People v. Athwal

Full title: THE PEOPLE, Plaintiff and Respondent, v. SAVIRANT SINGH ATHWAL, Defendant…

Court: California Court of Appeals, Fifth District

Date published: May 7, 2024

No. F084358 (Cal. Ct. App. May. 7, 2024)

Opinion

F084358

05-07-2024

THE PEOPLE, Plaintiff and Respondent, v. SAVIRANT SINGH ATHWAL, Defendant and Appellant.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.

LEVY, Acting P. J.

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Madera County No. MCR058031B, Ernest J. LiCalsi, Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LEVY, Acting P. J.

INTRODUCTION

In 2017, appellant Savirant Singh Athwal (appellant) planned and executed an armed robbery of a convenience store. He committed this robbery with his cousin and codefendant, Amritraj Singh Athwal (Amritraj). During the robbery, appellant was unarmed. However, he directed Amritraj to use a firearm. During the robbery, Amritraj shot a clerk to death.

In 2022, a jury convicted appellant of first degree murder (Pen. Code, § 187, subd. (a)),¹ finding true that the murder was committed during a robbery (id., § 190.2, subd. (a)(17)). Appellant was sentenced to life in prison without the possibility of parole (LWOP).

1 All future references to statutes are to the Penal Code unless otherwise noted.

Appellant asserts that insufficient evidence establishes that he acted with reckless indifference to human life. He contends that both the murder conviction and the special circumstance finding must be reversed. He also raises claims of instructional and cumulative errors. Finally, he argues that, because he is statutorily ineligible for a youth offender parole hearing, he has been denied equal protection under the law. We reject appellant's claims and affirm.²

2 In case No. F084396, we address appellate issues which Amritraj raises.

BACKGROUND

At trial, certain material facts became undisputed for the jury. Appellant and his younger cousin, Amritraj, robbed a convenience store together. Appellant had planned this robbery and Amritraj was the shooter who killed the clerk, Dharampreet Singh Jassar. Appellant was 24 years old when this crime occurred, and Amritraj was 21 years old.

In the day leading up to this crime, appellant and Amritraj imbibed a substantial amount of alcohol. They also both smoked marijuana, took Xanax pills, and they each ingested cocaine. Appellant's drug consumption on the day of the robbery was not unusual for him.

Amritraj did not testify at trial. During closing argument, Amritraj's trial counsel made voluntary intoxication the foundation of his defense. His counsel asserted that, because of his extreme intoxication, Amritraj had been unable to form the mental states necessary for first degree murder. Amritraj's counsel asked the jury to find Amritraj guilty of second degree murder.

Appellant testified at trial. He admitted he had planned this robbery, and both he and Amritraj had stolen property from the store. However, he told the jurors that they never had a plan to injure the clerk. Unlike Amritraj, appellant's counsel did not rely on voluntary intoxication when arguing this matter to the jurors. Instead, appellant's counsel admitted that appellant had planned the robbery and he was its "mastermind." Appellant's counsel asserted to the jurors that Amritraj had unexpectedly killed Jassar, and the evidence showed that Amritraj had committed premeditated first degree murder. Appellant's counsel asked the jurors to find appellant not guilty of felony murder.

In rendering its verdicts, it is apparent the jurors rejected both appellant's and Amritraj's positions. The jury convicted both appellant and Amritraj of first degree murder. We summarize the material facts that support appellant's verdict. We provide additional details later in this opinion when relevant to the issues raised.

I. The Plan To Rob the Store.

Prior to planning this robbery, appellant had worked a short time at the convenience store where this crime took place. This store is located in Madera County. In 2017, the store closed at 11:00 p.m. Appellant knew that, at closing time, there were fewer customers inside the store. Appellant also knew that, at closing time, whoever was on duty would be removing cash from the registers.

In 2017, appellant was drinking alcohol daily, using marijuana, and taking Xanax. He would occasionally imbibe cocaine. On November 12, 2017, appellant and Amritraj drank whiskey and beers together, and they smoked marijuana. They both ingested Xanax. Appellant formed an idea to rob the store. He made it clear to the jury that he alone planned this robbery.

Amritraj was visiting appellant from out of town when the plan was formed. Appellant noticed that Amritraj had brought handguns with him, a .38-caliber and a .22-caliber. Appellant instructed Amritraj to use a gun to scare the clerk. It was appellant's idea to use a gun during this robbery to assist them in "getting the stuff" so they could "get out of there." They did not discuss firing the gun during the planned robbery. Appellant decided to bring zip ties in case he had to secure the clerk.

On November 12, 2017, appellant and Amritraj drove to the store at night. However, they did not rob it that night. According to appellant, there was too much activity around the store so they aborted the plan.

Appellant slept that night. However, he believed Amritraj was awake all night. The next day, they started drinking alcohol in the early afternoon. They shared a bottle of whiskey and a 12-pack of beer. They also smoked marijuana and imbibed Xanax. They still planned to rob the store.

On November 13, 2017, appellant and Amritraj drove back to the store using Amritraj's truck. Before heading to the store, appellant removed the back license plate from the truck and possibly the front plate, too. Just before driving to the store, they both ingested cocaine. Appellant admitted at trial that he took the cocaine to "get back up again" prior to the robbery.

Appellant again brought zip ties in case he needed to secure the clerk on duty. Appellant knew that Amritraj had his .38-caliber gun with him. Appellant knew the .22-caliber was available in the truck, but appellant did not use it.

On the night they committed these crimes, appellant and Amritraj arrived at the store at about 10:50 p.m.

II. The Killing.

This robbery and murder were captured on the store's surveillance system. The video was played for the jury.

Amritraj entered the store first. Immediately upon entering, Amritraj held out his handgun and he advanced quickly toward Jassar, who was the clerk on duty. No customers were inside the store.³

3 The owner of the store testified that no firearms were provided to the clerks. Appellant agreed that, when he worked there, no gun was available for the clerk to use in defense.

Appellant entered the store about eight seconds behind Amritraj. Both had hooded sweatshirts, they had their faces covered, and they wore gloves. Amritraj was not wearing shoes (but he was wearing socks), his pants were on backwards, and his sweatshirt was inside-out.

Appellant retrieved keys from Jassar. For about 20 seconds, appellant attempted to lock the store's front door, but he was unsuccessful. While attempting to lock the front doors, a vehicle approached the store, which scared appellant. That vehicle pulled away. Appellant assumed that law enforcement was going to be summoned in a minute or two. He agreed that this meant they "needed to escalate force" and have Jassar at gunpoint so they could get everything quickly.

Appellant went behind the store's counter and he took cash from an open safe. Amritraj picked up a money pouch. During this time, Amritraj was standing very close to Jassar while threatening Jassar with the gun. Jassar was compliant at all times.

Because he had previously worked there, appellant knew that boxes of cigarettes were kept inside the store's office, which was unlocked. Appellant went inside the office and he retrieved boxes containing about 60 cartons of cigarettes.

While appellant was inside the office, Amritraj moved to the opposite side of the counter from Jassar. Amritraj pointed his gun in the general direction of Jassar and he fired it once. The shot hit the countertop in front of Jassar, and the bullet ricocheted into the ceiling.⁴ At no time was Jassar threatening Amritraj or offering any signs of resistance.

4 Law enforcement later recovered that bullet.

Appellant came out of the office carrying the cigarettes. He said to Amritraj, "What the hell[?]" Appellant jogged across the store to the front door. Jassar was cowering behind the counter with his hands up. Amritraj met appellant at the front door, and Amritraj held open the door so appellant could exit with the boxes.

