Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. BA283054, Michael M. Johnson, Judge.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Jose Perez.
Kathy Moreno, under appointment by the Court of Appeal, for Defendant and Appellant Jefrey Flores.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey, Joseph P. Lee and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Appellants Jose Perez and Jefrey Flores appeal from the judgments entered following their convictions by jury on count 1 – first degree murder (Pen. Code, § 187) and on count 2 – kidnapping (Pen. Code, §207, subd. (a)) with, as to each count, findings that appellant personally used a firearm (Pen. Code, § 12022.53, subd. (b)), a principal personally used a firearm (Pen. Code, § 12022.53, subds. (b) & (e)), a principal personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subds. (c) & (e)), a principal personally and intentionally discharged a firearm causing death (Pen. Code, § 12022.53, subds. (d) & (e)) and the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)), with, as to count 1, special circumstance findings that appellant killed a witness (Pen. Code, § 190.2, subd. (a)(10)) and committed the murder during the commission of kidnapping (Pen. Code, § 190.2, subd. (a)(17)(B)), and with, as to counts 1 and 2, as to Perez only, findings that he personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)) and personally and intentionally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)). The court sentenced each appellant to prison for life without the possibility of parole, plus 25 years to life. We affirm the judgments.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on April 16, 2001, Will Rivas, a member of the Mara Salvatrucha (MS) gang, shot and killed Juan Arzate in a gang-related incident. Aileen Alvarez (the decedent in this case) and others met with Rivas that night and he bragged about murdering Arzate. Police arrested Rivas.
Police surreptitiously recorded jailhouse conversations between Rivas and others. The conversations included threats and plans of violence against witnesses. Rivas said people from his gang were snitching on him and he was waiting for “paperwork” to verify who was snitching. Paperwork was documentation that a person was talking with police. Rivas suspected Alvarez was snitching.
Jose Villanueva, an MS gang member in 2001 and 2002, testified he had been a “shot-caller” for the gang in San Fernando Valley. He knew Alvarez. She was an MS gang member. A person named Comandari was the leader of MS in Los Angeles. At the end of 2001 or the beginning of 2002, Villanueva met with Comandari and persons named Gato and Enano. Gato and Enano were MS gang members. There was paperwork proving women were going to testify against Rivas, and Comandari ordered Villanueva to kill two women.
According to Villanueva, Alvarez was mentioned as well. Enano said, “ ‘This whore and [Alvarez] too. Who gives a fuck. That’s it. And if she is with them, it’s because she is a rat, too. But we know where to find that whore.... she’s hanging out there at Coronado.’ ” Coronado was a clique of the MS gang. Villanueva testified that Comandari “laughed like saying, ‘Oh, ’... ‘we know where to find her.’ ” Comandari indicated to Villanueva that he wanted Villanueva to kill Alvarez. Comandari indicated this by smiling at Villanueva and saying, “ ‘you know what you have to do.’ ” Villanueva did not try to kill the two women.
About 10:00 p.m. or 10:30 p.m. on August 19, 2002, Alvarez, Maria Rodriguez, and Bianca Orozco were walking on Sixth near Commonwealth, which was near Lafayette Park. A black car, driven by Melissa Garcia and containing appellants, arrived. Appellants were seated in the back seat. Flores exited the right rear passenger seat with a gun. He pointed it at Alvarez, tried to get her into the car, and a struggle ensued. Rodriguez tried to pull Alvarez from the car. During the struggle, the female driver said, “ ‘Hurry up, fool.’ ”
Perez exited the left rear passenger seat and pointed a gun at Alvarez and Rodriguez. He told Rodriguez to stay out of it, “it was neighborhood shit, ” and they just wanted to talk to Alvarez. Alvarez continued to struggle. Perez struck her in the back of the head with the gun handle and forced her into the car. Flores and Perez sat in the back seat again with Alvarez in the middle and the car drove away.
About 11:30 p.m. or 11:40 p.m., about five gunshots were fired near San Vicente and Sierra Bonita. A car, which might have been dark-colored, sped away. About 11:52 p.m., police arrived and saw Alvarez. She had been shot in the head and back, and the head wound was fatal. A.40-caliber bullet and two spent.40-caliber casings were recovered from the scene, which was about seven miles from Sixth and Commonwealth.
