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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
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C079181
04-28-2021
The PEOPLE, Plaintiff and Respondent, v. Jeffrey Douglas POWELL et al., Defendants and Appellants.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant, Jeffrey Douglas Powell. Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant, Christopher Lawrence Langlois. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
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-IV, VI-IX.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant, Jeffrey Douglas Powell.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant, Christopher Lawrence Langlois.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
MURRAY, J. Defendants Jeffery Powell and Christopher Langlois were convicted of murder committed during their retaliation for the beating of their friend, J.D., by the victim's son. In the early morning hours of January 5, 2013, J.D., defendants, and a fourth person, J.P., forcibly entered the victim's home and found him sleeping on a couch. Powell and Langlois and possibly J.D. beat the victim and the group then fled within 15 to 90 seconds after their entry. The victim died soon after the attack from a stab wound to the heart. The prosecution contended that Powell inflicted that wound.
Because this person was a prosecution witness, provided testimony pursuant to a plea agreement, and is now incarcerated, we have elected to use the initials J.D. (John Doe) to provide him additional anonymity. (See Cal. Rules of Court, rule 8.90(b)(10).)
A jury found Powell and Langlois guilty of second degree murder ( Pen. Code, §§ 187, subd. (a), 189 ), and first degree residential burglary (§§ 459, 460). Additionally, the jury found true the allegation that, during the commission of the crimes, Powell personally used a deadly weapon. (§ 12022, subd. (b)(1).) The trial court sentenced Powell to 16 years to life and Langlois to 15 years to life.
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Defendants raise a number of contentions alleging instructional and evidentiary error, and also assert that the trial court abused its discretion in denying a request to discharge a juror.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
While we set forth most of the conflicting testimony, we generally set forth the facts in the light most favorable to the judgment consistent with the usual rules on appeal. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103 ; In re Daniel G. (2004) 120 Cal.App.4th 824, 828, fn. 1, 15 Cal.Rptr.3d 876.)
The Charges and the Disposition of J.D.’s Case
Defendants and J.D. were charged with murder ( § 187, subd. (a) ; count one), and first degree residential burglary ( §§ 459, 460 ; count two). It was also alleged that Powell personally used a deadly and dangerous weapon, a knife, within the meaning of section 12022, subdivision (b)(1).
Prior to the commencement of the jury trial, J.D. withdrew his not guilty plea and entered a plea of no contest to voluntary manslaughter ( § 192, subd. (a) ) and admitted a strike prior, agreeing to an aggregate sentence of 27 years in state prison and to testify against defendants. The Prosecution's Case-in-chief
On the night of January 4, 2013, J.D., Powell, and a third person, William Beamon, went to a bar in Citrus Heights. J.D. testified they were drinking heavily, drinking beers and taking shots. At approximately 1:30 a.m., they left with two women. One of the women was with Beaman, the other was with Powell, and, because J.D. was a "fifth wheel," they dropped him off at a 7-Eleven. Powell and Beamon then proceeded to a hotel with the women.
At the 7-Eleven, the store clerk allowed J.D. to leave his phone to charge, and J.D. walked around the corner to his cousin's house. After determining that nobody was awake there, J.D. walked back toward the 7-Eleven.
J.S., the victim's son, lived nearby. At approximately 3:00 a.m., J.S. was sitting in his garage with his cousin, looking out for people who had been stealing things in the neighborhood. The victim and his mother (J.S.’s grandmother), were inside the house. J.S. had consumed approximately a pint of vodka, smoked marijuana and was feeling "a little buzzed."
As J.S. and his cousin sat in the garage, they saw J.D. walking in the street. J.S. went to the street, accompanied by his cousin and J.S.’s pit bull. J.S. confronted J.D., asking if he was the person stealing things from the neighborhood or from his truck. J.D. denied the allegation, told J.S. he was crazy and that he had not been anywhere near J.S.’s truck. At some point, in an effort to deescalate the situation, J.D. said something like "what's up on some weed." J.S. and J.D. continued to talk, and, eventually, J.S. offered J.D. some marijuana as an effort to befriend J.D. and make him less inclined to steal from J.S.’s house. J.D. offered J.S. money for the marijuana, and J.S. responded that he did not want any money. J.D. tried to give J.S. money, and J.S. slapped J.D.’s hand away. Before J.D. knew what was happening, punches were thrown, although no punches landed. J.D. began to run away, and, according to J.S., J.D. said, "[Y]ou better not have no kids in the house. You better hope you have no kids in the house. I'll be back." (Italics omitted.) J.D. denied saying anything like that. J.D. ran back to the 7-Eleven. J.S. followed J.D. for a while, stopped, and returned to his house. His cousin then went home.
Police subsequently found a crumpled up $20 bill across the street from J.S.’s house.
After getting his phone and calling a taxi, J.D. sat on the curb. T.B., a woman whom J.D. did not previously know, pulled up in a car and they talked for 15 to 20 minutes.
In the meantime, J.S. drove his truck to 7-Eleven looking for J.D. and saw him there talking to a girl. J.S. testified he was feeling angry and afraid based on J.D.’s threat to return to J.S.’s house. J.S. went home, retrieved brass knuckles, and then walked back to 7-Eleven. When J.S. returned to 7-Eleven, J.D. was still there talking to the girl. According to J.S., he confronted J.D., asking him if he really intended to come back to the house or if he was going to "let this go." (Italics omitted.) According to J.D., he was talking to T.B., who offered him a ride home in exchange for some gas money, and as he was placing his possessions in her car, he was "blind-sided" by J.S. J.D. did not recall any conversation with J.S. prior to getting hit. The two began to fight, and, according to J.S., he hit J.D. once in the back of his head with the brass knuckles. J.D. testified that J.S. hit him with brass knuckles multiple times. J.S. ran home.
Earlier, before arriving at 7-Eleven, T.B. had been drinking and was intoxicated. She had also been smoking marijuana. As she remembered the events, when she arrived at 7-Eleven, she stepped out of her car, a Volkswagen Beetle convertible, and saw two men fighting in the parking lot. One of the men was punching the other with brass knuckles. T.B. tried to break up the fight, and she pulled out a knife. The guy with the brass knuckles eventually ran off. J.D. asked her for a ride in exchange for gas money.
T.B. testified pursuant to a grant of use immunity pursuant to section 1324.1.
T.B. had no recollection of any interaction with J.D. prior to J.S. and J.D. fighting in the 7-Eleven parking lot.
After arriving at home, J.S. woke up the victim, his father, who was sleeping on the couch, and told him what happened. He told the victim they had to be vigilant because people could be coming to get him. The victim told J.S. not to worry, and that no one would come back to the house.
J.D. testified that he was "knocked out cold" after being hit by J.S. with his brass knuckles. He "came to in a pool of blood." Thereafter, while in T.B.’s car, J.D. called Powell and told him that he "just got beat up." (Italics omitted.) According to J.D., Powell responded: "Don't worry. We'll handle it -- come get me." (Italics omitted.)
When they left 7-Eleven, J.D. showed T.B. a house and told her "that's where that dude lives." (Italics omitted.) J.D. testified he had wanted to make sure where the house was.
J.D. told T.B. he wanted to meet his friends, so she drove to the hotel. When they arrived, J.D. and T.B. both went inside. Powell, Beaman, and the two women were in the hotel room. According to both J.D. and Beaman, Powell left with J.D. and T.B. J.D. testified that, at some point, Powell stated, "We need to stop by my house real quick. Go to my house." (Italics omitted.) Powell said he wanted to change and "grab something." Beamon told a police investigator Powell said he wanted to stop by his house to pick up something.
As T.B. recalled it, both males from the hotel room left with her and J.D. However, at trial, no one disputed that Beaman remained in the hotel room with the two women when Powell left with J.D. and T.B.
