Filed 12/30/15 In re Munoz CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



                                                                     B265673

In re ELIAS IVAN MUNOZ,                                              (Los Angeles County
                                                                     Super. Ct. No. PA055243)

         on Habeas Corpus.




         ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Ronald S. Coen,
Judge. Petition granted.
         Edward H. Schulman, under appointment by the Court of Appeal, for Petitioner.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, and Wyatt E. Bloomfield, Deputy Attorney
General, for Respondent.
                                          _______________________
       In 2007, a jury found petitioner Elias Ivan Munoz guilty of first degree murder and
the trial court sentenced him to 50 years to life in state prison. Munoz’s appointed
appellate counsel raised only one issue on appeal—that the court prejudicially erred when
it admitted statements obtained involuntarily from Munoz into evidence. This court
rejected the argument and affirmed the judgment in an unpublished opinion.1 On July 28,
2015, Munoz filed the instant petition for writ of habeas corpus. He contends that his
appellate counsel rendered ineffective assistance by failing to challenge the trial court’s
instructions given in response to the jury’s inquiries on aider and abettor culpability for
first degree murder. We agree and grant his petition for writ of habeas corpus. We
further conditionally reverse the judgment and remand with instructions.


                                STATEMENT OF FACTS


       The statement of facts is derived from our unpublished opinion affirming Munoz’s
first degree murder conviction as follows.
       “In February 2006, Carlos Pedroza lived in a second floor apartment which had a
balcony overlooking Rayen Street. Pedroza arrived home in the early morning hours of
February 11 and parked on Rayen Street in front of the apartment building. On the way
to his apartment, he walked past two male Hispanics with shaved heads, who were
standing in front of the apartment building and appeared to be drinking. While sitting in
the living room watching television, Pedroza heard a vehicle’s tires squealing to a stop,
followed by a loud argument involving two male voices, and four or five gunshots.
Pedroza then heard talking, the sound of persons entering a vehicle, the noise of a
vehicle’s engine, and the squealing of tires as the vehicle drove away.

       1
       We take judicial notice of the record in People v. Munoz (Mar. 10, 2009,
B205117) [nonpub. opn.]. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

                                              2
       “Pedroza went to the balcony window and saw a dark four-door car exit the
driveway of the apartment across the street and stop in front of his apartment on Rayen.
The same two males who had been standing across the street got into the car with one or
two other males before the car sped away. Pedroza went downstairs to the front of his
apartment building. He spoke to the security guard standing on the sidewalk, who
directed him to another person—victim Godoy—on the street, lying prostrate beside a
parked sports utility vehicle. Godoy had a bullet wound in the back of his head. The
guard used his cell phone to call for an ambulance. Pedroza went back to his apartment.
       “Godoy lived on the same city block where he was killed, in territory claimed by
the Langdon Street gang. Godoy was a member of the Mara Salvatrucha (MS) street
gang, a rival of Langdon Street. The murder occurred at approximately 3:18 a.m. Los
Angeles Police Department Officer Efren Gutierrez arrived at the scene at 5:30 a.m. He
saw expended bullet casings around Godoy’s body. There was a cell phone underneath
the SUV, along with a baseball cap and numerous empty beer bottles strewn nearby.
There were a number of beer bottles in front of the apartment building across the street
from the victim’s body.
       “Medical Examiner Susan Selser determined that Godoy suffered two fatal bullet
wounds that entered the back of his head. He had also suffered blunt force trauma to the
back of the head, independent of the gunshots, along with abrasions to the side of his
head, his knees, elbows, back, hand, and wrist. Godoy had various tattoos, including
‘MARA SALVATRUCHA’ tattooed on his back.
       “Detective Nicole Kittle testified that she and her partner, Detective John Fleming,
interviewed [Munoz] at the police station on March 14, 2006. The interview was
recorded without [Munoz’s] knowledge. The audiotape was played to the jury, as was
the audiotape of [Munoz’s] subsequent interview with Detective Kittle and Officer
Gutierrez on May 10, 2006. In the first interrogation, [Munoz] denied being present at
the shooting incident, but admitted to possessing the firearm that was proved to be the
murder weapon. In the second, he admitted being present at the shooting. He gave the

