Opinion
D070917
12-20-2017
THE PEOPLE, Plaintiff and Respondent, v. KIMBERLY ANDREWS, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN337317) APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Reversed. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
In May 2015, a jury convicted defendant Kimberly Andrews of the first degree murder of Lindell Mitchell, Jr. (Pen. Code, § 187, subd. (a)), who was killed in December 1991 when defendant was about 16 years old. The jury also found true defendant was vicariously liable for the use of a firearm by another principal during the commission of the offense (§ 12022, subd. (a)(1)). The court sentenced defendant to 26 years to life in state prison.
All further statutory references are to the Penal Code, unless otherwise noted.
On appeal, defendant raises a series of contentions including that the court erred when it instructed the jury with the 2015 CALCRIM instructions on felony murder and burglary instead of the instructions that would have been applicable when the crime was committed in 1991. As a result of this alleged instructional error, which we note neither party raised in the trial court, defendant further contends the jury was instructed on a felony-murder theory that as a matter of law did not support murder in 1991. Respondent the People concede the error but argue it was harmless. As we explain, we agree there was instructional error in connection with the felony murder and burglary instructions and conclude the error was not harmless beyond a reasonable doubt. We thus find it unnecessary to reach Andrews's other contentions. Reversed.
FACTUAL AND PROCEDURAL OVERVIEW
Defendant does not challenge the sufficiency of the evidence in the record in support of her conviction. Nonetheless, we view that evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
A. Prosecution Evidence
Marcus Jones testified that in 1991 he was friends with Mitchell, as they were both in the Marines, had been through boot camp together, and had been deployed together. Jones also knew and was friends with Derwin "Reggie" Hammond, who was one of Mitchell's roommates at the time of the shooting and who also was in the Marines.
A few years after the instant offense, Hammond was murdered in Texas in an unrelated event. During trial, the record shows the parties stipulated that Hammond "sustained a head injury that resulted in his hospitalization. Derwin Hammond was not shot in connection with the instant case."
On Christmas Eve in 1991, Jones testified he, Mitchell, and Hammond were at a planned get-together at the apartment of Mitchell and Hammond located on Cedar Road in Vista. At about 8:00 p.m., per Mitchell's request, Jones picked up two girls outside a grocery store in a shopping center, one being defendant, who Jones identified in court, and the other being "Monica." Jones testified that he had met defendant and Monica once before at Mitchell's apartment. Jones took the girls to Mitchell's apartment and then went home. Jones estimated defendant and Monica were then about 17 or 18 years old.
At about 10:00 p.m., Jones went back to Mitchell's apartment but found only Hammond home. About 10 or 15 minutes later, Mitchell returned with defendant, Monica, and a third female named "Yuko" or "something like that." As the group was "hanging" out, "drinking" a "couple of beers," and "talking," Hammond and defendant "got into an altercation."
Jones testified he saw and heard the altercation. It started about 11:00 p.m., when defendant said she wanted to leave. Hammond in response told defendant that if she wanted to go then "she [could] just go"; that defendant also wanted her two girlfriends to leave with her; and that Hammond wanted the other girls to stay. According to Jones, defendant became "real angry" and "upset" at Hammond and, as the two continued to argue, defendant started threatening Hammond.
As the argument continued, Jones testified that Hammond "got in [defendant's] face," "[p]ointed his finger at her nose [and] touched her nose," but did not slap her. Defendant became even more incensed and, according to Jones, continued to make "threatening" comments to Hammond including that "she was going to get some friends or family [and] come back and shoot the place up." When questioned whether defendant used the word "shoot," Jones testified he was "[p]ositive" that was the word defendant had used that night. On hearing defendant's threating statements, Jones testified that Hammond joked, "[nobody was] going to do anything," suggesting Hammond did not take the threat seriously. Jones stated he also did not take the threat seriously, as he believed defendant was just "throwing a tantrum."
As defendant and Hammond continued to argue, Jones heard defendant make other threats, which he believed were directed at all the Marines and not just Hammond. According to Jones, during the altercation Mitchell made a few comments, such as "Nobody's coming over here" and "stuff" like that, but was not otherwise involved in the argument. Jones said he too made similar comments to defendant.
After defendant and Hammond had argued for what Jones estimated was about 10 minutes, Jones decided he had heard enough and agreed to take the three girls home. According to Jones, defendant lived in an apartment "right behind" the shopping center where, at Mitchell's request, he had picked her up earlier that evening. Jones estimated he took the three girls home a "little bit" after 11:00 p.m. Jones assumed he was dropping off defendant and her friends at a family member's home of defendant.
As they were driving, defendant, who, according to Jones, was seated next to him, continued "making threats about what she's going to do and who she's going to get to come back over there to the apartment[]." Jones understood defendant's threats were to bring others back to Mitchell's apartment to shoot Mitchell, himself, and Hammond. Jones recalled defendant would not stop talking during the drive and repeatedly told her friends "about what she was going to do," with her friends "agreeing" and wanting to be in "cahoots" with defendant. As she was making the threats, defendant talked "about someone named John or Johnny coming over, getting them to come back over." She also used the family name "Noble," stating she would get members from the "Noble house" to go back to Mitchell's apartment.
Jones testified that defendant made the threatening comments throughout the 12- to 15-minute drive home. Although defendant continued to make such statements, Jones stated he did not take them seriously because defendant was "young" and "never . . . in a million years" did he think "anything like that would happen."
Jones learned his good friend Mitchell had been murdered when he and his wife returned home and found "notes and business cards" on the front door and his answering machine full of messages from the sheriff's department. During a police investigation in 1992, Jones identified defendant. He also identified her at the preliminary hearing.
Rilon David Reall testified that he was an active-duty Marine on December 24, 1991; that he was part of the military police (MP); and that in such a role, he was exposed to various stressful incidents including "responding to a basic fight at a club to a domestic violence situation to a fatality traffic accident to combat action in the Gulf." In his role as an MP, Reall testified he was trained to pay attention to details "ranging from the most minuscule to the most obvious because we never know exactly what's going to develop or what's going to happen or what details could be significant in the future investigations."
Reall testified that at "2355" (i.e., 11:55 p.m.) on the night of the shooting, he heard what sounded like a gunshot; that he lived about 60 feet from Mitchell's apartment; that as he peered out the glass sliding door in the bedroom, he heard a second shot and saw a muzzle flash, ostensibly visible through a window inside Mitchell's apartment; that as he walked to the front of the apartment he heard a third gunshot; and that once at the front of the apartment, he looked outside through a "little window arch at the top of the [front] door." When Reall did not see anything, he went outside and walked a "couple of feet" in a vestibule.
