Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C146000
Reardon, Acting P.J.
A jury convicted appellant Demarcus Ralls of 25 violent offenses stemming from an Oakland crime spree, including several murders, attempted murders, robberies, and attempted robberies. (Pen. Code, §§ 187, subd. (a), 211, 246; former §§ 209, subd. (b)(1) [Stats. 2000, ch. 287, § 3], 664 [Stats. 1997, ch. 412, § 1].) Two special circumstances allegations related to one of his three convictions of first degree murder were found true, as were many weapons enhancement allegations. (§ 190.2, subd. (a)(3), (17)(A); former §§ 12022, subd. (a)(1) [Stats. 1999, ch. 129, § 4 [2002 version], Stats. 2002, ch. 126, § 2 [2003 version]], 12022.5, subd. (a)(1) [Stats. 1999, ch. 129, § 5 [2002 version], Stats. 2002, ch. 126, § 3 [2003 version]], 12022.53, subds. (b)-(d) [Stats. 2001, ch. 854, § 60 [2002 version], Stats. 2002, ch. 126, § 4 [2003 version]].) Ralls was sentenced to life imprisonment without possibility of parole, several other indeterminate terms, and a determinate term of more than 140 years in state prison. On appeal, he contends that the trial court committed instructional and sentencing errors. We reverse the judgment and remand for correction of the sentence on three counts; in all other respects, we affirm the judgment.
All statutory references are to the Penal Code. Although several of the relevant statutes defining crimes, specifying enhancements or setting punishments have been amended since the dates of the 2002 and 2003 charged offenses, we consider the version of those provisions in effect as of the date of the specific crime, to avoid any ex post facto issues. Our comparison of these provisions with the current versions of them satisfies us that current law is—for our purposes—substantially the same as it was at the time that the offenses were committed. (See current and former §§ 209, subd. (b)(1), 245, subd. (a)(2), 664, 12022, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d); see, e.g., Stats. 1999, ch. 129, § 4 [2002 version of § 12022]; Stats. 2002, ch. 126, § 2 [2003 amendment]; Stats. 2004, ch. 494, § 3 [current law].)
Ralls did not file a timely notice of appeal from the judgment of conviction. However, we granted his January 2007 motion to deem his November 2006 notice of appeal to be a timely appeal from the July 2006 judgment of conviction.
I. FACTS
A. The Crimes
In October 2002, Joseph Mabry was shot and killed in Oakland. A month later, on November 27, 2002, a group of Black men robbed four Hispanic males at gunpoint on West Street. Three of the victims were shot and injured.
On the night of December 18, 2002, three members of the Leang family were robbed at their home on 29th Street by Black men armed with handguns. Appellant Demarcus Ralls later gave a statement to Oakland police that he, his cousin Deonte Donald and a third man named Deshawn had robbed several Asian people at a house near 29th Street. They took games and a camcorder that Donald and Deshawn sold for cash. During a lineup, two members of the Leang family identified Ralls as one of the robbers.
Ralls also went by the name of Marvin Barksdale.
Apparently, Deshawn was never identified.
Later that night, Douglas Ware was shot on Kirkham Court near 10th Street and Mandela Parkway. He died as a result of a gunshot to the back. A.45-caliber shell casing was found nearby.
Ralls later gave a statement to Oakland police, admitting that earlier in the evening, he had been riding in the front passenger seat of a car with Deshawn, Donald and another man in the back seat. Leon Wiley—also known as Twan—was driving, looking for someone named Nard. Wiley stopped to talk with a man at 10th Street and Mandela Parkway, asking him to tell Nard that “[t]he Nut Cases” were “looking for him.” If they found Nard, Ralls believed that Nard would be killed. The occupants of the car left, returning to 10th Street later in the evening, still unable to find Nard. Wiley suggested that they “get” some other people. Donald and Deshawn were armed. Ralls got out of the front passenger seat of the car to let Donald and Deshawn out of the back seat. As Ralls expected that they would, Deshawn and then Donald began shooting at a crowd of people. One man was hit.
At this point, the 29th Street residential robberies occurred.
On December 27, 2002, two carloads of men drove up to an occupied apartment on Campbell Street and fired into it. Two persons inside the apartment—Keith Mackey Harris and Jerry Duckworth—died of multiple gunshot wounds. Michael Vassar was injured by gunfire. Nineteen bullet holes were later found in the apartment’s exterior metal gate. A wooden door behind that metal gate showed many bullet holes and fragment marks. Twenty shell casings from a.223-caliber assault rifle were found outside the apartment. Three spent.38-caliber bullet slugs and a bullet fragment were removed from inside the apartment. Bullet and bullet fragments recovered from the bodies of Harris and Duckworth were consistent with a.223-caliber weapon, not a.38-caliber weapon.
Ralls later told police that Wiley called his brother Joe Ralls to say that he was having a problem with his neighbors. Joe Ralls, Ralls and Donald drove to meet Wiley. Ralls had a.38-caliber pistol; his brother was armed with an assault rifle. Wiley pointed out the house where the neighbors were living, saying that there were “ten niggers in there, and they got guns.” Joe Ralls reminded Wiley that he had an assault rifle. When he told Wiley to go back into his own house because they were “about to spank these boys,” Wiley left. The Ralls brothers approached the Campbell Street house with Donald, who knocked on the door. When someone answered, Donald asked if “you all got problems with my brother?” Donald stepped aside and Joe Ralls began shooting. Ralls joined in, firing off three rounds of his own. As Ralls later described it, they “handled business.”