                                             3
loaded handgun to a person called Tiny, after Tiny made a gang threat to Godoy, just
before the shooting occurred.
       “At the first interview’s conclusion, the detectives accompanied [Munoz] to his
apartment, where [Munoz] showed them the gun he had referenced in the interview. It
was a .32 caliber automatic, found in his mother’s bedroom nightstand or desk in a
concealed compartment. There were bullets in the gun’s magazine. A criminalist
determined that the bullets and casings found at the murder scene had been fired from
that same handgun. Other items recovered from the apartment included a black
handkerchief, a notebook entitled, ‘Langdon Private Book Lil Gumby’ Shit,’ a box
labeled, ‘Gumby,’ ‘Langdon,’ ‘Langdon 13,’ ‘Pee-Wee,’ and ‘Street.’
       “Sergeant Robert Nakamura of the Los Angeles Police Department and his partner
were in an unmarked patrol vehicle on March 14, 2006, in Langdon Street territory. He
saw a Toyota Camry driving westbound on Rayen Street near Sepulveda Boulevard. The
driver and two passengers were male Hispanics with shaved heads. The Camry stopped
and [Munoz] stepped onto the street, approached the passenger side, and spoke to the
occupants. Within a short time, [Munoz] entered the back seat and the car drove away.
The officers followed. Sergeant Nakamura saw [Munoz] flash a Langdon Street gang
sign with his hand in the direction of a number of male Hispanics standing in front of an
apartment building. The officers stopped the Camry. In addition to [Munoz], the
occupants included Langdon Street gang member Juan Carrillo (also know[n] as Little
Youngster and Tiny).
       “After the murder, Officer Gutierrez observed gang graffiti painted on a storage
shed near the murder scene, referring to Godoy’s killing. The graffiti mentioned
Langdon Street and crossed out the victim’s initials and the initials of his gang. The
prosecution’s gang expert testified that she examined the graffiti and opined that it
showed Langdon Street’s antipathy toward MS.
       “Jesse Pahua was in custody for disregarding a warrant to appear in [Munoz’s]
trial. He had been a member of Langdon Street since he was 12 years old, but he quit six

                                             4
years later in August 2006, when his daughter was born. At that time, the gang had
approximately 40 members. His gang moniker was ‘Silent.’ [Munoz] was a member
with the moniker, ‘Lil Gumby.’ Pahua denied any knowledge of a gun being found after
the Godoy killing. When interviewed by Detective Kittle and Officer Gutierrez on May
3, 2006, he told them that the firearm recovered from [Munoz’s] residence was the same
gun [Munoz] had shown him previously at [Munoz’s] residence.
       “A criminalist examined fingerprints on beer cartons found at the crime scene. He
found matches to James Reyes. Fingerprints on beer bottles and cans from the crime
scene resulted in matches to Walter Martinez and Oscar Murillo. There were no
identifiable prints on the .32 caliber handgun.
       “Officer Shawna Green testified as an expert in criminal street gangs, specializing
in the Langdon Street gang. In February 2006, the gang had approximately 200
documented members. The murder scene was located in the middle of the gang’s
territory. MS is an enemy or rival gang. Langdon Street’s primary activities are
committing a variety of crimes, including narcotics sales and murders. [Munoz] was an
active member of the gang with the moniker, ‘Lil Gumby.’ The written materials
recovered from his residence following his arrest tended to show his affiliation with
Langdon Street. Also recovered were photographs of [Munoz] and fellow gang members
Luis ‘Tiny’ Martinez, Juan ‘Lil Youngster’ Carrillo, Frank Angel ‘Troubles’ Castrellon,
and James ‘Jimmy” Reyes. The expert testified that Jesse ‘Little Silent’ Pahua, Oscar
‘Dopey’ Garibay, Oscar ‘Loco’ Murillo, Walter ‘Little Puppet’ Martinez, and Osmin
Rodriguez are members of Langdon Street. Officer Green testified as to the commission
of predicate crimes for purposes of the criminal street gang allegations.
       “Answering a hypothetical question that reflected the prosecution’s evidence
concerning the Godoy shooting, which incorporated some of [Munoz’s] admissions from
his second interview, Officer Green opined the shooting would have been committed for
the benefit of the Langdon Street gang because it demonstrated its willingness to kill
gang rivals who ventured into Langdon Street territory.