While standing in the driveway, Reall initially did not see anybody. However, when he turned around, he saw a "person standing there on the sidewalk . . . in the vestibule." Reall testified that this person was a woman; that she was "immediately inside the arched entryway to the open door" of Mitchell's apartment; that he got a "good look" at this woman's face, as they "locked eyes" when they were about five feet apart; and that this person was defendant, whom Reall identified in court. Reall estimated he saw this woman for a "few . . . seconds." As soon as they locked eyes, Reall stated the woman dropped her head and walked away "at a quick pace."
Because the door to Mitchell's apartment was ajar and he had heard gunshots, Reall testified he next walked up to the door, looked inside, and saw a light "flickering" that he surmised was from a television. Reall left, went back to his apartment, called 911, and waited with his wife for police to respond.
Reall initially spoke with a responding sheriff deputy and later in January 1992, during the murder investigation, spoke with homicide detectives. It was then the detectives showed Reall six photos on a "sheet laid out on the table, nondescript," and he identified defendant in a photograph as the woman he saw in front of Mitchell's apartment on the night of the shooting. When identifying defendant, Reall then noted the woman in the photograph had a different hair style than the woman he saw immediately after the shooting. Reall also identified defendant at the preliminary hearing and testified that there was no doubt in his mind defendant was the woman he saw in front of Mitchell's apartment right after the shooting.
Gregory Basham testified he was a deputy sheriff employed by the San Diego County Sheriff's Department on the night of the shooting and, along with other deputies, was dispatched at about 12:20 a.m. to an apartment located near Mitchell's, where Hammond had fled to report the shooting. As Basham was en route, another sheriff deputy contacted Hammond and directed Basham to Mitchell's apartment. At Mitchell's apartment, deputies contacted another resident of the apartment, William Johnson, who was standing outside.
Basham saw the front door to the apartment open. Although it was dark, Basham testified there were light posts scattered throughout the complex and lighting in front of the doors to the apartments, including a light directly above the entryway to Mitchell's apartment. After speaking to Johnson, Basham went inside the apartment and saw blood on the living room floor. As he cleared the apartment, he found an unconscious African-American male lying face down in the hallway. Basham saw blood both on the victim's back and on the back of the victim's head. Basham called homicide.
On investigation, the homicide team found a "scuff mark" on the front door less than three feet off the ground. Inside the entryway, there was a "dimple in the wall" that appeared to have been made when the doorknob struck the wall with some force. In the living room, the team found red stains on the floor consistent with blood, beer cans, and a black baseball cap. The baseball cap, a "lead bullet" pulled from the wall in the entryway, and two expended .38 special casings among many other items were collected as evidence. The bullet removed from the wall suggested "someone inside the apartment [had been] firing back at someone who was fleeing the apartment [i.e., Hammond]."
Monica Jenkins testified she used to go by the name Monica Leary. Jenkins testified that she and defendant were cousins; that she thus knew defendant in 1991; that she also knew defendant's brother Darrell Noble, cousin Dextric Noble, and mother Gloria Noble; and that she had "heard" of defendant's uncle, James Noble. At Christmas 1991, Jenkins had just turned 16 years old. Jenkins testified that in 1991, she sometimes would "hang out" with defendant and friend Reyuko Dally. She also testified that around this time, she enjoyed meeting "boys and men," including Marines, and that sometimes she, defendant, and Dally together would "hang[] out" with servicemen.
Jenkins recalled Christmas Eve 1991. She testified that she, Dally, and defendant went over to an apartment in Vista that night to meet some "young Marines"; and that one of the Marines picked them up and drove them to the apartment. Jenkins allegedly could not remember which of the Marines picked them up, or what time they were picked up, including if it was in the morning or at night. Once at the apartment, Jenkins saw "Mitch" and "Reggie," whom she had met while hanging out at a mall. Jenkins knew both men were Marines. According to Jenkins, "everyone" was "drinking" at the party, including Reggie and defendant.
At one point during the get-together, Jenkins stated that defendant and Reggie got into an "argument" after he "slapped" defendant. Jenkins could neither remember why Hammond slapped defendant nor did she see him do it. She also allegedly could not recall what defendant and Hammond were arguing about, or what, if anything, was being said during the argument, including by defendant. Thus, Jenkins allegedly had no recollection of defendant threatening Hammond that night, including defendant telling him and the other Marines she was going to come back and have their home "smoked." However, Jenkins did remember that defendant was crying and upset while Hammond was yelling at her.
Jenkins recalled one of the Marines from the party drove her, defendant, and Dally to defendant's grandmother's home on the night of the shooting. Jenkins referred to defendant's grandmother as "Cousin Mae." After being dropped off at Cousin Mae's home, Jenkins testified she and Dally went to Dally's home.
Jenkins testified that she allegedly could not remember speaking to witness Eneesha Linnen, whom Jenkins knew from school, on Christmas day 1991, or to detectives in January 1992, about the shooting. Jenkins also testified that she had been compelled to appear at the trial and that she previously had expressed concerns about her safety for doing so.
Detective Stephen Algya testified that he was assigned to investigate the Mitchell homicide; that he and another detective interviewed Jenkins in late January 1992; and that Jenkins's interview was recorded. A portion of this recording was played for the jury and a copy of a transcript of the recording was included in the record.
In this interview, Jenkins (then Leary) stated that she and her "best friend" "Yuko" met "Lindell" at a mall and he suggested the girls come over to his "little get together"; that on the night of the shooting, she heard Hammond, whom she referred to as "Reggie," "fightin' and arguin' " with defendant; that she in response told Reggie, "You say you're a man, you're too old for this. Now why don't you go in the house and leave it alone"; that Reggie was drunk; and that after the argument they took defendant home. Jenkins stated they were driven home by Jones, whom she knew by the nickname "Mike."
With respect to the argument, Jenkins told detectives she heard defendant say to Hammond, "You not gonna slap me." That Hammond in response said, "You in my house. Get out," and that Jenkins then said, "Well, we gonna go." According to Jenkins, defendant was urging Hammond on, saying "you want to hit" or something and then said, " 'I'll fuck you up' or what ever [sic]. So he hit her." On further questioning by detectives, Jenkins confirmed she saw Hammond slap defendant in the face. Jenkins volunteered that "Mitch" had nothing to do with the fight; that he just sat on the couch watching television; and that it was "Mike" (i.e., Jones) who helped her (i.e., Jenkins) break it up.
During the altercation, Jenkins heard defendant "threaten" Hammond. Because they were "tryin' to get [defendant] to shut up and neither one of them shut up," they took defendant home. When asked what threats defendant was making, Jenkins told detectives defendant was saying "she was gonna get him [i.e., Hammond] beat" and defendant specifically told Hammond he should "get out of his house" because defendant was "gonna get [his] house smoked." When asked what "smoked" meant, Jenkins told detectives, "[s]hot up."
Jenkins told detectives that as Jones was driving the girls home that night, defendant sat in the front passenger seat and that she and Jones were talking. Jenkins recalled defendant saying she was going to get her cousins involved. Jenkins then thought defendant was "just tryin' to threaten [Jones] and scare him."
