Filed 6/30/15
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


THE PEOPLE,
        Plaintiff and Respondent,                  A136120

v.                                                 (Mendocino County
MARVIN DOUGLAS JOHNSON, JR.,                       Super. Ct. No.
                                                   SCUKCRCR111825902)
        Defendant and Appellant.


THE PEOPLE,
                                                   A136124
        Plaintiff and Respondent,
v.                                                 (Mendocino County
                                                   Super. Ct. No.
SIMON THORNTON                                     SCUKCRCR1118259
        Defendant and Appellant.                   SCUKCRCR1015191)



                                    INTRODUCTION
        On July 20, 2011, a car sped into a campsite at Lake Mendocino at about 60 miles
an hour and skidded to a stop. Four men got out of the car: defendant Marvin Johnson,
defendant Simon Thornton, AJ Schnebly and William (Buck) Crocker. Within minutes,
Joe Litteral, who had been staying at the campsite, was shot to death and Brandon
Haggett, another visitor, was shot and seriously wounded. It was stipulated at trial that a
fingerprint lifted from the shotgun later collected in evidence belonged to Crocker, and it
was undisputed at trial that defendants Johnson and Thornton, who were tried jointly,
were not the shooters. Johnson and Thornton were tried on three counts: murder,
attempted murder, and attempted kidnapping. The murder charge was based on two



                                             1
theories: first degree felony murder in connection with attempted robbery or attempted
kidnapping, and second degree murder based on aiding and abetting another who acted
with malice aforethought. Johnson and Thornton were convicted of first degree murder
and attempted murder, and were acquitted of attempted kidnapping. On appeal,
defendants contend that (1) the trial court erred in instructing the jury pursuant to
CALCRIM No. 335 that they were accomplices as a matter of law; and (2) the court erred
in instructing the jury pursuant to CALCRIM No. 548 that the jury did not have to
unanimously agree on a theory of murder. Johnson separately contends that the court
erred in giving an instruction regarding voluntary intoxication pursuant to CALCRIM
No. 404. Thornton separately argues that he was denied effective assistance of counsel
and cumulative error compels reversal.
       We hold that the trial court erred in instructing the jury that the defendants were
accomplices as a matter of law, but that this error was harmless. We further hold that the
trial court erred in instructing the jury that it did not have to unanimously agree on a
theory of murder where, as here, one theory was first degree murder and the other theory
was second degree murder, and that this error was prejudicial. We therefore
conditionally reverse the first degree murder convictions and remand the case to permit
the district attorney to retry the cases or to accept a reduction of the murder convictions to
second degree murder. We find the remaining grounds for appeal are without merit.
                  FACTUAL AND PROCEDURAL BACKGROUND
       In July 2011, Johnson and his wife, Deborah Cano, were homeless and living on
the “outside” in a field in a tent in Mendocino County. They had a 12-year, troubled
relationship that Cano described as “ups and downs, abusive, controlling.” Johnson hit,
beat and threatened her on many occasions and was also verbally and emotionally
abusive. She was afraid of Johnson and many times tried to leave him. When she left he
would send people to find her or he would look for her himself. She could never get very
far away from him, and “[s]o I never really had any out, no way out.” They sometimes
lived in Nebraska where she had family, but would regularly return to California, where
they were frequently homeless.


                                              2
       According to Cano, Johnson was doing drugs and drinking and would be gone for
several days at a time. In July 2011, Cano decided to get away from him. Initially, she
went to AJ Schnebly‟s house. She didn‟t stay with Schnebly, however, because he was
Johnson‟s friend and that made her feel unsafe. She “took off walking” until she ran into
Joe Litteral, who was also homeless. She and Johnson had hung out with Litteral in the
past; he was an “acquaintance that became a friend.” According to Cano, Litteral and
Johnson had a good relationship.
       Litteral offered to take Cano to the Pine Cone Motel where he had a room. A lot
of people were in and out of the motel, and three or four people spent the night in
Litteral‟s room. Cano didn‟t leave the room because she didn‟t feel safe. After she
arrived, Johnson sent Schnebly and two other people to check on her.
       The next day Cano, still at the Pine Cone Motel, overheard Johnson and a friend of
Litteral‟s named Brandon Haggett on the phone. Johnson was yelling at Haggett and she
overheard Johnson saying, “I am going to kill you. I am going to come there and I am
going to kill you.” He said this two or three times.1
       Cano and the other people who were staying with her and Litteral at the Pine Cone
Motel decided to go to the Bu-Shay campground at Lake Mendocino. Cano estimated
that there were at least nine people at the campground, including two children. Brandon
Haggett and Joe Litteral were among this group.
       The day after they arrived, Johnson came up over the ridge “yelling and
screaming.” He sent two or three people into the campground ahead of him. Cano didn‟t
know them by name, but was familiar with them. Cano didn‟t speak with Johnson
directly. Instead, she went inside her tent. Johnson stayed at the campsite into the
evening hours eating, talking, smoking marijuana and drinking with, among others,
Litteral and Haggett.

       1
        Jennifer Wood testified that while she was visiting her friends at the Pine Cone
Motel, she met Deborah Cano, who she understood was breaking up with her husband.
On one occasion, she heard Johnson yell, “I am going to kick your ass, Joe. I want my
wife back.”


                                             3
       Toward the end of the evening, Johnson approached her. He said things like “I am
going to get you. I am going to get you back. I know I am going to get you, and you
better watch what you are doing. You better not have them do anything, and if I see you
doing anything, I‟m going to hurt somebody.” Cano testified that Johnson said “if he
seen me with Joe Litteral” in a romantic way “he was going to hurt us.” After Johnson
left, Litteral told her that she should stay in the tent with him because “we‟re not going to
let nobody scare us.”
       Johnson went to the campsite next to theirs, where six or seven other people were
staying. He stayed the night. The next morning he was back at Cano‟s campsite “talking
with all the guys.”
       On July 20, as it was becoming evening, a car pulled up “really quick” to the tent
where Cano was staying. The doors flew open. The first person Cano recognized was AJ
Schnebly, who had a pistol grip shotgun in his hands. Cano didn‟t see anything in
Johnson‟s hands. Schnebly racked the shotgun. Moments later, Cano saw Brandon
Haggett “fighting with a guy with a handgun.” This man (later identified as Crocker) was
wearing a bandana over his nose and mouth. Cano heard a gunshot and saw Haggett drop
to his knees.
       Litteral, who was about 55 feet away, ran toward Haggett. Cano saw the man with
the gun “shoot him, point blank.” She heard a second shot, and testified “I seen Joe
[Litteral] go down. . . . I screamed, and I started running over there . . . .” At that point,
Johnson ran toward her and grabbed at her. As he did so he yelled, “Get in the fucking
car, bitch.” She ran the other way towards Haggett and Litteral.
       Brandon Haggett, one of the shooting victims, testified about the days that led up
to the incident and the shooting itself. In July 2011, Haggett was staying at the Pine
Cone Motel with his friend Joe Litteral. Cano came to stay at the motel. Over the course
of Cano‟s first day at the motel, Haggett answered five or six calls from a man who
identified himself as Cano‟s husband. This man, who Haggett later learned was Johnson,
told Haggett, “I want her back,” “[b]etter bring my wife back. I am going to kill you. I
am going to find you.” Johnson was “very angry, very upset.” Haggett was under the


                                               4
impression that “he felt like we were keeping her against her will. So he was very upset
with us.” All of the conversations he had with Johnson contained threats of some kind,
including threats to kill.
       At several points, Cano spoke with Johnson on the phone. Haggett heard her
yelling at Johnson, and at one point she agreed to meet Johnson to see if they could work
things out.
       Haggett didn‟t take Johnson‟s threats seriously because “people threaten people all
the time when they are hurt. They never act on it.” But because the calls were creating
“a lot of strain” among the people at the motel, they decided to leave and go to a
campground at Lake Mendocino.
       A day after they arrived at the campground, Johnson showed up with three other
people. He was yelling at his wife, and she was yelling back at him. Haggett told him “if
you are looking for a fight, I am going to stop you right here because you are not bringing
this into the campground.” Johnson and his friends accepted Haggett‟s invitation to stay
to eat, drink beer and smoke marijuana.
       The next day, July 20, 2011, at around dinner time, a car came speeding into the
campground about 60 miles an hour. The car skidded about five feet before it stopped.
Four doors swung open, and four men came out. One had a shotgun and one had a .45.
Johnson came out of the right hand passenger side rear door. Haggett did not see who
came out of the driver‟s side.
       The man with the shotgun (Schnebly) stood by the car. The man with the .45
(later identified as Crocker) was moving toward the campground. He was running fast,
and wore a wig and a red bandana that covered his face. There were about 15 or 20
people at the campground. Crocker pointed the gun in the air and then moved it around
in a circle toward the people at the campground and yelled “[e]verybody down on the
ground.”2 At the same time, Johnson was yelling at Cano, “ „See what we can do? Get in
the car.‟ ”