                                             5
Defense


       “Saemm Gonzales, the cousin of prosecution witness Evelyn Gonzales, testified
that Evelyn and [Munoz] were dating in March 2006. [Munoz] would periodically stay
overnight at the Gonzales residence. On the night of the Godoy killing, [Munoz]
attended a family party. They did not return until approximately 3:00 a.m. The streets
around the murder scene were blocked off because of the police investigation. [Munoz]
testified that he grew up and lived in Langdon Street territory. [Munoz] was a member of
the Langdon Street gang. None of his tattoos is gang related. He was dating Evelyn
around the time of the Godoy killing and is likely the father of her child.
       “In the months leading up to the Godoy killing, [Munoz] was staying either with
Evelyn at her residence on Rayen Street or at his mother’s home. On the night of the
shooting, he went to a party with Evelyn’s family. They all drove home in the same car.
On the way home, at approximately 3:00 a.m., he noticed an ambulance and police
activity in the area of the murder. Because nearby streets were closed by the police, they
had to take an alternative route to Evelyn’s apartment, where he slept. That morning,
Evelyn left on a trip and he took their child. He assumed a Langdon Street gang member
had been shot. [Munoz] walked to the crime scene and asked some neighbors what had
happened. He was told, ‘Somebody was killed.’
       “As his part-time employer did not call him to work that day, he remained at
Evelyn’s residence. A few days later, he was ‘kicking it with a couple friends’—two
Langdon Street members and two young women. One of the males, Marcos or ‘Snoop,’
pulled out the gun and told [Munoz] to ‘hold it.’ Not wanting to ‘look like a sissy,’ he
took the weapon, although he did not know it had been used in the Godoy shooting. Prior
to his arrest in March, he showed the gun to Jesse ‘Silent’ Pahua, who advised [Munoz]
to ‘keep it where you have it.’



                                             6
       “During the police interview, [Munoz] misled the officers about the source of the
gun because he was afraid of retribution from the gang. He had no firsthand information
about the killing. When he was arrested and taken to the police station for questioning in
May, he was very tired and could barely hold his head up. During the interrogation,
Detective Kittle was respectful and nice; Officer Gutierrez was mean and aggressive.
When Detective Kittle was out of the room, Officer Gutierrez was screaming at him. He
told [Munoz] he would never see his children again, unless he told the officer what he
wanted to hear. At that time, [Munoz’s] son was four days old. [Munoz] was not
drinking beer with any Langdon Street members before the Godoy shooting, he did not
give the gun to Tiny, he was not present during the shooting, and he did not flee with the
shooters. On cross-examination, [Munoz] said he gave the officers the false story that he
handed the gun to Tiny just before the shooting because [Munoz] believed the officers
would let him go home if he was not the shooter.” (People v. Munoz (Mar. 10, 2009,
B205117) [nonpub. opn.], fn. omitted.)


                                 PROCEDURAL HISTORY


       On September 13, 2007, a jury found Munoz guilty of first degree murder of
Godoy (Pen. Code, § 187, subd. (a)),2 finding the murder was committed to benefit a
criminal street gang (§ 186.22, subd. (b)(1)). Allegations that a principal used a firearm
in the commission of the murder were also found true (§ 12022.53, subds. (b)-(e)).
Munoz received a sentence of 50 years to life, consisting of consecutive terms of 25 years
to life for the substantive offense and for the firearm enhancement. Additional firearm
enhancements were stayed (§ 12022.53, subd. (f)), and the gang enhancement was
dismissed (§ 12022.53, subd. (e)(2)).
       On appeal, Munoz’s appointed counsel, Gordon S. Brownell, only argued that the
introduction of his tape-recorded admissions made in two custodial interrogations

       2   All further references are to the Penal Code, unless otherwise stated.
                                                7
violated the due process requirements of the Fifth and Fourteenth Amendments to the
federal Constitution because those admissions were induced by promises of leniency and
were therefore involuntary. We held that the inculpatory statements were made
voluntarily, without any improper promises, threats, or coercion by the detectives, and
affirmed the judgment in an unpublished opinion. (People v. Munoz (Mar. 10, 2009,
B205117) [nonpub. opn.].) On April 17, 2009, Brownell filed a petition for review in the
California Supreme Court, which reiterated his argument on appeal. The petition was
denied.
       On April 24, 2015, an attorney for the California Appellate Project (CAP) wrote a
letter to this court indicating that Brownell had overlooked a key issue. In October 2014,
Munoz wrote to CAP asking whether a recent California Supreme Court decision might
benefit him. A CAP attorney then reviewed the appellate opinion and record in his case.
After concluding that the recent Supreme Court decision did not apply to him, the
attorney “discovered a potentially significant misinstruction” by the trial court in
responding to the jury’s inquiries on the aider and abettor culpability for first degree
murder. CAP “contacted [Brownell] three times for his input, eventually sending him
copies of the relevant jury questions, the arguments by counsel, and the court’s
instructions to the jury.” Brownell declined to seek any relief on behalf of Munoz.
Consequently, CAP asked this court to appoint new counsel to review the record and to
determine whether to seek recall of the remittitur or file a petition for writ of habeas
corpus.
       On May 1, 2015, this court appointed new counsel “to review the record to
determine whether additional pleadings should be filed on behalf of appellant Munoz.”
On July 28, 2015, new counsel timely filed this petition for writ of habeas corpus. On
September 3, 2015, this court ordered the Department of Corrections and Rehabilitation
to show cause why relief prayed for in the petition for writ of habeas corpus should not
be granted. On October 29, 2015, the Attorney General filed a return and on November
10, 2015, Munoz’s new counsel filed a traverse.