T.B., J.D., and Powell proceeded to Powell's apartment. Powell went inside and, when he returned, he had changed. He was wearing Converse shoes and he had some latex or surgical gloves. J.D. testified he did not see Powell with a knife at this point, and there was no discussion about weapons. When Powell got back in the car, he said, "[W]e're going to go pick up my buddy." (Italics omitted.) T.B. then proceeded to a house on Papaya Drive.
J.P. was hanging out with Langlois and two other people in S.H.’s garage on Papaya Drive. J.P. considered Langlois a good friend. According to J.P., Langlois received a phone call about J.D. "getting jumped." Langlois told J.P. that his friend had been jumped by some Russians and he was "going to head out there to handle the problem." He asked J.P. to "back him up being that [J.P.] was his home boy." Later, J.D., T.B., and Powell arrived at the Papaya Drive house. J.P. saw that J.D.’s "head was really split open really bad."
J.P. testified pursuant to a grant of use immunity pursuant to section 1324.1.
J.D. denied that he ever stated he was jumped by Russians.
Thereafter, Langlois, Powell, J.D., J.P., and T.B. left the Papaya Drive house in T.B.’s Volkswagen bug. T.B. was driving, J.D. was in the front passenger seat, and Powell, J.P., and Langlois were in the back seat. J.D. told T.B. where to go.
J.P. believed that they were "going to Citrus Heights to ... give [J.D.] some payback for what happened to him." He testified that he did not have any weapons, and he did not see anyone else with any weapons. J.D. testified: "I don't really know exactly what I thought. There was -- I'm sure there was some intention of fighting, beating someone up. Never was murder the intention."
They parked near a corner of the street where J.S. resided. All of the men got out of the car, someone told T.B. to wait there for a few minutes, and someone also told her to keep the car running. The car was running when the men left, walking down the street. Earlier, at the victim's house, J.S., had stayed up with the victim until the victim encouraged him to go to bed, saying, "They're not coming." (Italics omitted.) J.S. went to sleep in his bedroom, leaving the victim on the couch in the living room.
J.D. testified that he led the group down the street. According to J.P., when they first arrived, while they were on the sidewalk, Langlois said, "[T]his is stupid. This is retarded. Let's just go," or "I got to get these guys out of here. This is retarded. What are we doing here?" (Italics omitted.) J.P. testified he said something similar. J.D. had difficulty remembering exactly which house he was looking for. J.P. testified that Langlois told J.D., "[I]f you can't figure it out, we should leave. Let's get out of here." (Italics omitted.) J.D. testified that, when they got in front of the victim's house, he looked at Powell and told him he was not comfortable. According to J.D., Powell shrugged and Langlois told J.D.: "[I]t's too late. Don't act like a bitch. It's time to go." (Italics omitted.)
According to J.P., after Langlois said "if you can't figure it out, we should leave," J.D. saw the house he was looking for and said, "[F]uck it," ran up to the house, and kicked in the front door. (Italics omitted.) J.D. acknowledged that he ran up to the house and kicked the door in.
When J.D. kicked the door in, he fell to his knee. According to J.P., Powell ran in into the house behind J.D., and Langlois and J.P. followed. According to J.D., Powell and Langlois ran by him into the house directly at the victim on the couch. J.D. testified he realized that the victim was not J.S., and that he had never seen the victim before. J.P. testified that he saw a man sleeping on the couch. He then saw the man on all fours getting beaten, primarily by J.D. and Powell. According to J.P., J.D. was punching and kneeing the victim, and Powell was punching him. According to both J.P. and J.D., Langlois picked up a coffee table and hit the victim with it. J.P. testified that the victim was on his hands and knees when Langlois hit him with the table. Seconds after Langlois hit the victim with the coffee table, the guys left. J.P. testified he never touched the victim. He estimated that they were in the house for a total of 60 to 90 seconds. He did not see anyone using a weapon and he never saw Powell with a knife.
J.D. testified that it was Powell and Langlois who beat the victim. Powell was wearing gloves. J.D. testified he did not approach the victim and he did not kick or punch him. He denied stabbing the victim. According to J.D., he did not participate because the person they were beating was not the person who beat him up earlier. He testified he did not see any weapons. Suddenly, everyone fled. The victim then lunged at J.D. J.D. was bloody, the victim was bloody, and J.D. testified that he "just kind of spun off of him, and ... got out of there." J.D. estimated that the entire incident lasted no more than 15 seconds.
J.S. woke up hearing people talking outside. J.S. then heard a loud bang, a succession of banging noises, and he got up. By the time J.S. got into the living room, approximately 10 or 15 seconds after he first heard a banging noise, "everybody was already gone." J.S. found the victim standing there. He uttered his last words, telling J.S., "they got me." (Italics omitted.) The victim's mother came out of her room and she and J.S. performed CPR on the victim. She also called the police. The victim was dead before medical assistance arrived.
J.D., Powell, Langlois, and J.P. ran back to T.B.’s car. According to T.B., they had been gone "a few minutes." When they returned, they appeared "erratic" and shaken, and it looked to T.B. "like something happened." Powell, J.P., and Langlois sat in the back seat. After J.D. got in the front passenger seat, he looked back, asked what happened, and at that point he saw Powell hand Langlois a knife with a black handle. J.D. did not know what Langlois did with the knife. J.D. had blood all over him. T.B. testified she asked what happened, and one of the guys responded: "shut up. Start driving. Get out of here." (Italics omitted.) She complied. Someone told her to drive back to the Papaya Drive house.
According to J.P., Powell called someone and told them that he "screwed up really bad." Powell then told J.P. that he "threw the knife ... [into] a bush by the car." J.P. saw that Powell was cut on his right hand and right leg. The wound on Powell's hand led J.P. to believe that Powell had stabbed someone and the knife slipped in his hand. Also, according to J.P., Powell told him the knife slipped out of his hand.
Once back at Papaya Drive house, everyone got out of the car, and, according to T.B., J.D. told her that she should come inside or that someone wanted to speak with her. T.B. went with the men into the garage. J.D. testified that, once inside, they used methamphetamine and talked. According to J.D., at one point, Langlois told the group, "I just had to hit him."
The garage at the Papaya Drive house was set up like a room with a television, chairs, couch, and a table. Earlier, S.H., the resident there, had passed out on the couch in the garage from taking GHB. She estimated she passed out around 2:00 or 3:00 a.m. and J.P. and Langlois were there at the time. She woke up at 6:30 or 7:00 a.m. to the sound of the gate opening outside, and she remembered telling police that, as she awoke, she heard Langlois say something like, "[S]he's passed out. Perfect." (Italics omitted.) S.H. then saw J.P., Langlois, two other males she did not know, and a female in the garage. On her home surveillance camera, she saw a Volkswagen bug convertible parked outside. One of the males she did not know was "hyper" and had a cut on his forehead, and S.H. helped him dress his cut. At some point, S.H. looked over at the other male she did not know, who was very quiet, and saw him washing his hands in the sink. S.H. testified, "there was like blood everywhere." Based on the volume of blood, she believed the person washing his hands was injured. In a photo lineup presented to her later, S.H. selected Powell's photograph as one of two individuals in the lineup who could have been the guy washing his hands in the sink. Langlois was trying to help him clean his hand. She said to Langlois, "Chris what the heck," and he told her to "shut up."
J.D. testified that someone brought up the issue of the knife, and someone, told him he needed to go back and look for it. J.D. testified he was not sure who asked him to do that, but said he was pretty sure it was Langlois. T.B. drove J.D. back to the area near the victim's house. However, when they arrived in the area, the police were present, and J.D. told T.B. to turn around and get out of there.
J.P. told somebody they needed to take T.B.’s identification to find out where she lived because nobody knew her. According to J.D., Langlois was being very threatening towards both him and T.B., telling them that they "better not snitch." T.B. testified she gave her driver's license to a guy with sleeve tattoos who "didn't have a good look on his face." She remembered telling the police that the guy with the sleeve tattoos said, "[W]e don't trust her. She's a snitch." (Italics omitted.) At trial, T.B. identified Langlois as possibly being that person. J.P. testified that he took T.B.’s license and gave it to J.D. so that he could get the information from it. J.D. testified that J.P. took T.B.’s license and wrote down her information. Langlois photographed it.