For convenience, this opinion refers to Demarcus Ralls as “Ralls.” To distinguish between the appellant and his brother, we refer to Joe Ralls by his full name.
A woman associated with Wiley lived on the same block.
On January 4, 2003, two or three armed Black men attempted to rob a man on East 19th Street, completed robberies of two other men on Jordan Road, and robbed two more men in the garage of a Tulip Street house. When neighbors tried to thwart the attempted robbery on East 19th Street, one of the men shot into their home.
Two days later on January 6, 2003, three Black people kidnapped another man at gunpoint in an attempt to rob him on East 22nd Street. One of the kidnappers threatened to kill the victim. That same evening, Sunny Thach was shot and killed on 6th Avenue. The killer also shot at Thach’s wife, Sylvia Tang. Later that evening, in two separate incidents—one occurring on Tremont Street near the Ashby BART station and the other on Grand Avenue—four people were robbed at gunpoint by a group of Black men. A fifth robbery by a group of Black men was also reported to have occurred that night near Ashby BART.
B. Pretrial Matters
The investigation of this crime spree led Oakland police to suspect that Ralls, among others, was involved with these offenses. Police obtained a warrant to search a vehicle suspected of being involved in some of the robberies. The vehicle was registered to Ralls’s sister-in-law, but Ralls had been associated with it. Among the weapons found in the trunk of this vehicle on January 10, 2003, was a loaded revolver that used.38-caliber special cartridges. A warrant issued for Ralls’s arrest.
On January 22, 2003, Ralls was arrested by Sacramento police, returned to Oakland, and interviewed by Oakland police. After he waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), Ralls told police that he was part of a gang called the Nutcases. When asked what the Nutcases do, Ralls responded “Kill people.” Ralls told police that that was all the Nutcases did—kill people. They killed “just to be doing stuff” even if there was no money to be found. He admitted to the police that he was involved in the shootings of Ware, Duckworth, Harris and Vassar. He also told them that when he needed money, he used a.38 special to rob people.
In October 2003, the grand jury returned an indictment in this matter against the Ralls brothers, Donald, Wiley and four others. In all, the indictment alleged 39 counts including murder, attempted murder and robbery. Ralls was charged with five counts of murder, two counts of attempted murder, five counts of first degree robbery, seven other robbery charges, six counts of attempted robbery, and several other offenses. (§§ 187, subd. (a), 211, 246, 422; former §§ 209, subd. (b)(1), 245, subd. (a)(2), 664.) Two special circumstances and numerous weapons enhancements relating to him were also alleged. (§ 190.2, subd. (a)(3), (17)(A); former §§ 12022, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d).) The prosecution intended to seek the death penalty for his part in these crimes.
It appears that at least two of the others pled guilty to some charges early in the proceedings.
An amended indictment was filed later that month. In June 2004, Ralls’s motion to set aside the entire indictment was denied. The prosecution moved to sever Ralls’s trial from that of his cohorts. Most of them had made statements implicating each other and the prosecutor sought to use those confessions as evidence at trial. In March 2005, the motion to sever was granted.
In October 2005, another amended indictment against Ralls was filed. This one charged him with 31 counts—five counts of murder, two counts of attempted murder, five counts of first degree robbery, seven counts of second degree robbery, six counts of attempted robbery, two counts of assault with a firearm, two counts of shooting at an inhabited dwelling and single counts of kidnapping and making criminal threats. (§§ 187, subd. (a), 211, 246, 422; former §§ 209, subd. (b)(1), 245, subd. (a)(2), 664.) Most of the charges included allegations that Ralls was armed with, discharged or used a weapon in the commission of the underlying offenses. The amended indictment also alleged three great bodily injury allegations related to the Harris and Duckworth murder charges and the Vassar attempted murder charge. (Former §§ 12022, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d).) It alleged three special circumstances relating to two murder charges. (§ 190.2, subd. (a)(3), (15), (17)(A).)
Before trial, Ralls moved to sever trial of the robberies and the Mabry murder charge from trial of the other counts. The Mabry murder charge was severed from Ralls’s trial on the remaining 30 counts, but the remainder of his severance motion was denied. Two arming enhancements related to the assault with firearm charges were stricken at Ralls’s request. His Miranda motion challenging the voluntariness of his confession as involuntary was denied.
C. Trial
At trial, the jury heard Ralls’s tape-recorded, postarrest statement to police. His motion for acquittal of the charge of making criminal threats and one count of second degree robbery was granted. (See § 1118.1.) The two counts of assault with a firearm and a related count of shooting at an inhabited dwelling were dismissed on the prosecution’s motion. At the close of the prosecution’s case, Ralls called no witnesses.
During deliberations, a jury question about whether Ralls’s bullets had to have been found in the victims of the underlying crimes in order to find true three related great bodily injury allegations prompted the prosecution to move to strike these allegations. (See former § 12022.53, subd. (d) [Stats. 2001, ch. 854, § 60].) The trial court struck the three great bodily injury enhancement allegations related to the Harris and Duckworth murder charges and the Vassar attempted murder charge.
After nine days of deliberations, in March 2006, the jury convicted Ralls of all 25 remaining charges—three counts of first degree murder, one count of second degree murder, two counts of attempted murder, five counts of first degree robbery, six counts of second degree robbery, six counts of attempted robbery, and single counts of kidnapping and shooting at an inhabited dwelling. (§§ 187, subd. (a), 211, 246; former §§ 209, subd. (b)(1), 664.) The jury found true six arming allegations and 15 firearm use allegations. (Former §§ 12022, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d).) Four other firearm use enhancement allegations were found to be untrue. Two special circumstances were found to be true. (§§ 190.2, subd. (a)(3), (17)(A).) After a separate penalty phase, in April 2006, the jury fixed the punishment for Ralls’s three first degree murder convictions at life imprisonment without possibility of parole.
