed her relationship with Douglas before the attempted murder on October 3, 2001, and (2) Nathan passed the polygraph test in April 2002, showing he had not molested his children and eliminating appellant’s motive to kill him. We are not persuaded.
A trial court has a sua sponte duty to instruct on a defense to the charged crime “ ‘ “only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” ’ ” (People v. Russell (2006) 144 Cal.App.4th 1415, 1424.) The defense of withdrawal from a conspiracy “requires ‘an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the coconspirators.’ ” (People v. Sconce (1991) 228 Cal.App.3d 693, 701.)
To withdraw from a conspiracy, the defendant must “make an affirmative repudiation communicated to his [or her] coconspirators.” (People v. Belmontes (1988) 45 Cal.3d 744, 793.) There was no substantial evidence that appellant affirmatively repudiated a conspiracy to kill Nathan or communicated this intention to Douglas or Charles. Appellant’s defense at trial was not that she had planned the murder and then renounced the plan; her defense was that Douglas acted alone and she never intended to kill Nathan at all. The court was not required to instruct sua sponte on withdrawal from the conspiracy.
C. Defects in Murder Instructions Affecting Conspiracy Count
Appellant claims the instructions did not properly advise the jury of the elements of murder, the target crime, thus invalidating her conviction of conspiracy to commit the same offense. We have already rejected or found harmless the alleged errors in the instructions defining first degree murder. We similarly reject those arguments as a basis for reversing the conspiracy count.
V. The Trial Court Was Not Required to Instruct on Withdrawal by an Aider and Abettor
Appellant argues in a supplemental brief that her murder conviction must be reversed because the trial court failed to give a sua sponte instruction on the effect of an aider and abettor’s withdrawal from the crime. She cites the second portion of CALCRIM No. 401, which was not given in this case, but which would have advised the jury: “A person who aids and abets a crime is not guilty of that crime if he or she withdraws before the crime is committed. To withdraw, a person must do two things: [¶] 1. He or she must notify everyone else he or she knows is involved in the commission of the crime that he or she is no longer participating. The notification must be made early enough to prevent the commission of the crime. [¶] AND [¶] 2. He or she must do everything reasonably within his or her power to prevent the crime from being committed. He or she does not have to actually prevent the crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not withdraw. If the People have not met this burden, you may not find the defendant guilty under an aiding and abetting theory.”
We reject this argument for the same reason we concluded in the preceding section that no substantial evidence supported an instruction on appellant’s withdrawal from the conspiracy. The case for an instruction on withdrawal by an aider and abettor is even weaker, because there is no evidence whatsoever that appellant did “everything reasonably within . . . her power to prevent the crime from being committed.”
VI. The Jury Was Properly Instructed on the Lying- in-Wait Special Circumstance (§ 190.2, subd. (a)(15))
The jury found “[t]he defendant intentionally killed the victim by means of lying in wait.” (§ 190.2, subd. (a)(15).) Appellant argues that this finding cannot stand because the lying-in-wait special circumstance applies only to the actual killer. We reject the claim.
Section 190.2, subdivision (c) specifically provides, “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.” One of the special circumstances enumerated in subdivision (a) is lying in wait under subparagraph (15). (§ 190.2, subd. (a)(15).) The Legislature has thus expressly provided this special circumstance may apply to a defendant who was not the actual killer.
In People v. Bonilla (2007) 41 Cal.4th 313, 330-331 (Bonilla), the Supreme Court interpreted the predecessor provision of section 190.2, subdivision (c) to mean that the lying-in-wait special circumstance “appl[ied] equally to those who are liable for first degree murder only as an aider and abettor, provided they have the intent to kill.” (Bonilla, at p. 332.) It did not matter that the lying-in-wait special circumstance required that “the defendant” kill the victim. “This interpretation would render the express inclusion of lying in wait among the special circumstances covered by former subdivision (b) a nullity. We decline to attach special significance to the choice of words ‘the defendant,’ as opposed to ‘the killer’ or ‘the murderer,’ where to do so would negate in whole or in part another statutory provision.” (Id. at p. 331.)
Former section 190.2, subdivision (b) provided, similarly to the current version of subdivision (c): “Every person whether or not the actual killer found guilty of intentionally aiding and abetting. . . . any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in paragraph . . . (15) . . . of subdivision (a) of this section has been charged and specially found . . . true.” (§ 190.2, former subd. (b), added by Prop. 7, § 6, as approved by voters, Gen. Elec. (Nov. 7, 1978).)