Jenkins told detectives that on Christmas Day, her friend Eneesha, whom she also referred to as "Hodie," came to Jenkins's aunt's home and informed Jenkins that "Mitch's door was boarded up." According to Jenkins, Linnen lived near Mitchell and could "look right over the gate into [his] apartment." Jenkins relayed to detectives that she then told Linnen what had happened the night before between defendant and Hammond, including how "Reggie" had slapped defendant and how defendant in return said, "she was going to go get . . . somebody to take care of them."
On further questioning by detectives, Jenkins stated that after Jones dropped them off near Cousin Mae's house they went inside and Jenkins saw defendant crying and heard defendant saying, "He beat me" to defendant's mother, Gloria Noble. According to Jenkins, there were a lot of people at Cousin Mae's home that night, including "Daryl," "James," "Gloria," "Lois" and "Jay" among others. As defendant cried to her mother, Jenkins told defendant it was "[her] fault" for getting into the argument with Hammond because defendant "[knew] they was drunk." That night, Jenkins also told defendant she was "stupid" for acting that way. Jenkins recalled that, on the night of the shooting, defendant had "her hair . . . dyed" with a "blond or red" color. Finally, Jenkins told detectives that she and Dally subsequently left Cousin Mae's and went to Dally's home.
Linnen testified that in 1991 she knew defendant "[t]hrough the neighborhood" but they were not really friends; that she knew Jenkins (then Leary) because they went to the same high school; and that at the time of the shooting, Linnen was 15 years old. In the evening of Christmas day 1991, Linnen spoke with Jenkins, as Linnen's aunt lived a "couple of apartments down" from one of Jenkins's family members. Linnen stated that, when she went to see Jenkins that evening, she did not know what had happened the night before with defendant.
Linnen testified that Jenkins told her that "the dude . . . she [i.e., Jenkins] was talking to got killed. And she [i.e., Jenkins] went in to saying there was an argument at the house and one of them hit [defendant] and then she called their cousins over, and next thing you know it, somebody kicked in the door, shots were fired. I remember her telling me that. Reggie [i.e., Hammond] had got beaten up, pistol whipped. That's what she said. And he [i.e., Hammond] got away. And then I was, like, 'Really?' "
What's more, although Jenkins denied being at the apartment at the time of the shooting both during the January 1992 police interview and at defendant's trial, Linnen testified that Jenkins told her she and "some other woman" were in fact "outside the door" of Mitchell's apartment with defendant when the shooting occurred; and that when the door to the apartment was being opened from inside, the "cousins" defendant had brought over "kicked the door in." Also at the apartment was a person named "Dex," who Linnen identified as Dextric Noble, and another person named "Darrell," who Linnen identified as defendant's brother.
As Jenkins was telling Linnen that "Mitch is dead," Linnen testified that she was then in "awe" and "in shock" over what had happened and that, as a result, told her mother and aunt among others what Jenkins had relayed to her. Regarding Hammond, Jenkins told Linnen that one of "them" pistol-whipped him but that he got away. According to Linnen, Jenkins continued to confide in her for "weeks" thereafter, particularly during school, because Jenkins "didn't know what to do" about the homicide.
After Linnen spoke to detectives in January 1992, she became concerned for her safety. Linnen testified "after it all happened" and after she "talked to investigators," a man named "Dexter" approached her as she was walking up the street. According to Linnen, this individual told her, "I hope you're not talking in the street," to which Linnen replied, "No." Linnen stated Dexter was not related to defendant, but instead was a "guy" she knew from the "apartments" where she used to live.
Moreover, Linnen stated she was "contacted" "[o]ut of the blue" in the October/November 2014 timeframe by Darrell Noble through social media. Prior to this contact, Linnen had never "talked" to this individual. Linnen described the contact as "flirtatious." At some point, Linnen informed Darrell Noble, "You kn[o]w who I am?" and when he responded, "No, I don't," she suggested he ask "Dex" or "Dexter." Linnen stated that was the last time she heard from Darrell Noble.
Detective Algya also testified that he was present when detectives interviewed Linnen in January 1992. Linnen then told detectives that she had spoken to Jenkins the day after the shooting (i.e., on Christmas day); that Jenkins told her that Jenkins, defendant, and Dally had been at Mitchell's apartment the night before; that Hammond and defendant "got into an argument" resulting in Hammond "slap[ping]" defendant; and that defendant in response got "upset, enraged, at which point [defendant] asked some of her relatives to come over in response to getting hit by Reggie [i.e., Hammond]."
Detective Algya further testified that Jenkins also told Linnen that when "several of the relatives came over—a couple of uncles, a couple of [defendant's] uncles, [defendant's] brother and a number of other individuals came to the apartment—Reggie answered the door. The door was kicked in, and then several of the—several of those individuals beat up Reggie and Lindell. Another uncle came into the residence and fired three shots. Shortly after that Reggie ran from the apartment down the street. And [Jenkins] told . . . [Linnen] that the three girls— [defendant], Yuko [i.e., Dally] and [Jenkins] —were standing outside the apartment when the assault was going on."
During the interview, Linnen told detectives that Jenkins had specifically told her that also present when the shooting took place was Dextric Noble, "an uncle named Jay, another unnamed uncle," a cousin, and defendant's brother, Darrell Noble. While Linnen and Jenkins were conversing about the shooting on Christmas day, Jenkins then identified an "unnamed uncle," who was also at the Jenkins family gathering, as the "person that did the shooting." According to Detective Algya, Jenkins had even pointed out the shooter to Linnen. Linnen told detectives the shooter was a "black male, approximately six-feet-two-inches tall, an Afro-style haircut," "dark complected" with a "short beard."
The preliminary hearing testimony of Detective Ken Gordon, who interviewed Hammond after the incident, was read to the jury because Detective Gordon was deemed unavailable at the time of trial. Detective Gordon testified at the preliminary hearing that he along with others were assigned to investigate the Mitchell homicide; that he was in fact the lead investigator and had responded to the crime scene on Christmas day 1991; that he found a male victim dead in the hallway; and that the victim had been shot in the back. During the course of his investigation including a witness interview of Jones, Detective Gordon obtained physical descriptions of each of the girls—including defendant—who had been in Mitchell's apartment shortly before the shooting.
Defendant contends the court erred in admitting into evidence Detective Gordon's preliminary hearing testimony. As noted, we need not reach this issue in light of our decision in this appeal.
Detective Gordon testified that during Jones's witness interview, Jones recalled that while he was dropping off defendant and her two friends on Christmas Eve 1991, defendant made "statements about going to the Noble house to get people to come back." On questioning, Detective Gordon testified that Jones recalled defendant saying, "I'm going to get my brother to come back and shoot you." Detective Gordon noted defendant also made statements shortly before the shooting that "she was going to get people to come back and like 'smoke this house up' or 'shoot up this house,' and [that such statements were not] necessarily directed at an individual, although [his] investigation certainly indicated that she was upset with Reggie or Derwin Hammond, not Lindell Mitchell." Detective Gordon subsequently obtained a photograph of defendant from the Oceanside Police Department and showed it to Reall as part of a six-person photographic lineup. According to Detective Gordon, Reall identified defendant from the photographic lineup as the individual he saw outside Mitchell's apartment immediately after the shooting.