       2
           Jennifer Wood testified that it was Johnson who shouted “get on the ground.”


                                              5
       Haggett told one of the women at the camp site to “ „[g]et the kids out of here.‟ ”
Haggett then “made a split decision to protect the girls and [Litteral‟s] life.” He ran up to
Crocker, grabbed Crocker‟s gun, put it to his own chest and told Crocker “to pull the
trigger a couple of times.” When Crocker didn‟t pull the trigger, Haggett started fighting
with him over the gun. In the struggle over the gun, Crocker dropped to the ground on
his back. Haggett was on top of him, and it felt like Crocker was losing his grip on the
handgun.
       At that point, Haggett felt three “severe blows” to the back of his head. It sounded
like metal hitting a rock. Haggett turned around to face the person who was hitting him.
He identified that person at trial as Thornton. As Haggett pulled back his fist to hit
Thornton, Haggett was shot point blank in the chest by Crocker.
       Haggett tried to get up and saw Litteral start fighting with Thornton. Crocker ran
toward the car and then “turn[ed] back around and start[ed] firing in Joe [Litteral]‟s
direction.” Haggett heard three shots.
       Litteral dropped to his knees, and Haggett heard him yelling, “ „Oh shit. I am
dead.‟ ” All the men ran toward the car. Johnson was by the car and yelled to Cano to
get into the car again.3 During the entire incident, Johnson stayed by the car. When the
men got in the car, Cano was over where Litteral had fallen and Johnson “made no
attempt to make sure he got Deborah to leave . . . .”
       Litteral bled to death from a gunshot wound that perforated his right lung. His
right arm was fractured by a blow with such significant force that there was a tremendous
amount of hemorrhage around the broken bone. The forensic pathologist believed the
bone was fractured by something round and wooden that could create this amount of
force and type of injury, such as a baseball bat or a bowling pin. Haggett was shot in the
left arm and is now unable to extend his fingers or move his wrist on that arm.




       3
         Jennifer Wood testified that she heard Johnson yell “[g]et in the fucking car,
bitch,” at Cano as he was leaving the scene.


                                              6
       Schnebly‟s nephew, Kenny Kumpula, testified that after the shooting, Thornton
told him that he had gone to Lake Mendocino with Schnebly and Crocker “[o]ver some
money and a woman[,]” and “to beat some people up[.]” Thornton also told Kumpula
that “people at the lake owed him money[.]”
Defendant Johnson’s Statements to Police
       Defendant Johnson gave several interviews to the police, substantial portions of
which were played for the jury. Johnson admitted he drove Schnebly, Crocker and
another person to and from the camp site where the shootings took place. He told the
police that he had told “AJ and those guys” that there was “weed and cash” at the
campground, and that while at “the creek” in Willits the morning of the shootings he
knew that they were “going out there to rob these mother fuckers[.]” Put another way,
Johnson told the police that he knew they were going out to the campsite to “handle some
shit[.]” “I thought they were going out there to argue and fight maybe and try to get their
money or whatever but not like that.” At another point he explained that everybody was
“out there for the money and the weed that‟s out there.” He also admitted that he saw
Schnebly‟s and Crocker‟s guns before they arrived at the campsite. Johnson told the
police that when he was driving the men to the campsite immediately before the
shootings, he “knew they were driving out there to go rob some people.” Johnson related
that the others told him “you‟re just going for the lady. We‟re getting all the money.”
       After he was arrested, Johnson took the police to the place in Potter Valley where
the guns had been dumped after the shootings. He told them a bat was there too, but no
bat was recovered.
Defendant Thornton’s Phone Calls from Jail
       Thornton made three recorded phone calls from jail. He was aware he was being
recorded, and spoke cryptically. In one call, Thornton spoke to “Justin,” and told him
that “there‟s some things out I need to get, make sure that are disposed of.” He told him
where to find the items in “P.V.” and explained that they were in a “lot of bush.”
Thornton said, “When you find the stuff— . . . [¶] —when you find what I need
disappearing, you‟ll know what to do.” (When Thornton testified at trial, he admitted he


                                             7
was talking about the guns used at the incident.) In another recorded phone call,
Thornton told his fiancé Tanya Thurman to tell Schnebly that “we got rid of” the thing
that Thornton “wanted to get from [Schnebly],” and told her to “[t]ell [Schnebly] all of
that, nothing to worry about unless somebody that was with us says something.”
Apparently referring to Kenny Kumpula (Schnebly‟s nephew and Thurman‟s friend, and
the person whose car was borrowed so the entourage could drive to the lake on the day of
the shootings), Thurman told Thornton that Kumpula “wants to know why he got lied to
by his uncle and you and that he doesn‟t care and that anyone who lies to him is dead to
him.” Thornton replied, “We did it to protect him because if he knew what was really
going on, it could be bad for him. And it wasn‟t planned to go the way it went.”
Kumpula was apparently in the room when Thornton made this comment, because
Thurman then replied, “He just walked out of the room because he was like shaking.” To
which Thornton responded, “Shut your fucking trap and listen. It‟s because we were
protecting him and the other thing is nothing went according to plan. . . . [¶] You need to
go find him and tell him he, he needs to fucking make sure to keep it under wraps.”
When Thurman replied that she didn‟t know if he would, because he was so angry,
Thornton replied, “It‟s my future.” In the third phone call, again to his fiancé, Thornton
asked her to tell Kumpula that a “good soldier” “follows orders.” Thornton told Thurman
to tell Kumpula that he “was looking at the bigger picture. I was looking at making our
life more comfortable. All of ours.” It‟s apparent from the recording that as Thornton
spoke Thurman was relaying his words to Kumpula.
Defendant Thornton’s Defense
       Thornton testified in his own defense that on July 20, the day of the incident, he
was at a “free meal place” in Willits when Schnebly, who was his friend‟s uncle, showed
up, followed by Johnson and Crocker. Thornton testified that “[w]hile we were eating,
some things were discussed, just random shoot the breeze kind of thing. Introductions to
each other, introduction to people that were with us. [¶] I know that [Schnebly, Crocker]
and I‟m not sure but possibly Johnson . . . stepped aside at one point and had a



                                             8
conversation on the side. I‟m not 100 percent sure though if [Johnson] did. And they
came back.”
       At that point, “somebody” said he needed “to make a trip” and Thornton was
asked to go along with them. Thornton wanted to join them: “[W]hy not. It‟s just a
joyride as far as I‟m concerned.” He also wanted Schnebly to like him.
       Schnebly called Kenny Kumpula to use his car, and soon the four men got into the
car and left town. Johnson drove. On the way, Crocker “wanted to stop by the place
where he was staying to grab a backpack. So we did that. . . . [H]e came out with a green
. . . Jansport backpack, it might have been a duffel bag.” Crocker put the backpack into
the trunk of the car. Thornton was under the impression from what the other people in
the car were saying that they were going to Ukiah.
       However, “at some point a detour was made. I don‟t know who decided it. It was
decided that we would detour and go out to Lake Mendocino. So as we‟re going out
there at one point we pull over, the backpack was taken out of the trunk and put on the
floorboard in front of [Schnebly] and we continued on our way.” They stopped at the
check-in booth at the campground and told the ranger that “we were just going to drop off
something real quick.”
       They drove into the campground and “[a]t that point all I remember . . . was
[Schnebly] leaned forward to his feet area where the backpack was. And he starts
unzipping. I see [Crocker] put on like a mask over his face. I see [Schnebly] start
assembling what looked like a shotgun. I didn‟t know for sure if it was a shotgun or a
rifle at first because I wasn‟t paying attention, I was kind of—I honestly was freaking
out. I was scared because all of a sudden there‟s a gun coming out of nowhere. Then I
also saw that [Crocker] had at one point he had like a black bag . . . and I saw him at
some point unzip that and there was a gun in there, there was some clips and
ammunition.”
       Thornton had just met Crocker that day, and had met Johnson once or twice
before, casually at the homeless shelter. He had only known Schnebly for about a week
and a half.


                                             9
       A lot of thoughts ran through Thornton‟s head, including the possibility that the
men were going to hurt him or Johnson. He did know “at one point when we were
heading toward Ukiah that we were detouring for that purpose [picking up Johnson‟s
wife] but I didn‟t know what the point of the guns were . . . . Why do you need guns to go
pick somebody up?‟ He did not “know if she wanted to go willingly or I was not
informed of that. I assumed that it was willingly.”
       They “proceeded to go up into the campground. At one point they stopped.
[Schnebly] opens the door to [the] passenger front seat and gets out with the shotgun
across his body. . . . As he‟s doing that, [Crocker] got out behind him . . . .” Defendant
Johnson “[j]ust sat in the driver seat driving, scared pretty much as much as I was from
the look of him.” Thornton testified that at some point, Johnson may have “stood up
outside the car,” but he went no further than that.
       “And so then all of a sudden I hear arguing, and I‟m still in the car, and I look over
from the car and I see [Crocker] arguing with . . . Brandon Haggett. And I hear arguing
and „shoot me, shoot me,‟ being yelled at him by Haggett towards [Crocker] and then
somebody else came up, who I didn‟t know it was at the time, with what it almost looked
like a baseball bat but I guess was a tree branch. . . . [A]nd he proceeded to try to whack
[Crocker] with it.” He thought Crocker was hit two or three times with the tree branch.
He then heard gunshots and saw Haggett fall to the ground and then Litteral fall.
       Thornton testified that all this time he was in the car, “freaking out.” He “didn‟t
expect guns to be showing up, you know, I didn‟t know what the hell we were doing. I
was just going along for a ride. If I would have known then I would have never got in
that car because people dying is not a cool thing.”
       Crocker and Schnebly got into the car, and they all left. There was an argument in
the car about where to go next. Johnson wanted to get out of the car and leave, as did
Thornton. Thornton didn‟t say anything. They went to Potter Valley to drop off the
guns, and then on to Ukiah. According to Thornton, Johnson said, “I had nothing to do
with this. I didn‟t have no reason to be involved in this. I didn‟t touch no gun, my hands
are clean. . . .” Johnson got out of the car. Schnebly and Crocker had an argument about