Under the instructions given, the jury here necessarily found that appellant aided and abetted Nathan’s murder, that she acted with the requisite intent to kill, and that the killing was committed by Douglas, the perpetrator, by means of lying in wait. This finding satisfies the requirements of section 190.2, subdivision (c), as explained in Bonilla, by which we are bound. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) There is no additional requirement that appellant knew or intended that the killing would be accomplished in this manner, so long as she acted with the requisite intent to kill. We therefore reject the related argument that the jury was not fully instructed on the elements of the lying-in-wait special circumstance.
The jury was instructed with a version of CALCRIM No. 728 that provided in relevant part: “The defendant is charged with the special circumstance of murder committed while lying in wait. To prove that this special circumstance is true, the People must prove that: [¶] 1. The perpetrator intentionally killed Nathan . . .; [¶] AND [¶] 2. The perpetrator committed the murder by means of lying in wait. [¶] A person commits a murder by means of lying in wait if: [¶] 1. He or she concealed his purpose from the person killed; [¶] 2. He or she waited and watched for an opportunity to act; [¶] 3. Then he or she made a surprise attack on the person killed from a position of advantage; [¶] AND [¶] 4. He or she intended to kill the person by taking the person by surprise.”
VII. Collateral Estoppel Barred the True Finding on the Witness Killing Special Circumstance (§ 190.2, subd. (a)(10))
Appellant argues that collateral estoppel bars the witness killing special circumstance because Douglas’s jury found this circumstance not true as to him.(See fn. 4.) She claims her liability for the witness killing special circumstance is purely vicarious and that the jury’s resolution of the issue in Douglas’s case was binding in the prosecution against her. Under the narrow facts of this case, we agree.
Preliminarily, we reject the People’s contention that appellant’s failure to raise this issue in the trial court precludes our review on appeal. Although collateral estoppel is generally waived if not asserted in the trial court, appellant has argued that trial counsel was ineffective in failing to raise the issue. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1185.) If collateral estoppel applies, we can conceive of no tactical reason for neglecting to preserve the issue. (Ibid.) We will therefore address the claim on the merits.
The Fifth Amendment guarantee against double jeopardy incorporates principles of collateral estoppel. (Ashe v. Swenson (1970) 397 U.S. 436, 445.) Collateral estoppel bars the relitigation of an issue decided in a previous trial if “(1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial.” (People v. Vogel (2007) 148 Cal.App.4th 131, 136; see also People v. Meredith (1992) 11 Cal.App.4th 1548, 1556.) The doctrine is designed to promote judicial economy by minimizing repetitive litigation and to prevent inconsistent judgments that undermine the integrity of the judicial system. (Vogel at p. 136.)
Collateral estoppel has been applied sparingly in criminal cases involving different defendants charged with the same offense and, ordinarily, the acquittal of one confederate does not bar the conviction of another who is charged as an aider and abettor. (People v. Lawley (2002) 27 Cal.4th 102, 164 (Lawley); People v. Wilkins (1994) 26 Cal.App.4th 1089, 1093; People v. Summersville (1995) 34 Cal.App.4th 1062, 1066.) An exception to this general rule has been made, and collateral estoppel applied, when the defendant’s guilt is predicated solely on vicarious liability for the acts of a confederate acquitted of the charges arising from those acts.
In People v. Taylor (1974) 12 Cal.3d 686 (Taylor), the defendant had waited outside a store in a getaway car while his two cohorts committed an armed robbery inside and one of them was shot by the store owner. The defendant and the surviving robber were charged and separately tried with murder under the provocative act theory, which required proof that the surviving robber had acted with implied malice. (Id. at p. 691.) The surviving robber was acquitted, and Supreme Court concluded that this acquittal barred the subsequent murder conviction of the defendant getaway driver. (Id. at pp. 691-698.)
The court reasoned that the first two requirements of collateral estoppel—identity of issues and a final judgment—were easily satisfied. The getaway driver’s liability for the killing was purely vicarious and required a finding that the surviving robber had acted with malice: “Where, as here, the accused’s guilt is predicated only on vicarious liability, identity of issues is clear.” (Taylor, supra, 12 Cal.3d at p. 697.) The jury in the surviving robber’s trial had necessarily resolved the issue of malice against the prosecution when it acquitted the surviving robber of murder, and that acquittal was a final judgment on the merits. (Taylor, supra, 12 Cal.3d at pp. 691-692.) The third requirement, identity of the parties, was satisfied because the prosecutor had both the incentive and the opportunity to fully litigate the issue in the surviving robber’s trial. (Id. at p. 697.)