Rodriguez and Orozco initially failed to identify appellants during photographic showups, but there was evidence this failure was due to their fear of retaliation. However, in November 2004, Rodriguez positively identified appellants during photographic lineups. She also positively identified them at trial. Orozco identified appellants at the preliminary hearing and positively identified them at trial.
Jorge Pineda, an MS gang member, testified that in 2000, he began cooperating with the Federal Bureau of Investigation (FBI). Pineda explained that in order for an MS gang member to kill another member of the gang for snitching, the would-be killer had to get paperwork. During the period from 2000 to 2005, Comandari and Gato were leaders in MS in Los Angeles, and Comandari ordered many people killed. Pineda identified appellants as MS gang members.
Pineda spoke to Perez more than 10 times between 2000 and 2005, and two to four of those conversations pertained to the Alvarez murder. Pineda testified Perez told Pineda that Perez killed Alvarez. Perez told Pineda, “ ‘[a]nd if you want, you can talk to Baby Daffy [i.e., Flores], and you can talk to La Psycho [i.e., Garcia], they was with me in the car when I killed [Alvarez].’ ”
Pineda also testified as follows. Appellants and Garcia were driving in territory claimed by Coronado when they saw Alvarez walking from Lafayette Park to the street. Perez called Enano and asked, “ ‘Hey, can I kill the flower?’ ” The term “flower” referred to Alvarez. Enano called Comandari, and Comandari said, “ ‘Look, kill the flower.’ ” Enano later called Perez and told Perez that he could “ ‘kill the flower.’ ”
Pineda also testified Perez told him the following. Flores, inside the car, told Alvarez to get in the car. Perez later exited with a “40 gun, ” hit her with a pistol, and put her in the car. Perez also said, “ ‘I got out with the 40, homeboy, and with one big wham, [] pistol whipped her, and fuck I got her, and that was the end of her shit.’ ”
Pineda also testified as follows. Pineda asked Perez about blood in the car, and Perez responded that the car, a black Honda, belonged to an MS gang member. Perez did not kill Alvarez in the car, but in the field. Comandari had paperwork on Alvarez. Flores and Garcia were in the car because they were from the Hollywood clique of MS (like Alvarez) and were present to help. Perez used a.40-caliber gun to kill Alvarez (a “40”) and gave the gun to another gang member to hide.
Los Angeles Police Detective Frank Flores (Frank) testified as an MS gang expert. According to Frank, appellants were MS gang members. The parties stipulated that MS was a criminal street gang within the meaning of Penal Code section 186.22, subdivision (f). Frank opined at trial that the kidnapping and murder of Alvarez were committed at the direction of, in association with, or for the benefit of the MS gang.
2. Defense and Rebuttal Evidence.
In Flores’s defense, a detective testified that Rodriguez indicated to the detective that only Rodriguez and Alvarez were present when the black car finally approached. In rebuttal, Rodriguez told another detective that Rodriguez had failed to mention that Orozco had been with them because Rodriguez had not wanted to involve Orozco. Perez presented no defense witnesses.
The parties stipulated that in December 2002, an MS gang member was caught possessing a gun at school, claimed a male MS gang member gave it to her, and said “they were looking for him for a murder.” Ballistics evidence matched the gun with evidence recovered from the scene where Alvarez’s body was found.
CONTENTIONS
Flores claims the admission in evidence against Flores of Perez’s statements to Pineda, an FBI informer, violated Flores’s federal right to confrontation because they were testimonial. Perez claims the trial court reversibly erred by instructing on felony murder because, under the merger rule, the predicate felony, kidnapping, merged with the homicide.
Each party joins in the contention of the other.
DISCUSSION
1. The Admission in Evidence Against Flores of Perez’s Statements to Pineda Did Not Violate Flores’s Right to Confrontation.
During a pretrial hearing on a motion for a severance, the trial court ruled that the Confrontation Clause did bar the admission in evidence against Flores of Perez’s statements to Pineda.
Flores claims the admission in evidence against him of Perez’s statements to Pineda violated Flores’s right to confrontation. We disagree. In Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177], the high court “held that the confrontation clause... bars the admission of out-of-court ‘testimonial’ statements except when the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.” (People v. Giles (2007) 40 Cal.4th 833, 840.)