As appellant neared the front door, Amritraj held the gun up in Jassar's general direction. Appellant did not tell Amritraj to put the gun away or even to put it down. Instead, appellant told him that they needed to "go" and get "out of here." Just as appellant walked through the door, Amritraj cocked the hammer of his revolver and he aimed the gun toward Jassar, who was still crouching behind the counter but also starting to stand up to watch them exit. Just after appellant walked out of the store, Amritraj took a step toward the counter and he leaned forward. Amritraj fired twice. He was about 12 to 15 feet from Jassar, who was partially cowering behind the counter. A shot struck Jassar in his head. Immediately after firing the fatal shot, Amritraj attempted to fire the gun again but it appears his gun was empty because it did not discharge when he pulled the trigger. Jassar collapsed behind the counter and Amritraj exited the store. It does not appear that Amritraj saw Jassar collapse; Jassar was obscured by the counter and numerous objects on the counter.

Jassar was killed by a single gunshot to his head. The bullet was recovered inside him. The bullet was consistent with a .38-caliber.

The robbery lasted about one minute and 24 seconds from the time Amritraj first entered the store until the time he exits the store after fatally shooting Jassar.

III. Appellant and Amritraj Are Arrested.

After exiting the store, appellant and Amritraj drove to a hotel where they had parked appellant's vehicle. Appellant asked Amritraj why he had fired the gun. According to appellant, Amritraj said he had tried to scare the clerk so he would not call the police.

At the hotel parking lot, they split about $600 taken from the store. Appellant planned on selling the stolen cigarettes.

A security guard at the hotel interacted with appellant and Amritraj. Because they did not have a room at that hotel, the guard asked them to leave the hotel parking lot. Amritraj appeared very intoxicated, with eyes that were "super glazed, dilated." Amritraj asked the security guard "crazy questions," including if the guard was "gay." In contrast, appellant's demeanor seemed normal.

After splitting the cash and talking for a while, appellant and Amritraj drove away in their respective vehicles. The security guard called 911 and reported that Amritraj appeared to be a drunk driver. Later that night, Amritraj drove his truck off the road. At about 1:32 a.m. that same night, he was arrested on suspicion of driving under the influence. Law enforcement found a loaded .22-caliber handgun under the seat of his truck. An unloaded .38-caliber handgun was recovered from the center console. Law enforcement subsequently realized he might be connected with this robbery and homicide. Testing established that Amritraj's .38-caliber handgun was used to kill Jassar.

On the night of the robbery, appellant drove to San Jose, California. From the news, appellant learned that Jassar had died. Appellant did not turn himself into authorities because he was scared. He discarded the stolen cigarettes after he could not find a buyer.

Appellant was arrested about a month after this crime. He initially lied to law enforcement. He claimed he had nothing to do with this murder. He claimed that Amritraj had acted alone and Amritraj must have targeted that store because he (appellant) had previously worked there. Appellant told law enforcement that Amritraj had been using drugs and he was not there "mentally."

At trial, appellant claimed that he had decided to tell the truth because a death had occurred. He admitted that he had lied to law enforcement. He told the jurors that he had testified truthfully.

Appellant emphasized to the jurors that there was never an intention to shoot the clerk when they planned this robbery. He claimed he never thought Amritraj would discharge the firearm. He explained that he had told Amritraj to just "flash the gun" and scare the clerk. They had never discussed firing the gun.

IV. Appellant's Relevant Statements to the Jury.

At trial, appellant testified that, when he and Amritraj arrived at the store on the second night to commit this robbery, he recognized Jassar's vehicle parked outside the store. Appellant had worked with Jassar. They had previously exchanged text messages. When the robbery was underway, appellant recognized Jassar.

At trial, appellant agreed that Amritraj was in "bad shape" on the night this crime occurred. Amritraj had not slept the night before. Appellant admitted that, on the day of this crime, Amritraj had consumed more drugs than he had and Amritraj was under the influence of drugs more than appellant. Appellant agreed that Amritraj had been "struggling" to do his part during the robbery.

At trial, appellant agreed that taking drugs can make a person more erratic and not think clearly. He admitted that pointing a loaded gun at someone is dangerous. He also admitted it is dangerous if someone is impaired and they have a loaded gun. He agreed that Amritraj had not been in his right "mindset" on the night of this crime. Appellant admitted that Amritraj should not have had a loaded gun that night. Appellant testified that he was used to Amritraj "being in that mental state all the time so it was nothing new to me." Appellant told the jury that their drug use that day had impacted their judgments.

Appellant claimed he did not know that Amritraj's gun was loaded until it was fired during the robbery. When he was inside the office retrieving the cigarettes, appellant heard Amritraj fire the first shot. He told the jurors that, at the time, he had assumed Amritraj had fired a warning shot. When he exited the office, appellant saw that Jassar was alive behind the counter holding his hands up. Appellant admitted to the jurors that firing a gun inside a building is dangerous.

At trial, appellant admitted that he had been the leader of this robbery and Amritraj followed him. Appellant agreed that, if he would have told Amritraj to put the gun away, Amritraj would have complied. Appellant agreed that, if he would have told Amritraj to not shoot the gun, Amritraj would have complied. He also agreed that, if he would have told Amritraj to use an unloaded gun, Amritraj would have complied. Appellant agreed with the idea that his inaction resulted in Amritraj shooting Jassar. However, appellant told the jurors that he and Amritraj "were not using our best judgment" that night and they were "on a totally different amount of drugs." Appellant testified that he was not "thinking straight" that night and, looking back with a clear head, he agreed the situation was dangerous. He claimed that, at the time, he was under the influence and he "wasn't thinking straight."

Appellant admitted that, as he was exiting the store, he saw Amritraj raise the gun. However, appellant would not admit that Amritraj was pointing the gun at Jassar. Appellant heard the final two shots after he walked out of the store. He did not return to check on Jassar's condition. According to appellant, he had assumed Amritraj had fired more warning shots and he was focused on fleeing. He never thought Jassar had been injured. He told the jury that he had been doing drugs all day that day. He said his mind was fogged, he was impaired, and he had been scared. He said all shots were just a warning to scare Jassar, and they had never planned to injure anyone.

DISCUSSION

I. Substantial Evidence Supports the Murder Conviction and the Jury's True Finding Regarding the Special Circumstance Allegation.

The jury found appellant guilty of first degree murder for Jassar's death. The jury found true the special circumstance allegation that appellant committed this murder while engaged in the commission of a robbery (§ 190.2, subd. (a)(17)). Because of the special circumstance finding, the court imposed LWOP.

Appellant contends substantial evidence fails to support the jury's finding that he acted with reckless indifference to human life. He asserts that both the felony-murder special-circumstance finding and the murder conviction must be reversed.

A. Standard of review.

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.) This same standard is used to test the sufficiency of the evidence for a special circumstance allegation. (People v. Clark (2016) 63 Cal.4th 522, 610 (Clark).)

B. The requirements to hold an accomplice liable for felony murder.

Murder is the unlawful killing of a person "with malice aforethought." (§ 187, subd. (a).) Murder committed in the perpetration of a robbery is murder in the first degree. (§ 189, subd. (a).)

Following passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill

No. 1437), malice may not be imputed to a person based solely on his participation in a crime.⁵ (§ 188, subd. (a)(3).) When death occurs during the perpetration of certain enumerated felonies, including robbery, a participant in that underlying felony is liable for murder only if one of the following is proven:

5 This murder occurred in 2017. Senate Bill No. 1437 was effective January 1, 2019. It amended both the felony-murder rule and the natural and probable consequences doctrine to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. (People v. Strong (2022) 13 Cal.5th 698, 707-708; § 189, subd. (e)(1)-(3).) In 2022, the prosecutor did not rely on the natural and probable consequences doctrine to establish appellant's liability for felony murder.

(1) The person was the actual killer;

(2) The person was not the actual killer, but, with the intent to kill, aids and abets the actual killer in the commission of murder in the first degree; or

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life as described in section 190.2, subdivision (d). (§ 189, subd. (e)(1)-(3).)

C. The requirements to find true a special circumstance murder.

Section 190.2, subdivision (d), provides that "every person, not the actual killer, who, with reckless indifference to human life and as a major participant" aids or abets an enumerated felony, including robbery, that results in death may be convicted of special circumstance murder and sentenced to death or LWOP.