                                              8
                                       DISCUSSION


Ineffective Assistance of Counsel


       Habeas corpus relief is available for a claim of ineffective assistance of appellate
counsel. (See In re Robbins (1998) 18 Cal.4th 770, 810.) The standard applied to review
of a claim of ineffective assistance of appellate counsel is the same as that applied to trial
counsel. (People v. Osband (1996) 13 Cal.4th 622, 664; In re Banks (1971) 4 Cal.3d 337,
343; In re Smith (1970) 3 Cal.3d 192.) A defendant must establish that his “‘counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms, and there is a reasonable probability that, but for counsel’s
unprofessional errors and/or omissions, [he would have obtained] a more favorable
outcome.’” (In re Cudjo (1999) 20 Cal.4th 673, 687; People v. Ledesma (1987) 43
Cal.3d 171, 216.) The question raised here is whether Munoz would have obtained a
more favorable result had Brownell challenged the trial court’s responding instruction to
the jury’s inquiries on aider and abettor culpability for first degree murder.


       Relevant Background


       The prosecution theory at trial was that Munoz aided and abetted the murder of
Godoy. The trial court instructed that “[a] person may be guilty of a crime in two ways.
One, he or she may have directly committed the crime. Two, he or she 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 or she
committed it personally or aided and abetted the perpetrator who committed it.”
(CALCRIM No. 400.) The court further instructed that “[t]o 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

                                              9
intended to commit the crime; [¶] 3. Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶]
4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission
of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator’s commission of that crime.”
(CALCRIM No. 401.)
       The trial court instructed that to prove Munoz is guilty of murder, “the People
must prove that: [¶] 1. The defendant committed an act that caused the death of another
person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice
aforethought.” (CALCRIM No. 520.) And if the jury “decide[s] that the defendant has
committed murder, [the jury] must decide whether it is murder of the first or second
degree. [¶] The defendant is guilty of first degree murder if the People have proved that
he acted willfully, deliberately, and with premeditation. The defendant acted willfully if
he intended to kill. The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the consequences, decided to kill.
The defendant acted with premeditation if he decided to kill before committing the act
that caused death. [¶] . . . [¶] All other murders are of the second degree.” (CALCRIM
No. 521.) The jury was also instructed on the subject of voluntary intoxication as a legal
basis for negating the elements of premeditation and deliberation. (CALCRIM No. 625
[the jury “may consider that evidence only in deciding whether the defendant acted with
an intent to kill or the defendant acted with deliberation and premeditation”].)
       The jury began deliberating on September 11, 2007, at 3:34 p.m., took an evening
recess at 4:00 p.m., and then resumed deliberations the next day at 8:30 a.m. During the
course of the day, the jury submitted written requests for copies of the transcript of
Munoz’s two interviews, a February and March 2006 calendar, and read back of two
witnesses’ testimony, along with more jury request forms.



                                             10
       At 3:35 p.m., the jury submitted a request stating, “1. Answer to this question: In
determining degree, is phrase ‘decided to kill’ with respect to ‘DELIBRATE’ about
perpetrator or abettor. 2. Do enhancements apply for second-degree [murder].” The
court read the inquiry to counsel outside the presence of the jury. The court responded,
“The answer to question number 2 will be yes.” In responding to the jury’s first question,
the court cited the holding in People v. Lee (2003) 31 Cal.4th 613 (Lee) as standing for
the proposition that first degree attempted murder must be “willful, deliberate and
premeditated, but not that the attempted murderer personally have acted [with]
willfulness, deliberation and premeditation even if he is guilty as an aider and abettor.”
Defense counsel pointed out that the Lee case dealt “specifically with attempted murder”
and was “distinguishable from our case. I mean, we are talking about the charge of actual
murder as an aider and abettor, not attempted murder.” The court responded that there
was no meaningful distinction between the language in section 664 defining willful,
deliberate, and premeditated attempted murder, and the language in section 189 defining
willful, deliberate, and premeditated murder. The court concluded that the holding in Lee
would logically apply to a completed murder as well. The court indicated that it would
instruct the jury that it need only find that willfulness, deliberation, and premeditation
“applies to the perpetrator.” Defense counsel requested more time to research the issue.
The court denied the request and brought the jury into the courtroom.
       The court instructed the jury that enhancements apply to second degree murder.
As to the jury’s first question, the court instructed, “In determining degree as the phrase,
quote, ‘decided to kill’, quote, with respect to deliberate, quote, about the perpetrator or
the abettor, it’s about the perpetrator. [¶] Does that answer the jury’s question?” The
jury foreperson responded in the affirmative. The jury took an evening recess at 4:00
p.m., and resumed deliberations at 1:30 p.m. on September 13, 2007.
       On September 13, 2007, at 1:53 p.m., the jury submitted its final request which
stated, “We still need confirmation . . . Jury instruction states: ‘The defendant is guilty of
first degree murder if the People have proved that he acted . . .’ [¶] In this case, [¶] Is