As the People note, the holding of Taylor has been limited to cases where the defendant’s guilt is entirely derivative. In Lawley, for example, the court declined to apply collateral estoppel in favor of a defendant convicted of first degree special circumstance murder on an aiding and abetting theory when the actual killer had been convicted of only second degree murder in a separate trial. (Lawley, supra, 27 Cal.4th at p. 164.) “Relevant to the defendant’s liability were his own actions and state of mind, not solely those of [the confederate]. . . .” (Ibid.) The People argue that Taylor should not be extended to the instant case, because appellant’s liability as an aider and abettor and conspirator arose from her own mental state and actions as well as Douglas’s, meaning the issues at her trial were not identical to those resolved at Douglas’s.
This argument would carry weight if we were considering an acquittal of the substantive offense of first degree murder. In such a case, the determination that Douglas had not acted with the requisite malice would not necessarily resolve whether appellant was guilty as an aider and abettor who “directed, instigated or participated in” the murder. (See Taylor, supra, 12 Cal.3d at p. 697, fn. 14.) But the witness killing special circumstance was based on a theory that appellant had aided and abetted Douglas in committing a murder that Douglas committed for the purpose of eliminating a witness. Although the jury was also instructed on the intent to kill that is necessary for a defendant who is not the actual killer (see footnote 3, ante), appellant could not have been found liable for the witness killing special circumstance unless the jury also found that Douglas had acted with the necessary motive of preventing Nathan’s testimony in a criminal case. The jury instructions made clear that it was the perpetrator’s intent with respect to killing a witness, and not appellant’s as an aider and abettor, that determined whether the special circumstance applied.
The court gave a version of CALCRIM No. 725 that provided, “The defendant is charged with the special circumstance of murder of a witness. [¶] To prove that this special circumstance is true, the People must prove that: [¶] 1. The perpetrator intended to kill Nathan . . .; [¶] 2. Nathan . . . was a witness to a crime; [¶] 3. The killing was not committed during the commission of the crime to which Nathan . . . was a witness; [¶] AND [¶] 4. The perpetrator intended that Nathan . . . be killed to prevent him from testifying in a criminal proceeding.” No instruction was given which would have allowed the jury to find the witness killing special circumstance true on a theory that appellant, but not the perpetrator, had intended to eliminate a witness.
As in Taylor, the threshold requirements for collateral estoppel were met as to the witness killing special circumstance in this case. The issue was identical to that in Douglas’s trial, namely, whether Douglas had killed Nathan to prevent him from testifying. The jury’s verdict in Douglas’s case, which found this special circumstance allegation not true, was a final judgment on the merits as to that issue. (See § 190.4; People v. Franc (1990) 218 Cal.App.3d 588, 592 [retrial of special circumstance barred when found not true].) The state, against whom collateral estoppel is sought to be applied, prosecuted Douglas’s trial and had every incentive to fully litigate the special circumstance issue.
Therefore this is that rare case that falls within the rule of Taylor, supra, 12 Cal.3d 686. The witness killing special circumstance must be vacated. Because the jury properly determined that the murder was committed by means of lying in wait, which itself requires an LWOP (life without parole) sentence for the first degree murder conviction, no change in the sentence is required. (See § 1385.1; People v. Mora (1995) 39 Cal.App.4th 607, 614-615 [court has no discretion to strike or dismiss special circumstance supporting LWOP sentence unless LWOP sentence constitutionally disproportionate].) We need not consider appellant’s remaining challenges to the instructions given on the witness killing special circumstance.
DISPOSITION
The jury’s true finding on the witness killing special circumstance under section 190.2, subdivision (a)(10) is vacated. The judgment, including the sentence of life without the possibility of parole, is otherwise affirmed.
By separate order, we have summarily denied appellant’s companion petition for writ of habeas corpus. (In re Marcella Lunsford, A120443.)
We concur. JONES, P. J., SIMONS, J.
CALCRIM No. 702 advised the jury, “ If you decide that the defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances of lying in wait, and murder of a witness, you must also decide whether the defendant acted with the intent to kill. [¶] In order to prove the special circumstance for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor or a member of a conspiracy, the People must prove that the defendant acted with the intent to kill. [¶] If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that she acted with the intent to kill for the special circumstances of lying in wait, and murder of a witness, to be true. If the people have not met this burden, you must find the special circumstance has not been proven true.”