Medical examiner Glenn Wagner testified that he reviewed photographs, the autopsy, the investigative report, and X-rays pertaining to the Mitchell homicide. Dr. Wagner opined that Mitchell was shot by a "medium caliber" gun from several feet away, inasmuch as there was no "soot or stippling" observed on the entrance wound. Dr. Wagner further opined that Mitchell sustained blunt-force injuries to his cheek, forehead, lips, and "anterior portion of the tongue" "consistent with punches to the face"; and that based on this bruising, Mitchell was "punched in the face prior to being shot in the back."
Dr. Wagner noted Mitchell also had an injury to the back of his scalp. Dr. Wagner opined this was "another blunt-force injury, a laceration of the scalp from an instrument of one sort or another." When Dr. Wagner reviewed the X-rays, he found no evidence Mitchell sustained any "brain injury," which suggested to Dr. Wagner that the injury to the back of Mitchell's scalp was significant enough to "stun an individual but not enough to cause fracture to the skull or bruising to the brain." Dr. Wagner noted the nature of this injury was consistent with a person being pistol-whipped.
Based on the evidence from the medical examiner compiled about 23 years earlier and other physical evidence, Dr. Wagner opined Mitchell sustained a head injury before he was "shot in the back. The bullet entered below the shoulder blade on the left at the ninth rib, moved forward, going from left to right, back to front, and ended up in the fifth rib space on the right. So it's gone upwards, which means the body is bent or the individual shooting him is below that area. More likely he's bent, ducking or turning or twisting." Dr. Wagner further opined that the gunshot wound entered the left side of Mitchell's "chest wall, the left flora, damage[d] the left lung, causing bleeding, puncture[d] the descending aorta, puncture[d] the right side of the heart itself and the inferior vena cava so that blood both going out of the heart and the blood coming into the heart [was] stopped because of the holes. [¶] The gunshot wound caused a massive amount of bleeding on the right side due to where the bullet ended up."
Dr. Wagner testified Mitchell's toxicology report—completed at or near the time of the autopsy—was "completely negative. The blood and tissues were screened for alcohols. There was no alcohol, drugs of abuse and common prescription drugs." Although based on 1991 technology, Dr. Wagner testified the screening was "pretty comprehensive."
Renee Montgomery, a criminalist for the San Diego Sheriff's Department, testified that in June 2012, she swabbed the inner-portion of the black baseball cap that had been found on the floor of Mitchell's apartment to "determine if DNA was present." Montgomery noted in 1991, "labs weren't routinely doing DNA" testing. Montgomery found DNA on the cap and conducted further testing to determine who could be included and excluded as a contributor. Montgomery's testing showed a DNA mixture from at least three individuals, including a "major" component from eight of 15 "locations." The "minor" components were from two other individuals that Montgomery could not make any determination on "because they were low-level results." Montgomery developed a DNA profile for one individual, who, based on her analysis, was male.
Montgomery testified she next compared the DNA profile with the DNA from Mitchell and found he was not the source of the DNA from the cap. In August 2014, Montgomery received a reference sample from James Noble, defendant's uncle. Montgomery found the reference sample matched the DNA from the cap, and estimated the chances of it being a random match was about 1 in 2.6 billion.
Jeffery Kierman, a federal agent with the Naval Criminal Investigative Service (NCIS), testified he was assigned to work as a liaison with the San Diego Sheriff's Department investigating serious or violent "cold case[s]" involving the military. In that role, Agent Kierman reviewed the Mitchell homicide from 1991, which consisted of "several large binders' worth of books documenting evidence that was seized, [and] interviews that were done" among other information. Agent Kierman also reviewed physical evidence that was collected and kept in the property and evidence facility of the sheriff's department.
Based on this investigation, Agent Kierman requested that "follow-up testing" be done on the physical evidence collected from the crime scene—including the baseball cap—to determine whether a DNA profile could be developed from such items. From that testing, an "investigative lead" was generated by Agent Kierman that led to James Noble. In August 2014, Agent Kierman found James Noble in Cypress California and, with a search warrant, obtained a DNA sample from him. Agent Kierman testified that subsequent investigation led to the arrest of defendant, whom he found living in Shreveport, Louisiana.
B. Defense Evidence
Defendant's grandmother, Mae Alice Smith, testified that she "somewhat" recalled Christmas 1991; that she recalled this particular Christmas Eve, as opposed to many others, because defendant came home and smelled of alcohol; that she was then living in Oceanside in an apartment near a shopping mall; that she recalled defendant talking about going to a friend's house that night; and that she told defendant to return by 11:30 p.m. Because she was cooking, Smith could not remember when defendant came home that night, although she recalled defendant "was a little late." Nonetheless, Smith recalled being "very angry" at defendant that night because defendant came home smelling of alcohol. Smith stated they ate dinner on Christmas Eve after 12 a.m., which was a tradition in their family.
Smith further testified that when defendant came home on Christmas Eve 1991, defendant was not crying; that defendant instead was "playing music and dancing" and helping Smith cook the meal; and that after defendant arrived, Smith did not see any "male relatives" leave the apartment until after their Christmas Eve dinner was completed. Smith further testified that neither Darrell Noble nor John Wesley Noble nor Dextric Noble nor James Dale Noble was at the dinner at her home on Christmas Eve 1991.
Gloria Noble testified that defendant was her daughter; that Gloria was at her own home on Christmas Eve 1991 because she had not been feeling well; and that she recalled speaking to a Marine that night because defendant, then aged 16, "liked Marines" and was going over to one of their apartments. Gloria testified that her sister brought defendant home at about 1 a.m. on Christmas day. Gloria further testified her brother—defendant's uncle—was named James Dale Noble and he owned a "black hat" like one worn by a celebrity. Regarding the black hat or cap, Gloria testified her brother James gave it to defendant.
Regarding her relatives, Gloria testified that James Anthony Noble and Dextric Noble were her nephews; that she also had a stepbrother named James Noble, who left California "years ago"; that Darrell Noble was her son (i.e., defendant's brother); and that John Wesley Noble, whom the family also called "Jay," was also her brother.
Defendant testified in her own defense. She could not recall whether her uncle James Darrell Noble was present at her grandmother's home on Christmas Eve 1991. She did recall her cousins James Anthony Noble and Dextric Noble were present, as was her brother Darrell Noble, her aunt Lois, and some friends of her grandmother.