J.P. saw the victim's blood on Powell's and J.D.’s clothing. J.P. advised the men to change clothes and use ammonia to get rid of DNA evidence in the house. J.D., Powell, and Langlois changed into clothes from S.H.’s house. J.P. collected and bagged their bloody clothes, put them in a container, and put the container in the side yard. J.P. testified he also attempted to clean up T.B.’s vehicle. He was only able to get a little of the blood off of the seats before T.B. said she had to leave. Eventually, T.B. left the house, but J.D. and someone else followed her out. J.D. and the other guy tried to convince her not to leave, but she drove away. T.B. testified that, after she left, J.D. called her and told her to lie to police if she was ever questioned. Later in the day, T.B. attempted to clean her car, cleaning blood from the doors and discarding tissues, trash, and bandaging. T.G., who was friends with Powell and knew Langlois, received a call from Powell asking T.G. to pick him up from the Papaya Drive house. T.G. told investigators that when Powell called, he said, "I don't want to talk about it over-the-phone. It's all bad." T.G. picked up Powell and J.D. at or near the house a little while after T.B. left. Thereafter, Langlois and J.P. remained at the Papaya Drive house for some time.
T.G., J.D., and Powell all went to T.G.’s house. Powell had a cut on his hand and a more severe cut on his leg. J.D. saw that Powell was bleeding from a wound on his leg, and, according to J.D., Powell and T.G. attempted to stitch the wound closed.
Hours into the investigation, police identified J.D. as a suspect. He had left his bus pass at the 7-Eleven. There was also surveillance footage from the 7-Eleven and from the gas station across the street linking J.D. to T.B.’s convertible Volkswagen bug. Later that day, after J.D. learned that the victim had died and that police had raided his house, he fled to Los Angeles and later to San Diego.
Dr. Gregory Reiber, the forensic pathologist who performed the autopsy, testified that the victim sustained three stab wounds: on the outside of his left arm, a small puncture wound on the right side of his chest and a large stab wound on the left side of his chest. The large stab wound penetrated between the victim's ribs, into the left ventricle of his heart and was the fatal wound. The victim also sustained a number of blunt injuries to his face, arms, wrists, hand, leg, feet, and back. The facial injuries were consistent with being punched.
Trevor Wilson, a criminalist at the Sacramento County District Attorney's Crime Lab, testified as an expert in forensic processing of crime scenes and trace evidence. He testified there were "bloody footprints in the house." They included shoe prints made from Converse shoes, Vans shoes, and And1 basketball shoes. A shoe print on the exterior of the front door of the house matched the Vans shoe print. Additionally, a shoe print matching Vans was found on the underside of a coffee table. Wilson testified that he located at least six footprints within the house that were consistent with Converse shoes. There were also several of the Vans shoe prints inside, and those were the footprints found furthest inside the house. Later, executing a search warrant at Powell's apartment, police discovered a Converse shoe box, but no Converse shoes. At J.D.’s house, police found a Vans shoe box, but no Vans shoes.
The victim's family found the coffee table turned up-side-down with the bloody shoeprint on its underside. They turned it right-side-up before the police arrived.
J.D., who admitted kicking in the front door, testified that he wore Vans shoes and the shoe print on the door was his.
Despite a search of the block, police did not locate the knife used in the attack. At some point, police went back to the victim's house and asked if any knives were missing. J.S. said "something about [the victim's] favorite knife was missing." J.S. gave police a knife from the house that was one of a set of 12 or 13 steak knives or similar knives. J.S. did not know when the missing knife went missing. He testified that the night before the victim was killed, the victim ate lasagna, and he did not use those knives. J.S. also testified that, after the incident, there were no dishes or utensils in the living room.
Dr. Reiber opined that the steak knife was consistent with the type of weapon that caused the victim's stab wounds. However, he could not say whether that knife or one like it was, in fact, the weapon used in the attack.
Ryan Nickel, a criminalist in the forensic biology section of the Sacramento County Crime Lab, testified as an expert in DNA testing and analysis. He testified that no DNA matching that of J.D., Powell, Langlois, or J.P. was discovered in the victim's house. Blood matching Powell's DNA profile was found on the sidewalk near the gate at the Papaya Drive house. J.P.’s DNA profile was found on a sample of possible blood found on a carpet mat located outside of the garage area of the Papaya Drive house. This sample contained a mixture, with the major contributor matching J.P.’s DNA profile and the minor contributor being consistent with the victim's DNA profile. Nickel explained the victim's profile was very weak, he could not get all 15 locations and the statistical results as to this sample really had no relevance for determining the actual contributor. Another swab of blood sample found on the carpet mat also matched J.P.’s DNA profile.
Blood found in T.B.’s car was analyzed. One blood sample from the passenger side door liner was a mixture, with the major contributor matching J.D.’s DNA profile. The major contributor to a blood sample found on the glove compartment matched the victim's DNA profile. Samples from the glove box matched the victim's DNA profile and J.D.’s profile. A blood sample from the front passenger seat also matched the victim's profile. A possible blood sample from the passenger-side back seat matched Powell's DNA profile. And a blood sample from the back of the vehicle's center console matched the victim's DNA profile. Powell's cell phone was examined after his arrest. There were repeated communications between Powell's phone and J.D.’s phone, Langlois's phone, and J.P.s’ phone the night and morning of the murder. A photograph showing T.B.’s address and her father's name was found on J.P.’s phone in a message sent from Langlois's phone.
Christina Langlois (Christina), formerly Christina Brown, testified that she was Langlois girlfriend and the two had been married prior to the trial. During her testimony, Christina denied having any conversation with Langlois about the murder. She denied having made a number of statements to Detective Shaun Gualco about what Langlois told her, including that Langlois told her he had been helping a friend, he was helping J.D. get back at somebody, and that he had her check the computer to see if J.D. had been arrested. She testified, "Those words never came out of my mouth." She did admit that, at some point, Langlois told her that "he fucked up" and that he was sorry because he was on the run from parole.
Detective Gualco testified that he surreptitiously recorded a conversation with Christina. The recording was played for the jury. Early in the conversation, in response to Gualco's questions, Christina said she did not know what happened, but then said, "All I know is what he told me." Gualco asked what Langlois had told her and Christina responded, "that he was helping a friend and so it was a friend and – and he fucked up because he was the last person that touched whatever and ... he told me he was lied to by his friend because he wasn't knowing that, uh, night was gonna come out to that." She went on to explain, "He doesn't know that that's what they were going for ... so basically he was just lied to." When asked to guess who it was who lied to him, she said J.D. Gualco asked if Langlois mentioned anyone else, and she responded, "All I know is that there was a girl driver and he never met her before." Christina said she thought Langlois told her these things about "three weeks ago" (the interview took place on January 25, 2013), but she was not positive of the timing.
Gualco asked about Christina previously telling another law enforcement officer about a knife with Langlois's fingerprints. Christina responded, "Well, he thinks it is." In response to Gualco's question concerning what Langlois mentioned about that, Christina stated, "Because he said ... when the other person kept grabbing him or whatever and, um, before he could ... get him off of him like he tried to see if the guy was okay and he pulled the knife out and he said that by then it was too late." She said Langlois did not say what he did with the knife or who had stabbed the victim.
When Gualco asked, "So he said he pulled it out?" Christina responded, "Yeah, Well, he never said he pulled it out. He said he took it off of him. I don't know if that was because he was trying to not beef with the (unintelligible) about it or...." Christina then said she was under the impression that a stabbing had occurred because of what the other law enforcement officer had said to her. Gualco explained he only wanted her to tell him what Langlois had said to her. She told Gualco that Langlois did not say it was a knife and never told her "what the weapon was." She then said Langlois never said "it was a weapon."