                                             11
this ‘he’ the abettor, i.e., the defendant, or the perpetrator.” The court read the inquiry
outside the presence of the jury and discussed with counsel. The court reiterated its
understanding that “he” referred to the perpetrator, not the aider and abettor. Defense
counsel objected, argued that “he” referred to Munoz as the aider and abettor. “For the
court to answer them in a way that’s not technically true, that ‘he’ refers to the
perpetrator, which it clearly doesn’t in that instruction, is essentially for the court to
instruct that they must come back with [murder in] the first [degree].” The court
indicated it would instruct the jury that “under the law an aider and abettor need not
personally have acted with willful [sic] deliberation and premeditation.” Defense counsel
contended that such an answer would not directly address the jury’s inquiry. The
prosecutor interjected that the court was correct, “The law is absolutely clear that in terms
of willful, deliberate and premeditated, you are talking about the intent of the
perpetrator.”
       The jury was brought into the courtroom and the court inquired of the jury
foreperson to clarify their written request. The foreperson stated, “We are trying to figure
out whose state of mind we should be assessing.” The jurors were excused while the
court further discussed the issue with counsel.
       The court said that the language for first degree murder under section 189 and
attempted murder under section 664 is “extremely similar, if not identical.” The court
concluded that Lee applied to murder and that it would instruct accordingly. Defense
counsel objected to the court’s instruction “because Lee does apply specifically to
[section] 664 [subdivision] (a) and it limits its decision to attempted murder. It doesn’t
talk about murder.” Defense counsel noted that the language in section 189 and section
664 is “similar, but it’s not exactly the same.” Defense counsel again voiced his staunch
disagreement with the court’s instruction before the jury was called back into the
courtroom.
       At 2:16 p.m., the court instructed the jury, “It is required for purposes of first
degree murder that the murder be willful, deliberate and premeditated, not that the

                                               12
murderer personally have acted with willfulness, deliberation and premeditation, even if
he is guilty as an aider and abettor.” The foreperson asked the court to repeat the
instruction again before they were excused and resumed deliberations. About 30 minutes
later, at 2:50 p.m., the jury reached a verdict. The jury found Munoz guilty of first degree
murder.
       On December 7, 2007, defense counsel filed a motion for new trial, contending in
part that the trial court, over defense counsel’s objection, erroneously adopted the
reasoning in Lee, supra, 31 Cal.4th 613 and instructed the jury that it is the premeditation
and deliberation of the actual shooter which is sufficient for Munoz’s conviction of first
degree murder. The court denied the motion, stating only that “[t]here was no error.”


       Aider and Abettor Culpability for First Degree Murder


       To determine whether Brownell’s performance was deficient, it is necessary to
consider the state of the law on aider and abettor culpability for first degree murder at the
time of Munoz’s direct appeal. The Attorney General and Munoz’s new counsel disagree
on the state of the law, in particular, the result of the California Supreme Court decision
in People v. McCoy (2001) 25 Cal.4th 1111 (McCoy).
       In McCoy, the California Supreme Court stated, “‘All persons concerned in the
commission of a crime, . . . whether they directly commit the act constituting the offense,
or aid and abet in its commission, . . . are principals in any crime so committed.’ (Pen.
Code, § 31; see People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123; People v.
Prettyman (1996) 14 Cal.4th 248, 259-260.) Thus, a person who aids and abets a crime is
guilty of that crime even if someone else committed some or all of the criminal acts.
(Ibid.) Because aiders and abettors may be criminally liable for acts not their own, cases
have described their liability as ‘vicarious.’ (E.g., People v. Croy (1985) 41 Cal.3d 1, 12,
fn. 5.) This description is accurate as far as it goes. But, as we explain, the aider and
abettor’s guilt for the intended crime is not entirely vicarious. Rather, that guilt is based