Regarding Christmas Eve 1991, defendant specifically recalled this night not because of the Mitchell homicide, but because she claimed it was the first time she had ever drank alcohol and because a man had "[p]ut his hands on [her]" and "hit" her. Earlier that day, defendant stated she, "Monica and Yuko" were shopping at a mall in Carlsbad. While at the mall, Hammond and Mitchell contacted Jenkins and asked the three girls if they wanted to come over and "chill" with them on Christmas Eve. Defendant estimated she had been to Mitchell's home about four times before the Christmas Eve get-together. Defendant met the two Marines through her cousin, who was Jenkins's youngest sister. According to defendant, Dally (i.e., Yuko) was then dating Hammond and Jenkins was then allegedly dating Mitchell.
Before the get-together, Jenkins spoke to Hammond, who arranged to have the girls picked up at about 10 p.m. at a grocery store, near Smith's home. Defendant stated they actually went inside the grocery store because they were "sneaking out" and she did not want her grandmother to know, although defendant claimed her mother Gloria knew they were going over to a Marine's home. Defendant further stated she became concerned when Jones purchased alcohol at the grocery store. According to defendant, she had never consumed alcohol before this night. Next, they drove to Mitchell's apartment. Defendant estimated they arrived at the apartment at around 10:30 p.m., where they found Mitchell alone, sitting on the couch watching television.
A few minutes later, defendant testified that she, Jenkins, and Hammond left in Hammond's car to pick up Dally. Mitchell stayed at the apartment. When they returned with Dally, defendant stated they played video games. A few minutes later, Jones arrived at the apartment. At this point, they all started "drinking" and dancing to music.
After being shown a photograph of Mitchell's apartment taken shortly after the shooting, defendant identified her black hat or cap. Defendant testified that law enforcement had never inquired about the hat found in the apartment; that her uncle, James Dale Noble, owned the hat; and that defendant liked the hat because it was like the one worn by a celebrity defendant then idolized. Defendant stated she got the hat from her uncle after she "kept asking him for it."
With respect to how the hat or cap came to be in Mitchell's apartment, defendant testified that before going to Mitchell's apartment, she put the hat in her purse because Dally earlier in the evening had said she wanted to wear it on Christmas. After they went and picked up Dally and brought her back to Mitchell's apartment, defendant claimed she gave Dally the hat.
Defendant testified she consumed a "couple of beers" during the Christmas Eve get-together. As the party continued, defendant saw Hammond drinking "heav[ily]." Defendant believed Mitchell "probably had a couple of beers" that night, but unlike Hammond, was not drunk.
Defendant testified that at one point she looked at a clock and saw it was about 11:30 p.m., the time when her grandmother had said to be home. When defendant announced it was time to leave, she claimed Hammond in response said, "Well, go then." Because defendant did not have a car, she got into an "altercation" with Hammond because he was trying to "push [her] out." Defendant testified Hammond's demeanor changed and he became "like another person." As a result, defendant became fearful of Hammond as she believed he was going to "attack" her.
Defendant testified Hammond struck her twice that night. The first time he "slapped" her on the cheek. Defendant described it as a "light slap." According to defendant, none of the others saw Hammond slap her. Defendant then "ran" into the kitchen and looked for a knife to use as protection. Defendant claimed she was both scared of, and angry at, Hammond. Defendant estimated her altercation with Hammond lasted about 10 minutes. During the altercation, defendant claimed Mitchell just sat on the couch and did nothing. As the altercation continued and escalated, defendant claimed Hammond was "laughing" at her and "pointing his finger in [her] face."
Defendant testified that after Hammond slapped her, she told Hammond that she was "too young for him to hit on [her]" and that she was going to "get [her] brother," Darrell Noble. Defendant further testified that she never intended to involve her brother in the altercation with Hammond; that she made this statement to "protect" herself; that this statement was "meaningless" ostensibly because she never intended to carry out the threat; and that she in fact did not involve her brother Darrell that night because she would have gotten in trouble with her mother. Hammond in response told defendant, "Go get your brother. I don't care." Defendant denied she told Hammond, "I'm going to bring my brother back and smoke up this house," or words to that effect.
After the slapping incident, defendant testified that Hammond touched her nose with his index finger as they continued to argue. In response, according to defendant both Dally and Jones came between defendant and Hammond and Jones then offered to take the girls home. Defendant noted this made Hammond even more angry because he wanted Dally and Jenkins to stay. Dally in response started pushing defendant out the front door, saying "let's go," "forget him," and "[h]e's drunk."
According to defendant, Hammond followed them outside. While they were outside, defendant and Hammond continued to yell at each other. Jones in response told Hammond to go back inside and the girls then got into Jones's car and left with Jones. Defendant stated the black hat was left in Mitchell's apartment.
On the drive home to her grandmother's home, defendant stated that she sat in the backseat of Jones's car. Defendant denied making any additional statements during the drive that could have been considered threatening. Once she arrived at her grandmother's home at about 11:50 p.m., defendant stated she had calmed down and was no longer crying. Defendant denied going back to Mitchell's apartment after the altercation with Hammond. Instead, defendant claimed she helped her grandmother finish cooking the Christmas Eve meal, which they ate after midnight.
The following day—Christmas day, defendant testified she went to her aunt's house, where she encountered Jenkins and Dally. At some point that evening, defendant saw Jenkins go outside and have a conversation with Linnen, who defendant described as a "gossiper" who liked to "h[a]ng around a lot of gangbangers." Defendant testified that she first learned about Mitchell's death from a newspaper, about five days after Christmas.
A clinical psychologist, Dr. Thomas MacSpeiden testified as an expert for the defense on eyewitness identification. He noted this subject matter involved the "behavior of learning, memory, and perception." In connection with the instant case, Dr. MacSpeiden further testified that he read "some" of the discovery; that he also reviewed the police reports among other records; that he did not speak or meet with defendant; and that his primary role in this case was to "[t]alk about the literature."
Dr. MacSpeiden noted that "[m]ost of the literature in eyewitness identification doesn't favor correct identifications," as there "are a lot of limitations" to such identifications. Dr. MacSpeiden opined that "scientific research" showed that about 80 percent of defendants were wrongly convicted on the basis of eyewitness identification.
Regarding the factors or variables that lead to potentially wrongful convictions, Dr. MacSpeiden noted there were primarily two. First was the notion that if a person claims to have seen something with his or her "own eyes," there is "something almost holy about that expression." That is, if a person saw it with his or her own eyes, according to Dr. MacSpeiden the collective psyche of society concludes it "must have happened."
Second, as a result of such eyewitness identification, Dr. MacSpeiden noted people making a decision on whether an event happened or not "unconsciously advocate their decision-making power to the eyewitness," such that if a person votes, for example, to convict, that person does not have to take responsibility if he or she is wrong because to the extent that conviction was wrong, it's the "eyewitness' fault."