Section 190.2, subdivision (d), imposes an actus reus requirement-that the defendant be a "major participant" in the enumerated felony. (People v. Banks (2015) 61 Cal.4th 788, 798 (Banks).) This statute imposes a mens rea requirement-that the defendant act with "reckless indifference to human life." (Ibid.)

Four opinions, two from the United States Supreme Court and two from the California Supreme Court, are instructive regarding what constitutes "reckless indifference to human life." We summarize those opinions.⁶

6 This opinion does not focus on what constitutes a "major participant in the underlying felony" because the trial evidence amply demonstrated that appellant was a "major participant" in this robbery. Appellant concedes this point.

D. Enmund and Tison.

Two opinions from the United States Supreme Court, Tison v. Arizona (1987) 481 U.S. 137 (Tison) and Enmund v. Florida (1982) 458 U.S. 782 (Enmund), explain the constitutional limits for punishing accomplices to felony murder. (Banks, supra, 61 Cal.4th at p. 806.) The defendants' conduct in those cases stand at opposite ends of a continuum, a spectrum of culpability for felony-murder participants. (Id. at pp. 800, 802, 811.) At one end of the Enmund-Tison continuum is" 'the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.' [Citation.]" (Banks, supra, 61 Cal.4th at p. 800.) At the other end are the "actual killers and those who attempted or intended to kill. [Citation.]" (Ibid.) Somewhere between those two points lies the showing that is required constitutionally for the imposition of death or LWOP. (Id. at p. 802.)

In Enmund, the United States Supreme Court held the death penalty was inappropriate for an accomplice who did not kill, attempt to kill, intend a killing take place or intend for lethal force to be employed. (Enmund, supra, 458 U.S. at p. 797.) The high court emphasized the focus must be on the accomplice's culpability and not on the murderer's culpability. (Id. at p. 798.) The defendant in Enmund was the getaway driver in an armed robbery of a dwelling whose occupants were murdered. The defendant was convicted of two counts of first degree murder and sentenced to death. (Id. at pp. 784-785; see Tison, supra, 481 U.S. at p. 146.) The Enmundcourt reversed the defendant's judgment upholding the death penalty because the state had failed to treat his culpability differently from the actual killers' culpability. (Enmund, supra, at pp. 798, 801.)

In Tison, two brothers aided a prison escape by arming two murderers, one of whom was their father. The two brothers knew their father had killed someone in the course of a previous escape attempt. After the breakout, one brother flagged down a passing car, and both fully participated in kidnapping and robbing the vehicle's occupants. Both stood by and watched as those people were killed. The brothers made no attempt to assist the victims before, during, or after the shooting, but continued to assist the killers. (Tison, supra, 481 U.S. at pp. 151-152.) The Supreme Court held the brothers could be sentenced to death despite the fact they had not committed the killings or intended to kill. (Id. at p. 158.) The brothers had a substantial involvement in the crimes and they did not act as mere getaway drivers. (Ibid.) Instead, they were "actively involved in every element" of the underlying felonies, and they were physically present during the entire sequence of criminal activity culminating in the murders. (Ibid.) The brothers' "high level of participation" implicated them in the resulting deaths. (Ibid.)

E. Banks and Clark.

In Banks, supra, 61 Cal.4th 788, the California Supreme Court applied the analysis in Tison and Enmund and it concluded that the evidence was insufficient to support a robbery-murder special-circumstance finding under section 190.2. (Banks, supra, 61 Cal.4th at p. 794.) Because the defendant in Banks, like Enmund, was a mere getaway driver in an armed robbery, the Banks court concluded that the evidence was insufficient to show that he was a major participant or acted with reckless indifference to human life. (Banks, at pp. 805, 807.) The court reversed the special circumstance finding. (Id. at p. 811.) The Banks court stated that merely knowing an accomplice is armed is insufficient to impose the death penalty because any violent felony has the possibility for death. (Id. at p. 808.) Instead, the constitutional minimum requires the defendant to knowingly create "a 'grave risk of death.'" (Ibid.)

In Clark, supra, 63 Cal.4th 522, our high court similarly held that insufficient evidence supported a robbery-murder special-circumstance finding for a defendant who planned a robbery that resulted in a death. (Id. at pp. 610-611.) The defendant planned and organized the robbery of a computer store. (Id. at p. 536.) The defendant planned for the robbery to take place after the store closed, when there would be few people in the store, and to involve only one gun without any bullets in it. (Id. at pp. 621-622.) An employee's mother unexpectedly entered the store during the robbery, and the defendant's accomplice shot her with a bullet he had loaded into the gun. (Id. at p. 537.) Soon after the shooting, the defendant fled the scene and abandoned his accomplice. (Id. at p. 620.) Our high court concluded that although the "defendant had a prominent, if not the most prominent, role in planning the criminal enterprise that led to the death" (id. at p. 613), the record did not establish that he exhibited reckless indifference to human life (id. at p. 623). The court vacated the special circumstance finding. (Ibid.)

F. The definition of "reckless indifference to human life."

Reckless indifference to human life is "implicit in knowingly engaging in criminal activities known to carry a grave risk of death." (Tison, supra, 481 U.S. at p. 157.) Examples include "the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property." (Ibid.) Reckless indifference "encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions." (Clark, supra, 63 Cal.4th at p. 617.)

Reckless indifference to human life has a subjective and an objective element. (Clark, supra, 63 Cal.4th at p. 617.) For the subjective element, "[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed," and he or she must consciously disregard "the significant risk of death his or her actions create." (Banks, supra, 61 Cal.4th at p. 801; see Clark, at p. 617.) As to the objective element," '[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.'" (Clark, at p. 617, quoting Model Pen. Code, § 2.02, subd. (2)(c).) "Awareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient" to establish reckless indifference to human life; "only knowingly creating a 'grave risk of death'" satisfies the statutory requirement. (Banks, at p. 808.) Notably, "the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used" is not sufficient to establish reckless indifference to human life.⁷ (Banks, at p. 808; see Clark, at p. 623.)

7 In discussing the meaning of "reckless indifference" as described in Tison, appellant cites a series of opinions from other states. We do not summarize those opinions. Out-of-state court decisions are not binding on us. (Episcopal Church Cases (2009) 45 Cal.4th 467, 490; Global Modular, Inc. v. Kadena Pacific, Inc. (2017) 15 Cal.App.5th 127, 136.)

G. The relevant factors to consider.

An appellate court considers the totality of the circumstances to determine whether a defendant acted with reckless indifference to human life. (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) Our high court has provided the following seven factors as guidelines. However, no single factor is necessary and, likewise, no single factor is necessarily sufficient. (Clark, supra, 63 Cal.4th at pp. 618-623.)

(1) Did the defendant use or know that a gun would be used during the felony?

(2) How many weapons were ultimately used?

(3) Was the defendant physically present at the crime?

(4) Did the defendant have the opportunity to restrain the crime or aid the victim?

(5) What was the duration of the interaction between the perpetrators of the felony and the victims?

(6) What was the defendant's knowledge of his or her confederate's propensity for violence or likelihood of using lethal force?

(7) What efforts did the defendant make to minimize the risks of violence during the felony?

With CALCRIM No. 703, appellant's jury was instructed that a person acts with reckless indifference to human life when he "knowingly engages in criminal activity" that he "knows involves a grave risk of death." The jury was told to consider all the evidence, including a list of potential factors that were similar to the factors set forth above. The jury was told that no single factor was necessary, nor was any factor necessarily enough to determine whether appellant had acted with reckless indifference to human life.

H. Appellant's authorities.

Appellant emphasizes three opinions: Scoggins, supra, 9 Cal.5th 667; In re Miller (2017) 14 Cal.App.5th 960 (Miller); and In re Bennett (2018) 26 Cal.App.5th 1002 (Bennett). We summarize his authorities.