                                             10
who would drive the car, and Thornton volunteered to take it back to Willits. On the
way, Schnebly and Crocker threatened Thornton that if he said anything they would hurt
him and his fiancé, who was pregnant at the time.
       Thornton admitted that he made a telephone call to “Justin”—his mother‟s
boyfriend—from jail, and that his cryptic instruction to Justin was to retrieve the guns
from Potter Valley (referred to in the phone call as P.V.). Thornton tried to minimize the
phrase “make them disappear” as meaning only that he was afraid that Crocker and
Schnebly would go back for the weapons, and what he actually wanted was for Justin to
take the guns to the police. He admitted he told his fiancé in a phone call that he did it
“to make our lives more comfortable,” but testified that he wasn‟t referring to money.
       Thornton admitted that when he voluntarily spoke to the police in September
while being held in jail pending trial, he told them that possibly Johnson had a bat, since
Schnebly and Crocker had the only other weapons identified at the scene. At trial, he
denied saying that he believed Johnson swung the bat, and tried to explain the
inconsistency by stating that when he was told by police that there was a bat, he deduced
it must have been Johnson‟s. He never saw Johnson use a bat at the scene. If he had told
the police that Johnson had swung the bat and that he was afraid to talk about it because
he was afraid of Johnson, he had only done so under the influence of the medication he
was taking at the time of the interview in September. In fact, he was not afraid of
Johnson.
       Thornton admitted he had given conflicting statements about his understanding
about why they were going to the lake. At trial, he said he didn‟t know the intentions of
the other men in the car; when he spoke to the police in September, he said he thought
Johnson wanted to go to the lake to “pick up” his wife.
       Thornton denied carrying a baseball bat. He explained: “I didn‟t carry a bat
around. I carry . . . a six-foot tall galvanized steel pipe that I use for walking purposes
because I have back problems. I use it as basically a hiking stick and I actually found
that in the dumpster.” He admitted that three or four days before the shooting he had “a



                                              11
confrontation with somebody and used a wooden bat and it was broken in the process.”
He described this bat as a small Giants memorabilia bat.
       Thornton testified that although he had earlier told a police officer that he had
gotten out of the car at the campground, he was wrong. He attributed this to medication
he was taking at the time he spoke to the police in September. Similarly, although he had
earlier told Detective Whiteaker that he saw someone destroy the bat, and that there were
two bats in the car, he denied the truth of those two statements at trial, explaining again
that the medication he was taking at the time made it difficult for him to understand
Whiteaker‟s questions.
Defendant Johnson’s Defense
       Lorraine Strom, Cano‟s mother, testified that she never witnessed nor was told by
her daughter that Johnson was physically abusing her. According to Strom, her daughter
is a chronic liar, something Strom believed stemmed from the fact that in her first
marriage “she got hit in the head with a baseball bat” by her husband. Cano and Johnson
had verbal arguments, although nothing physical.
       Defendant Johnson testified in his own defense. He described his relationship
with Cano. Their main problem was with “her being unfaithful . . . . She was cheating on
me with my own friends . . . .” When he first met her, they were both using drugs. They
had frequent arguments, and although those arguments were verbally abusive, they were
not physical. He described Cano as “very jealous.”
       Towards the middle of July, Cano left him over an incident involving a woman.
Johnson went looking for Cano and learned she was with Joe Litteral and Brandon
Haggett and others at the Pine Cone Motel. He went to the motel to find out whether she
was planning to come back to him.
       Cano told him at the motel that she wasn‟t going with him. She accused him of
cheating on her. She wasn‟t crying; she was angry. Johnson went to the park and began
to drink; he was a little upset. He called the motel once to speak to Cano, and she told
him not to call her. He denied calling Cano more than that one time, and denied being
mad at her when he called.


                                             12
       The next time Johnson saw Cano was at Lake Mendocino. He went there to “talk
to my wife and maybe she was going to come back with me. I‟m not sure. I wasn‟t
going to make her.” At first, the conversation was “heated” but ultimately, the man to
whom he was speaking, Joe Litteral, invited him into the campsite. He was familiar with
Litteral from running into him in Willits. Litteral told Johnson that he thought Cano
needed some time away from him. Litteral said that Cano thought Johnson was cheating
on her.
       Johnson told Litteral it was fine; he was “kind of hurt but I wasn‟t going to bust a
grape over it.” He decided to continue trying to talk to Cano about it, so he stayed
overnight at the next campsite. He heard Cano crying in the tent she was sharing with
Litteral. He understood she was crying because she didn‟t want him to be there. He also
felt that she was trying to make people feel sorry for her. He didn‟t go to her tent to talk
to her that evening.
       At the end of the evening, someone asked Johnson if he could help them get some
marijuana. Johnson talked to someone at another campsite and made a deal with a man
named Brackett whereby Johnson would receive $100 for every pound that was bought.
At that point Johnson didn‟t know how big the deal would be; he anticipated he would be
paid by the people who bought the marijuana.
       The next morning, July 20, Johnson introduced Brackett to Litteral and a man
named River to set up the marijuana deal. Johnson then left the campground and went
back to Willits. He met Crocker and some other men “at the creek.” At some point
Schnebly showed up. The men were talking, “smoking some pot, drinking some whisky,
some beer.” After Schnebly said he was going to Lake Mendocino with some girls,
Johnson told him that “Well, okay if you guys go up there, ask them if a weed deal went
through because they owe me a couple hundred bucks.” When Schnebly asked him to
elaborate, Johnson told him there might be “weed and money” up there. Johnson
admitted he was “drinking so I kind of, you know, blabbed a lot to him;” he was “running




                                             13
[his] mouth, . . . [¶] . . . talking big talk.” Johnson bragged that he had set up a big
marijuana deal.4
          Schnebly left to get some food. Johnson and Crocker met up with him a little
while later and also had lunch together. Schnebly was with defendant Thornton and
Thornton‟s fiancé. Johnson had seen Thornton before but didn‟t know him. Johnson
“noticed [Crocker] and [Schnebly] talking but [he] wasn‟t up close enough to know what
they were saying.” Afterwards Schnebly told him that their ride out to the lake had
cancelled. He told Johnson he was going to borrow a car and asked Johnson if he had a
drivers license. Johnson said he didn‟t want to go back out to the lake. He had just been
there, and he wanted to stay in Willits. Schnebly said “we just want to go out and drink a
lot out there and talk to these people.”
          Johnson said he wasn‟t sure and left to get some food. At this point it was about
4:30 or 5:00 p.m. Johnson assumed that while he was gone Thornton and Schnebly
continued to talk about this plan. They approached him again and asked him to give
them a ride. His response was “[w]ell, I guess, I could try see if my wife‟s ready to go
home yet or not.” He explained that “[u]sually after a few days of being pissed [she]
comes straggling in . . . .” Johnson‟s intent then was to go up to Lake Mendocino to talk
to her.
          He realized in “bits and pieces” what Schnebly and Crocker intended to do at the
lake. When Johnson, Schnebly and Crocker went to Burger King where Schnebly‟s
nephew Kenny Kumpula5 had a car, he may have heard a conversation about robbing the
people at the campground, but he did not quite remember because he “had quite a bit to
drink that day.” He thought he probably heard “bits and pieces” of what was being said.
Because Johnson had a driver‟s license, Kenny loaned him the car. At that point, his


          4
        The “deal” Johnson was bragging about involved 10 pounds of marijuana at
about $700 a pound.
          5
         Kenny Kumpula was AJ Schnebly‟s nephew. Kumpula testified that he loaned
his car to a man who had a driver‟s license, who was with his uncle on the day of the
murder.


                                               14
intention was to give the three men a ride to the campsite. He knew they wanted “to do
something” but he “wasn‟t really sure what . . . they wanted to do. Little bits and pieces
were coming out but not all at once.” He described the men in the car as “talking
amongst themselves like back and forth mumbling and stuff like that, what was going to
be going on. But I mean, I had a little inkling of what was kind of going to go on, they
were going to handle something, but not for sure exactly what until we got there and
everything went bad.” Thornton was involved in this conversation “[b]ut not really as
much as [Crocker].”
       Johnson testified that he might have heard about a handgun before they went to
Crocker‟s trailer in Willits. Crocker got out of the car, went into his trailer and got back
in with a duffel bag. Johnson was “getting a little suspicious here and there off of some
things that were being said . . . .” Johnson attributed his inability to remember some of
the details of these events to being “a little bit drunk” that day.
       When Johnson was asked why he changed his mind and agreed to drive to the
campsite, he said he “was thinking on what they were going to be doing and my wife was
out there I didn‟t want her to get hurt or whatnot.” He changed his mind because of
“[t]heir actions, the way they were talking.” The “bits and pieces” he was hearing
included “talk about going out there and handling some business, coming up.” To him
“handling some business” meant “they want to go out there [and] take whatever they
were getting that I set them up with.” He admitted he understood that “they were going
to go out and take the stuff [he] had bragged to them about that might be up there.”6
       Even knowing this, Johnson agreed to drive the others because he “wanted to go
out and try to see if I could get my wife to leave with me. And I wasn‟t even sure if
that‟s what they were insinuating that they were going to do is do that. I just—I was
getting bad vibes on the way going to get the car they were stopping talking to a few

       6
         On cross-examination, Johnson again admitted that he “had a good . . . idea” that
Schnebly, Crocker and Thornton intended to rob the people at the campsite. He “didn‟t
quite know they were going to rip them off, until we . . . were actually heading out of
Willits. I mean, I had a little bit of idea. Wasn‟t 100 percent sure.”