Christina said that Langlois did not tell her all of this on one occasion, but rather in "bits and pieces." She explained, "the first time I had heard about it, he came into my house crying. Just crying," "[b]ecause he's like ‘I fucked up. I don't know what's going on.’ " He told her "he went with a friend and he just thinks he fucked up cause his fingerprints were on something. That's all he said." She estimated that the next time she talked to Langlois was about a week later. It was at that time he told her there was a girl driving whom he had never met before "and his friend [J.D.] or whatever that he was supposedly going to help out ... it was him getting back at somebody. Like, he was supposed to get back at somebody or something but that's – that's all he went into." She said Langlois did not say what they were getting back for "but he was supposed to help him out like I guess ... like he got punked, lost or something and he wanted to get back at the guy."
Christina told Gualco that Langlois "kept having me look up [J.D.] on the computer to see if he was arrested." She explained, "[t]hat's I guess why I'm assuming it was [J.D.] but he never said it was."
Gualco told Christina that Langlois was a fugitive, marshals and parole were looking for him, and that Langlois was "wrapped up in this." Christina indicated she wanted Langlois to come forward, and then said, "And honestly I wanted him to call me, but for some reason ever since you guys showed up to my house he has not called me. He was supposed to come that day and he never came so I don't know where ... he is." She told Gualco that she asked Langlois, "Why are you hiding? It makes you look bad." She then told Gualco she thought Langlois was just scared to go to jail.
J.P. testified he saw Powell in a pool hall a week or so after the killing. J.P. told Powell he needed to get a new identity and get a new life. J.P. believed law enforcement would catch up with Powell because J.P. believed Powell left DNA at the scene. Powell responded that he was not going to run.
Arrested in Citrus Heights on January 12, 2013, Powell was the first person arrested in connection with this case. According to a nurse practitioner at the Sacramento County main jail, when Powell was admitted, he had a laceration on his thigh that had been stitched together non-professionally with fishing line. Powell told her that he had sutured himself. Gualco testified that after he identified Langlois as a person of interest, he spent "some time" looking for him. Langlois was arrested in the Carmichael area approximately one month after the killing.
The parties stipulated that, if Dr. John O'teri were called to testify, he would testify he examined Langlois on February 2, 2013, and diagnosed him with a fracture on his right hand commonly known as a boxer's fracture which was consistent with an injury sustained as a result of punching an object. Further, O'teri would have testified that, based on the healing of the fracture, the injury was between one week and one month old. Langlois told O'teri that he had punched a wall, and that he had begun to feel the pain in his hand one week prior to the examination.
As noted, J.D. fled to San Diego. He was arrested there four months after the murder.
Evidence Presented by Langlois
Nicolas Burgos, Christina's former boyfriend, testified that on or about January 15, 2013, he and Christina were having an argument when Langlois came over. Langlois went into another room and spoke with Christina. Langlois then came to where Burgos was, and the two got into a fight. Langlois hit Burgos on the left cheek "pretty hard" with his right hand, and the two "just kind of box[ed] it out."
Evidence Presented by Powell
Powell testified that he had prior felony convictions for residential burglary in 2003 and for conspiracy and evading a police officer in 2007.
Consistent with J.D., Powell testified that, on January 4, 2013, he, Beaman and J.D. left a bar and went to a hotel with two women, dropping J.D. off at the 7-Eleven on the way. Later, J.D. called Powell, saying he "just got jumped." Powell asked him if he was okay, and J.D. responded that he was not, that his "face was split open" and he was bleeding. (Italics omitted.) Powell encouraged J.D. to come to the hotel and told him, "[W]e'll figure it out." (Italics omitted.) Powell denied saying he would "take care of" or "handle" anything. Powell testified he was intoxicated, unable to perform sexually, and embarrassed. He said J.D.’s interruption was "perfect" and gave him an opportunity to "get away."
J.D. arrived at the hotel and told Powell "[t]hey just came out of nowhere, and they jumped me." (Italics omitted.) J.D. refused to go to the hospital, so, according to Powell, they decided to go to his apartment to get some medical supplies to clean J.D.’s injuries.
T.B. drove Powell and J.D. to Powell's apartment. Powell went inside and grabbed some methamphetamine and some medical supplies. He denied getting gloves or a knife. He testified that his father was at his apartment, so they could not hang out there, and he looked for another place to go. He called Langlois. Powell, J.D., and T.B. then went to the Papaya Drive house and, upon their arrival, went inside the garage. J.D. began "patching his face up" and Powell sat down.
At some point, J.D. indicated that he wanted to go back to 7-Eleven to "get [his] shit." Powell testified that he assumed J.D. also wanted "to see if those guys were still there." He thought J.D. wanted to get back at the guys who beat him up. Powell denied it was his idea to go back to that area. J.D. asked Powell to go with him. According to Powell, J.D. never said anything about going to a house. Powell then asked Langlois to come along. Powell testified he had no idea why J.P. ended up joining them.
They all piled into T.B.’s car, and J.D. told her to drive to the 7-Eleven. At some point, J.D. told T.B. to pull over, and she did. J.D. said, "this is it," exited the car and started walking up the street. (Italics omitted.) Powell got out of the car and followed J.D., and Langlois and J.P. followed behind. According to Powell, everyone was asking J.D., "[W]hat are we doing here? What is this?" None of this was making sense to Powell because they were supposed to be going to 7-Eleven, and J.D. had not told him he got into an altercation in front of a house. Powell, Langlois, and J.P. were all looking around. They were in the middle of a residential neighborhood in the middle of the night. They thought they had no business being there, and that someone might call the police. According to Powell, they wanted to leave, but J.D. said, "no. This is the house. This is the house." (Italics omitted.) Powell testified that he told J.D.: "[You] [n]eed to quit acting like a bitch. You got your ass whooped. It's not that big of a deal. I mean, what are we doing here? Take your ass-whooping like a man. We need to leave." (Italics omitted.) J.D. said, "[F]uck it," turned around, and "bolted towards the door" of the house and kicked the door in. (Italics omitted.) Powell testified he "ran straight after" J.D. "to drag his ass out of there."
As Powell entered the house, he saw J.D. fighting with someone in the middle of the living room. Powell tried to grab J.D., but was somehow thrown between them and "got whacked." He testified he got stabbed in the leg and cut on the hand, although he did not immediately realize it. Powell then turned around and ran out of the house. Powell told the jury he never touched the victim and did not assault him, stab him, or kill him. He also testified that he never had a knife when he was in the house. He said he did not see J.D. with a knife, and did not see a knife at all that night. He claimed to have had no idea at the time that the victim had been stabbed.
T.B. drove everyone back to the house on Papaya Drive. According to Powell, T.B. and J.D. then went somewhere while everyone else went into the garage. Powell washed the wound on his hand, wrapped it up, and then tended to the wound on his leg. He also changed pants because his pants were bloody and cut. After 45 to 60 minutes, J.D. and T.B. returned, and everyone smoked methamphetamine.
At some point, T.B. left. Powell called T.G. for a ride. T.G. came to the house on Papaya Drive and picked up Powell and J.D. They went to T.G.’s home. There, Powell showered and then attempted to suture his leg with T.G.’s assistance. Later, T.G. dropped Powell off at home while J.D. stayed with T.G.
On a subsequent day, Powell saw J.P. at a pool hall. J.P. told Powell he should get a new identification card and that he should run away. Powell testified he did not run away because he did not do anything wrong. Powell told J.P.: "you[‘re] trippin’. What do I need to run from? I mean, I'm the [one] that got stabbed." (Italics omitted.)
Powell testified that he had nothing to do with the victim's death. He stated: "I wish this didn't happen. I wish that I could take back some of the things that happened that night, but I can't. Only thing I can tell you guys is I went in there to drag my dumb ass friend out of there. That's what I did. That's all I did."