1. Scoggins.

In Scoggins, the defendant planned an unarmed assault and robbery that resulted in a death. (Scoggins, supra, 9 Cal.5th at p. 671.) He was convicted of special- circumstance murder and sentenced to LWOP. (Ibid.) Following Banks and Clark, however, our high court concluded that the defendant had not acted with reckless indifference to human life, and it reversed the jury's special circumstance finding. (Ibid.)

Although the defendant in Scoggins planned the assault on the victim, the defendant was not present when his accomplices killed the victim, and the defendant did not know a gun would be used during the crime. (Scoggins, supra, 9 Cal.5th at pp. 677678.) After the shooting, the defendant went to the crime scene and checked on the victim. He gave a statement to law enforcement as a witness. (Id. at p. 680.) The evidence did not show that the defendant knew his accomplices were likely to kill the victim. (Id. at p. 681.) Finally, there was no indication the defendant planned this crime with the use of weapons, which minimized the likelihood that his criminal plan would result in a grave risk of death. The defendant agreed to have the confrontation take place in a public parking lot during the daytime, when the possible presence of witnesses might reasonably be thought to keep his accomplices within the bounds of the plan. (Id. at p. 683.)

2. Miller.

In Miller, a jury convicted the defendant of first degree felony murder. He was not the person who shot the victim, and he was not present at the scene when the shooting occurred. (Miller, supra, 14 Cal.App.5th at pp. 963-964.) The appellate court concluded that a robbery-murder special-circumstance finding had to be vacated. (Id. at p. 974.)

The defendant in Miller had planned the robbery that resulted in the death. However, he was not present at the scene of the killing, and he had no opportunity to thwart it or assist the victim. The gun used in the crime was supplied by an accomplice, not the defendant, and there was no evidence the defendant believed his accomplices had killed in the past. (Miller, supra, 14 Cal.App.5th at p. 974.) There was no evidence the defendant knew a gun would be used in the robbery. (Id. at p. 975.) This killing appeared to be somewhat impulsive, when the shooter was unexpectedly confronted. (Ibid.)

The Miller court noted that the actual killer of the victim regularly used PCP, including on the day he killed the victim. The drug use, however, did not support a reasonable inference the defendant knew his accomplice was likely to kill. For one thing, there was no evidence the defendant knew his accomplice would be armed during the robbery. In addition, there was no expert testimony at trial about the effects of PCP. Finally, the shooter himself testified that the drug made him" 'a little slow' or 'relaxed,' which would not support an inference he was more prone to kill." (Miller, supra, 14 Cal.App.5th at p. 976.)

3. Bennett.

In Bennett, the defendant was convicted of first degree special-circumstance murder while aiding and abetting a robbery. In relevant part, the appellate court concluded that substantial evidence did not show the defendant had acted with reckless indifference to human life. (Bennett, supra, 26 Cal.App.5th at pp. 1006-1007.) The defendant did not see the shooting occur, he did not have reason to know it was going to happen, and he was not in a position to stop the shooting or render assistance. (Id. at p. 1023.) The evidence did not show the defendant knew his accomplices had any history of violence or violent propensities, or presented any risk they would shoot or behave violently during the planned robbery. No evidence showed that shooting the victim was part of the plan to rob him. There was also no evidence presented that the defendant observed anything before the events leading up to the robbery that would have indicated his other codefendants were likely to engage in lethal violence. No evidence was presented the codefendants discussed shooting anyone or engaging in violence. (Id. at p. 1025.)

I. The totality of the evidence supports the jury's determination that appellant acted with reckless indifference to human life.

During closing argument, appellant's counsel admitted to the jury that appellant had planned this robbery, even calling him the "mastermind." However, defense counsel argued that appellant had never wanted to hurt anyone. According to appellant's counsel, Amritraj had acted alone in committing premeditated murder. Appellant's counsel asserted that Amritraj had unexpectedly killed Jassar with his own premeditation and deliberation. According to appellant's counsel, appellant had no way of preventing this death, and he had no notice that Amritraj might use deadly force. Appellant's counsel argued that the prosecutor had established Amritraj's liability for first degree murder. In contrast, appellant's counsel asked the jurors to find appellant not guilty of felony murder.

The jury rejected appellant's position. Although this robbery occurred very quickly, the totality of the circumstances and the factors articulated in Clark support the jury's determination that appellant acted with reckless indifference to human life. On the "spectrum of culpability" that Enmund and Tison established, appellant was not a minor actor. Appellant was nothing like the getaway driver in Enmund. Appellant was involved in every aspect of this crime, and he was in a position to prevent this senseless killing. Accordingly, his cited authorities are distinguishable from the present matter.

Appellant planned the robbery. He directed Amritraj to bring and use his gun. On the day of the robbery, appellant knew Amritraj had not slept the night before, Amritraj was very impaired, and appellant knew he was not in his right state of mind. Indeed, Amritraj committed this robbery with his pants on backwards, his sweatshirt inside out, and he was not wearing shoes. Appellant admitted at trial that he knew using intoxicants could lead to erratic behavior. He also admitted to the jurors that he had been doing "better" than Amritraj on the night in question because Amritraj had not slept and was even more impaired than appellant. At trial, appellant admitted that Amritraj should not have been armed with a loaded gun. However, it was appellant who decided Amritraj should be armed.⁸ Appellant never cautioned Amritraj to bring an unloaded gun. Appellant never instructed Amritraj to remove the bullets or to refrain from firing his weapon. Instead, appellant directed Amritraj to use his firearm to scare the clerk on duty.

8 In his reply brief, appellant admits that Amritraj was armed at his (appellant's) suggestion.

At trial, appellant admitted that a robbery is dangerous and somebody can get hurt. He also admitted that pointing a loaded gun at somebody is dangerous. Appellant admitted it is dangerous to have a loaded firearm while impaired.

Appellant was not like a getaway driver. Instead, he was the leader of this criminal enterprise.⁹ He was physically present during the crime and in close proximity with Amritraj. The video clearly shows that appellant was prompting Amritraj and keeping him on task. In short, appellant was directing Amritraj throughout the robbery. At trial, appellant admitted that Amritraj was "struggling" during the robbery "to do his part."

9 In his briefing before this court, appellant admits that his testimony was that "he was the leader and Amritraj would have refrained from pointing and discharging the firearm had he been told to do so."

The evidence amply demonstrates that appellant was aware of and he was willingly involved in the violent manner in which this robbery was committed. Appellant saw Amritraj pointing his gun at Jassar, who was compliant at all times. At no time did Jassar offer any resistance. While he was in the office, appellant heard the first shot. Appellant admitted at trial that firing a gun inside a building is dangerous. However, he did nothing to mitigate the probability of further violence when he heard the first shot. Appellant never asked Amritraj why he had fired the gun. Appellant never told Amritraj to put the gun away or to not fire the gun again. Appellant never attempted to take the gun from Amritraj. Instead, appellant testified that, when he came out of the office carrying the cigarettes, he said to Amritraj, "What the hell[?]" At trial, appellant admitted Amritraj would have complied if he (appellant) had told him to put the gun away. Appellant also admitted to the jury that, because of his inaction, Amritraj eventually shot Jassar.

When Amritraj fired the gun the first time, it put appellant on notice that Amritraj was willing and able to use lethal force. Instead of intervening, appellant ran out of the store with the stolen property. While exiting the building, Amritraj was holding up the gun, which was pointed in the general direction of Jassar.¹⁰ Appellant saw the gun raised, and he did not tell Amritraj to lower his weapon or put it away. Just after exiting the building, appellant heard the two additional shots. Appellant knew Jassar, and had previously worked with him. Appellant, however, never stopped to check on Jassar's condition after the final shots were fired. Instead, appellant fled with Amritraj and the stolen property.

10 In his briefing filed in this court, appellant admits that, as he neared the door to exit the store, "Amritraj turned around and faced Jassar, holding the gun out." Appellant concedes it is possible he "might have seen Amritraj hold the gun out generally pointed toward Jassar."