                                              15
people on the way, and they kept on saying . . . we‟re going to be coming up on them.”
To Johnson, the phrase “coming up,” meant “[t]hey‟re going to come up with some
money and weed” when they went out to the camp site.
       Although they had stopped by Crocker‟s trailer for a duffel bag, Johnson did not
know until they were close to the lake that Crocker and Schnebly had weapons. He was
worried when they were talking about “robbing,” and Crocker came out with some bags.
       Johnson drove the car, Schnebly sat in the front passenger seat, Crocker sat behind
Schnebly, and Thornton sat behind Johnson. In the car “[n]othing straight up came out.
They were—they were just like saying that they‟re going to [go] . . . out there and talk.
Like I said, okay, I‟m going to try to get my wife. And that‟s pretty much all I was
gathering.” Again, Johnson blamed his faulty memory on being “a little bit drunk” that
day.
       Before they arrived at the campground, Johnson pulled off the road and stopped
the car. Thornton got out and took the duffel bag out of the trunk. He handed it to
Schnebly and then got back in the car. Schnebly unzipped the duffel bag and started
piecing together a shotgun sitting right next to Johnson in the front seat. Johnson asked
him what he was doing, but still continued driving. Johnson didn‟t get out of the car and
leave because he was “kind of freaked out . . . I don‟t mess with guns.” This was the first
time Johnson realized there was a shotgun inside the bag. At that point he knew “what
we‟re going to be doing,” but he didn‟t want any part of it.
       Johnson continued to drive through the guard gate to the campground. He told the
guard he was dropping off some supplies. A short way beyond that, he stopped the car
again. Crocker and Schnebly put on bandanas. Crocker also unzipped his bag and put a
magazine into his gun. Johnson saw people putting clips in guns and racking a round into
the shotgun.
       Crocker and Schnebly told him to drive up to the campsite. Johnson agreed but “I
was real hesitant on what I was wanting to do because I was just stunned.” He described
himself as being a little scared and a little anxious. But he knew “exactly [what] was



                                            16
going on at that point.” He knew they were going to use the guns and maybe commit a
robbery. And he kept driving them into the campground.
       Johnson didn‟t get out of the car and run, however, but instead took them to where
his wife was. He drove into the campground at a normal speed and turned the car off
when they arrived.
       Schnebly opened his door first, pulled out the shotgun, cocked it and said
“ „Everybody on the ground.‟ ” Crocker got out of his seat behind Schnebly and “with
his handgun out . . . he started pointing it at people as he was walking.” Crocker told
everyone to get on the ground as well.
       Johnson “got out of the car and . . . was standing with one leg in, one leg out, and
was holding the door . . . I was yelling „what the fuck? What the fuck?‟ ” He yelled out
to Cano, “get—get fucking over here and get in the fucking car.” It was his intention to
take Cano away as quickly as possible.
       At this point, Thornton was still in the car. He got out when “[Schnebly] asked
[him] to get out of the car and go help [Crocker] while [Crocker] was . . . getting
jumped . . . .” “Haggett was hitting [Crocker] in the face with his fist. And Joe [Litteral]
took off running with a log in his hand, going, „Ahh,‟ like that, going toward them and
then Joe started hitting [Crocker] and he hit him right across the bridge of his nose with a
stick. . . . [¶] And then [Schnebly] tells [Thornton] to get out of the car and go help
[Crocker]. So [Thornton] got out of the car with the baseball bat, went over there and he
starts swinging on Mr. Haggett and then Mr. Litteral got hit in the arm. . . . [¶] . . . That‟s
how the log got dropped . . . [Litteral] had the log in the arm that he was swinging with
and when he got hit in the arm the log fell.” Johnson recalled that the bat was a beat up
aluminum bat with a black piece on the handle.7


       7
         Johnson testified that Thornton was lying when he said he never touched a bat
that day. On the way back to town, Thornton said, “ „I cracked him a couple of times.‟ ”
Johnson recalled that the bat was in Kenny Kumpula‟s car when they began driving and
that Thornton had possession of it “[l]ike it was his weapon.” He also testified that
Haggett‟s testimony describing the fight with Crocker and Thornton was accurate.


                                              17
       In the meantime, Johnson was “yelling a lot of shit out. . . . everything went so
fast . . . .” His main concern was with his wife. He testified he did not leave the car and
get her, however. He knew she wouldn‟t go with him “especially after the gun got fired.”
The gun was fired after “[Litteral] hit [Crocker] in the face with the log and [Crocker]
went down and he was on his knee when he was pointing upward . . . .” Johnson heard
the gun go off two times. Haggett “was probably on one knee from getting hit with the
baseball bat.” Crocker got up and Johnson “heard the gun go off . . . as [Crocker] was
running away from them.” Johnson thought Crocker was going to fire the gun again, but
Schnebly told him to stop. Johnson restarted the car and drove off with Thornton,
Schnebly and Crocker.
       All the way back to Lake County, Crocker and Schnebly argued about where they
were going to hide out. Johnson took them to Potter Valley and told them where to put
the guns. Johnson thought Schnebly or Buck might “want to get rid of him.”
       Schnebly and Crocker put the guns in the bushes and Thornton threw the bat “deep
into the bushes on the driver‟s side of the car . . . .” Johnson was dropped off in Ukiah.
He told them “You guys are on your own. I‟m not hiding from nobody. I‟m going to
walk right down the street. I didn‟t do nothing.” He didn‟t go to the sheriff because he
was scared. He felt he had some responsibility for what happened because he drove the
others to the campsite.
       Johnson was arrested the next day. He testified that in his interviews with the
police he began by minimizing his involvement altogether because he was worried about
“snitching” and what would happen to him and his family. Ultimately, however, he
claimed he told the police the truth about what happened.
       Johnson testified he did not intend to aid Schnebly and Crocker in the robbery. He
stated that he “didn‟t want nothing of whatever they were doing. I didn‟t want no money,
I didn‟t want no weed. I was just wanting my wife. That it was it. . . . [¶] . . . I just
wanted my wife back safe. I didn‟t want her getting hurt.”




                                              18
       Johnson also testified that while he was in jail he had an altercation with Thornton
in which Thornton told him he was a “fucking snitch” and that he (Thornton) was going
to “fucking kill you.” This was not the first time Thornton had threatened him.
Prosecution Rebuttal Case
       Deputy Steven Adams testified in the prosecution‟s rebuttal case that he heard
Thornton yelling in the jail “You‟re a fucking snitch” and “I‟m going to kill you.” As
Thornton said this, he was pointing at Johnson‟s cell.
       In the prosecution‟s rebuttal case, the medical program manager at the county jail
testified that as of the date of Thornton‟s interview with the police in September 2011,
Thornton was not taking any medications.
Verdicts
       Defendants Johnson and Thornton were convicted of first degree murder (Pen.
Code, § 187, subd. (a))8 and attempted murder (§§ 187, subd. (a), 664). The jury also
found true the firearm use allegations as to both charges. (§ 12022, subd. (d).) The jury
found both defendants not guilty of attempted kidnapping. Thornton had been charged
with personally using a deadly and dangerous weapon (“to wit, bat”) as an enhancement
to each of the counts, pursuant to section 12022, subdivision (b)(1). These enhancements
were found not true.9 Johnson was sentenced to state prison for 25 years to life.
Thornton was sentenced to state prison for 25 years to life, plus nine years.
                                        DISCUSSION
A.     CALCRIM No. 335—Accomplices as a Matter of Law (Johnson and Thornton)
       Johnson and Thornton were charged with identical crimes. Each took the stand in
his own defense and denied culpability, and each gave testimony that incriminated the
other. Johnson proposed that the court instruct the jury pursuant to CALCRIM No. 335




       8
           All further undesignated statutory references are to the Penal Code.
       9
       Both defendants had been charged with attempted robbery (§§ 211, 664) but this
count was dismissed before trial pursuant to a section 995 motion.