Regarding "perception," Dr. MacSpeiden noted it was comprised of three parts: "acquisition," "retention," and "retrieval." Using a bank robbery as an example, Dr. MacSpeiden stated if a person is in a bank and it is being robbed, that person will see and hear what is going on, which is all part of acquisition. Once the bank robber "run[s] away," according to Dr. MacSpeiden the witness is then in retention, as he or she is retaining some of the information he or she acquired. Finally, if the witness is interviewed by police after the bank robbery, the person is then retrieving the information he or she acquired from being present during the incident. Dr. MacSpeiden noted an "important factor in acquisition" is the amount of available light. He further noted that a person's memory "decays" over time, resulting in details being "lost."
DISCUSSION
A. Additional Background
The record shows the trial court gave the jury the following burglary instruction using a modified version of CALCRIM No. 1700: "The crime of burglary requires that the People must prove: [¶] 1. The defendant or perpetrator entered a building; [¶] AND [¶] 2. When he or she entered a building he or she intended to commit murder, assault with a deadly weapon, or assault with force likely to produce great bodily injury. [¶] To decide whether the defendant or perpetrator intended to commit murder, assault with a deadly weapon, or assault with force likely to produce great bodily injury, please refer to the separate instructions that I have given you on those crimes. [¶] A burglary was committed if the defendant or perpetrator entered with the intent to commit murder, assault with a deadly weapon, or assault with force likely to produce great bodily injury. The defendant or perpetrator does not need to have actually committed murder, assault with a deadly weapon, or assault with force likely to produce great bodily injury, as long as he or she entered with the intent to do so. The People do not have to prove that the defendant actually committed murder, assault with a deadly weapon, or assault with force likely to produce great bodily injury to prove burglary. [¶] Under the law of burglary, a person enters a building if some part of his or her body penetrates the area inside the building's outer boundary. [¶] You may not find the defendant or perpetrator committed a burglary unless you all agree that he or she intended to commit murder, assault with a deadly weapon, or assault with force likely to produce great bodily injury at the time of the entry. You do not all have to agree on which one of those crimes he or she intended."
The court also instructed the jury as follows under the felony-murder rule using a modified version of CALCRIM No. 540B from 2013: "The defendant is charged in Count One with murder, also under a theory of felony murder. [¶] The defendant may also be guilty of murder, under a theory of felony murder, even if another person did the act that resulted in the death. I will call the other person the perpetrator. [¶] To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: [¶] 1. The defendant committed, or aided and abetted burglary; [¶] 2. The defendant intended to commit, or intended to aid and abet the perpetrator in committing burglary; [¶] 3. If the defendant did not personally commit burglary, then a perpetrator, whom the defendant was aiding and abetting, committed burglary; [¶] AND [¶] 4. While committing burglary, the perpetrator caused the death of another person. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent. [¶] To decide whether the perpetrator committed burglary, please refer to the separate instructions . . . on that crime. To decide whether the defendant aided and abetted a crime, please refer to the separate instructions that I have given you on aiding and abetting. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder. [¶] It is not required that the person killed be the intended victim of the felony. [¶] It is not required that the defendant be present when the act causing the death occurs. [¶] You may not find the defendant guilty of felony murder unless all of you agree that the defendant or perpetrator caused the death of another. You do not all need to agree, however, whether the defendant or perpetrator caused that death."
The court also gave instructions on aiding and abetting. Specifically, the court gave CALCRIM No. 401 as follows: "To prove 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. [¶] 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 or her an aider and abettor."
The court also gave CALCRIM No. 1702: "To be guilty of burglary as an aider and abettor, the defendant must have known of the perpetrator's unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary before the perpetrator finally left the structure."
The court also gave CALCRIM No. 875, modified as follows: "For the purposes of determining if the crime of burglary has been committed, Assault with a Deadly Weapon requires: [¶] 1. The defendant or perpetrator did an act with [a] firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant or perpetrator did that act willfully; [¶] 3. When the defendant or perpetrator acted, he or she was aware of facts that would lead a reasonable person to realize that his or her act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant or perpetrator acted, he or she had the present ability to apply force with a firearm to a person.
"For the purposes of determining if the crime of burglary has been committed, Assault with Force Likely to Produce Great Bodily Injury requires: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person, and [¶] 2. The force used was likely to produce great bodily injury; [¶] 3. The defendant or perpetrator did that act willfully; [¶] 4. When the defendant or perpetrator acted, he or she was aware of facts that would lead a reasonable person to realize that his or her act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 5. When the defendant or perpetrator acted, he or she had the present ability to apply force likely to produce great bodily injury to a person.
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object to touch the other person. [¶] The people are not required to prove that the defendant or perpetrator actually touched someone. [¶] The People are not required to prove that the defendant or perpetrator actually intended to use force against someone when he or she acted. [¶] No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant or perpetrator committed an assault, and if so, what kind of assault it was. [¶] Great Bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."
Finally, the record shows the court also instructed the jury with CALCRIM Nos. 520 [First or Second Degree Murder with Malice Aforethought (§ 187)] and 521 [First Degree Murder (§ 189)] based on the separate theory of willful, deliberate, and premeditated murder.
B. Guiding Principles and Analysis
As noted ante, defendant contends that the felony-murder instructions erroneously permitted the jury to convict her of first degree murder based on an invalid theory of law. Specifically, defendant contends that because the homicide took place in 1991, the court was required to instruct the jury on the law then applicable. According to defendant, in 1991 felony murder could not be based on burglary when entry was coupled with an intent to commit assault with a deadly weapon, as stated in cases such as People v. Ireland (1969) 70 Cal.2d 522 (Ireland) and People v. Wilson (1969) 1 Cal.3d 431 (Wilson) among others. Because defendant also contends the People substantially relied on a felony-murder theory to support her first degree murder conviction, she further contends the instructions violated her rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and analogous provisions of the California Constitution, mandating reversal of her murder conviction.
Respondent the People agree the court erroneously instructed the jury using the 2015 CALCRIM instructions for felony murder, as opposed to the instructions that would have been applicable in 1991. The People, however, claim that instructional error was harmless beyond a reasonable doubt.
In Ireland, our high court concluded that a second degree felony-murder conviction could not be premised on an assault or any "felony which is an integral part of the homicide." (Ireland, supra, 70 Cal.2d at p. 539.) The Ireland court explained that to allow use of the felony-murder rule in cases where a homicide was committed as a result of an assault "would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law." (Ibid.)
In Wilson, our high court extended the Ireland "merger doctrine" to first degree felony murder "when the underlying felony is burglary based upon an intention to assault the victim of the homicide with a deadly weapon." (Wilson, supra, 1 Cal.3d at p. 442.) Relying on Ireland and Wilson, our high court in People v. Garrison (1989) 47 Cal.3d 746, 778 (Garrison) reiterated "an entry with the specific intent to commit murder cannot support a felony-murder conviction" as a result of the "merger doctrine." However, the Garrison court concluded the reversal of the defendant's murder conviction was unwarranted because the burglary instruction required entry with either an "intent to commit larceny or an intent to kill" and because there was sufficient evidence in the record to uphold the defendant's conviction on the "alternative basis of felony murder premised on the robbery" of the victims. (Ibid.)