In July 2006, Ralls’s motion for new trial challenging the sufficiency of evidence supporting his conviction for the second degree murder of Ware was denied. The remaining Mabry murder charge was dismissed on the People’s motion. Ralls was sentenced to a determinate term of 141 years 4 months in state prison. He was also given four indeterminate terms in prison—a term of life imprisonment without possibility of parole, a term of 25 years to life, and two terms of seven years to life.
II. JURY INSTRUCTIONS
A. Contentions on Appeal
Ralls raises two instructional challenges—one to the definition of proof beyond a reasonable doubt contained in CALCRIM No. 220 and one relating to the mens rea required for aiding and abetting by CALCRIM Nos. 400 and 401. On appeal, we determine de novo whether a jury instruction correctly states the law, applying our independent judgment. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) When doing so, we consider the instructions given as a whole, not in isolation. (People v. Ramos, supra, at p. 1088; see Estelle v. McGuire (1991) 502 U.S. 62, 72; Francis v. Franklin (1985) 471 U.S. 307, 318-319.) We assume that the jurors are intelligent persons capable of understanding and correlating all the jury instructions they are given. (People v. Ramos, supra, 163 Cal.App.4that p. 1088; People v. Ayers (2005) 125 Cal.App.4th 988, 997.)
B. Burden of Proof Beyond a Reasonable Doubt
First, Ralls contends that the definition of proof beyond a reasonable doubt in CALCRIM No. 220 improperly departs from the definition of that term in section 1096. He argues that the jury instruction obscures the scope given to individual subjectivity and fails to convey the necessary impression of subjective certitude that the evidence must induce in the jurors in order to satisfy the due process requirement of proof beyond a reasonable doubt. Ralls argues that because this error infected the jury’s evaluation of his guilt or innocence, it warrants reversal of all of his convictions.
After Ralls filed his opening brief raising this argument, the identical argument was soundly rejected by the Third Appellate District in a case in which another defendant was represented by Ralls’s appellate counsel. (See People v. Zepeda (2008) 167 Cal.App.4th 25, 27-32 (Zepeda).) The Zepeda court rejected this challenge to CALCRIM No. 220, publishing its decision “primarily to deter the defense bar from continuing to use [this] line of attack against CALCRIM No. 220” and instead, urged “defense counsel to direct their resources to arguably meritorious grounds of appeal.” (Zepeda, supra, 167 Cal.App.4th at p. 28.) In his appeal, Ralls continues to press this claim of error in his reply brief, both because he finds fault with the Zepeda court’s analysis and because he wishes to preserve the issue for further review. Having reviewed the Zepeda decision, we find it to be clear and sensible. We paraphrase major aspects of it, adopting its reasoning as our own.
Proof beyond a reasonable doubt requires a subjective state of near certainty about the accused’s guilt. (Jackson v. Virginia (1979) 443 U.S. 307, 315; Zepeda, supra, 167 Cal.App.4th at pp. 28-29.) California law defines reasonable doubt, in part, as the state of the case leaving the jurors’ minds in such a condition that they cannot say that they feel an abiding conviction that the charge is true. (§ 1096; Zepeda, supra, 167 Cal.App.4th at p. 29, fn. 2.) Ralls reads the “abiding conviction” language of this statute to require a subjective element that he finds lacking in CALCRIM No. 220. Instead, he reasons, that instruction improperly conveys the impression that the standard of proof of reasonable doubt is merely that of a very high degree of objective probability. (Zepeda, supra, 167 Cal.App.4th at p. 29.)
With Ralls’s concurrence, the trial court instructed the jury on the definition of reasonable doubt as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, brought to trial, or is in custody. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt[,] because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial and give it the weight you think it deserves. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (CALCRIM No. 220 [Jan. 2006 version]; see Zepeda, supra, 167 Cal.App.4th at p. 29 fn. 3.)
Ralls raised no objection to this instruction in the trial court. He suggested two minor modifications to the standard instruction and accepted a minor revision proposed by the prosecution. The trial court incorporated both modifications into the instruction it gave to the jury.
On appeal, Ralls asserts that the language of CALCRIM No. 220 fails to convey to the jury that the issue involves not only an objective assessment of the evidence, but something that must also be felt in a subjective manner. He reasons that a correct jury instruction would explain that the evidence must not only convince the jurors’ minds, but also satisfy their consciences. He argues that section 1096 requires this, but that the language of CALCRIM No. 220 does not.
Ralls also reasons that the “abiding conviction” language in CALCRIM No. 220 does not save what he views as the instruction’s failure to set out the subjective element of reasonable doubt because the phrase depends on the context in which it appears for its meaning. By omitting the reference to the minds of the jurors and how they feel, Ralls contends that CALCRIM No. 220 strips the “abiding conviction” language of its power to convey to the jurors that guilt must be felt subjectively, as well as reached objectively. Thus, he concludes the instruction misstates the proof beyond a reasonable doubt standard in such a manner that it violates his due process rights. (See Zepeda, supra, 167 Cal.App.4th at p. 30.)