                                              19
regarding accomplice testimony.10 Thornton did not object to the court giving this
instruction.
       The court read the CALCRIM No. 335 instruction on accomplice testimony,
modified to fit this case, as follows:
       “If any of the crimes charged in this case were committed then Simon Thornton
and Marvin Johnson were accomplices to that crime.
       “You may not convict a defendant on any crime charged based on the statement or
testimony of an accomplice alone. You may use the statement or testimony of an
accomplice to convict the defendant only if, one, . . . the accomplice‟s statement or
testimony is supported by other evidence that you believe; two, that supporting evidence
is independent of the accomplice‟s statement or testimony; and three, that supporting
evidence tends to connect the defendant to the commission of the crime.
       “Supporting evidence, however, may be slight. It does not need to be enough by
itself to prove the defendant is guilty of the charged crime, and it does not need to support
every fact about which the witness testified.
       “On the other hand, it is not enough if the supporting evidence merely shows that a
crime was committed or the circumstances of its commission.
       “The supporting evidence must tend to connect the defendant to the commission of
the crime. The evidence needed to support the statement or testimony of one accomplice
cannot be provided by the statement or testimony of another accomplice.
       “Any statement or testimony of an accomplice that tends to incriminate the
defendant should be viewed with caution. You may not, however, arbitrarily disregard it.
You should give that statement or testimony the weight you think it deserves after
examining it with care and caution and in light of all the other evidence.”



       10
         An accomplice is one who is “liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.” (§ 1111) The jury was never instructed on the meaning of this
term.


                                             20
       Thornton and Johnson now argue that the court erred in instructing the jury that
they were accomplices as a matter of law.11 They also argue that the trial court erred in
not clarifying that incriminating accomplice testimony is to be treated with suspicion, but
testimony that a defendant gives in his own defense is to be judged with the ordinary
rules for judging the credibility of witnesses.
       As a preliminary matter, we first consider the Attorney General‟s argument that
any error with regard to the accomplice jury instructions is forfeited because Johnson
proposed CALCRIM No. 335, and Thornton did not object to it. This argument is
without merit.
       Defendants may assert instructional error on appeal when it affects their
substantial rights. (§ 1259 [“appellate court may . . . review any instruction given,
refused or modified . . . if the substantial rights of the defendant were affected thereby”];
People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103, fn. 34 [permitting defendant to
raise instructional error in accomplice instructions where defendant did not object to
instruction at trial].) Further, our Supreme Court has written that “[t]he trial court‟s duty
to fully and correctly instruct the jury on the basic principles of law relevant to the issues
raised by the evidence in a criminal case is so important that it cannot be nullified by
defense counsel‟s negligent or mistaken failure to object to an erroneous instruction or
the failure to request an appropriate instruction. [Citation.]” (People v. Avalos (1984) 37
Cal.3d 216, 229.)
       The Attorney General also contends that because Johnson requested CALCRIM
No. 335 by number and defendant Thornton did not object, any error in giving this
instruction was invited. We disagree. “ „When a defense attorney makes a “conscious,
deliberate tactical choice” to [request or] forego a particular instruction, the invited error
doctrine bars an argument on appeal that the instruction was [given or] omitted in

       11
          In his opening brief on appeal, Johnson did not raise the issue of accomplice
jury instructions. After Thornton raised the issue in his opening brief, we granted
Johnson‟s request to file a supplemental opening brief where he raised this issue for the
first time.


                                              21
error.‟ ” (People v. McKinnon (2011) 52 Cal.4th 610, 675.) “The existence of some
conceivable tactical purpose will not support a finding that defense counsel „invited‟ an
error in instructions. The record must reflect that counsel had a deliberate tactical
purpose.” (People v. Avalos, supra, 37 Cal.3d at p. 229.) “Even where counsel has
suggested an erroneous instruction, the doctrine of invited error is not invoked unless
counsel articulated a tactical basis for the choice.” (People v. Wickersham (1982) 32
Cal.3d 307, 332, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th
186, 201.)
       The record does not reflect that either defense counsel ever expressed a tactical or
deliberate reason for proposing, or in the case of Thornton‟s counsel, not objecting to,
CALCRIM No. 335. The request from codefendant Johnson came in the form of a
numeric list of jury instructions, with CALCRIM No. 335 identified solely by number.
Thornton‟s counsel did not object. When the jury instructions were settled, there was no
discussion as to whether CALCRIM No. 335 or another instruction on accomplice
instructions (e.g., CALCRIM No. 334) was appropriate.12
       The Attorney General argues that when each defendant testified, each placed
blame on the other, and that this was the “obvious tactical reason[]” for requesting the
instruction. Johnson repeatedly linked Thornton to holding and using a baseball bat.
Thornton also sought to cast blame on Johnson by telling the police that Johnson had



       12
          The pertinent discussion between counsel and the court was as follows: The
trial court stated, “The jury has left the courtroom. I‟ve handed out another set of
instructions. And I know you have a manslaughter instruction I want to take up. But
before we do that I want to draw your attention to some changes that I‟ve made. . . . In
the [CALCRIM] 300 series starting with 301 I had to add some language that introduces
the subject of accomplice testimony. It‟s the second sentence.” Johnson‟s counsel said,
“That‟s fine.” The court then stated, “In [CALCRIM No.] 335 then, which is handwritten
page 20 at the right-hand side, that is the accomplice testimony instruction. Do you have
any objection?” Counsel for Johnson, counsel for Thornton, and the deputy district
attorney each said “no.” (The trial court was apparently referring to the handwritten page
number “20” on the typed set of jury instructions, which were eventually filed and
entitled “Jury Instructions Given to the Jury.”)


                                             22
swung the bat during the attempted robbery, and then later destroyed it. Further, the
Attorney General points out that Thornton‟s counsel argued in closing that the only
evidence that showed Thornton was guilty of the underlying robbery were “words that
Mr. Johnson spoke. That‟s it.” From this the Attorney General concludes that the “thrust
of appellant Thornton‟s case was essentially that the jury should view appellant
Johnson‟s statements with „care and caution.‟ ” This is insufficient to show the deliberate
choice necessary to find that defendants invited error by allowing the court to instruct the
jury with CALCRIM No. 335.
       Turning now to defendants‟ claim that the court erred in giving the accomplice as
a matter of law instruction, our task is to determine “ „whether there is a “reasonable
likelihood” that the jury misconstrued or misapplied the law in light of the instructions
given, the entire record of trial, and the arguments of counsel.‟ [Citation.]” (People v.
Fiu (2008) 165 Cal.App.4th 360, 370.) As we will explain, we conclude the trial court
did err in giving this instruction although we also conclude that this error was not
prejudicial.
       The law is clear that “[w]hether a person is an accomplice is a question of fact for
the jury unless the facts and the inferences to be drawn therefrom are undisputed.”
(People v. Coffman and Marlow, supra, 34 Cal.4th at p. 103; accord People v.
Whisenhunt (2008) 44 Cal.4th 174, 214.) The Bench Notes to CALCRIM No. 335 are in
accordance with this statement of the law and, in no uncertain terms, advise that a trial
court should: “Give this instruction only if the court concludes that the witness is an
accomplice as a matter of law or the parties agree about the witness‟s status as an
accomplice. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1161 [only give
instruction „ “if undisputed evidence established the complicity” ‟], disapproved on other
grounds in People v. Cook (2015) 60 Cal.4th 922, 939.) If there is a dispute about
whether the witness is an accomplice, give CALCRIM No. 334, Accomplice Testimony
Must be Corroborated: Dispute Whether Witness Is Accomplice.”
       Moreover, the CALCRIM No. 335 Bench Notes caution that “When the witness is
a codefendant whose testimony includes incriminating statements, the court should not


                                             23
instruct that the witness is an accomplice as a matter of law. (People v. Hill (1967) 66
Cal.2d 536, 555.) Instead the court should give CALCRIM No. 334, Accomplice
Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice, informing
the jury that it must decide whether the testifying codefendant is an accomplice. In
addition, the court should instruct that when the jury considers this testimony as it relates
to the testifying codefendant‟s defense, the jury should evaluate the testimony using the
general rules of credibility, but if the jury considers testimony as incriminating evidence
against the non-testifying codefendant, the testimony must be corroborated and should be
viewed with caution. (See People v. Coffman and Marlow[,supra,] 34 Cal.4th [at p.]
105.)” (Bolded emphasis in original.) The substance of this portion of the CALCRIM
No. 335 Bench Notes is repeated in the CALCRIM No. 334 Bench Notes.
       The Attorney General contends that the Bench Notes and the CALCRIM jury
instructions are not themselves legal authority. This is true, as far as it goes. (See
People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7 [“jury instructions, whether published
or not, are not themselves the law, and are not authority to establish legal propositions or
precedent. They should not be cited as authority for legal principles in appellate opinions.
At most, when they are accurate, . . . they restate the law”].)
       The Attorney General also contends the case authority cited in the CALCRIM No.
335 Bench Notes does not support the proposition that, when a witness is a codefendant
whose testimony includes incriminating statements, the court should not instruct that the
witness is an accomplice as a matter of law. The Attorney General is referring to People
v. Hill, supra, 66 Cal.2d 536.
       In People v. Hill, three codefendants were tried together, but only one (Madorid)
testified at trial. Madorid‟s testimony constituted a “judicial confession” as to him and,
“standing alone, implicated [the other codefendants] sufficiently to support their
convictions if properly presented to the jury.” (People v. Hill, supra, 66 Cal.2d at p.
555.) The trial court instructed the jury that “if it found the crimes charged to have been
committed, „and if you further find that defendant Madorid was an accomplice . . ., then
as against codefendants . . . his testimony must be corroborated.‟ ” (Ibid.) On appeal, the