Our high court in People v. Chun (2009) 45 Cal.4th 1172 (Chun) reexamined the merger doctrine and its application to first degree felony murder. There, the minor defendant was riding in a vehicle that pulled up alongside another vehicle, occupied by three individuals. The defendant fired numerous shots into the other vehicle, injuring two and killing one. The defendant was charged with various crimes, including murder and shooting at an occupied vehicle, a violation of section 246. In addition to instructing the jury on first degree murder, the trial court instructed on second degree felony murder, with the underlying target felony being shooting at an occupied motor vehicle. The jury found the defendant guilty of second degree murder. (Id. at p. 1178.)
Although our high court in Chun affirmed the conviction, it nonetheless found (nonprejudicial) error in the second degree felony-murder instructions, concluding that second degree felony murder could not be based on any assaultive crime, including shooting at an occupied vehicle, because all "assaultive-type crimes" merged with the charged homicide. (Chun, supra, 45 Cal.4th at pp. 1178, 1189.) In reaching its decision, the Chun court noted that the "merger doctrine developed due to the understanding that the underlying felony must be an independent crime and not merely the killing itself" (id. at p. 1189), and that therefore certain underlying felonies " 'merge' with the homicide and cannot be used for purposes of felony murder" (ibid.). Despite its decision, the Chun court noted the "current state" of what it referred to as the "so-called merger doctrine" adopted in Ireland was "untenable." (Id. at p. 1178.)
Shortly after Chun was decided, the court in People v. Farley (2009) 46 Cal.4th 1053, 1121 (Farley), expressly overruled Wilson when it concluded the "merger doctrine" does not apply to first degree felony murder when the underlying felony is a burglary, which, as in the instant case, is premised on an entry with the intent to commit a felonious assault. In reaching its decision, the Farley court reasoned that the power to define crimes rested exclusively with the " ' " 'legislative branch.' " ' " (Id. at p. 1118.) Under section 189, the Farley court recognized the Legislature unambiguously enumerated several crimes, including burglary, as felonies that can support a first degree felony-murder conviction. (Ibid.) And because a burglary can be committed by entering a structure with the intent to commit any felony, including a felonious assault, such entry can serve as the predicate offense for burglary and the resulting application of the first degree felony-murder rule. (Id at pp. 1118-1119.) However, because of ex post facto concerns Farley concluded its decision did not apply retroactively to crimes occurring before June 2009. (Id. at p. 1121.)
Here, as repeatedly noted ante, Mitchell's homicide took place in 1991, years before Farley was decided. Although the Chun court noted the state of the law regarding the merger doctrine had become "untenable" (Chun, supra, 45 Cal.4th at pp. 1178, 1189), and although Farley expressly overruled Wilson and its progeny, as the People concede we are bound to apply the law of felony murder as it existed in 1991. (See People v. Covarrubias (2016) 1 Cal.5th 838, 882 (Covarrubias) [noting that because the homicides "in this case occurred before our decision in Farley, we apply our jurisprudence governing at the time of the crimes" (italics added)].)
Decided by our high court in 1989, Garrison guides the instant case. In Garrison, the court ruled that "if the jury relied on entry with intent to kill as the basis" for finding defendant guilty of burglary (Garrison, supra, 47 Cal.3d at p. 778), "the burglary could not provide a basis for application of the felony-murder rule, for the burglary was an integral part of and included in fact within the homicide." (Ibid.)
Here, the instructions summarized ante clearly permitted the jury to convict defendant of burglary felony murder based solely on the entry of defendant or of a perpetrator into Mitchell's apartment with the intent "to commit murder, assault with a deadly weapon, or assault with force likely to produce great bodily injury." (See CALCRIM No. 1700, as modified.) Because the burglary was an "integral part of and included in fact within the homicide" of Mitchell (see Garrison, supra, 47 Cal.3d at p. 778), we conclude burglary cannot support defendant's felony-murder conviction.
The question becomes whether this error is harmless beyond a reasonable doubt. "Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Cross (2008) 45 Cal.4th 58, 69-71 (conc. opn. of Baxter, J.); People v. Swain (1996) 12 Cal.4th 593, 607; People v. Calderon (2005) 129 Cal.App.4th 1301, 1306-1307 [erroneous instruction on the second degree felony-murder rule]; see Hedgpeth v. Pulido (2008) 555 U.S. 57 (Hedgpeth) [reiterating that error of this nature is subject to harmless error analysis]; Neder v. United States (1999) 527 U.S. 1, 15 [stating the reasonable doubt test].)" (Chun, supra, 45 Cal.4th at p. 1201.)
Thus, the instructional error is harmless and "reversal of the first degree murder convictions or burglary-murder special-circumstance finding is not required, '[i]f other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for' burglary premised on entry with an intent to steal or commit a robbery." (Covarrubias, supra, 1 Cal.5th at p. 882, quoting Chun, supra, 45 Cal.4th at p. 1205 and citing Hedgpeth, supra, 555 U.S. 57 (per curiam) for the proposition that "error involving instructing the jury on multiple theories of guilt, one of which is invalid, is subject to harmless error review".)
Here, the closing argument, evidence, and verdict show the instructional error was not harmless beyond a reasonable doubt. Although the court also instructed the jury with first degree murder based on a theory the murder was willful, deliberate and premediated as set forth in CALCRIM No. 521, the record shows the prosecutor during closing relied extensively on burglary felony murder as a basis to convict defendant of first degree murder, including using this theory first to support a guilty finding.
Specifically, the prosecutor argued as follows during closing on burglary felony murder: "There are two separate and distinct ways that the defendant is guilty of first degree murder because that's what this is. There are two different ways. The first, ladies and gentlemen, is felony murder. You heard some instructions about burglary. That's because felony murder is triggered by a burglary.
"Felony murder is an independent basis for murder all by itself. It's an automatic first degree. It doesn't require any malice with regard to killing. It requires intent with regard to burglary, and there's a mental state for burglary. But malice aforethought, which deals with murder, felony murder is an automatic trigger.
"It's not like the conscious choice that was made to pull the trigger on the .38 and shoot Lindell Mitchell in the back. It's not like the conscious choice to pull the trigger and fire at Derwin Hammond as he ran from the apartment.
"Felony murder does not require any intent to kill. It doesn't require any intent, unlike the intent to go back and get your relatives that you know are dangerous and bring them back and have them kill a man.
"Felony murder requires no intent to kill, none. It applies to everyone who committed or aided and abetted the target crime. The getaway car driver, the person that pulled the trigger, the person that set the whole thing up, the lookout that was watching for the police. Every single person is automatically guilty of first degree murder.