The argument is almost frivolous. First, a trial court is not required to instruct the jury using the language of section 1096 or even to reference a subjective state of certitude. (§ 1096a; People v. Freeman (1994) 8 Cal.4th 450, 503.) Although the “beyond a reasonable doubt” standard is a requirement of due process, the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so. So long as the court instructs the jury on the necessity that the defendant’s guilt be proven beyond a reasonable doubt, the Constitution does not require that any particular words be used in explaining this to the jury. It is sufficient if, taken as a whole, the instructions correctly convey the concept of reasonable doubt to the jury. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) Thus, a trial court need not instruct on reasonable doubt in a manner that defines any subjective certitude required for a guilty verdict. (Zepeda, supra, 167 Cal.App.4th at p. 30.)
Second, Ralls’s argument is mere semantics. The phrase “abiding conviction”—even without being described as being “felt”—adequately conveys the subjective state of certitude required by the standard of proof. The term “abiding” informs the juror that his or her conviction of guilt must be more than a strong and convincing belief. Use of the term “abiding” tells the juror that his or her conviction must be of a lasting and permanent nature, and it informs the juror how strongly and deeply that conviction must be held. (People v. Brigham (1979) 25 Cal.3d 283, 290-291; Zepeda, supra, 167 Cal.App.4th at pp. 30-31.)
Our state Supreme Court and the Courts of Appeal in every appellate district have consistently rejected Ralls’s argument relating to the “abiding conviction” language set out in the predecessor standard jury instruction, CALJIC No. 2.90. (People v. Cook (2006) 39 Cal.4th 566, 601; People v. Freeman, supra, 8 Cal.4th at pp. 501-505; see People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287.) Those rulings apply with equal force to the language of CALCRIM No. 220. (People v. Campos (2007) 156 Cal.App.4th 1228, 1239.) The definition of reasonable doubt in CALCRIM No. 220 derives from CALJIC No. 2.90, which was itself taken directly from the language of section 1096. When an instruction is given according to the terms of section 1096, no further instruction defining reasonable doubt is required. (§ 1096a; People v. Campos, supra, 156 Cal.App.4th at p. 1239; see Zepeda, supra, 167 Cal.App.4th at p. 31 fn. 4.)
The “abiding conviction” language in the reasonable doubt instruction conveys a requirement that the jury’s belief in the truth of the charge must be long lasting and deeply felt. (People v. Light (1996) 44 Cal.App.4th 879, 885 [CALJIC No. 2.90].) This is so whether the jury’s conviction is “held,” “felt,” or had. One can hardly imagine a personal abiding conviction that is not deeply felt in the sense that Ralls uses those words. Thus, contrary to his contention, the phrase “abiding conviction” needs no additional context or description to convey the depth of personal conviction required to find guilt. (Zepeda, supra, 167 Cal.App.4th at p. 31.)
Beyond this, CALCRIM instructions go one step further in informing jurors of the subjective nature of their convictions. CALCRIM No. 220’s language—“proof that leaves you with an abiding conviction that the charge is true”—unmistakably conveys the conviction’s subjective nature and the very high level of certainty required. In addition, CALCRIM No. 3550, also given to the jury by the trial court, told the jurors that each “must decide the case for yourself” and that they should not change their minds “just because other jurors” disagree with them. We are satisfied that the jury did not misunderstand these instructions in the manner that Ralls suggests. (See Zepeda, supra, 167 Cal.App.4th at p. 31.)
In reviewing a challenge to the instructions given to the jury, we consider the entire charge, not parts of an instruction or a particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) To prevail, Ralls must show a reasonable likelihood that the jury misunderstood the challenged instructions. (People v. Cain (1995) 10 Cal.4th 1, 36-37; Zepeda, supra, 167 Cal.App.4th at p. 31.) He cannot do so. CALCRIM No. 220 conveys to the jury the concept of reasonable doubt without being ambiguous or obscuring the scope of that concept. It defines proof beyond a reasonable doubt as proof leaving the juror with an abiding conviction, a description that legally and linguistically means a conviction that is deeply felt. By referencing an “abiding conviction,” the instruction correctly sets out the People’s burden of proof. (Victor v. Nebraska, supra, 511 U.S. at pp. 14-15.) As the Constitution requires nothing more, we find that the trial court committed no error by instructing the jury with CALCRIM No. 220. (Zepeda, supra, 167 Cal.App.4th at pp. 31-32.)
C. Aiding and Abetting
1. Issue on Appeal
Ralls also challenges CALCRIM Nos. 400 and 401, arguing that they fail to require that an aider and abettor’s mens rea in homicide cases must be his or her own, separate from that of the direct perpetrator. (See People v. McCoy (2001) 25 Cal.4th 1111, 1116-1118 (McCoy).) He reasons that counts 8, 9, 10 and 11—the convictions for the second degree murder of Ware, the first degree murders of Duckworth and Harris, and the attempted murder of Vassar—must be reversed because of this claimed error.
2. Facts
a. Ware Second Degree Murder
At trial, there was no evidence that Ralls fired a weapon at Ware. Knowing that they intended to shoot, Ralls got out of the front passenger seat of the car to allow two armed men to get out of the back seat of the car. Ware died as the result of shots fired by one of these two other men. During closing argument, the prosecutor argued that Ralls was guilty of aiding and abetting the first degree murder of Ware, even though he did not fire the weapon that killed the victim. Knowing that they were going to shoot into a crowd of people, Ralls got out of the car, lifted his seat out of the way and let the shooters out.
Defense counsel argued that these acts were insufficient to constitute aiding and abetting Ware’s killing. He argued that Ralls never left the side of the car, such that he could not be found guilty of Ware’s murder as an aider and abettor. Defense counsel also argued that Ralls did not intend to kill Ware. The prosecutor countered that Ralls knew what the others were going to do when he let them out of the car.