United States v. Saget (2d Cir. 2004) 377 F.3d 223 (Saget), held that statements unknowingly made to a confidential informant outside the context of a formal interrogation were not testimonial. (Id. at pp. 228-230.) United States v. Hendricks (3d Cir. 2005) 395 F.3d 173 (Hendricks), addressed the admissibility of statements obtained in wiretaps and statements of a deceased confidential informant which were required to give meaning to the admissions of the declarants. Hendricks, citing Saget, assumed the statements of the declarants would be admissible. (Hendricks, at pp. 183-184.)
In Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis), the high court stated, “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. [Fn. omitted.]” (Id. at p. 822.)
In United States v. Underwood (11th Cir. 2006) 446 F.3d 1340 (Underwood), the Eleventh Circuit stated, “The Court [in Crawford] noted that the Confrontation Clause applies to ‘witnesses’ who bear testimony, which the Court indicated is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact. [Citation.] The Court in Crawford declined to spell out a comprehensive definition of ‘testimonial.’ However, the Court did describe the minimum coverage of ‘testimonial’ status, holding that: ‘it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury or at a former trial; and to police interrogations.’ [Citation.] Without adopting a particular formulation of the core class of ‘testimonial’ statements, the Court did mention three:... As the Second Circuit has noted, all of these formulations involve statements made under circumstances which would lead the declarant to believe that the statement would be available for use at a later trial. United States v. Saget, 377 F.3d 223, 229 (2nd Cir. 2004).
“In this case, the challenged evidence consisted of recorded conversations between the confidential informant [Hopps] and Darryl in which arrangements were made for the confidential informant to purchase cocaine. This evidence is neither testimony at a preliminary hearing, nor testimony before a grand jury, nor testimony at a former trial, nor a statement made during a police interrogation. Moreover, the challenged evidence does not fall within any of the formulations which Crawford suggested as potential candidates for ‘testimonial’ status. [Citation.] Darryl, the declarant in the challenged evidence, made statements to Hopps in furtherance of the criminal conspiracy. His statements clearly were not made under circumstances which would have led him reasonably to believe that his statement would be available for use at a later trial. Had Darryl known that Hopps was a confidential informant, it is clear that he never would have spoken to her in the first place.” (Underwood, supra, 446 F.3d at pp. 1346-1347, italics added.)
In People v. Cage (2007) 40 Cal.4th 965 (Cage), our Supreme Court stated, “We derive several basic principles from Davis.... [t]hird, the statement must have been given and taken primarily for the purpose ascribed to testimony-to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was givenand taken is to be determined ‘objectively, ’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. [Fn. omitted.]” (Cage, at p. 984, italics added.)
In the present case, and considering all circumstances that might reasonably bear on the intent of the participants in the conversation, we conclude Perez’s statements to Pineda were not “given and taken” (Cage, supra, 40 Cal.4th at p. 984, italics added) primarily for the purpose ascribed to testimony-to establish or prove some past fact for possible use in a criminal trial. Accordingly, we conclude the admission in evidence against Flores of Perez’s statements to Pineda did not violate Flores’s right to confrontation, and the mere fact that a nondeclarant, Pineda, may have contemplated use of the statements of the declarant, Perez, at a trial did not render the Perez’s statements testimonial for purposes of Crawford. (Cf. Cage, at p. 984; Underwood, supra, 446 F.3d at pp. 1346-1347; Hendricks, supra, 395 F.3d at pp. 183-184; Saget, supra, 377 F.3d at pp. 228-230.) The fact that Perez’s statements may not have been in the furtherance of a criminal conspiracy does not compel a contrary conclusion.
2. The Court Did Not Err by Instructing on Felony Murder.
a. Pertinent Facts.
The court gave standard instructions on murder, express malice, and implied malice. The court also, using CALJIC No. 8.20, instructed the jury on first degree murder based on a willful, deliberate, and premeditated killing (hereafter, premeditated killing). The court further, using CALJIC No. 8.21, instructed on first degree murder based on a felony-murder theory with kidnapping as the predicate felony. The court also instructed on second degree murder (but not based on second degree felony murder). The court gave additional instructions.