                                              13
on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and
own mental state.” (McCoy, supra, 25 Cal.4th at pp. 1116-1117.) “Aider and abettor
liability is . . . vicarious only in the sense that the aider and abettor is liable for another’s
actions as well as that person’s own actions.” (Id. at p. 1118.) In contrast, an aider and
abettor’s “mental state is [his or] her own; [the aider and abettor] is liable for [his or] her
mens rea, not the other person’s [i.e., the direct perpetrator’s mens rea].” (Ibid.) Because
the mens rea of a direct perpetrator and an aider and abettor floats free from the other’s
mens rea, the level of guilt of one also floats free from the other’s. (Id. at pp. 1118-
1119.) Accordingly, McCoy held: “If the mens rea of the aider and abettor is more
culpable than the actual perpetrator’s, the aider and abettor may be guilty of a more
serious crime than the actual perpetrator.” (Id. at p. 1120.)
       Under McCoy’s reasoning, the degree of culpability of an aider and abettor in a
murder prosecution is based on his or her own mental state, not that of the direct
perpetrator. McCoy supports the proposition that a jury must find that an aider and
abettor of a murder had the requisite mens rea of premeditation and deliberation in order
to be culpable for first degree murder. Here, the trial court’s instructions in response to
the jury’s request for clarification of the necessary mental state of an aider and abettor for
first degree murder runs counter to the reasoning in McCoy. The trial court’s responses
did not direct the jury to examine Munoz’s mens rea separately from that of the
perpetrator. The court’s instructions erroneously permitted Munoz to be convicted of
first degree murder without a determination that he acted with premeditation and
deliberation.
       The Attorney General contends that the narrow issue in McCoy was whether an
aider and abettor could be liable for a greater homicide-related offense than the actual
perpetrator, not whether aiders and abettors could be culpable for different degrees of
murder. Our Supreme Court understands McCoy to stand for a more expansive point:
“[A] defendant charged with murder or attempted murder can be held vicariously liable
for the actus reus of an accomplice, but, for murder, a defendant cannot be held

                                                14
vicariously liable for the mens rea of an accomplice. (McCoy, supra, 25 Cal.4th at p.
1118.)” (People v. Concha (2009) 47 Cal.4th 653, 665.) Leaving no doubt as to how the
court views its holding in McCoy, our Supreme Court also stated, “To satisfy the mens
rea element of murder, the defendant must personally act with malice aforethought.
(McCoy, supra, 25 Cal.4th at p. 1118.)” (People v. Concha, supra, at p. 660.) We are
satisfied that McCoy stands for more than the narrow proposition that an aider and abettor
may have different culpability than the perpetrator of a murder.
       We also disagree with the Attorney General’s argument that the holding in McCoy
was clouded by the California Supreme Court’s holding in Lee, supra, 31 Cal.4th at page
616, that section 664, subdivision (a), requires “only that the murder attempted was
willful, deliberate, and premeditated, but not to require that an attempted murderer
personally acted willfully and with deliberation and premeditation, even if he or she is
guilty as an aider and abettor.” The decision in Lee is clear that it applies to attempted
murder. Defense counsel at trial had no problem advocating that Lee’s analysis was
limited to attempted murder and it had no application to murder. Between trial counsel’s
objections to the court reliance on the reasoning in Lee, the motion for new trial based on
Lee, and the decision in McCoy, previous appellate counsel should have recognized that
the court’s instructions presented a strong appellate contention.
       After new counsel was appointed by this court, Brownell provided a letter
explaining why he did not argue this point on appeal. He stated that he read McCoy to
mean “that the mental state required of an aider and abettor . . . as described in
CALCRIM 401, is the only mental state necessary in order to convict an aider and abettor
of a specific intent crime, including deliberate and premeditated murder. I was not aware
of any case holding that, in order to convict, the jury must find that an aider and abettor
independently harbors the specific intent which is an element of the crime, in addition to
the mens rea required for aiding and abetting. For that reason, I did not feel that the
judge’s answers to the jury’s questions lowered the prosecution’s burden of proof as to
Mr. Munoz’s mental state.” As previously discussed, this is an incorrect reading of

                                             15
McCoy, which states that “the aider and abettor must know and share the murderous
intent of the actual perpetrator.” (Id. at p. 1118.) We conclude Munoz made a sufficient
showing that appellate counsel’s performance was deficient because his representation
fell below an objective standard of reasonableness under prevailing professional norms.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma, supra, 43
Cal.3d at pp. 217-218.)