The jury convicted Ralls of the second degree murder of Ware. It also concluded that Ralls had been armed with a firearm at the time of the killing. (See former § 12022, subd. (a)(1).) Ralls moved for a new trial on the Ware conviction, arguing without success that insufficient evidence supported that conviction.
In so doing, it rejected the prosecution’s argument that Ralls was guilty of first degree murder.
b. Harris and Duckworth First Degree Murder; Vassar Attempted Murder
On the other three counts challenged on appeal, the evidence adduced at trial supported the conclusion that while Ralls actually fired shots from a.38-caliber weapon at the Campbell Street apartment, his bullets did not injure Vassar or kill either Duckworth or Harris. The bullets that killed Harris were consistent with having been fired from a.223-caliber Remington believed to have been used by one of Ralls’s cohorts. A bullet recovered from Duckworth’s body was consistent with being fired from a.223-caliber Remington. It could not have come from Ralls’s.38-caliber weapon. Three bullets with characteristics similar to.38-caliber special bullets were recovered from the structure of the Campbell Street apartment.
The most damaging of Duckworth’s multiple gunshot wounds was another abdominal wound.
Again, the prosecution’s theory was that Ralls was guilty of the crimes committed against Harris, Duckworth and Vassar as an aider and abettor of those whose bullets inflicted the actual injuries. The prosecutor argued that the physical evidence showed that Ralls shot at the apartment door. He also argued that because all of the men had the same purpose when they opened fire on the apartment, all of them—including Ralls—were guilty of the first degree murders of Harris and Duckworth and the attempted first degree murder of Vassar.
Defense counsel conceded that Ralls was guilty of shooting at an inhabited dwelling. However, counsel argued that Ralls was not guilty of murder or attempted murder, but only the lesser offense of assault with a deadly weapon. Counsel argued that Ralls shot at a window rather than at the door of the apartment, noting that his.38-caliber bullets did not strike any of the victims. Defense counsel also argued that Ralls lacked sufficient information about the purpose of the apartment shooting, such that there was a reasonable doubt about whether he premeditated and deliberated. He also reasoned that Ralls lacked sufficient intent to kill Vassar to be found guilty of attempted murder.
The jury convicted Ralls of the first degree murders of Harris and Duckworth and the attempted first degree murder of Vassar. It found him guilty of shooting at the inhabited dwelling where the injuries were sustained. It also found that Ralls had discharged a firearm during the commission of these four offenses. (See former § 12022.53, subd. (c).) The jury specifically found that Ralls had personally and intentionally discharged a firearm in the commission of each of these offenses. (See former § 12022.53, subd. (b).)
c. Instructions Given
Both the prosecution and Ralls asked the trial court to give the older CALJIC standard jury instructions, rather than the newer CALCRIM instructions, reasoning that the CALJIC instructions that had been used for a longer time were more established and less prone to error. The trial court rejected this request, opting to use the newer standard CALCRIM instructions.
Repeatedly during the discussion on the relative merits of the two sets of standard jury instructions, the trial court stated that if a CALCRIM instruction was erroneous, incomplete or confusing, it would be willing to modify the standard jury instructions. Ralls requested some modifications be made to CALCRIM Nos. 400 and 401, but did not seek any modification related to the mens rea issue he would now raise on appeal. In fact, defense counsel endorsed CALCRIM No. 401’s recitation that the perpetrator committed the crime, the defendant knew that the perpetrator intended to commit the crime, and the defendant intended to aid and abet the commission of the offense. After a lengthy discussion about proposed modifications to CALCRIM Nos. 400 and 401, the trial court specifically asked defense counsel if any other modifications needed to be made. Ralls’s counsel stated they were satisfied with the instructions that the trial court indicated that it would give.
The trial court instructed the jury on aiding and abetting as follows: “A person may be guilty of a crime in two ways. One, he may have directly committed the crime. Two, he may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the perpetrator. A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.” (See CALCRIM No. 400 [Jan. 2006 version].)
The court continued: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and [¶] 4. The defendant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him an aider and abettor.” (See CALCRIM No. 401.)
3. Forfeiture
Preliminarily, we consider whether Ralls preserved the right to raise a challenge to the aiding and abetting jury instructions on appeal. A trial court has a sua sponte duty to give jury instructions on general principles of law relevant to the issues raised by the evidence, including the issue of aiding and abetting, if the prosecution relies on an aiding and abetting theory. (See People v. St. Martin (1970) 1 Cal.3d 524, 531; see also Bench Notes to CALCRIM Nos. 400, 401.) However, a party may not complain on appeal that an instruction that is correct in law and responsive to the evidence was too general or incomplete if the party fails to request that the trial court adopt appropriate clarifying language. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163, two petns. for review pending, petns. filed May 7 & May 8, 2009 (S172769) (Samaniego).)
We find that CALCRIM Nos. 400 and 401 set forth a generally accurate statement of the law of aiding and abetting. (See Samaniego, supra, 172 Cal.App.4th at p. 1163 [discussing CALCRIM No. 400].) Under these circumstances, Ralls’s trial counsel was required to seek modification or clarification of the standard instructions in the trial court relating to the deficiencies he would now raise on appeal. Having failed to seek a relevant modification of the challenged jury instructions in the trial court, Ralls forfeited the right to raise this claim of error on appeal. (Samaniego, supra, 172 Cal.App.4th at p. 1163.)