The court did not instruct the jury on voluntary or involuntary manslaughter.
CALJIC No. 8.20 read: “All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. [¶] The word ‘willful, ’ as used in this instruction, means intentional. [¶] The word ‘deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word ‘premeditated’ means considered beforehand.”
CALJIC No. 8.21 read, in pertinent part: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission of the crime of kidnapping is murder of the first degree when the perpetrator had the specific intent to commit that crime.”
The court instructed the jury on the witness-killing special-circumstance allegation as follows: “To find that the special circumstance referred to in these instructions as murder of a witness to a crime is true, each of the following facts must be proved: [¶] 1. The person killed was a witness to a crime which occurred prior to, and separate from, the killing; [¶] 2. The killing was intentional; and [¶] 3. The purpose of the killing was to prevent the witness from giving testimony in a criminal proceeding.” The court also instructed on the criminal street gang allegation.
During jury argument, the prosecutor argued Perez committed first degree murder under premeditated killing, and felony murder, theories. The prosecutor later commented concerning the murder, “based on the back story of what was going on in this case, it’s pretty clear that this was premeditation and deliberation.” The prosecutor then commented on certain evidence he maintained supported that theory. The prosecutor did not later discuss a felony-murder theory.
Perez argued to the jury, inter alia, that there was no evidence that Alvarez’s initial captors were the persons who brought her to the scene where her body was found. Perez, noting his statement that the matter was a “neighborhood” matter, also argued there was no evidence that Alvarez’s initial captors did not bring her to Comandari or Enano, or did not bring her to someone who wanted to talk with her. Perez’s counsel commented concerning Alvarez’s initial captors, “what was in their mind wasn’t the fact that they were taking her for the purpose of killing her, but she was taken for some other reason.” The jury convicted Perez as previously indicated.
b. Analysis.
(1) Applicable Law.
Perez claims the trial court erred by instructing on first degree felony murder because he kidnapped Alvarez solely for the purpose of killing her; therefore, under the merger rule, the kidnapping could not serve as a predicate felony for purposes of the first degree felony-murder doctrine. We disagree.
In People v. Chun (2009) 45 Cal.4th 1172 (Chun), our Supreme Court stated, “The merger doctrine arose in the seminal case of [People v.] Ireland [(1969)] 70 Cal.2d 522 [Ireland], ... In Ireland, the defendant shot and killed his wife, and was convicted of second degree murder. The trial court instructed the jury on second degree felony murder with assault with a deadly weapon the underlying felony. We held the instruction improper, adopting the ‘so-called “merger” doctrine’.... (Id. at p. 540.) We explained our reasons:... To allow such use of the felony-murder rule 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. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.’ (Id. at p. 539.) [Fn. omitted.]” (Chun, supra, 45 Cal.4th at p. 1189.)
Chun was decided after the filing of Perez’s opening brief but before the filing of respondent’s opening brief.
In Ireland, the seminal case, the trial court instructed on second degree felony murder. However, in the present case the trial court instructed on first degree felony murder. The present case is in this respect like People v. Burton (1971) 6 Cal.3d 375 (Burton).
In Burton, the People presented evidence that in 1968, the defendant shot and killed two persons during an armed robbery. (Burton, supra, 6 Cal.3d at pp. 378-379.) The jury convicted the defendant on, inter alia, two counts of first degree murder, and the defendant claimed as to those counts that the trial court erroneously instructed on first degree felony murder, with robbery as the predicate felony. (Id. at pp. 378, 384.) Burton observed, “[w]e now turn to defendant’s contention that it was error, in the circumstances of this case, to instruct the jury on first degree felony murder, because the underlying felony was armed robbery. He claims that armed robbery is an offense included in fact within the offense of murder and, therefore, under the rule announced in People v. Ireland, supra, 70 Cal.2d 522, 538-540 as applied in People v. Wilson (1969) 1 Cal.3d 431... [(Wilson)], such offense cannot support a felony-murder instruction. [Fn. omitted.]” (Burton, supra, 6 Cal.3d at p. 384.)
In 1968, as well as at the time of the present offenses, a killing perpetrated during a “robbery” was first degree murder. (Pen. Code, § 189.)