       Prejudice


       We further conclude that Brownell rendered prejudicial ineffective assistance in
failing to challenge the trial court’s responding instruction to the jury’s inquiries on aider
and abettor culpability for first degree murder.
       Prejudice is shown when there is a “‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” [Citations.]’ [Citation.] The United States Supreme Court recently explained
that this second prong of the Strickland test is not solely one of outcome determination.
Instead, the question is ‘whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.’ (Lockhart v. Fretwell (1993)
506 U.S. 364, 372.)” (In re Harris (1993) 5 Cal.4th 813, 833.) Thus, an “inexcusable
failure of appellate counsel to raise crucial assignments of error that arguably could have
resulted in reversal deprived defendant of effective assistance of appellate counsel.”
(Ibid., citing In re Smith, supra, 3 Cal.3d at p. 202.)
       The trial court’s failure to adequately answer the jury’s inquiry “‘is subject to the
prejudice standard of People v. Watson [(1956)] 46 Cal.2d 818, 836,’ i.e., whether the
error resulted in a reasonable probability of a less favorable outcome. (People v. Roberts
(1992) 2 Cal.4th 271, 326.) In this context, ‘reasonable probability’ means ‘“merely a
reasonable chance, more than an abstract possibility,” of an effect of this kind.’ (People

                                              16
v. Blakeley (2000) 23 Cal.4th 82, 99.)” (People v. Eid (2010) 187 Cal.App.4th 859, 882.)
“A trial court’s failure to instruct on all elements of an offense is a constitutional error
‘subject to harmless error analysis under both the California and United States
Constitutions.’ (People v. Flood [(1998)] 18 Cal.4th [470,] 475.) Under the federal
Constitution, the standard is whether the instructional error was harmless beyond a
reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. (Flood, [supra,]
at p. 504.)” (Id. at p. 883.)
       The trial court’s erroneous instructional response to the jury’s inquiry on aider and
abettor liability for first degree murder was prejudicial under either the Chapman or
Watson standard. “A jury’s request for reinstruction or clarification should alert the trial
judge that the jury has focused on what it believes are the critical issues in the case.”
(People v. Thompkins (1987) 195 Cal.App.3d 244, 250 (Thompkins).) In Thompkins,
supra, at page 249, the jury notified the trial court that it was deadlocked and the court
inquired whether it could assist in any way. The jury foreperson suggested that the court
could clarify whether sudden heat of passion can nullify premeditation. (Id. at pp. 249-
250.) The court provided a very short answer which was legally deficient, and it directed
the jury to resume deliberations. (Id. at pp. 250-251.) The jury found the defendant
guilty. In reversing the defendant’s first degree murder and attempted murder
convictions, the Court of Appeal found the trial court’s response to the jury’s inquiry
prejudicial even though the prosecution argued there was strong evidence of
premeditation. (Id. at pp. 251-252.) The Thompkins court reasoned that the jury had
been deadlocked prior to the court’s statement, meaning that “at least one of the jurors
was not persuaded by the strength of the prosecution’s evidence.” (Ibid.)
       Here, the jury was clearly focusing on what was required to establish Munoz’s
guilt for premeditated and deliberate murder as an aider and abettor. The jurors sought
instructional clarification twice on whose mens rea they should be assessing in
determining whether the murder was premeditated and deliberate—the shooter’s as the
direct perpetrator, or Munoz’s as the aider and abettor. After receiving a response from

                                              17
the court instructing that the jury must evaluate the mental state of the direct perpetrator
and not the aider and abettor, the jury returned a verdict within 30 minutes. This scenario
is sufficient to show prejudice, as it is clear the jury was considering both first and second
degree murder, and chose the former only after receiving the court’s erroneous
clarification regarding the required mens rea. As the Thompkins court noted, “there is no
category of instructional error more prejudicial than when a trial judge makes mistakes in
responding to a jury’s inquiry during deliberations.” (Id. at pp. 252-253.) Additionally,
the jury also asked the court in the very same jury request whether “enhancements apply
for second degree murder,” which is further evidence that the jury was considering
second degree murder. Had the issue been raised on appeal, this court would likely have
found that the judge’s error was not harmless beyond a reasonable doubt. (See People v.
Nero (2010) 181 Cal.App.4th 504, 518-519 [finding prejudice where court erroneously
answered jury question about whether aider and abettor could be guilty of a lesser charge
than the shooter, because the jury’s questions made it clear it was considering whether to
impose a lesser degree or offense on the aider and abettor, and the court’s misinstruction
precluded that result].) As such, there is a reasonable probability that Munoz would have
achieved a different result if Brownell had raised the issue on appeal. (People v. Loza
(2012) 207 Cal.App.4th 332, 350-351 [finding prejudicial ineffective assistance of
counsel under “reasonable probability” standard where trial counsel did not object either
to trial court’s decision to instruct with CALCRIM No. 400 or the court’s response to the
jury’s questions, failing to clarify that the jury was required to consider the aider and
abettor’s own intent in returning a first degree murder verdict].)3




       3 We are required by Business and Professions Code section 6086.7 to report our
reversal of the judgment to the State Bar of California for investigation of the
appropriateness of initiating disciplinary action against defendant’s original appellate
counsel. (In re Sixto (1989) 48 Cal.3d 1247, 1265, fn. 3.)