                                             24
non-testifying defendants claimed that the trial judge erred in “instructing the jury in a
manner which permitted it to conclude that Madorid was not an accomplice, and thus
avoid the necessity of finding corroboration, when it appears, and the jury should have
been so advised, that Madorid was an accomplice as a matter of law” since he was
charged with the identical crimes and all of the evidence placed Madorid with the other
defendants at the commission of the crime. The Supreme Court rejected this argument,
holding that “where a codefendant has made a judicial confession as to crimes charged,
an instruction that as a matter of law such codefendant is an accomplice of other
defendants might well be construed by the jurors as imputing the confessing defendant‟s
foregone guilt to the other defendants.” (Ibid.) The Attorney General argues that People
v. Hill thus does not apply to this case because neither defendant here made a judicial
confession.13
       The facts of People v. Hill are different from the present case, as the testifying
codefendant in Hill confessed to the crimes, and the codefendants argued on appeal that
the trial court should have given the accomplice as a matter of law instruction. Here,
both defendants denied guilt, and they now argue that giving the accomplice as a matter
of law instruction was error. Nevertheless, the significance of Hill is the court‟s
recognition that that jurors “might well . . . construe[]” an accomplice as a matter of law
instruction in a way that could adversely affect a codefendant. By choosing not to
instruct the jury that the codefendants were accomplices as a matter of law, the trial court
“avoid[ed] imputations of the guilt of [codefendants] which might have flowed from the



       13
          The Attorney General also points to language in People v. Hill, supra, 66 Cal.2d
at page 556, that “[i]t is not error even to forego the giving of accomplice instructions
where the giving of them would unfairly prejudice a codefendant in the eyes of the jury,”
as further authority for Hill’s inapplicability to this case. However, this quoted language
is dictum and is not consonant with later cases which state unequivocally that “[w]e have
held that „[w]hen there is sufficient evidence that a witness is an accomplice, the trial
court is required on its own motion to instruct the jury on the principles governing the
law of accomplices,‟ including the need for corroboration.” (People v. Tobias (2001) 25
Cal.4th 327, 331.)


                                             25
court‟s direction that the confessing [codefendant] was their accomplice as a matter of
law.” (People v. Hill, supra, 66 Cal.2d at pp. 555-556.) While neither of the defendants
in the present case confessed, both were charged as aiders and abettors of crimes
perpetrated by other individuals. Since the evidence clearly showed crimes committed by
those other individuals, the instruction effectively imputed guilt to the defendants in a
similar manner to that cautioned against in Hill.
       As we have said, whether a person is an accomplice is ordinarily a question of fact
for the jury. Here, each defendant testified, and each denied that he was guilty of the
crimes charged. Put another way, there is no contention that undisputed evidence
established that defendants were accomplices. (People v. Coffman and Marlow, supra,
34 Cal.4th at p. 103.) It was thus error to describe either defendant as an “accomplice as
a matter of law.” (People v. Hill, supra, 66 Cal.2d at p. 556.) The evidence simply did
not support giving CALCRIM No. 335. The trial court should have used CALCRIM No.
334, which would have left to the jury the factual determination as to whether a witness
was an accomplice, and instructed at length as to how the jury was to make that
determination.14
       This error was not prejudicial, however, because it is not reasonably probable that
a properly instructed jury would have found either Johnson or Thornton was not an
accomplice. CALCRIM No. 334 instructs: “A person is an accomplice if he or she is



       14
           The term “accomplice” was not defined for the jury. Instead, the jury was only
told about the consequences of accomplice status on corroboration and credibility. Both
CALCRIM Nos. 334 and 335 are based on Penal Code section 1111, which defines
accomplice for purposes of that section as “one who is liable to prosecution for the
identical offense charged against the defendant on trial in the cause in which the
testimony of the accomplice is given.” CALCRIM No. 335 does not contain this
definition. By contrast, had the jury been instructed based on CALCRIM No. 334, the
jurors would have been given the definition of “accomplice” and taken through a set of
factors they would first need to consider in determining whether the defendant had met
his burden of proving that a witness was, in fact, more likely than not an accomplice.
(CALCRIM No. 334.) As instructed here, the jury was left to its own devices to
determine what accomplice meant.


                                             26
subject to prosecution for the identical crime charged against the defendant. Someone is
subject to prosecution if: [¶] 1. He or she personally committed the crime; [¶] OR [¶] 2.
He or she knew of the criminal purpose of the person who committed the crime; [¶] AND
[¶] 3. He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or
instigate the commission of the crime[;]/[or] participate in a criminal conspiracy to
commit the crime.” These requirements are essentially the same as those necessary to
find a person aided and abetted commission of a crime. (CALCRIM No. 401.)15
       Putting aside the testimony of either defendant against the other, there was
overwhelming evidence that both Johnson and Thornton were aware Schnebly and
Crocker intended to perpetrate an attempted robbery, and that defendants intended to and
did in fact facilitate the attempted robbery by driving them to the campsite (in Johnson‟s
case) and at the very least standing guard while the robbery occurred (in Johnson and
Thornton‟s case).
       Johnson admitted to the police that he told Schnebly there was “weed and cash” at
the campground, that on the morning of the shootings he knew they were “going out there
to rob these mother fuckers” and “handle some shit[,]” that while driving to the campsite
he knew the others intended to “rob some people” and that he saw Schnebly‟s and
Crocker‟s guns before they arrived at the campsite. Johnson testified that Schnebly
pieced the shotgun together while sitting next to him in the front seat. Johnson continued
driving and never attempted to part ways with the group. He told the guard at the
campground that they were there to drop off supplies and continued driving to the

       15
          CALCRIM No. 401 provides in pertinent part: “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 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.”


                                             27
campsite even after a stop during which Schnebly and Crocker put on bandanas, put a
clip in the gun and racked a round into the shotgun. Additionally, prior to the shootings,
while Cano was at the motel with Haggett and Litteral, Johnson had threatened to kill
Haggett.
       After the shootings, Thornton told Kumpula that he had gone to the campground
with Schnebly and Crocker “[o]ver some money and a woman[,]” and “to beat some
people up[,]” as well as that “people at the lake owed him money[.]” He told his fiancé
that he and Schnebly had lied to Kumpula about why they were borrowing his car: “We
did it to protect him because if he knew what was really going on, it could be bad for
him. And it wasn‟t planned to go the way it went.” Thornton told his fiancé to tell
Kumpula to “keep it under wraps[,]” that a “good soldier” “follows orders” and that
Thornton “was looking at the bigger picture. I was looking at making our life more
comfortable. All of ours.” He told his mother‟s boyfriend that the guns needed to be
disposed of and where to find them. And Haggett identified Thornton as the person who
had attacked him.
       In light of this evidence, the defendants‟ testimony that they did not intend to
facilitate the robbery was simply not credible. Apart from the dissonance between the
claimed lack of intent and the obvious inferences arising from the above evidence,
Thornton‟s testimony was replete with inconsistencies, and his attempt to explain away
certain of his statements to the police as products of the medication he was taking at the
time was contradicted by the county jail medical program manager‟s testimony that
Thornton was not taking any medication at the time of the police interview. Johnson‟s
argument that the evidence of the “state of his intoxication” made his version of events
more credible is meritless. As we discuss more fully in section C, post, there was no
evidence that Johnson‟s ingestion of alcohol and drugs on the day of the murder affected
his ability to understand that Crocker intended to commit robbery or kidnapping or his
ability to form an intent to aid and abet Crocker in committing the intended offenses.
Johnson made no claim that his intoxication rose to that level; he only blamed his alleged



                                             28
inability to clearly recall at trial certain conversations that occurred the day of the murder
on the fact that he was “just a little bit drunk, little bit” or “buzzed.”
       In sum, we find no reasonable probability that the jury would have found the
defendants were not accomplices if it had been instructed pursuant to CALCRIM No. 334
rather than CALCRIM No. 335. (People v. Watson (1956) 46 Cal.2d 818, 836; People v.
Wilkins (2013) 56 Cal.4th 333, 351.) Once the factual question was resolved against the
defendants, CALCRIM No. 334 would have directed the jury to analyze the defendants‟
testimony in exactly the same manner as did CALCRIM No. 335.
       Defendants argue that CALCRIM No. 335 undermined their defenses by directing
the jury to view their testimony with caution, and as requiring independent corroboration,
without clarifying that this applied only to incriminating testimony given by each
defendant against the other and not to exculpatory testimony by either defendant in
support of his own defense. They rely on People v. Coffman and Marlow, supra, to claim
the trial court erred in failing to explicitly instruct that the jury should apply the normal
rules relating to witness credibility in analyzing testimony supporting the testifying
defendant. But that case does not so hold. In Coffman and Marlow, the jury was
instructed on accomplice testimony given by codefendants, with the trial court drawing a
distinction between types of testimony:
       “ „You are to apply the general rules of credibility when weighing [defendant]
Coffman‟s testimony in her own defense. [¶] But if you find her to be an accomplice,
then in weighing her testimony against [defendant] Marlow you ought to view it with
distrust. [¶] This does not mean that you may arbitrarily disregard such testimony.
[¶] But give to it the weight to which you find it to be entitled after examining it with care
and caution and in the light of all the evidence in the case.‟ ” (People v. Coffman and
Marlow, supra, 34 Cal.4th at p. 104.) The trial court then repeated the same instruction,
substituting the name of the other testifying defendant. (Ibid.)
       On appeal, the defendants in Coffman and Marlow challenged the distinction the
trial court had drawn between “defensive and offensive testimony,” and contended that
the instruction was virtually impossible for the jurors to follow in that it required them to