Burton later stated, “[w]e conclude that there is a very significant difference between deaths resulting from assaults with a deadly weapon, where the purpose of the conduct was the very assault which resulted in death, and deaths resulting from conduct for an independent felonious purpose, such as robbery or rape, which happened to be accomplished by a deadly weapon and therefore technically includes assault with a deadly weapon. Our inquiry cannot stop with the fact that death resulted from the use of a deadly weapon and, therefore, technically included an assault with a deadly weapon, but must extend to an investigation of the purpose of the conduct. In both Ireland and Wilson the purpose of the conduct which eventually resulted in a homicide was assault with a deadly weapon, namely the infliction of bodily injury upon the person of another....
“However, in the case of armed robbery, as well as the other felonies enumerated in section 189 of the Penal Code, there is an independent felonious purpose, namely in the case of robbery to acquire money or property belonging to another. Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning -- if a death results from his commission of that felony it will be first degree murder, regardless of the circumstances....” (Burton, supra, 6 Cal.3d at pp. 387-388, second italics added.)
“In 1990, Proposition 115 added kidnapping as one of the enumerated felonies included in first degree murder (Pen. Code, § 189.)” (People v. Escobar (1996) 48 Cal.App.4th 999, 1013, fn. 2 (Escobar).) Accordingly, at the time of the 2002 Alvarez killing, the felonies listed in Penal Code section 189, included kidnapping. We therefore see no reason not to apply Burton’s reasoning to kidnapping, a felony added after Burton to the list of felonies specified in Penal Code section 189, and a felony specified in that section at the time of the present offenses.
Escobar is supportive. In Escobar, the People presented evidence that in 1992, the defendants kidnapped the decedent (Luna) in a car and drove away. He was later found dead in a park and he had been beaten, but he had died of strangulation. (Escobar, supra, 48 Cal.App.4th at pp. 1007-1010.) A jury convicted the defendants of first degree murder. (Id. at p. 1005.) On appeal, they claimed the trial court erroneously failed to instruct that the felony-murder theory did not apply if the sole purpose of the kidnapping was to assault the victim. (Id. at p. 1011.) Escobar concluded the movement of Luna against his will was not an assault that resulted in homicide and the kidnapping was a felonious action which occurred separate from any assault; therefore, the kidnapping was not integral to the homicide. Escobar also concluded that, even if the kidnapping was integral to the homicide, there was a separate felonious purpose, i.e., moving the victim without his consent. (Id. at pp. 1013-1014.)
(2) Application of the Law to This Case.
In the present case, Perez was kidnapping Alvarez when he forced her into the car at gunpoint and drove away. But this was not an integral part of the instant homicide, any more than similar conduct was in Escobar. The kidnapping was separate from the later assault which occurred when Alvarez was brutally shot in the head. Under these circumstances, we do not believe the kidnapping of Alvarez was an integral part of the homicide. (Cf. Escobar, supra, 48 Cal.App.4th at pp. 1012-1013.)
Even if the kidnapping of Alvarez was an integral part of the homicide, kidnapping is one of the felonies specified in Penal Code section 189. Perez’s purpose in kidnapping Alvarez was not merely to commit the assault which resulted in her death, but to move her by force without her consent. This was an independent felonious purpose. (Burton, supra, 6 Cal.3d at pp. 384-388; Escobar, supra, 48 Cal.App.4th at pp. 1013-1014.) Moreover, this was an independent felonious purpose as a matter of law by the legislative inclusion of kidnapping among the felonies specified in Penal Code section 189. (Burton, supra, 6 Cal.3d at pp. 384-388.)
We hold the trial court did not err by instructing the jury on first degree felony murder, with kidnapping as the predicate felony. (Cf. People v. Farley (2009) 46 Cal.4th 1053, 1113-1116 (Farley); Burton, supra, 6 Cal.3d at pp. 384-388; Escobar, supra, 48 Cal.App.4th at pp. 1012-1014; see People v. Morgan (2007) 42 Cal.4th 593, 619-620.)
In light of our conclusion on the merits, there is no need to address respondent’s claim that Perez waived the instructional issue by failing to raise it below.