In support of his claim, appellant emphasizes certain factors from Clark. He asserts that he did not supply the firearm used in this crime and he had no advanced notice that Amritraj had a propensity for violence. He argues his awareness that Amritraj was armed is insufficient to prove a reckless indifference to life. He notes that this robbery was very quick, lasting under 90 seconds, and nothing shows the robbery was prolonged so that the risk of violence was increased. He contends he had no intent to kill and, although he had access to the loaded .22-caliber firearm under the driver's seat, he committed this robbery unarmed. He argues he did not know Amritraj held an intent to kill and he had no real opportunity to stop the killing. He claims he attempted to minimize the risks of violence by aborting the first robbery attempt, committing the actual robbery at night when only Jassar's vehicle was in the parking lot, and attempting to lock the store's front door. He maintains he was "at the Enmund end of the spectrum" and no evidence shows he knew lethal force was appreciably more likely than what is possible in a" 'garden-variety armed robbery.'" We disagree.

When looking at the totality of this evidence, a majority of the factors from Clark support the jury's findings. (Clark, supra, 63 Cal.4th at pp. 618-622.) Appellant was at the fatal scene. He planned for a gun to be used during this robbery, and he asked a very impaired Amritraj to scare Jassar with it. Appellant did nothing to ensure the gun was unloaded or that Amritraj would not fire it. Although appellant did not have advanced knowledge that Amritraj had a propensity for violence, appellant knew Amritraj was willing and able to use deadly force when he fired the gun while the robbery was under way. It was undisputed at trial that appellant heard the gun being fired. Once Amritraj made it clear he was willing to fire the gun, appellant made no effort to prevent the further use of lethal force.

Appellant contends that, because of his own "extreme intoxication," he was unable to appreciate the risk that a very intoxicated Amritraj posed to others. Appellant also argues that, even though Amritraj would have listened to him and refrained from discharging the firearm, he (appellant) was "too heavily drugged to use good judgment," and he was "focused only on completion of the robbery and escape."

These arguments regarding intoxication are unpersuasive. The jury found true that appellant committed this felony murder while he was engaged in a robbery. Consequently, the jury concluded beyond a reasonable doubt that, despite his voluntary intoxication, appellant was able to form a specific criminal intent to commit robbery. Because the jury found that appellant was able to form a specific criminal intent, we reject appellant's suggestion that, because of his intoxication, he was somehow unable to appreciate the grave risk of death that was created when he directed a very inebriated Amritraj to scare the clerk with his gun, and Amritraj then exhibited a clear willingness to discharge lethal force.

Amritraj's murder of Jassar was the culmination of several intermediate steps, all of which appellant set into motion. Appellant was able to observe Amritraj's behavior. Appellant had ample opportunities to restrain Amritraj and to prevent his ability to use deadly force, especially after appellant knew that Amritraj was willing and able to fire his gun. Appellant's failure to act as a restraining influence amply demonstrates his reckless indifference to human life. (See Clark, supra, 63 Cal.4th at p. 619 [citing various authorities for the proposition that a defendant's failure to restrain the crime and/or render aid to the victim shows a reckless indifference to human life].)

Based on the totality of this record, substantial evidence supports the jury's felonymurder verdict and its true finding that appellant committed a special circumstance murder. The evidence in support of the jury's findings is reasonable, credible and of solid value. Appellant consciously disregarded a significant risk of death that he created. His conduct was a gross deviation from the standard a law-abiding person would observe in this situation. (See Clark, supra, 63 Cal.4th at p. 617.) Appellant's conduct "elevated the risk to human life beyond those risks inherent in any armed robbery." (Id. at p. 623.) Thus, he acted with reckless indifference to human life. Consequently, the murder conviction and the special circumstance finding will not be reversed, and this claim fails.

II. Appellant Has Forfeited His Claim of Instructional Error Regarding Voluntary Intoxication and Any Alleged Error Is Harmless.

During trial, the prosecution asked the court to instruct the jurors on the doctrine of voluntary intoxication. Appellant's counsel informed the court that, even if he was not intending to argue voluntary intoxication for appellant, substantial evidence supported such an instruction for both defendants.

The court agreed to instruct the jury regarding voluntary intoxication. For appellant, the jurors were told to consider whether his intoxication impacted his ability to aid and abet a robbery and/or whether he intended to commit robbery. The jurors were told they could not consider evidence of voluntary intoxication "for any other purpose."

Appellant and Amritraj presented very different defenses to the jury. During closing argument, Amritraj made voluntary intoxication the cornerstone of his defense.¹¹His counsel asserted to the jurors that Amritraj was so impaired he was unable to form the intent necessary for felony murder, or to premeditate and deliberate this killing. Amritraj's counsel claimed that Amritraj had been a "tool" for appellant, who planned everything. The jury was asked to find Amritraj not guilty of first degree murder and, instead, convict him of second degree murder.

11 For Amritraj, the jurors were told to consider whether his intoxication impacted his ability to aid and abet a robbery; whether he acted with an intent to kill; whether he premeditated and deliberated a murder; whether he intended to commit robbery; and/or whether he intended to discharge a firearm.

Appellant's defense did not rely on voluntary intoxication. Although appellant testified he was impaired when he committed this robbery and he was not using his best judgment that day because of drugs, his counsel never requested instruction on voluntary intoxication, and his counsel did not argue this defense to the jury. Instead, appellant's counsel admitted to the jurors that appellant had planned the robbery and he was the "mastermind" behind it. Appellant's counsel asserted that Amritraj had unexpectedly killed Jassar with his own premeditation and deliberation. According to appellant's counsel, appellant had no way of preventing this death, and he had no notice that Amritraj might use deadly force. Appellant's counsel asked the jurors to find appellant not guilty of felony murder and, instead, find Amritraj liable for first degree murder.

Appellant contends that instructional error occurred regarding voluntary intoxication. He asserts the jurors should have been directed to consider his intoxication in deciding whether he acted with a reckless indifference to human life. He seeks reversal of his judgment.

The parties disagree whether a "reckless indifference to human life" is a general intent crime, a specific intent crime, or whether it integrates a third mental state, such as "knowledge" of a grave risk of death. A general criminal intent applies when the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence. In contrast, when the definition refers to a defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific criminal intent. (People v. Mendoza (1998) 18 Cal.4th 1114, 1127.) Our high court has acknowledged that these two categories-general and specific criminal intent-are potentially confusing and simplistic because "some crimes have other required mental states such as knowledge." (Ibid.)

How a crime is classified is key to whether voluntary intoxication can be used as a defense. Evidence of voluntary intoxication is admissible only regarding "whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b).) In general, evidence of voluntary intoxication is inadmissible to negate the existence of a general criminal intent, but it may negate a specific criminal intent.¹² (People v. Atkins (2001) 25 Cal.4th 76, 81-82.) Voluntary intoxication may also negate an alleged aider and abettor's liability because intoxication may explain a lack of knowledge that a perpetrator intended to commit a criminal act. (People v. Mendoza, supra, 18 Cal.4th at p. 1130.) In addition, aiding and abetting requires a "specific" criminal intent, for which evidence of voluntary intoxication is admissible.¹³ (Mendoza, at p. 1131.) This is true "whether the intended crime itself requires a general or specific intent on the part of the perpetrator." (Id. at p. 1132.)

12 "Before 1981, intoxication was generally relevant to the defense of diminished capacity." (People v. Mendoza, supra, 18 Cal.4th at p. 1125.) After 1981, the defense of diminished capacity was abolished and voluntary intoxication was relevant to the question whether a defendant "actually had the necessary mental state for the charged offense." (Ibid.)

13 Our high court notes that, for purposes of aiding and abetting, the accomplice's mental state cannot be "mechanically" divided into "knowledge and intent." (People v. Mendoza, supra, 18 Cal.4th at p. 1131.) Therefore, the "knowledge" element of aiding and abetting is treated as" 'akin'" to a specific criminal intent. (Ibid.)