The trial court opined that the gist of the CALCRIM instructions on aiding and abetting did not differ dramatically from that of the CALJIC instructions on this topic. (See CALJIC Nos. 3.00, 3.01; CALCRIM Nos. 400, 401.) To the extent that these two sets of jury instructions convey substantially the same law with regard to the mens reaissue that Ralls raises on appeal, his request for the CALJIC instructions might also be viewed as invited error. (See People v. Williams (1980) 102 Cal.App.3d 1018, 1025 [invited instructional error]; see also 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 31, p. 489.)
4. Merits of Claim
At oral argument, the parties discussed the relevance of a new Second Appellate District decision that found language in CALCRIM No. 400 somewhat misleading. (See Samaniego, supra, 172 Cal.App.4th at pp. 1162-1166.) During argument, Ralls’s appellate counsel reasoned that, even if trial counsel failed to challenge these jury instructions in the trial court, the error was cognizable on appeal, either because the instructions given affected Ralls’s substantial rights or because trial counsel was ineffective for failing to seek the pertinent modification of CALCRIM Nos. 400 and 401. (See § 1259; Strickland v. Washington (1984) 466 U.S. 668, 686-688, 694-695.) Assuming arguendo that either or both of these reasons require review of Ralls’s challenge to these jury instructions, we address the merits of his claim of error.
All persons committing a crime—whether they directly perpetrate the act constituting the offense or merely aid and abet in its commission—are deemed to be principals under California law. (§ 31; McCoy, supra, 25 Cal.4th at pp. 1116-1117.) One who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. Because aiders and abettors may be held criminally liable for the acts of others, their liability is sometimes described as “vicarious.” However, an aider and abettor’s guilt is not entirely vicarious, because it is based on a combination of the perpetrator’s acts, the aider and abettor’s own acts, and the aider and abettor’s own mental state. (Id. at p. 1117.)
Most crimes have two components: an act or omission (the actus reus) and a necessary mental state (the mens rea). (§ 20; McCoy, supra, 25 Cal.4th at p. 1117.) These two components must exist, whether the liability for the crime is direct or based on an aiding and abetting theory. An aider and abettor must both do something and must possess a certain mental state in order to be guilty of a crime. (McCoy, supra, 25 Cal.4th at p. 1117.)
The mental state required of an aider and abettor differs from that necessary for conviction as the actual perpetrator of a criminal offense. (McCoy, supra, 25 Cal.4th at p. 1117; People v. Mendoza (1998) 18 Cal.4th 1114, 1122.) When the offenses charged are murder and attempted murder, the aider and abettor must know and share the perpetrator’s murderous intent. As such, aider and abettor liability is vicarious only in the sense that the aider and abettor is liable for the perpetrator’s acts as well as his or her own actions. The aider and abettor is only liable for his or her own mental state, not the mental state of the perpetrator. (McCoy, supra, 25 Cal.4th at p. 1118.) Thus, liability as an aider and abettor is premised on the combined acts of all principals and the aider and abettor’s own mens rea. (Id. at pp. 1120, 1122.)
The McCoy decision cautions that this rule does not apply if the aider and abettor’s guilt is predicated on the natural and probable consequences doctrine. (See McCoy, supra, 25 Cal.4th at pp. 1117-1118.) That variation on aiding and abetting is not present in the case at bar.
On appeal, Ralls argues—citing McCoy—that the instructions given to the jury failed to convey that he could not be found to have aided and abetted the challenged murders and attempted murder based on the mental state of the shooters. He reasons that the CALCRIM Nos. 400 and 401 jury instruction given allowed the jury to hold him liable as an aider and abettor based on the perpetrator’s imputed intent—that is, even if he did not possess his own mens rea.
The parties disagree about whether the McCoy principles apply at all in this matter. In that case, an aider and abettor was properly found liable for a greater offense than the actual perpetrator—a factual circumstance in which Ralls does not find himself. Despite this factual difference, we find that the general principles of McCoy regarding the necessity for the aider and abettor to possess his or her own mens rea apply to all aiding and abetting cases. (See, e.g., Samaniego, supra, 172 Cal.App.4th at pp. 1164-1165.)
Having determined to apply the McCoy principles in our case, we observe at the outset that the evidence required to prove the mental states that Ralls protests he may not have possessed—premeditation, deliberation, and malice aforethought—does not require much more than is required to prove aiding and abetting. It is virtually impossible for an aider and abettor to know of a perpetrator’s intent to commit murder and to decide to aid in the accomplishment of that crime without at least a brief period of deliberation and premeditation, which is all that is required. A calculated judgment may be arrived at quickly. (People v. Hughes (2002) 27 Cal.4th 287, 371; Samaniego, supra, 172 Cal.App.4th at p. 1166.) In the context of attempted murder, to be guilty as an aider and abettor, one must give aid or encouragement with knowledge of the perpetrator’s intent to kill and with the purpose of facilitating the perpetrator’s accomplishment of the intended killing. Unless the natural and probable consequences doctrine applies, a person guilty of attempted murder as an aider and abettor necessarily acts willfully with an intent to kill. In addition, the aider and abettor also necessarily acts with a mental state at least approaching deliberation and premeditation—concepts that require careful thought, weighing of considerations, and preexisting reflection rather than unconsidered acts or rash impulses—because he or she necessarily acts with knowledge of the perpetrator’s intent to kill and with the intent to facilitate that perpetrator’s accomplishment of the intended crime. (People v. Lee (2003) 31 Cal.4th 613, 624; Samaniego, supra, 172 Cal.App.4th at p. 1166.)