On cross-examination, Powell testified that J.D.’s testimony was largely untrue. Powell testified that he did not recall seeing Langlois punching or striking the victim, and he did not see anyone throw a table at him. He acknowledged that he was wearing Converse shoes on the night of the incident. Powell also acknowledged that he deleted calls and text messages to and from anyone associated with this case, and he got rid of his bloody pants and the shoes he had worn at the time of the attack. He acknowledged that he "tried [to] cover [his] tracks a little bit ...." However, he denied getting rid of a knife.
The Verdicts and Sentencing
The jury found Powell guilty of murder in the second degree ( §§ 187, subd. (a), 189 ) and found true the enhancement that, in the commission of the crime, he personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1). The jury also found Powell guilty of first degree residential burglary. ( §§ 459, 460.) The trial court sentenced Powell to an aggregate term of 16 years to life, calculated as follows: 15 years to life on count one, murder in the second degree, and a consecutive one-year term on the personal use of a deadly weapon enhancement. The trial court imposed the upper term of six years on count two, first degree residential burglary ( § 459 ), but stayed execution of that sentence pursuant to section 654.
The jury also found Langlois guilty of murder in the second degree ( §§ 187, subd. (a), 189 ) and first degree residential burglary ( §§ 459, 460 ). The trial court imposed a sentence of 15 years to life on count one. The trial court imposed the upper term of six years on count two, but stayed execution of that sentence pursuant to section 654.
DISCUSSION
See footnote *, ante .
V. Aiding and Abetting Implied Malice Murder
A. Additional Background
At the jury instruction conference, the trial court listed instructions on aiding and abetting and the natural and probable consequences doctrine, stating: "Aiding and abetting, 400, 401, and then 403, natural and probable consequences, and the target offense was assault with force likely to produce great bodily injury. The non-target offense becomes the murder. [¶] Anybody see something in 403 that should be brought up?" Neither defense attorney raised any objection to any of these instructions.
The trial court instructed the jury with CALCRIM No. 401 as follows: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove the following: [¶] 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 knows of the perpetrator's unlawful purpose, and he specifically intends to and does in fact aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime . [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor; however, the fact that a person is present at the scene of a crime or fails to prevent the crime does not by itself make him an aider and abettor." (Italics added.)
The court instructed the jury with CALCRIM No. 403, as follows: "One possible theory of homicide liability is under a doctrine called natural and probable consequences. Under this aiding and abetting theory before you may decide whether a defendant is guilty of murder, you must decide whether he is guilty of assault with force likely to produce great bodily injury. [¶] To prove that a defendant is guilty of murder, the People must prove that, under this theory: [¶] The defendant is guilty of assault with force likely to produce great bodily injury, number one. [¶] 2. During the commission of assault with force likely to produce great bodily injury, a co-participant in that assault with force likely to produce great bodily injury committed the crime of murder; and [¶] 3. Under all of the circumstances a reasonable person in the defendant's position would have known that the commission of the murder was a natural and probable consequence of the commission of the assault with force likely to produce great bodily injury. [¶] A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. [¶] ... [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable consider all of the circumstances established by the evidence. [¶] If the murder was committed for a reason independent of the common plan to commit the assault with force likely to produce great bodily injury, then the commission of murder was not a natural and probable consequence of assault with force likely to produce great bodily injury. [¶] To decide whether the crime of murder was committed, please refer to the separate instructions that I will give you on that crime. [¶] If you decide that the defendant aided and abetted assault with force likely to produce great bodily injury, and murder was a natural and probable consequence of that crime, the defendant is guilty of second degree murder."
The court instructed on malice with CALCRIM No. 520 as follows: "There are two kinds of malice aforethought: [¶] Express malice and implied malice. [¶] Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with express malice if he unlawfully intended to kill. [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act ; 2. The natural and probable consequences of the act were dangerous to human life; 3. At the time he acted , he knew his act was dangerous to human life and 4. He deliberately acted with conscious disregard for human life." (Italics added.)
In his closing argument, the prosecutor advanced two theories of liability as to Langlois: (1) direct aiding and abetting express malice murder, and (2) indirect or extended liability for the natural and probable consequences of the assault Langlois aided and abetted. The prosecutor did not advance an implied malice theory as to Langlois.
However, the prosecutor did discuss implied malice as to the person who committed the stabbing. He first identified basic facts he thought related to the intentional act, the life endangering nature of that act, and the conscious disregard for human life. He told the jury: "1. You did an intentional act. In this case that would be the stabbing. [¶] 2. That act is dangerous to human life. Obviously, using a knife on a human is dangerous; and [¶] 3. The act shows a conscious disregard of the danger to life. [¶] We can expand this a little bit. [¶] Four guys posse up, go over to a house, kick in a door in the middle of the night, even without a knife that seems like an inherently dangerous act. It seems like somebody might die. Seems like you don't really care about the consequences, even without a knife."
In explaining liability for second degree murder, the prosecutor told the jurors that defendants "can be guilty in a couple of different ways," as a "perpetrator, in this case the stabber, or you can be an aider and abettor of a lesser crime that's likely to end up with somebody dead." He then went on to say, "So what does that look like? [¶] As the perpetrator, and in this case it would be [ ] Powell is the stabber and/or [ ] Langlois throwing the table, a defendant did an act that caused [the victim's] death, and the defendant had malice aforethought. This does not mean that [ ]Langlois had to do an act that caused a death because he can aid and abet a second degree murder, and we will talk about that, so long as he has the intent to aid and abet a murder ... He would have express malice under this because he – he has to basically adopt... He has to adopt the intent to kill . [¶] Or you can aid and [a]bet, in this case, an assault .... [¶] If you aid and abet or participate in an assault with force likely to cause great bodily injury and during the assault somebody commits murder, and the murder is likely that somebody might try to do that or do that under the circumstances, then the law says you can be guilty of murder even though all you wanted to do was go over and commit an assault ." (Italics added.)
The prosecutor continued, "So here is what that looks like in your analysis when you start talking about the evidence. Step one: Was there an assault? [¶] And you are going to break it up by defendant, okay? [¶] When I am talking about all this natural and probable consequence stuff, which is what this is called, I'm only talking about [ ] Langlois, okay? I'm comfortable that you guys are going to go back there and say Powell is the stabber . [H]e is guilty on a direct perpetrator theory... but when I'm talking about this, we are talking about an alternative way for [ ] Langlois to be guilty of murder even as a non-stabber, even if you find he didn't go over there with the intent to kill or intent to aid and abet a killing. [¶] The baseline for [ ] Langlois, the bottom level you guys can get to, is he went over there with intent to inflict violence, four on one, and somebody died." The prosecutor further stated: "So was [ ] Langlois guilty of an assault as either a perpetrator or an aider and abettor? [¶] Of course he was. Why would [J.P.] say his buddy [ ] Langlois, threw a table on the guy if he didn't? [¶] ... [¶] [ ] Langlois committed an assault." The prosecutor emphasized that not only did Langlois intend to aid and abet in the assault, he personally committed an assault and he went along as "back-up." (Italics added.)
But the prosecutor argued Langlois was also liable under an express malice theory. He argued that the group must have been armed when they entered the victim's house, because they had to anticipate the occupants might be armed. He emphasized, "You don't go into somebody's else's living room not knowing what you might face and unprepared to face it. [¶] That's just common sense." He argued that Langlois could have harbored an intent to kill before the group entered the house, but he also could have formed the intent to kill during the assault. He told the jury: "A perfectly reasonable analysis of the facts in this case would be: [¶] Let's assume [ ] Langlois had no idea that there was a knife before they go in the house, but they kick in the door. [ ] Powell commences his stabbing, and while the crime is going on ... [ ] Langlois sees all of the blood and adopts that conduct by picking up a table and chucking it at [the victim] as he lay defenseless on the floor. [¶] Does that indicate to you an intent to kill? I think it should."