Respondent takes the position that voluntary intoxication cannot be used as a defense to a charge of reckless indifference to human life because this does not require a specific criminal intent. In contrast, appellant asserts that "reckless indifference" has a knowledge component, which may be impacted by his voluntary intoxication.

We need not resolve the parties' disputed points regarding how the mens rea for this crime should be classified. Instead, we agree with respondent that appellant has forfeited this claim in failing to raise it below. Moreover, this record amply demonstrates that any alleged instructional error is harmless.

A. This claim is forfeited.

Voluntary intoxication is a "pinpoint" instruction, which must be given on request when there is sufficient evidence supporting the theory. (People v. Saille (1991) 54 Cal.3d 1103, 1120.) A "pinpoint" instruction does not trigger a trial court's sua sponte duty to instruct because it does not involve a general principle of law. (Ibid.)

We agree with respondent that appellant has forfeited this claim. Appellant never requested instruction on voluntary intoxication. Further, he never objected to the instructional language given to the jury regarding voluntary intoxication, a point which appellant concedes in his opening brief.

To overcome forfeiture, appellant contends that the disputed instructions were legally erroneous so appellate review is appropriate despite his counsel's failure to object. He asserts that the voluntary intoxication instructions were "incorrectly worded" (boldface &capitalization omitted) in that they "expressly precluded" the jury's consideration of his intoxication on the issue of his reckless indifference to human life. He also argues the voluntary intoxication instructions impacted his substantial rights, so this court may review this claim under the authority of section 1259.¹⁴ He relies on People v. Townsel (2016) 63 Cal.4th 25 (Townsel).

14 Under section 1259, an appellate court may review a jury instruction given even though no objection was made in the lower court, "if the substantial rights of the defendant were affected thereby."

We reject appellant's arguments. The instructions given were correct and appellant's substantial rights were not impacted.

The instructions at issue are CALCRIM Nos. 404 and 625. With CALCRIM No. 404, the jurors were instructed to consider whether appellant's intoxication impacted his ability to know that Amritraj intended to commit robbery and whether appellant intended to aid and abet the robbery. With CALCRIM No. 625, the jurors were informed they could consider evidence, if any, of appellant's voluntary intoxication only in a limited way. In relevant part, the jurors were told they could consider this evidence in deciding if appellant "intended to commit robbery." The jurors were instructed they could "not consider voluntary intoxication for any other purpose."

These instructions were correct. Under the Penal Code, evidence of voluntary intoxication is admissible "solely" on the issue of whether a defendant "formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b).) The Penal Code does not authorize admission of voluntary intoxication to a charge that a defendant acted with reckless indifference to human life. (§ 29.4, subd. (a).)

Robbery is a specific intent crime. (In re Milton (2022) 13 Cal.5th 893, 900.) Evidence of appellant's voluntary intoxication was admissible regarding whether or not he intended to commit robbery. (§ 29.4, subd. (b).) Likewise, the jury could consider voluntary intoxication in deciding whether appellant had the knowledge and intent necessary to aid and abet the robbery. (See People v. Mendoza, supra, 18 Cal.4th at pp. 1131-1132.) Thus, the jury was correctly instructed it could consider evidence of appellant's voluntary intoxication in deciding if he intended to commit robbery and/or if he intended to aid and abet the robbery. The Penal Code prohibited the jury from considering such evidence for any other issues. (§ 29.4, subds. (a) &(b).)

When a trial court gives a correct jury instruction, a defendant must request any additional or qualifying language in order to preserve the issue for appeal. (People v. Welch (1999) 20 Cal.4th 701, 757.) A defendant may not complain on appeal that an instruction, correct in law and responsive to the evidence, was too general or incomplete if he did not request appropriate clarifying or amplifying language. (People v. Buenrostro (2018) 6 Cal.5th 367, 428; People v. Hillhouse (2002) 27 Cal.4th 469, 503.) A trial court does not have a sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel, and failure to request clarification of an otherwise correct instruction forfeits the claim of error on appeal. (People v. Whalen (2013) 56 Cal.4th 1, 81-82.)

If appellant believed the instruction on voluntary intoxication should have applied to his alleged reckless indifference to human life, he was required to raise that concern below. Instead, appellant's counsel never requested any instruction on voluntary intoxication, he never objected to the instructional language given, and appellant's counsel never raised this defense when arguing to the jury. Appellant's counsel readily admitted to the jurors that appellant had planned and committed robbery. As such, it was impliedly admitted to the jurors that, despite his intoxication, appellant was able to, and he actually did, form a specific criminal intent. Thus, appellant's substantial rights were not impacted, and we decline to apply section 1259 in this situation.

Finally, appellant's reliance on Townsel is misplaced. In Townsel, the defendant presented expert testimony to the effect he was intellectually disabled. (Townsel, supra, 63 Cal.4th at p. 57.) Instructional error occurred because the trial court erroneously prohibited the jury from considering the intellectual disability evidence for some of the allegations. (Id. at pp. 57-58.) Despite the defendant's failure to raise these issues below, the high court agreed it was appropriate to review the alleged instructional error under the authority of section 1259. (Townsel, supra, at pp. 59-60.) In part, the defendant's counsel had argued the mental disability evidence to the jury. (Id. at p. 63.) The high court found error under both state law and the federal Constitution. (Townsel, at p. 64.)

Townsel is distinguishable. Appellant's counsel made a tactical decision to not raise voluntary intoxication to the jury. Thus, unlike what occurred in Townsel, the alleged instructional error here did not impact appellant's substantial rights. He may not argue for the first time on appeal that a correct legal instruction was too general or incomplete and needed clarification. (People v. Buenrostro, supra, 6 Cal.5th at p. 428; People v. Hillhouse, supra, 27 Cal.4th at p. 503.) Accordingly, section 1259 is inapplicable and this claim is forfeited. We also conclude that, even if this claim is not forfeited, it fails due to a lack of prejudice.

B. Any alleged error is harmless.

The parties dispute the appropriate standard of review regarding prejudice. According to appellant, we must apply Chapman v. California (1967) 386 U.S. 18 (Chapman). Under Chapman, respondent bears the burden to establish beyond a reasonable doubt that the alleged error did not contribute to the verdict. (Id. at p. 24.) In contrast, respondent contends prejudice is reviewable under People v. Watson (1956) 46 Cal.2d 818 (Watson). Under Watson, we ask whether it is reasonably probable appellant would have received a more favorable result in the absence of the alleged error. (Id. at p. 836.) Both parties argue that, even if the competing standard of review is used, their position is still correct.

We agree with respondent that Watson applies. This is an issue of alleged statelaw error. (See People v. Mendoza, supra, 18 Cal.4th at pp. 1134-1135 [applying Watson standard for allegedly defective instructions on intoxication].) In any event, however, we can declare that this alleged error is harmless under either standard.

During the first day of deliberations, the jury sent a request to the court asking for a more in-depth explanation of how voluntary intoxication applies. The court referred the jury back to the original instructions. Appellant contends that the jury's note "tends to establish" the jury believed the intoxication evidence "and viewed it was important to the case."

We disagree that the jury's note had any bearing on appellant's defense. We likewise reject his assertion that he suffered prejudice.¹⁵

15 The court read CALCRIM No. 625 to the jury twice after the prosecutor noted a change in wording that was required. Appellant contends that reading this instruction twice "heightened" the degree of prejudice. We reject appellant's position because he did not suffer any prejudice from the court instructing the jury with CALCRIM No. 625.

Amritraj made voluntary intoxication the cornerstone of his defense. In contrast, and despite his claims on appeal, appellant did not rely on voluntary intoxication as a defense below. Appellant's trial counsel never requested these instructions and he did not argue this defense to the jury. Appellant's trial counsel made a clear tactical decision when he admitted to the jurors that appellant had planned and committed robbery. Appellant's counsel asserted to the jurors that Amritraj had unexpectedly killed Jassar with his own premeditation and deliberation. According to defense counsel, appellant had no way of preventing this murder.