In his briefs, Ralls’s challenge to CALCRIM Nos. 400 and 401 is somewhat vague. He cites no specific language in those instructions that troubles him, nor does he propose language that he would have used to convey to the jury the applicable legal framework for its aiding and abetting analysis. Instead, Ralls argues only that the instructions allow a jury to impute the perpetrator’s mental state to him, permitting the jury to convict him as an aider and abettor so long as it could find the perpetrator guilty of that offense. He reasons that the challenged instructions do not require the jury to find that he personally possessed the mental states required for each of the charged crimes.
Recently, the Second Appellate District made a more specific criticism of CALCRIM No. 400. Focused on the part of that instruction stating that one is “equally guilty” of a crime regardless of whether one personally commits the offense or merely aided and abetted its commission, that court found the instruction to be potentially misleading. (Samaniego, supra, 172 Cal.App.4th at pp. 1163-1165.) As Samaniego appears to have considered the “equally guilty” language in isolation from the other jury instructions given to the jury, our interpretation of the reasonable meaning of this language in the context of all the jury instructions given in the case differs from that of the Second Appellate District. (See People v. Castillo, supra, 16 Cal.4th at p. 1016.) The “equally guilty” language in CALCRIM No. 400 sets out the basic, introductory principle that both direct perpetrators and those who merely aid and abet the commission of a crime are deemed to be principals under California law. (See § 31.) This language does not state that the requirements for being a perpetrator and for being an aider and abettor are identical, nor would a reasonable juror interpret that language in such a manner.
CALJIC No. 3.00 and CALCRIM No. 400 both use the “equally guilty” wording.
Indeed, in CALCRIM No. 401, the trial court explained the several legal requirements for being found guilty as an aider and abettor. When CALCRIM Nos. 400 and 401 are viewed together with the other jury instructions given in this case defining the required mental states for the various charged offenses, we are satisfied that the challenged jury instructions meet the intent requirement of McCoy. These instructions properly required the jury to determine Ralls’s guilt based on the combined acts of the participants and his own mens rea. CALCRIM No. 401 required that the defendant (1) knew that the perpetrator intended to commit murder or attempted murder and (2) intended to aid and abet the perpetrator in the commission of those offenses. It admonished the jury that Ralls aided and abetted the commission of murder or attempted murder if he knew of the perpetrator’s unlawful purpose and he specifically intended to aid the perpetrator in the commission of that offense. Thus, CALCRIM No. 401 specifically focused the jury’s attention on whether Ralls intended to assist in committing the attempted and completed murders.
With regard to the Ware second degree murder conviction, Ralls reasons that CALCRIM No. 401 improperly allowed the jury to impute the malice aforethought of shooters Donald and Deshawn to him. Citing his minimal physical contribution to the crime, he reasons that the jurors were not asked to assess whether he acted with malice aforethought. We disagree. Other instructions given required that the jury focus on Ralls’s malice aforethought before it could find him guilty of the murder of Ware. (See CALCRIM No. 520.)
The prosecution argued that he had this mens rea. Ralls’s statement to police provided strong evidence of his own mental state. Although Ralls did not shoot Ware, he knew that Donald and Deshawn were armed and were offering to do the shooting. He knew that they intended to shoot into a crowd of people before he let them out of the back seat of the car. Ralls committed this act in order that they might accomplish their goal. This evidence was sufficient to satisfy the jury that Ralls himself knew and shared Donald and Deshawn’s murderous intent. (See McCoy, supra, 25 Cal.4th at p. 1118.) Although the prosecution argued that Ralls was guilty of first degree murder, the jurors appear to have taken his mens rea and his acts into account when rejecting that conclusion and convicting him of only second degree murder. We are satisfied that there is no likelihood that the jury misunderstood the aiding and abetting instructions, considered in the context of all the instructions given. (See People v. Cain, supra, 10 Cal.4th at p. 36; People v. Ramos, supra, 163 Cal.App.4th at p. 1088; see also Estelle v. McGuire, supra, 502 U.S. at p. 72.)
With regard to the Harris, Duckworth and Vassar completed and attempted first degree murders, Ralls argues that CALCRIM No. 401 allowed the jury to improperly impute the mental states of premeditation and/or deliberation from his brother Joe Ralls—the shooter who actually caused these deaths and injuries—to him. He reasons that there was insufficient evidence that he was privy to his brother’s intentions and that—by drawing his gun and firing at the door of the house—he did no more than to spontaneously follow his brother’s lead. Thus, he argues, there is a reasonable doubt about whether he shared Joe Ralls’s mental state with regard to these attempted and completed murders.
The jury found that Ralls personally and intentionally discharged a firearm during the commission of these offenses. It also made similar findings related to his conviction of the separate offense of shooting at the inhabited dwelling where the injuries were sustained. (See § 246; former § 12022.53, subds. (b), (c).) Thus, it is clear that the jury found that Ralls actually fired his weapon into the house. As the McCoy court acknowledged, when multiple persons commit a crime together, it may not be completely accurate to describe one as the perpetrator and the others as aiders and abettors. When all actors shoot guns, even if only one is responsible for the fatal shot, all actors serve partly as perpetrator and partly as aider and abettor. (See McCoy, supra, 25 Cal.4th at pp. 1120, 1122.)