B. Langlois's Contentions
Langlois asserts that the manner in which the trial court instructed permitted the jury to convict him as a direct aider and abettor of an implied malice murder, independent of the natural and probable consequences doctrine. He argues that this is an invalid theory of murder. According to Langlois, it is not possible to directly aid and abet implied malice murder because "direct aiding and abetting liability turns on the specific intent of the aider and abettor, and implied-malice murder is a crime that is proven not in reference to the intended result but in reference to the unintended result of sufficiently dangerous conduct." He contends that "[g]uilt as a direct aider and abettor of implied-malice murder is not a proper theory of guilt under California law." Therefore, according to Langlois, the trial court's instructions allowed the jury to find him guilty of murder on a legally invalid theory. Neither Langlois nor the People cite a published case directly addressing this argument, and we are aware of none.
C. General Standard of Review and Forfeiture
"We determine independently whether a jury instruction correctly states the law. [Citation.] Our task is to determine whether the trial court ‘ "fully and fairly instructed on the applicable law." ’ [Citation.] We consider the instructions as a whole as well as the entire record of trial, including the arguments of counsel. [Citation.] If reasonably possible, instructions are interpreted to support the judgment rather than defeat it." ( People v. McPheeters (2013) 218 Cal.App.4th 124, 132, 159 Cal.Rptr.3d 607 ( McPheeters ).)
Contrary to the Attorney General's contention, despite the fact that Langlois failed to object on this basis in the trial court, he has not forfeited this instructional error contention. Because Langlois's contention is that the instructions caused him to be convicted under an invalid legal theory, this contention need not be preserved by objection in order to be considered on appeal. ( People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7, 86 Cal.Rptr.2d 243, 978 P.2d 1171 [generally, a defendant forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if he fails to object in the trial court, but a defendant does not forfeit a claim that the instruction was not correct in the law]; McPheeters, supra , 218 Cal.App.4th at p. 132, 159 Cal.Rptr.3d 607 [same].)
D. Analysis
"All persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense , or aid and abet in its commission, ... are principals in any crime so committed." ( § 31, italics added; People v. Mendoza (1998) 18 Cal.4th 1114, 1122, 77 Cal.Rptr.2d 428, 959 P.2d 735.) Guilt as an aider and abettor is guilt "based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." ( People v. McCoy (2001) 25 Cal.4th 1111, 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210 ( McCoy ).)
Under the law in effect at the time of the murder here, an aider and abettor could be convicted for second degree murder committed by the direct perpetrator under two alternative theories: (1) a defendant with the necessary mental state could be liable under direct aiding and abetting principles, or (2) a defendant could be liable not only for the intended crime, but also for any offense that was the natural and probable consequences of the crime aided and abetted. ( People v. Chiu (2014) 59 Cal.4th 155, 158, 172 Cal.Rptr.3d 438, 325 P.3d 972 ( Chiu ); McCoy, supra , 25 Cal.4th at pp. 1117-1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) Thus, at the time of the instant murder, under the natural and probable consequences doctrine, a person who aided and abetted only an intended assault could be found guilty of second degree murder, even if unintended, if the murder was a natural and probable consequence of the intended assault. ( McCoy , at p. 1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210 ) Whether the nontarget crime was a natural and probable consequence was to be determined from the perspective of a reasonable person. ( Chiu , at pp. 161-162, 172 Cal.Rptr.3d 438, 325 P.3d 972 ; People v. Rivas (2013) 214 Cal.App.4th 1410, 1431-1432, 155 Cal.Rptr.3d 403 ( Rivas ).) "The inquiry [did] not depend on whether the aider and abettor actually foresaw the nontarget offense. [Citation.] Rather, liability ‘ "[was] measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." ’ " ( Chiu , at pp. 161-162, 172 Cal.Rptr.3d 438, 325 P.3d 972.) Thus, under the natural and probable consequences doctrine, the prosecution was not required to prove that the aider and abettor was subjectively aware of the risk of death and acted in conscious disregard thereof.
In 2018, the Legislature eliminated application of the natural and probable consequences doctrine to murder. (Senate Bill No. 1437 (2017-2018 Reg. Sess.) (S.B. 1437).) We granted Langlois's request for supplemental briefing on S.B. 1437. Contrary to Langlois's contentions in his supplemental briefing, the relevant changes resulting from the enactment of S.B. 1437 do not apply retroactively to defendants who have pending appeals. Rather, S.B. 1437 established an exclusive mechanism for retroactive relief set forth in section 1170.95. (People v. Gentile (2020) 10 Cal.5th 830, 839, 272 Cal.Rptr.3d 814, 477 P.3d 539 (Gentile ).) Nothing we say herein is intended to express an opinion as to the appropriate outcome on a section 1170.95 petition should Langlois choose to file one.
The reason why there is a dearth of decisional law on aiding and abetting implied malice murder may be the heretofore availability of the natural and probable consequences doctrine for second degree murder, which was easier to prove. While, like implied malice, part of the analysis is based on the natural and probable consequences of an act, the natural and probable consequences doctrine did not require that the aider and abettor intend to aid the perpetrator in committing a life endangering act; it only required the aider and abettor to intend to aid the perpetrator in committing a specific target offense, the natural and probable consequences of which offense was a non-target crime. What was natural and probable was judged by an objective standard and it was enough that murder was a reasonably foreseeable consequence of the crime aided and abetted. (Chiu, supra , 59 Cal.4th at 161-162, 172 Cal.Rptr.3d 438, 325 P.3d 972 ; Rivas, supra , 214 Cal.App.4th at pp. 1431-1432, 155 Cal.Rptr.3d 403.) The aider and abettor need not have been subjectively aware of the risk to human life. Thus, because it was unnecessary to prove the aider and abettor intended to aid the perpetrator's commission of a life endangering act and that he or she was aware of the risk to human life, it was much easier to prove that murder was the natural and probable consequences of an intended assault than to prove direct aider and abettor liability for an implied malice murder.
Langlois asserts that "[a]iding and abetting murder requires specific intent to kill." However, there is no authority for the proposition that an aider and abettor of second degree implied malice murder must intend to kill. It is, of course, well-settled that a direct perpetrator can be guilty of murder based on implied malice -- a theory that does not require an intent to kill. Application of aiding and abetting principles to the actus reus and mens rea elements of implied malice murder demonstrates that a person can also be culpable of implied malice murder on an aiding and abetting theory.
To understand aiding and abetting an implied malice murder, one must understand the analytical connection between the act or the actus reus and the mens rea elements of direct aiding and abetting liability and the actus reus and mens rea elements of implied malice murder. In McCoy, supra , 25 Cal.4th 1111, 108 Cal.Rptr.2d 188, 24 P.3d 1210, our high court addressed the issue of whether an aider and abettor could be guilty of greater homicide-related offense than the actual perpetrator. ( Id . at p. 1114, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) In doing so, the court discussed aiding and abetting principles and the necessary focus on the actus reus and mens rea elements of the homicide offense. That discussion is pertinent here.
The McCoy court observed that "[e]xcept for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. [Citations.] This principle applies to aiding and abetting liability as well as direct liability. An aider and abettor must do something and have a certain mental state." ( McCoy, supra , 25 Cal.4th at p. 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) The court went on to state: "We ... conclude that when a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person's guilt is determined by the combined acts of all the participants as well as that person's own mens rea." ( Id . at p. 1122, 108 Cal.Rptr.2d 188, 24 P.3d 1210.)
Langlois asserts that "it is not possible directly to aid and abet implied-malice murder, for the reason that direct aiding and abetting liability turns on the specific intent of the aider and abettor, and implied-malice murder is a crime that is proven not in reference to the intended result but in reference to the unintended result of sufficiently dangerous conduct." He argues that aiding and abetting murder requires the specific intent to kill, which cannot be reconciled with aiding and abetting implied malice murder. According to Langlois, because aiding and abetting requires a specific intent, while implied malice murder has only the mental state of subjective awareness of the dangerousness of one's conduct, a co-participant cannot directly aid and abet implied malice murder. In other words, because implied malice does not require an intent to kill, a person cannot aid and abet an implied malice murder. He contends an aider and abettor can only be liable for implied malice murder under the natural and probable consequences doctrine. Langlois misapprehends what is required by a direct aider and abettor in the context of implied malice murder.