In admitting that he planned and committed robbery, appellant impliedly admitted that he formed the specific intent necessary for that crime. In finding appellant guilty of felony murder, the jury necessarily rejected any suggestion that appellant's alleged intoxication prevented him from forming the specific intent needed to establish robbery, which was the underlying felony supporting the theory of felony murder. Because the jury found that appellant was able to form a specific criminal intent, we reject his argument that the jury may have believed appellant was unable to form a reckless indifference to human life due to his intoxication. In short, appellant was not prejudiced.

The evidence in no way demonstrates or even reasonably suggests that, due to intoxication, appellant was unable to hold a subjective awareness that his actions created a grave risk of death. To the contrary, it was appellant's idea to rob the store, and it was appellant's idea that Amritraj should scare the clerk with a firearm. Appellant admitted at trial that ingesting drugs can make a person more erratic. He agreed that he was "doing better" than Amritraj on the night they committed this crime. Appellant admitted to the jury that Amritraj was not in the right mental state that night, and Amritraj should not have been armed with a loaded gun.

Appellant heard Amritraj fire the first shot, and he knew that firing a gun inside a building is dangerous. Appellant admitted that, if he had told Amritraj to put the gun away, Amritraj would have complied. Appellant admitted that his inaction resulted in Amritraj shooting Jassar.

Finally, we reject appellant's claim that this alleged instructional error reduced the prosecution's burden of proof or denied him a fair trial. Nothing prevented appellant from presenting a meaningful defense. His trial counsel made a tactical decision to not rely on voluntary intoxication.

The jury was told that appellant was presumed innocent and the prosecutor bore the burden to prove beyond a reasonable doubt that he was guilty. The jurors were instructed that, to prove that appellant was guilty of first degree murder under a theory of felony murder, the prosecutor had to prove that (1) appellant committed, or aided and abetted, robbery; (2) appellant intended to commit or intended to aid and abet the perpetrator in committing robbery; (3) if appellant did not personally commit robbery, then a perpetrator, whom appellant was aiding and abetting, committed robbery; (4) while committing robbery, the perpetrator caused the death of another person; (5) appellant was a major participant in the robbery; and (6) when appellant participated in the robbery, he acted with reckless indifference to human life. The jurors were instructed that to return a verdict of guilty they all had to agree on guilt. Based on the murder verdict, the jury rejected appellant's claim that he had not acted with a reckless indifference to human life.

The jurors were informed that, if they found appellant guilty of first degree murder, they had to decide whether the prosecutor had proven true the special circumstance allegation. The jurors were told that the prosecutor bore the burden to prove beyond a reasonable doubt that the special circumstance murder allegation was true. The jurors were instructed that they had to find the special circumstance allegation not true if the prosecutor did not establish beyond a reasonable doubt that appellant either (1) acted with an intent to kill or (2) was a major participant in the robbery who acted with reckless indifference to human life.

Based on this record, appellant received a fair trial and the alleged instructional error did not reduce the prosecution's burden of proof. In light of the evidence, the instructions provided, and the arguments from counsel, it is not reasonably probable appellant would have received a more favorable outcome had the jury been instructed to consider voluntary intoxication on the issue of his reckless indifference to human life. (See Watson, supra, 46 Cal.2d at p. 836.) Likewise, respondent has established beyond a reasonable doubt that this alleged error did not contribute to the verdict. (See Chapman, supra, 386 U.S. at p. 24.) The record reveals this alleged error was unimportant in relation to everything else the jury considered on the issue in question. (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) In other words, the guilty verdict actually rendered in this trial was surely unattributable to the alleged error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Consequently, any alleged instructional error is harmless, and this claim fails.

III. Substantial Evidence Did Not Support an Instruction Regarding Second Degree Murder.

At trial, the prosecutor proceeded against appellant solely on a theory of felony murder. Earlier charging documents had alleged that appellant had committed both murder (count 1) and robbery (count 2). However, the first amended information omitted the robbery charge.

The court instructed the jury on the elements necessary to find appellant guilty as an accomplice of first degree murder based on a theory of felony murder. The jury was never instructed it could consider whether appellant was guilty of second degree murder.

Unlike appellant, the trial court did instruct the jury to consider second degree murder for Amritraj. However, for Amritraj, the prosecution proceeded under two theories of first degree murder: (1) Amritraj committed murder with premeditation and deliberation; and (2) Amritraj committed felony murder. When based on malice aforethought, second degree murder is a lesser included offense of first degree murder. (People v. Blair (2005) 36 Cal.4th 686, 745, overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919.)

Appellant contends that his judgment must be reversed. According to appellant, the court erred because it prohibited the jury from considering whether he was guilty of second degree murder. He argues that the jury was given "an all-or-nothing choice" when deciding his liability.

The parties dispute whether or not second degree murder was a necessarily lesser included offense for the murder charged against appellant. Respondent asserts that the trial court did not err because, under the elements test, second degree murder is not a necessarily lesser included offense of felony murder. In contrast, appellant contends that, under the accusatory pleading test, the trial court was obligated to instruct the jury on second degree murder. The first amended information alleged that appellant and Amritraj "did unlawfully, and with malice aforethought murder Dharampreet Singh Jassar, a human being" in violation of section 187, subdivision (a). The pleading also alleged that this murder triggered section 190.2 because it occurred during a robbery. Because the charging document alleged malice, appellant asserts the court erred in not instructing the jury on second degree murder.

The California Supreme Court has declined to decide whether second degree murder is a lesser included offense of felony murder. (People v. Westerfield (2019) 6 Cal.5th 632, 717.) We need not resolve whether second degree murder is a lesser included offense of felony murder. Instead, this claim nevertheless fails because, even if second degree murder is a lesser included offense of felony murder, substantial evidence did not exist requiring its instruction as to appellant.

A. A court's duty to instruct on lesser included offenses.

A trial court must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed a lesser included offense and not a greater offense. (People v. Gonzalez (2018) 5 Cal.5th 186, 196.) No obligation to instruct on a lesser included offense occurs if the evidence, if accepted by the trier of fact," 'would absolve the defendant of guilt of the greater offense but not of the lesser.'" (People v. Souza (2012) 54 Cal.4th 90, 116.) Absent substantial evidence, a trial court does not err in refusing to instruct a jury on a lesser included offense of murder. (People v. Cunningham (2001) 25 Cal.4th 926, 1008-1009.)

In other parts of his appeal, appellant argues the evidence did not demonstrate he acted with a reckless indifference for human life, which was necessary to convict him of aiding and abetting felony murder. (§ 189, subd. (e)(3).) In this claim, however, he takes an alternative approach and he contends that substantial evidence shows he arguably acted with a "conscious disregard" for human life when he committed this robbery. The "conscious disregard" standard is used to establish an accomplice's liability for second degree murder under a theory of implied malice. (People v. Curiel (2023) 15 Cal.5th 433, 466-467; see also CALCRIM No. 526.)

We reject appellant's position that the trial court was obligated to instruct the jury regarding his potential liability as an accomplice for second degree murder. We summarize the requirements to establish an accomplice's liability for second degree murder before we explain how substantial evidence is lacking for such an instruction.

B. The requirements to establish an accomplice's liability for second degree murder.

A participant in the perpetration of certain enumerated felonies, including robbery, in which death occurs is liable for murder only if one of the following is proven:

(1) The person was the actual killer.

(2) The person was not the actual killer but, with the intent to kill, aided and abetted the actual killer in the commission of murder in the first degree.

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (§ 189, subd. (e)(1)-(3).)

Under direct aiding and abetting principles, an accomplice is guilty of a murder perpetrated by another if the accomplice aids the commission of that offense with knowledge of the direct perpetrator's unlawful intent, and the accomplice intends to assist the perpetrator in achieving that crime. (People v. Perez (2005) 35 Cal.4th 1219, 1225.)