We disagree with this self-serving view of the facts adduced at trial. Ralls himself told police that he knew that his brother was armed with an assault rifle when they went to the Campbell Street house to “spank” the occupants of the house. Once Joe Ralls started shooting, Ralls himself joined in, thus “handl[ing their] business.” His own words make it clear that Ralls was privy to what Joe Ralls intended before the shooting began—that he knew and shared Joe Ralls’s intent to kill. (See McCoy, supra, 25 Cal.4th at p. 1118.) Ralls aided and abetted the commission of these attempted and completed murders because he knew of Joe Ralls’s unlawful purpose and because he specifically intended to aid his brother in the commission of these offenses.
CALCRIM No. 401 properly focused the jury’s attention on and held Ralls accountable for his own mens rea with regard to the Campbell Street murders and attempted murder. (McCoy, supra, 25 Cal.4th at pp. 1120, 1122.) The jury instructions given on murder and attempted murder also made it clear that Ralls could not be found guilty of these offenses without possessing his own mens rea. (CALCRIM Nos. 520, 521, 540B, 600, 601.) The prosecution argued that he had this mens rea. The jury’s rejection of the prosecution’s plea for a first degree murder conviction on the Ware murder charge demonstrates that the jurors did not simply rubber stamp the prosecution’s case, but carefully considered and applied the instructions that they were given to the facts adduced at trial. There is no likelihood that the jury misunderstood the trial court’s instructions, when considered as a whole. (See People v. Cain, supra, 10 Cal.4th at p. 36; People v. Ramos, supra, 163 Cal.App.4th at p. 1088; see also Estelle v. McGuire, supra, 502 U.S. at p. 72.) The trial court did not err in giving CALCRIM Nos. 400 and 401 on aiding and abetting.
III. SENTENCING
Finally, Ralls contends that the two-year consecutive sentences imposed for three counts of first degree residential robbery are unauthorized and unconstitutional. He urges us to reduce each consecutive term to one year four months. The Attorney General concedes the trial court’s error. Having reviewed the matter, we agree that each of the three consecutive terms imposed for counts 5, 6 and 7 must be reduced by eight months.
In counts 5, 6 and 7, the jury found Ralls guilty of three charges of first degree residential robbery of members of the Leang family. This offense was committed in December 2002. (See §§ 211, 212.5, subd. (a) [robbery in inhabited dwelling as first degree robbery].) When the trial court chose the determinate terms to impose for these three offenses, it had already selected the sentence for another count as the principal term. It expressed its intent to impose the sentences for counts 5, 6 and 7 as subordinate one-third midterms, rather than full terms, consistent with the provisions of the determinate sentencing law. It assumed that the correct midterm for first degree residential robbery was six years, and thus imposed a one-third term of two years for each of these offenses. (See former § 1170.1, subd. (a) [Stats. 2000, ch. 689, § 1]; see also § 213, subd. (a)(1) [setting out punishment for various types of first degree robbery].) However, as we shall explain, the correct midterm for the offenses of which Ralls was convicted was four years, not six.
The jury also found firearm use enhancements to be true as to two of these counts and the trial court imposed consecutive terms for those enhancements. The calculation of the enhancement terms is not at issue on appeal.
If a first degree residential robbery is committed in concert, the punishment is set at three, six or nine years. (§ 213, subd. (a)(1)(A); In re Jonathan T. (2008) 166 Cal.App.4th 474, 479-482 [statute operates as sentence enhancement; it does not create new substantive offense].) If the sentence is imposed as a subordinate term, the one-third term is calculated on the basis of the six-year midterm. (See former § 1170.1, subd. (a).) In this matter, the indictment did not charge Ralls with having committed any of the three first degree residential robberies in concert, nor was the jury asked to determine if he committed these offenses in concert with others. Instead, he was convicted of three counts of simple first degree residential robbery.
Due process requires that an accused be given notice of the charges against him or her. (People v. Lohbauer (1981) 29 Cal.3d 364, 368; In re Jonathan T., supra, 166 Cal.App.4th at p. 483 [juvenile delinquency matter]; People v. Ramirez (1987) 189 Cal.App.3d 603, 622.) Before an increased punishment for committing a residential robbery in concert with others may be lawfully imposed, the fact that the offense was committed in concert with others must be pled and proven beyond a reasonable doubt. (In re Jonathan T., supra, 166 Cal.App.4th at p. 483 [juvenile delinquency matter]; People v. Ramirez, supra, 189 Cal.App.3d at p. 622; see People v. Riffey (1985) 171 Cal.App.3d 419, 423 [enhancement as increased penalty requiring proof of additional facts].) As no in-concert element of these offenses was charged or proven with regard to any of these three counts, the sentences for them based on the robbery in concert statutes are illegal and were imposed in violation of Ralls’s due process rights. (In re Jonathan T., supra, 166 Cal.App.4th at pp. 483-484; see U.S. Const., 5th Amend.)
When first degree residential robbery is committed other than in concert, the statutory midterm for this offense is four years. (§ 213, subd. (a)(1)(B) [3, 4 or 6 years].) If the trial court had applied the correct statutory midterm of four years, it would have imposed three one-third midterms of one year four months for each of these three counts, rather than the three two-year terms it did impose. Thus, we conclude that Ralls is entitled to a two-year reduction in his determinate sentence. Accordingly, we reverse the judgment on counts 5, 6 and 7 and modify those sentences. (See In re Jonathan T., supra, 166 Cal.App.4th at p. 484.) We remand this matter to the trial court to issue a corrected abstract of judgment reflecting the correct statutory term of one year four months for each of these three counts.
The sentences on counts 5, 6 and 7 are reversed and modified in accordance with this opinion. The matter is remanded to the trial court for correction of the abstract of judgment on these counts. In all other respects, the judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.