As the court in McCoy made clear, direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor's own mens rea. ( McCoy, supra , 25 Cal.4th at p. 1122, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) In the context of implied malice, the actus reus required of the perpetrator is the commission of a life endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life endangering act. Thus, 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 , not the result of that act. 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.
The relevant act is the act that proximately causes death. (People v. Cravens (2012) 53 Cal.4th 500, 507, 136 Cal.Rptr.3d 40, 267 P.3d 1113 (Cravens ); People v. Knoller (2007) 41 Cal.4th 139, 143, 59 Cal.Rptr.3d 157, 158 P.3d 731.)
Our high court has often referred to the actus reus element as the "physical component" of implied malice and the mens rea element as the "mental component" of implied malice. (People v. Bryant (2013) 56 Cal.4th 959, 965, 157 Cal.Rptr.3d 522, 301 P.3d 1136 ; Cravens, supra , 53 Cal.4th at p. 508, 136 Cal.Rptr.3d 40, 267 P.3d 1113 ; People v. Chun (2009) 45 Cal.4th 1172, 1181, 91 Cal.Rptr.3d 106, 203 P.3d 425 (Chun ).)
That one may intentionally aid a perpetrator in doing an act when he or she knows the act naturally and probably will cause death and consciously disregards this probable result was recognized by our high court in Gentile, supra , 10 Cal.5th 830, 272 Cal.Rptr.3d 814, 477 P.3d 539. In distinguishing liability under the natural and probable consequences doctrine, the court in Gentile stated that "an aider and abettor need not personally possess malice, express or implied , to be convicted of second degree murder under a natural and probable consequences theory." ( Id . at p. 847, 272 Cal.Rptr.3d 814, 477 P.3d 539, italics added.) This language clearly suggests an aider and abettor can be liable for implied malice murder as a theory independent of the natural and probable consequences doctrine. Later in the opinion, after referencing direct aider and abettor liability for an express malice murder, the Gentile court went on to note that "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." ( Id . at p. 850, 272 Cal.Rptr.3d 814, 477 P.3d 539.) Based on the foregoing analysis of the relevant actus reus and mens rea, we reject Langlois's contention that direct aiding and abetting implied malice murder is an invalid legal theory. Thus, if there was error here, it was not because the court instructed on an invalid theory of liability. We note, however, that the instructions given here were not tailored for this theory.
The context in which the court made this statement was as follows. The San Diego County District Attorney as amicus curiae argued that, after the passage of S.B. 1437, our high court should adopt a hybrid version of the natural and probable consequences doctrine, modifying the natural and probable consequences doctrine for murder rather than eliminating it. (Gentile, supra , 10 Cal.5th at pp. 849-851, 272 Cal.Rptr.3d 814, 477 P.3d 539.) In making this argument, the District Attorney cited the facts in two unpublished cases as examples justifying a hybrid approach. (Id . at pp. 849-850, 272 Cal.Rptr.3d 814, 477 P.3d 539.) The Gentile court rejected the argument, reasoning that: "second degree murder in both cases might have been pursued under a direct aiding and abetting theory. Such a theory requires that ‘the aider and abettor ... know and share the murderous intent of the actual perpetrator.’ (McCoy, supra , 25 Cal.4th at p. 1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) For implied malice, the intent requirement is satisfied by proof that the actual perpetrator ‘ " ‘knows that his conduct endangers the life of another and ... acts with conscious disregard for life.’ " ([People v. ] Soto [(2018)] 4 Cal.5th [968,] 974 [231 Cal.Rptr.3d 732, 415 P.3d 789] [(Soto )].) Therefore, 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 ." (Gentile , at p. 850, 272 Cal.Rptr.3d 814, 477 P.3d 539, italics added.) In Soto , the case the court cited for the mens rea element of implied malice, the defendant and victim engaged in a knife fight. (Soto , at p. 971, 231 Cal.Rptr.3d 732, 415 P.3d 789.) The case involved the question of whether evidence of voluntary intoxication is permitted on the question of whether a defendant believed it necessary to act in self-defense (id . at p. 970, 231 Cal.Rptr.3d 732, 415 P.3d 789 ), and did not involve aiding and abetting liability.
Langlois points out the language of the standard aiding and abetting instruction given here, CALCRIM No. 401. He emphasizes that this instruction couches direct aiding and abetting liability in terms of the aider and abettor knowing the perpetrator intended to commit the crime , the aider and abettor intending to aid and abet the perpetrator in committing the crime , and that, by words or conduct, the aider and abettor in fact aided the perpetrator's commission of the crime . As relevant here, "the crime" would be murder. But as we have discussed, the aider and abettor of implied malice murder need not intend the commission of the crime of murder. Rather, relative to the aider and abettor's intent, he or she need only intend the commission of the perpetrator's act , the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life.
Because the application of aiding and abetting liability for implied malice murder as to Langlois was not foreclosed by the instructions and the aiding and abetting instructions here were not tailored for implied malice murder, the instructions were erroneous. However, we conclude the error was harmless.
Langlois contends that, because the theory was legally invalid, the Chapman harmless beyond a reasonable doubt standard applies. ( Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-711 ; People v. Aledamat (2019) 8 Cal.5th 1, 3, 13, 251 Cal.Rptr.3d 371, 447 P.3d 277 ( Aledamat ) [when a trial court instructs the jury on alternative theories of guilt and at least one theory is legally erroneous, the Chapman standard applies].) We have determined that the theory Langlois complains of was not legally invalid, but nevertheless apply Chapman in a situation involving erroneous aiding and abetting instructions. ( People v. Howard (1992) 1 Cal.4th 1132, 1173, 5 Cal.Rptr.2d 268, 824 P.2d 1315 ; People v. Dyer (1988) 45 Cal.3d 26, 64, 246 Cal.Rptr. 209, 753 P.2d 1 ; People v. Sarkis (1990) 222 Cal.App.3d 23, 29, 272 Cal.Rptr. 34.)
Under Chapman , "[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, supra , 8 Cal.5th at p. 3, 251 Cal.Rptr.3d 371, 447 P.3d 277, italics added.) Under Chapman , the People must show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ( Chapman, supra , 386 U.S. at p. 24, 87 S.Ct. 824 ; Aledamat , at pp. 12-13, 251 Cal.Rptr.3d 371, 447 P.3d 277 ["Finding beyond a reasonable doubt that the error did not contribute to the verdict is essentially the same as finding the error harmless beyond a reasonable doubt"].) " ‘To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ " ( People v. Neal (2003) 31 Cal.4th 63, 86, 1 Cal.Rptr.3d 650, 72 P.3d 280 ( Neal ).) In other words, the Chapman harmless error inquiry asks: " ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’ " ( People v. Geier (2007) 41 Cal.4th 555, 608, 61 Cal.Rptr.3d 580, 161 P.3d 104 ( Geier ); accord, People v. Livingston (2012) 53 Cal.4th 1145, 1159, 140 Cal.Rptr.3d 139, 274 P.3d 1132.) Since Chapman , our high court has " ‘repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ " ( Geier, at p. 608, 61 Cal.Rptr.3d 580, 161 P.3d 104.)
Of key importance to our determination that the instructional error here was harmless is the fact that the prosecutor did not rely on direct aiding and abetting liability as to implied malice. He never advanced such an argument. As noted, the prosecutor advanced just two theories of liability as to Langlois: (1) direct aiding and abetting express malice murder, and (2) indirect or extended liability for the natural and probable consequences of the assault Langlois aided and abetted.