                                               29
“perform the „impossible mental gymnastic‟ of simultaneously distrusting (when offered
against [defendant] Marlow) and not distrusting (when offered on her own behalf.)”
(People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 103-104.) The Supreme Court
in Coffman and Marlow disagreed. “Because the evidence abundantly supported an
inference that each defendant acted as an accomplice to the other, and because each
testified and, to some extent, sought to blame the other for the offenses, the court was
required to instruct the jury that an accomplice-defendant‟s testimony should be viewed
with distrust to the extent it tended to incriminate the codefendant.” The Supreme Court
found that there was “no reason to believe this relatively straightforward task was beyond
the jury‟s capabilities,” and that it did not undermine the presumption of innocence or
due process. (Id. at pp. 104-105.)
       Although the Supreme Court approved the instruction that was given in Coffman
and Marlow, which explicitly addressed how the jury should treat an accomplice‟s
testimony in his or her own behalf, it did not require this instruction. In fact, the court
referred to People v. Guiuan (1998) 18 Cal.4th 558, 569, in which it had directed that the
standard accomplice testimony instruction should refer only to testimony “that tends to
incriminate the defendant” and instruct the jury to view an accomplice‟s testimony with
“caution” rather than with “distrust.” (People v. Coffman and Marlow, supra, 34 Cal.4th
at pp. 104-105.) In Guiuan, the court explained that “[t]he word „caution,‟ connoting
„care and watchfulness,‟ signals the need for the jury to pay special heed to incriminating
testimony because it may be biased, but avoids the suggestion that all of the accomplice‟s
testimony, including favorable testimony, is untrustworthy.” (People v. Guiuan, supra,
18 Cal.4th at p. 569, fn. 4.) Because the accomplice testimony instructions expressly
single out “incriminating” testimony to be viewed with care and caution, they do not
suggest the jury must apply this standard to all testimony given by an accomplice.
       We discern a potential for prejudice of the nature defendants suggest only if
testimony by one of the defendants was at once incriminating as to the other defendant
(and so to be viewed with caution and as requiring corroboration) and self-exculpatory
(and so to be viewed according to the usual standards). This might have been true of the


                                              30
testimony regarding the assault with the bat, which Johnson attributed to Thornton and
Thornton attributed to Johnson. Since each blamed the other, and only one such assault
occurred, the same testimony that tended to incriminate the other defendant also tended to
exonerate the testifying defendant. But, since the jury found the charges related to use of
the bat as a weapon not true, neither defendant was prejudiced in this regard. The
essence of each defendant‟s defense was that he did not intend to facilitate an attempted
robbery or kidnapping, Johnson because he had independent motives for going to the
campground and Thornton because he was unaware of the direct perpetrators‟ intent. As
there was nothing in either defendant‟s defense of “I did not intend to do this” that could
be viewed as incriminating the other defendant, nothing in CALCRIM No. 335 directed
the jury to view this testimony under anything other than the usual rules for evaluating a
witness‟s credibility.
       Nothing in the record suggests that the jury in the case before us would have
understood CALCRIM No. 335 to direct that they could not apply the usual rules of
credibility as to each defendant. That special scrutiny was to be applied only to
testimony one defendant gave against the other and was further directed by CALCRIM
No. 301, which instructed the jurors that a single witness‟s testimony was sufficient to
establish any fact except that neither defendant could be convicted solely on the
testimony of the other.16 “Jurors are presumed able to understand and correlate
instructions and are further presumed to have followed the court‟s instructions.” (People
v. Sanchez (2001) 26 Cal.4th 834, 852.)
       Defendants also contend that CALCRIM No. 335 amounted to an unconstitutional
mandatory presumption that they aided and abetted the charged offenses—that is, that



       16
         As we have noted, the jurors were also instructed pursuant to CALCRIM No.
301, as modified by the trial court, that “When considering the evidence as to each . . .
defendant individually, the testimony of only one witness can prove any fact. Before you
conclude that the testimony of one witness proves a fact, you should carefully review all
the evidence. [¶] There is one exception to this rule. Neither defendant can be convicted
based solely on the testimony of the other defendant.”


                                            31
they were guilty as charged. As we have said, since CALCRIM No. 335, unlike
CALCRIM No. 334, does not define the term “accomplice,” and no other instruction
defined it, the jury was left on its own to determine the meaning of this term. The jury
was given the standard instruction that “words and phrases not specifically defined in
these instructions are to be applied using their ordinary and everyday meanings”
(CALCRIM No. 200), and ordinary dictionaries essentially treat “accomplice” and
“abettor” as synonyms.17 According to defendants, the jurors would have understood
CALCRIM No. 335‟s statement that if a crime was committed, the defendants were
accomplices as a matter of law, as establishing that the defendants were aiders and
abettors.
       We disagree. A similar argument was made and rejected in People v. Hardy
(1992) 2 Cal.4th 86, 151-152. There, the jury was instructed that a number of witnesses
were accomplices as a matter of law to the extent that crimes alleged in an information—
including murder—were committed. The defendants in Hardy argued the witnesses were
clearly accomplices and, therefore, the jury was improperly allowed to conclude that a
conspiracy did, in fact, exist. The court disagreed, holding that “no reasonable juror
would have so interpreted the instruction in light of the other instructions,” including an
instruction that the jury was required to determine as to each defendant individually
whether he was a member of a conspiracy. (Id. at p. 151.)
       The same is true here. The jury was instructed on guilt as an aider and abettor and
the elements of aiding and abetting. The jury was instructed that it had to consider the
evidence separately as to each defendant, and “decide whether the defendants on trial
here committed the crimes charged.” The jury was told that each count was a separate

       17
          American Heritage Dictionary of the English Language defines “accomplice” as
“[a]n associate in wrongdoing, especially one who aids or abets another in a criminal act,
either as a principal or an accessory.” (American Heritage Dict. of the English Language
(4th ed.) p. 11, emphasis added.) Dictionary.com defines “accomplice” as “a person who
knowingly helps another in a crime or wrongdoing, often as a subordinate.”
(http://dictionary.reference.com.) Thesaurus.com includes “aide” “abettor” and “co-
conspirator” as synonyms for “accomplice.” (http://www.thesaurus.com.)


                                             32
crime, and each was to be considered separately. Finally, the jury was repeatedly
instructed on the burden of proof beyond a reasonable doubt, and told that the defendants
were presumed innocent. The burden of proof was repeated in closing arguments by the
prosecution and by defense counsel, and the prosecution referred to the presumption of
innocence. If the jurors had understood CALCRIM No. 335 as stating that the defendants
were aiders and abettors as a matter of law, all these instructions and arguments would
have appeared to be irrelevant. Indeed, the entire trial would have appeared to be
irrelevant, since aiding and abetting was the only theory of guilt. The term “accomplice”
appeared solely in the instruction informing the jury how to view testimony given by “an
accomplice” against “the defendant.” A reasonable juror would have understood
CALCRIM No. 335 as directing that neither defendant could be convicted solely upon
the testimony of his codefendant without independent supporting evidence, and that the
testimony of each defendant against the other should be viewed with “care and
caution”—not that the entire trial was without purpose because the court‟s instruction on
how to view an accomplice‟s testimony was really a direction to find the defendants
guilty of aiding and abetting the charged offenses. “We credit jurors with intelligence
and common sense [citation] and do not assume that these virtues will abandon them
when presented with a court‟s instructions. [Citations.]” (People v. Coddington (2000)
23 Cal.4th 529, 594, overruled on other grounds in Price v. Superior Court (2001) 25
Cal.4th 1046.) “[N]o reasonable juror would have interpreted [CALCRIM No. 335] in
the manner now argued by defendants.” (People v. Hardy, supra, 2 Cal.4th at p. 151.)
B.    CALCRIM No. 548 (Johnson and Thornton)
      The trial court instructed the jury that “[t]he defendants have been prosecuted for
murder under two theories: (1) aiding and abetting another who acted with malice
aforethought; and (2) felony murder. [¶] Each theory of murder has different
requirements, and I will instruct you on both. [¶] You may not find a defendant guilty of
murder unless all of you agree that the People have proved that the defendant committed
murder under at least one of these theories. You do not all need to agree on the same
theory.” This jury instruction was based on CALCRIM No. 548.