                                             18
       Second Degree Murder


       “When a greater offense must be reversed, but a lesser included offense could be
affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a
reduction to the lesser offense. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 528.)
The jury implicitly found the requisite mens rea necessary for second degree murder.
The trial court instructed the jury on aiding and abetting liability, and also instructed on
the malice requirement of murder. To the extent the jury based its verdict as to Munoz on
his personal acts, it necessarily found malice. To the extent it based it on the shooter’s
act, finding that Munoz aided and abetted those acts, it necessarily found that Munoz
knew of the shooter’s unlawful purpose and intended to commit, encourage, or facilitate
that purpose. (McCoy, supra, 25 Cal.4th at pp. 1122-1123; see People v. Beeman (1984)
35 Cal.3d 547, 560.) “The only unlawful purpose charged here was an unlawful killing.
Absent some circumstances negating malice, one cannot knowingly and intentionally
help another commit an unlawful killing without acting with malice. (See generally
People v. Whitfield (1994) 7 Cal.4th 437, 450.)” (McCoy, supra, at p. 1123.) We
conclude the jury made an implicit finding that Munoz knowingly and intentionally
helped the shooter commit the crime, which constitutes malice. We therefore
conditionally reverse Munoz’s conviction for first degree murder. (See § 1260; People v.
Edwards (1985) 39 Cal.3d 107, 118 [“‘An appellate court is not restricted to the remedies
of affirming or reversing a judgment. Where the prejudicial error goes only to the degree
of the offense for which the defendant was convicted, the appellate court may reduce the
conviction to a lesser degree and affirm the judgment as modified, thereby obviating the
necessity for a retrial’”]; People v. Sanchez (2013) 221 Cal.App.4th 1012, 1028.)


Timeliness


       The Attorney General contends that Munoz’s petition for writ of habeas corpus is

                                              19
untimely and should be denied on that basis. We disagree and conclude that the
ineffective assistance of counsel on Munoz’s prior appeal constitutes an adequate
explanation for the delay.
       A defendant seeking habeas corpus relief must file a petition “without substantial
delay, or, if delayed, adequately explain the delay.” (In re Harris, supra, 5 Cal.4th at p.
828.) The California Supreme Court observed that “[t]he manifest need for time limits
on collateral attacks on criminal judgments . . . must be tempered with the knowledge that
mistakes in the criminal justice system are sometimes made . . . . A writ of ‘[h]abeas
corpus may thus provide an avenue of relief to those unjustly incarcerated when the
normal method of relief-i.e., direct appeal-is inadequate’ [citation] . . . .” (In re Sanders
(1999) 21 Cal.4th 697, 703-704.) In In re Clark (1993) 5 Cal.4th 750, which involved
successive habeas corpus petitions, the court stated that if “counsel failed to afford
adequate representation in a prior habeas corpus application, that failure may be offered
in explanation and justification of the need to file another petition.” (Id. at p. 780.) The
actions of prior counsel may constitute an adequate explanation for the delay in seeking
habeas corpus relief. (See In re Sanders, supra, at p. 720.)
       “[H]abeas corpus is preserved as an avenue of relief to those for whom the
standard appellate system failed to operate properly.” (In re Harris, supra, 5 Cal.4th at p.
828.) That is the case here: Due to the ineffective assistance of Brownell, the standard
appellate system failed to operate properly for Munoz. Munoz was unaware of this
failure and it only came to light when discovered by CAP after Munoz’s inquiry
regarding a California State Supreme Court decision decided only four months earlier.
We hold that this failure constitutes an adequate explanation for Munoz’s delay in filing
his petition for writ of habeas corpus. The petition therefore is timely.




                                              20
                                       DISPOSITION


       The petition for writ of habeas corpus is granted. Munoz’s conviction for first
degree murder is reversed with the following directions: If the People do not retry
Munoz for first degree murder solely on the aiding and abetting theory within 60 days
after the remittitur is filed or if the People file a written election not to retry Munoz, the
trial court shall proceed as if the remittitur modified the judgment to reflect a conviction
for second degree murder rather than for first degree murder and sentence Munoz
accordingly.




               KRIEGLER, J.


We concur:




               MOSK, Acting P. J.




               BAKER, J.




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