Courts look to the prosecutor's argument as a relevant circumstance in determining whether instructional error is harmless. For example, in Aledamat, supra , 8 Cal.5th 1, 251 Cal.Rptr.3d 371, 447 P.3d 277, the defendant was charged with assault with a deadly weapon, a box cutter. The trial court had listed two theories for the jury to consider in determining whether the box cutter was a deadly weapon: (1) that the box cutter was inherently deadly or dangerous, an invalid legal theory because box cutters are not inherently deadly or dangerous, and (2) that defendant used the box cutter in a deadly or dangerous way, a valid legal theory. ( Id . at p. 3, 251 Cal.Rptr.3d 371, 447 P.3d 277.) As a circumstance establishing the error was harmless under Chapman , the court observed that the deadly weapon issue was not argued to the jury as two separate theories, noting "no one ever suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon." ( Id . at p. 14, 251 Cal.Rptr.3d 371, 447 P.3d 277.) Similarly, here, the prosecutor never argued an implied malice theory as to Langlois. Under the circumstances of this case, given that the jury was never steered in that direction, it is clear the jurors were persuaded by one or both of the prosecutor's arguments -- that Langlois aided and abetted an express malice murder or that he was liable for the natural and probable consequences of an assault he aided and abetted. (See People v. Prettyman (1996) 14 Cal.4th 248, 271-273, 58 Cal.Rptr.2d 827, 926 P.2d 1013 ( Prettyman ); Rivas, supra , 214 Cal.App.4th at 1431-1434, 155 Cal.Rptr.3d 403.) There was compelling evidence that supported both theories advanced by the prosecution here. As for direct aiding and abetting an express malice murder, the evidence supported a finding that Langlois shared the intent to kill with the stabber, Powell. J.D. testified that when he told Powell about having suffered a beat down, Powell said, "we'll handle it – come and get me." (Italics added.) The evidence indicated Powell recruited Langlois to help him handle it. Powell had been told that J.D. was beaten with brass knuckles. Therefore, it would have been reasonable to infer the group would encounter armed resistance to their payback, at least with brass knuckles. Langlois told J.P. a friend of his had been jumped and he was "going to head out there to handle the problem." Langlois then participated in a dangerous home invasion for the purpose of inflicting violence with Powell, who stabbed the victim with a knife moments after their forced entry. Thus, the evidence supports the conclusion that, even before the home invasion commenced, Langlois intended that someone be killed. Further, given that Langlois struck the victim with a table while the victim was on the floor on all fours, bleeding heavily, that evidence further contributed to an inference Langlois intended that the victim die, an intent he had before he entered or that developed during the stabbing.
This case presents a far different situation than where the prosecutor argued both an invalid theory and a valid theory to the jury. (Cf. In re Martinez (2017) 3 Cal.5th 1216, 1226-1227, 226 Cal.Rptr.3d 315, 407 P.3d 1 [reasoning its conclusion that the instruction on the invalid theory was not harmless beyond a reasonable doubt was bolstered by the fact the prosecutor argued the invalid theory at length during closing argument].)
In Prettyman , the trial court instructed on the natural and probable consequences theory regarding a codefendant's liability as an aider and abettor, but did not identify and define the target crime. (Prettyman, supra , 14 Cal.4th at p. 263, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) The court concluded the error was harmless under the standard applied for ambiguous instructions -- whether there is a reasonable likelihood that the jury misapplied the instructions. (Id . at pp. 271-273, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) Because the prosecutor argued that the defendant was liable as a direct aider and abettor, intending the victim's death, and did not argue the natural and probable consequences doctrine as a theory of liability, the Prettyman court concluded it was "highly unlikely" the jury convicted based on that theory. (Id . at p. 273, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) The court reasoned, "it appears that the jury was persuaded by the prosecutor's argument that [the aider and abettor] encouraged or assisted the codefendant ... to murder [the victim], and thus was guilty of murder as an accomplice to that crime, not as an accomplice to some other unlawful act of which the murder was a natural and probable consequence." (Ibid . ) Consequently, the error associated with the natural and probable consequences instruction was harmless.
Rivas, supra , 214 Cal.App.4th 1410, 155 Cal.Rptr.3d 403, involved a similar situation, where the prosecutor did not argue the problematic theory. There, the trial court instructed that, " ‘[u]nder some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime,’ " but never instructed on the natural and probable consequences doctrine, which would have identified the specific circumstances referenced by the trial court. (Id. at pp. 1431-1432, 155 Cal.Rptr.3d 403.) However, the prosecutor never relied on that theory of liability in argument to the jury. Addressing both federal constitutional and state law claims, and relying on Prettyman , the Rivas court held: "[b]ecause the prosecutor ... did not rely on the natural-and-probable-consequences doctrine, [defendant's] constitutional and state law claims are without merit." (Id . at p. 1434, 155 Cal.Rptr.3d 403.)
Additionally, the evidence clearly supported liability under the natural and probable consequences doctrine in that Langlois aided and abetted the group assault on the victim and the murder was a reasonably foreseeable consequence given the totality of the circumstances. At oral argument, the Attorney General argued that, because direct aiding and abetting implied malice requires subjective risk awareness and natural and probable consequences murder requires objective risk awareness, the jury would not have needed to go beyond the natural and probable consequences theory to find defendant guilty of second degree murder. Counsel for Langlois candidly made a similar argument, noting that jury never had to "get into these complex malice questions" regarding Langlois given the availability of the natural and probable consequences theory.
We agree. Given the relative ease with which the jury could conclude Langlois was liable for second degree murder under the natural and probable consequences doctrine (see fn. 26, ante ) and the prosecutor's overture to start with Langlois aiding and abetting an assault as a "baseline," we conclude the fact that the direct aiding and abetting instruction was not tailored for implied malice murder, a theory not advanced by the prosecution, did not contribute to the verdict. ( Aledamat, supra , 8 Cal.5th at pp. 12-13, 251 Cal.Rptr.3d 371, 447 P.3d 277.) There was simply no reason for the jury to deviate from the prosecutor's suggested path and find defendant guilty based on implied malice, a far more difficult route to a second degree murder verdict than the natural and probable consequences doctrine. We agree with the Attorney General that the jury would have found natural and probable consequences liability (objective risk awareness) before moving to aiding and abetting implied malice liability (subjective risk awareness). Indeed, under the circumstances presented here, no juror could have reasonably found implied malice if properly instructed without also finding second degree murder liability for the natural and probable consequences of an assault. (See Chun, supra, 45 Cal.4th at pp. 1179, 1205, 91 Cal.Rptr.3d 106, 203 P.3d 425 [concluding that a second degree felony murder theory was an invalid theory, but further concluding that no juror could find the defendant (who admittedly fired shots) guilty of second degree felony murder as either a shooter or aider and abettor "without also finding conscious-disregard-for-life malice"; thus, the instructional error was harmless beyond a reasonable doubt].)
Having examined "the entire cause, including the evidence, and consider[ed] all relevant circumstances" ( Aledamat, supra , 8 Cal.5th at p. 3, 251 Cal.Rptr.3d 371, 447 P.3d 277 ), we conclude that a rational jury would have found Langlois guilty of second degree murder absent the instructional error. ( Geier, supra , 41 Cal.4th at p. 608, 61 Cal.Rptr.3d 580, 161 P.3d 104.) The error was "unimportant in relation to everything else the jury considered on the issue" of Langlois's liability for second degree murder. ( Neal, supra , 31 Cal.4th at p. 86, 1 Cal.Rptr.3d 650, 72 P.3d 280.) The erroneous instruction "did not contribute" to the verdict. ( Aledamat , at pp. 12-13, 251 Cal.Rptr.3d 371, 447 P.3d 277.) Consequently, any error in this regard was harmless beyond a reasonable doubt. ( Chapman, supra , 386 U.S. at p. 24, 87 S.Ct. 824.)
See footnote *, ante .
DISPOSITION
The judgments are affirmed.
We concur:
RAYE, P. J.
DUARTE, J.