Finally, even if the trial court erred, it does not follow that reversal of the judgment is warranted. As this division stated in People v. Bejarano (2007) 149 Cal.App.4th 975, (Bejarano), “[i]f a trial court erroneously instructs on felony murder, we reverse the judgment unless the error was harmless beyond a reasonable doubt. [Citations.] That standard of prejudice, applied to instructional error of the type at issue here, requires reversal unless the People ‘show that no juror relied on the erroneous instruction as the sole basis for finding defendant guilty of murder.’ [Citation.]” (Id. at pp. 989-990.)
We have recited the pertinent facts in this case. Simply put, there was overwhelming evidence that Perez, an MS gang member, murdered Alvarez willfully, deliberately, and with premeditation, for the benefit of, in association with, and at the direction of, a criminal street gang, and that Perez did so to prevent her, a witness, from testifying in a criminal proceeding involving Rivas. The prosecutor argued premeditated killing, and first degree felony murder, theories of first degree murder, but emphasized the former theory. The jury, instructed on the criminal street gang, and witness-killing special circumstance, allegations (see fn. 6, ante), expressly found them true. Perez concedes he kidnapped Alvarez for the purpose of killing her; there was substantial evidence that the killing occurred one and a half hours later.
In sum, even if the trial court in the present case erred by instructing on first degree felony murder, the error was harmless beyond a reasonable doubt because, in light of the evidence presented at trial, a reasonable jury would have found Perez guilty of first degree murder based on a premeditated killing, i.e., no juror relied on the allegedly erroneous first degree felony-murder instruction as the sole basis for finding Perez guilty of first degree murder. (Cf. Farley, supra, 46 Cal.4th at p. 1116, fn. 22; Bejarano, supra, 149 Cal.App.4th at pp. 989-990.)
In Farley, a jury convicted the defendant of first degree murders based on first degree felony-murder theory, and our Supreme Court affirmed the convictions, rejecting the defendant’s claim that the merger rule applied. (Farley, supra, 46 Cal.4th at pp. 1059, 1113, 1115-1116.) Farley, noting that “the jury also must have concluded the homicides were willful, deliberate, and premeditated, ” (id. at p. 1116, fn. 22) found the alleged instructional error nonprejudicial, stating “even if the jury had been improperly instructed regarding felony murder, ‘other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for’ premeditated murder, and hence any error was harmless beyond a reasonable doubt. (People v. Chun (2009) 45 Cal.4th 1172, 1205... (Chun); see Hedgpeth v. Pulido (2008) 555 U.S. ___ [172 L.Ed.2d 388, 129 S.Ct. 530] (per curiam) [when the jury was instructed on both a valid and an invalid theory of guilt, the conviction will not be set aside if the invalid instruction was harmless].)” (Farley, supra, 46 Cal.4th at p. 1116, fn. 22, italics added.) Perez urges the alleged instructional error here was reversible under the principles of People v. Green (1980) 27 Cal.3d 1, as discussed in People v. Guiton (1993) 4 Cal.4th 1116 (Guiton). However, Guiton did not decide the standard of review applicable when, as here, the jury was instructed with a legally adequate theory and, allegedly, a legally inadequate theory. (Chun, supra, 45 Cal.4th at p. 1203.) As previously indicated, we conclude the applicable standard here is whether the alleged error was harmless beyond a reasonable doubt.
DISPOSITION
The judgments are affirmed.
We concur: KLEIN, P. J.ALDRICH, J.
In 2009, Farley concluded as a matter of statutory interpretation of Penal Code section 189, that the merger rule no longer applies to first degree felony murder, at least when the predicate felony is burglary. (Farley, supra, 46 Cal.4th at pp. 1116-1122.) Farley stated, “nothing in the language of section 189 supports the application of the merger doctrine to its terms.” (Id. at p. 1119.) However, to avoid ex post facto problems, Farley decided that its categorical rejection would apply only prospectively. Farley thus decided, based on the merger jurisprudence applicable at the time of its offenses, that the first degree felony-murder merger rule did not apply in that case in light of the particular facts in that case. (Ibid.) We conclude, based on the merger jurisprudence (i.e., Burton and Escobar) existing at the time of the crimes in the present case, that the predicate felony in this case did not merge. Farley was decided four days before the filing of respondent’s opening brief.