When an accomplice directly aids and abets a murder, the accomplice must possess malice aforethought. (People v. Gentile (2020) 10 Cal.5th 830, 844-845, citing People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Malice can be express or implied. (§ 188, subd. (a).) "Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." (Id., subd. (a)(1).)

An aider and abettor may be liable for murder under a theory of implied malice where he aids in the commission of the life-endangering act, he had knowledge that the perpetrator intended to commit the act, he intended to aid the perpetrator in the commission of the act, he had knowledge that the act was dangerous to human life, and he acted in conscious disregard for human life. (People v. Curiel, supra, 15 Cal.5th at pp. 466-467.)

C. The evidence does not demonstrate or even reasonably suggest appellant held his own malice.

As the perpetrator of Jassar's death, Amritraj's life-endangering act was his discharge of the firearm. In contrast to appellant, the evidence overwhelmingly supported an instruction on second degree murder as to Amritraj because Amritraj demonstrated clear malice when he aimed his firearm at Jassar multiple times and fired. However, no evidence of any malice, either express or implied, exists for appellant.

Appellant testified that he never intended for anyone to be hurt during the robbery. He made it clear that there was no plan Amritraj would fire the gun. Appellant told the jury that he thought Amritraj had only fired warning shots and appellant never knew Jassar had been injured.

The evidence overwhelmingly shows appellant acted with a reckless disregard for human life when he set this chain of events into motion, and he failed to intervene when it became clear Amritraj was willing and able to use lethal force. However, nothing demonstrates appellant knew Amritraj intended to shoot Jassar. Likewise, no evidence establishes or even reasonably suggests appellant intended to aid and abet Amritraj in discharging his gun. Accordingly, there is no evidence appellant held his own implied malice as an aider and abettor. (See People v. Curiel, supra, 15 Cal.5th at pp. 466-467.) Thus, substantial evidence is lacking from which the jury could reasonably conclude appellant committed second degree murder but not first degree felony murder. Accordingly, the trial court had no duty to instruct the jury to consider second degree murder as to appellant, and this claim fails.

IV. Cumulative Error Did Not Occur.

Appellant raises a claim of cumulative error. He contends that, even if we reject his claims above, reversal of his judgment is still required because he suffered a fundamentally unfair trial. He asserts the prosecutor dropped a robbery charge to force the jury into an "all-or-nothing choice" to decide his guilt for murder. He argues that his conviction for murder is "most logically explained" by the alleged combination of instructional errors that occurred. He maintains it is at least reasonably probable he would have obtained a better result if the jury had not been precluded from considering his "extreme intoxication" regarding his subjective awareness of any grave risk to life, and if the jury had been permitted to consider if he only committed second degree murder.

"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)

We reject this claim of cumulative error because we have denied all appellant's individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative prejudice argument rejected because each individual contention lacked merit or did not result in prejudice].) Taking all appellant's claims into account, we are satisfied he received a fair trial regarding his guilt.

V. Hardin Resolves Appellant's Equal Protection Claim.

"California's youth offender parole statute offers opportunities for early release to certain persons who are incarcerated for crimes they committed at a young age." (People v. Hardin (2024) 15 Cal.5th 834, 838 (Hardin); see §§ 3051, 4801.)

Appellant was 24 years old when he committed this robbery in which Amritraj murdered Jassar. Because he was sentenced to LWOP for committing special circumstance murder, appellant is ineligible for a youth offender parole hearing (§ 3051, subd. (h).) However, other individuals are eligible for such a hearing, including juveniles under the age of 18 who are sentenced to LWOP, and those who did not receive LWOP but who were 25 years of age or younger when they committed their controlling offense. (§ 3051, subd. (b)(1)-(4).)

Appellant asserts that his rights have been violated to equal protection under the United States Constitution.¹⁶ He contends that, for purposes of section 3051, there is no rational basis for distinguishing him from other youth offenders. He argues his judgment should be conditionally reversed and his sentence modified to direct he must be granted parole eligibility after serving 25 years in prison.¹⁷

16 In relevant part, the Fourteenth Amendment of the federal Constitution declares that no state shall "deny to any person within its jurisdiction the equal protection of the laws." (U.S. Const., 14th Amend.)

17 Section 3051 grants a youth offender parole hearing for a person who committed a controlling offense before that person had attained 18 years of age and for which the person received LWOP. In such a situation, the person is eligible for release on parole during the 25th year of incarceration. (§ 3051, subd. (b)(4).)

Our Supreme Court recently issued an opinion which resolves appellant's equal protection claim adversely for him.

In Hardin, supra, 15 Cal.5th 834, the defendant argued that section 3051 violates equal protection by treating young adult offenders sentenced to LWOP for special circumstance murder differently from other young adult offenders serving parole-eligible life sentences for other crimes. (Hardin, at p. 841.) A majority of the justices stated that its task was limited to determining whether the defendant had "shown that the Legislature's decision to expand youth offender parole hearings to most young adult offenders, while excluding [the defendant] and others similarly situated, violates equal protection under a rational basis standard." (Id. at p. 866.) After reviewing cases, it was apparent to the majority that the law treats special circumstance murder differently, and those defendants are eligible for the most severe punishment. (Id. at pp. 859-860.) It was difficult for the majority "to see how the Legislature that enacted section 3051 could have acted irrationally in singling out special circumstance murder as a particularly culpable offense." (Id. at p. 860.) According to the majority, it was "not irrational for the Legislature to exclude from youth offender parole eligibility those young adults who have committed special circumstance murder, an offense deemed sufficiently culpable that it merits society's most stringent sanctions."¹⁸ (Hardin, at p. 864.)

18 The Hardin majority noted that the equal protection challenge which it resolved was not raised under the California Constitution, which also guarantees equal protection of the law. (Cal. Const., art. I, § 7, subd. (a).) However, the majority saw no reason to believe a different result would occur if this issue was analyzed under the state Constitution. (Hardin, supra, 15 Cal.5th at p. 847, fn. 2.)

In a lengthy dissent, Justice Liu concluded that the Legislature did not articulate why it excluded some persons from receiving a youth offender parole hearing, and he believed the court should not impute "a purpose that the Legislature never had." (Hardin, supra, 15 Cal.5th at p. 887 (dis. opn. of Liu, J.).) Justice Liu would hold that the exclusion" 'fails to exhibit any fair and reasonable relationship to the stated legislative objective.'" (Id. at p. 888.)

Justice Evans also dissented, arguing that the exclusion "fails any mode of rational basis review." (Hardin, supra, 15 Cal.5th at p. 898 (dis. opn. of Evans, J.).) In part, Justice Evans was concerned that the LWOP exclusion "bears the taint of racial prejudice and perpetuates extreme racial disparities plaguing our juvenile and criminal justice systems." (Ibid.)

After Hardin was issued on March 4, 2024, we directed the parties to brief its impact in this matter. Appellant acknowledges that the majority opinion in Hardin has "rejected" the equal protection claim which he had raised in his opening brief. Appellant also concedes that this court is bound to follow the majority holding in Hardin. However, appellant respectfully requests that, although this court is bound under stare decisis, this court should "take the dissenting opinions into consideration" and, at a minimum, call upon the Legislature to "reconsider" its decision to exclude youth offenders from parole eligibility for committing a special circumstance murder.

We decline to comment further on the dissenting opinions in Hardin. Under the doctrine of stare decisis, we are required to follow the majority holding. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

There is no need to call upon the Legislature to reconsider section 3051. The Hardin majority made it clear the Legislature is free to reconsider this issue. (Hardin, supra, 15 Cal.5th at pp. 865-866.) However, there is no showing "that the legislative policy choices reflected in current law are irrational and therefore impermissible as a matter of equal protection." (Id. at p. 840.) Accordingly, an equal protection violation does not exist, and this claim fails.

DISPOSITION

The judgment is affirmed.

WE CONCUR: POOCHIGIAN, J., FRANSON, J.