"Let's talk about felony murder. It's CALCRIM No. 540(b). If you commit a burglary or somebody you're with commits a burglary and you have the right mental state and a death occurs—can be accidental, can be negligent. You cannot even intend to kill the person that died. You can like the person that died. You can think that that person was somebody you liked hanging out with, and they were nice to you. And that person dies and gets killed in the course of the burglary, automatic first degree murder.
"So Let's talk about burglary. You may be sitting here thinking: Well, nothing was stolen. There was no robbery that occurred. They didn't break in to, like, take anything. That is a type of burglary, but it's not all of what burglary is. Burglary refers to entering a building or a structure or even a room within a structure with the intent to commit a felony, any felony, not theft. This case, theft has nothing to do with it. It's still a burglary because we look at what happened. Let's look at the law.
"The law of burglary: Defendant or a perpetrator—it doesn't have to be Kimberly Andrews. She didn't go back into the apartment. She didn't kick the door open. She didn't rush in there and beat Lindell Mitchell and shoot in him in the back. No. She was outside, but a perpetrator went in there.
"This is kind of long.
"Upon entry, the person entering intended to commit a felony. Any one of those, not all of them, not two of them. Any one. Sure, they can intend to commit all three. They can intend to commit one. They can intend to commit two. Murder. If you enter a building or structure with the intent to commit murder, shoot somebody dead, a burglary's been committed.
"If you intend to go in and beat somebody in a manner that's likely to cause great bodily injury, pistol-whipping somebody on the back of the head, giving them a really good beat-down but you don't intend on killing them, that's an assault with force likely to cause great bodily injury, ladies and gentlemen. It's a felony, and a burglary's been committed.
"Or assault with a deadly weapon. You don't intend to kill anybody, but you're going to shoot at them. You intend to shoot at them. You intend to hit them with the bullet, but you don't intend to kill them. Maybe you'll just shoot them in the arm or the leg. That's a burglary.
"Ladies and gentlemen, that's burglary right there. Was a burglary committed? The burglary was committed the minute the door was kicked open and the first person stepped in. Boom, burglary was committed. And it continues. The burglary continues while everything is going on inside that apartment—the beating, the pistol-whipping, the shooting. It's all in the course of that unlawful entry with the intent to commit one of those felonies.
"Did a death occur? Yes. Ladies and gentlemen, frankly, I could stop talking and sit down right now. That would be felony murder, automatic first degree. That's it. It's not stealing. It's not robbery and it's not theft. I don't even have to prove that any of those even actually occurred before it's not that the target underlying offenses for burglary are actually committed. It's what was in the person's head. And how do we know what is in a person's head? The only way we know that is through statements, witness testimony, and the circumstantial evidence of the case.
"What people intended to do. You don't even have to all agree as to which one of the underlying crimes somebody intended to do. Six of you could think: Well, we think that the perpetrator who entered wanted to commit a murder. And the other six can think: You know what, we think that the perpetrator who entered wanted to deliver a really good beat-down on everybody in there. Still a burglary, automatic first degree. No intent to kill. No premeditation or deliberation. That's not required either.
"Ladies and gentlemen, this is a first degree felony murder. That's what this is. It's also a willful, deliberate, and premeditated murder as well. And we'll go through that. But those two are separate forms of murder. They both reach the same conclusion and the same point, which is first degree murder.
"There's our burglary. Defendant can be an aider and abettor, the getaway driver, the person that set it up, no proof of intent to kill. The killing can be unintentional, accidental, or negligent." (Italics added.)
The record shows the prosecutor during closing also addressed the issue of aiding and abetting, arguing defendant was guilty under this theory even if a perpetrator and not defendant "committed the crime of burglary." In support of this theory, the prosecutor argued that defendant was very angry after her confrontation with Hammond; that she specifically threatened to have her brother, Darrell Noble, come back and "smoke[]" Mitchell's apartment; that on the drive home, defendant sat in the front seat of Jones's car and continued to make threatening comments "the whole way" home; that when defendant and her friends were dropped off, everyone had gathered in anticipation of Christmas Eve dinner; that defendant and her friends were dropped off in an area near a grocery store, where Smith and defendant's aunt Lois also resided; and that many of defendant's relatives were "out front," as opposed to being inside Smith's apartment.
The record also shows that the prosecutor next aggressively argued that the evidence showed defendant was guilty of first degree murder on an aiding and abetting theory of burglary felony murder; that the prosecutor did not need to prove who actually pulled the trigger and shot Mitchell; that there was "no way" one or more of the perpetrators "would have known where to go to kill Lindell Mitchell without the defendant"; and that, based on the testimony of Jones and Linnen, along with the recorded statement of Jenkins, it was defendant who threatened to get her relatives and " '[s]moke all of them,' " or words to that effect.
It was only after this lengthy argument that the prosecutor addressed what he referred to as "Option 2" or "[r]egular murder." The prosecutor noted this theory was "completely independent from felony murder"; that defendant can be guilty of first degree murder "this way also"; "[b]ut you don't need to go through all this because the minute you reach a unanimous decision on felony murder, the defendant is automatically guilty of first degree murder."
Moreover, the evidence in the record—as reflected by the carefully-tailored burglary instruction used in connection with felony murder that limited the intent element to entry of a building to commit "murder," "assault with a deadly weapon," or "assault with force likely to produce great bodily injury"—shows the jury could not have made findings necessarily for "burglary premised on entry with an intent to steal or commit a robbery" (Covarrubias, supra, 1 Cal.5th at p. 882) or some other theory of burglary that was not invalid under Ireland and Wilson for purposes of first degree felony murder. (Compare, Covarrubias, at pp. 882-883 [noting the instructional error with respect to entry with intent to kill was harmless beyond a reasonable doubt for purposes of burglary felony murder when the evidence established that the defendant and his accomplices went to the victim's home to "steal property," namely drugs and other " 'stuff' " and to "kill those inside so that there would be no witnesses," and when the verdicts, the prosecution's theory of the case, and jury instructions showed "the jury necessarily found that the defendant entered the house with [his accomplices] with the specific intent to steal or commit robbery" (italics added).])
Finally, we note the verdict form did not differentiate between first degree murder based either on burglary felony murder or willful, deliberate, and premediated murder, referred to by the prosecutor in this case as "regular murder." Instead, the verdict form stated: "We, the jury in the above entitled cause, find the defendant, [¶] KIMBERLY ANDREWS, __________ [GUILTY/NOT GUILTY] of the crime of FIRST-DEGREE MURDER, in violation of Penal Code section 187(a)." Thus, the verdict form in no way supports a finding the jury based its murder verdict on "regular murder" and not on what was in 1991 an invalid theory of felony murder.
In light of our decision, we deem it unnecessary to reach defendant's remaining contentions on appeal.
DISPOSITION
The judgment of conviction of defendant is reversed.
BENKE, Acting P. J. WE CONCUR: NARES, J. HALLER, J.