                                            33
       Defendants argue that the court erred in giving this instruction. They contend that
when the jurors were told that they need not “all agree on the same theory” they were
misled into thinking that they need not all agree on whether defendants were guilty of
first or second degree murder in reaching a verdict of murder, which is contrary to law.
       In making this argument, defendants rely on People v. Sanchez (2013) 221
Cal.App.4th 1012 (Sanchez). In Sanchez, the victim was shot and killed in a dispute over
drugs and money. Sanchez was not alleged to be the perpetrator. Instead, he was
charged with murder on two distinct theories of aiding and abetting. One scenario was
first degree felony murder, if he aided and abetted a kidnapping that resulted in the death
of the victim. The other scenario was second degree murder, if the murder was the
natural and probable consequence of an assault or kidnapping. (Id. at p. 1014.) At the
request of the prosecution, the jury was instructed on these two theories of murder.
During jury deliberation, the jurors asked a question about the definition of second degree
murder. In part of its response to the question, the jurors were instructed pursuant to
CALCRIM No. 548: “ „You may not find the defendant guilty of murder unless all of
you agree that the People have proved that the defendant committed murder under at least
one of these theories. You do not all need to agree on the same theory.‟ ” (Id. at p. 1019,
italics omitted.)
       In Sanchez, the majority held that because the prosecutor put forward theories that
supported both degrees of murder, an instruction that the jurors did “not all need to agree
on the same theory” was error because it misled the jury into thinking it need not reach a
unanimous conclusion as to the degree of murder for which the defendant was liable.
(Sanchez, supra, 221 Cal.App.4th at 1019.) The Sanchez court wrote: “Defendant
contends the trial court‟s instruction expressly negating the need for juror unanimity as to
the guilt was error. Defendant reasons the prosecution‟s two theories of murder
supported different degrees of murder, and juror unanimity was therefore required as to
the theory of guilt. If the jury followed the instruction, defendant argues that all the
jurors may have agreed defendant committed murder, but it cannot be determined
whether the jurors unanimously agreed defendant committed first degree murder. This is


                                             34
correct.” (Ibid.) “The final instruction the jury received on unanimity was that it need
not agree on the theory of guilt, even though presented with alternate theories of liability
which led to different results as to the degree of murder. Unanimity was required in this
case as to the theory of guilt as a result of different theories supporting different degrees
of murder.” (Id. at p. 1025.)18
       In reaching its conclusion that there was prejudicial error, the court in Sanchez
considered all of the pertinent instructions that the trial court had given. These included
the trial court‟s instruction after closing arguments “with respect to the deliberations and
the verdict forms” pursuant to CALCRIM No. 640. (Sanchez, supra, 221 Cal.App.4th at
p. 1022 and fn. 9.) The Sanchez jury was told specifically that “ „[a]s with all of the
charges in this case, to return a verdict of guilty or not guilty on a count, you must all
agree on that decision.‟ ” (Id. at p. 1022, fn. 9.)
       Where a defendant is charged with first degree murder, the jurors are not required
to agree on “one or more of several theories proposed by the prosecution; it is sufficient
that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first
degree murder as that offense is defined by statute.” (People v. Milan (1973) 9 Cal.3d
185, 195.) However, the law is also clear that the jury must unanimously determine
whether murder is in the first or second degree. (People v. Jones (2014) 230 Cal.App.4th
373, 376.) Section 1157 states in part that “[w]henever a defendant is convicted of a
crime . . . which is distinguished into degrees, the jury, or the court if a jury trial is
waived, must find the degree of the crime . . . of which he is guilty.”
       The Attorney General does not dispute these general legal propositions, or that the
jury was presented with one theory of first degree murder, namely, first degree felony




       18
         The Bench Notes to CALCRIM No. 548 were revised in August 2014. They
now cite Sanchez, supra, 221 Cal.App.4th at page 1025, and state that the court “may
need to modify the final sentence of this instruction [i.e., „You do not all need to agree on
the same theory‟] if the prosecution relies on mutually exclusive theories of homicide that
support different degrees of murder.”


                                               35
murder, and one theory of second degree murder, namely, malice murder.19 Instead, the
Attorney General contends that this case is distinguishable from Sanchez20 because in the
circumstances of this particular case it is not reasonably likely the jury misunderstood the
trial court‟s instructions.21 We disagree.


       19
          Before the trial court settled the jury instructions, the prosecutor told the trial
judge, “I am not seeking first degree murder based on premeditation and deliberation.
That‟s why I didn‟t submit that [jury instruction]. Just on a felony murder theory.” The
prosecutor also said that “there could be second degree murder in there.”
       20
             We requested and received additional briefing on the applicability of Sanchez to
this case.
       21
          The jury instructions pertinent to this claim of error are as follows: The jury was
instructed, pursuant to CALCRIM No. 500, that “Homicide is the killing of one human
being by another. Murder is a type of homicide. The defendants are charged with
murder. I will instruct you on the different types of murder.” The trial court then gave
the jury the instruction at issue—CALCRIM No. 548—informing them that they did not
need to agree on the theory of murder.
       The jury was then instructed on second degree murder, based on CALCRIM No.
520. This instruction began, “The defendants are charged in Count One with murder.” It
then explained the elements of murder, and the two kinds of malice aforethought
(express malice and implied malice). This instruction explained the elements of implied
malice, and introduced the concept of “the natural and probable consequence[] of [an] act
[being] dangerous to human life.” It concluded, “If you find the defendant guilty of
murder, it is murder of the second degree.”
        The jury was next instructed on felony murder. That instruction began, “The
defendants are charged in Count One with murder. One theory the prosecution is relying
on is felony murder.” Aiding and abetting attempted kidnapping or attempted robbery
were identified as the underlying felonies.
       The jury was also instructed on the general principles of aiding and abetting a
crime, based on CALCRIM No. 400, and the elements of proving guilt based on aiding
and abetting an intended crime, based on CALCRIM No. 401.
       The jury was instructed more fully on the natural and probable consequences
doctrine, based on CALCRIM No. 402. This doctrine was described as another “theory”
by which defendants could be guilty of murder or attempted murder. “[A]ttempted
kidnapping [and] attempted robbery” were identified as the target offenses. The jury was
instructed in part that a person “who is guilty of one crime may also be guilty of other
crimes that were committed at the same time. [¶] Before you decide whether the
defendant is guilty of murder or attempted murder under this theory, you must decide

                                               36
       The Attorney General first attempts to distinguish Sanchez on the ground that the
jury in Sanchez was presented with a single theory upon which to base a first degree
murder verdict, but here the jury could have found first degree felony murder based on
attempted kidnapping or attempted murder. The Attorney General argues that because
there were, in fact, two bases for felony murder, instructing the jury with CALCRIM No.
548 that it need not agree on which one of the two is applicable made giving this
instruction appropriate. Whether there were one or two theories of felony murder is a
distinction without a difference. The flaw in giving CALCRIM No. 548 was that it
suggested to the jury that it need not agree on the degree of murder. The fact that the jury
was not in fact required to agree on a theory of first degree felony murder is irrelevant.
       The Attorney General also argues that because the prosecutor did not “mention”
second degree murder as an “option” in his closing argument, CALCRIM No. 548 was
not problematic, since it was inapplicable to the jury‟s deliberations. We do not find this
argument persuasive. The jury was given a verdict form for second degree murder and it
was instructed on the law as it pertained to second degree murder. The prosecutor told
the jury in closing argument that murder starts out as second degree murder and discussed
implied malice, which pertains to second degree murder and not to felony murder. The
instruction, therefore, was relevant to the jury‟s deliberations.




whether the defendant is guilty of attempted robbery or attempted kidnapping.” The jury
was instructed that “[t]o decide whether the crime of murder or attempted murder was
committed, refer to those instructions I‟ve given you on those crimes.” The jury was also
instructed on the elements of attempted kidnapping and attempted robbery.
       The jury was also instructed generally about the need to reach a unanimous
verdict. Because this case involved two defendants, the jury was instructed in the
introductory instructions, based on CALCRIM No. 203, that they were to consider and
decide each charge for each defendant separately, and to “return their verdict on any
defendant or charge on which you have unanimously agreed.” After closing arguments
and before the jury was excused to deliberate, the trial court instructed the jury, based on
CALCRIM No. 3550 that “[y]our verdict on each count and any special findings must be
unanimous.”


                                              37
       The Attorney General points out that the version of CALCRIM No. 520 given to
the jury in this case (see fn. 22, post) differed from the version before the Sanchez jury.
(Sanchez, supra, 221 Cal.App.4th at pp. 1023-1024.) Here, the jury was told that “If you
find the defendant guilty of murder, it is murder of the second degree.”22 The Attorney
General sees this instruction as having expressly advised the jury that if it found
appellants committed murder, it had to find second degree murder unless the prosecution
proved first degree murder. But even assuming the jury shared this understanding, it is
difficult to see how this instruction cured the error in giving CALCRIM No. 548, which
essentially told the jury it need not reach a unanimous decision as to the degree of
murder. The Attorney General also attempts to distinguish Sanchez because the jury
there inquired about the definition of second degree murder, indicating that they were
confused on the issue. However, the Attorney General cites no requirement that a jury
inquiry need be made before a jury instruction can be found to have been given in error.
Finally, the Attorney General notes that in Sanchez the trial court made an additional
error not present here by misinstructing the jury on malice. The additional error in
Sanchez does not take away from the fact that CALCRIM No. 548 was an erroneous
statement of the law as applied to that case and to the present case.23
       We now turn to the question of remedy. In Sanchez, the court set forth the
applicable standard: “ „When the jury is “misinstructed on an element of the offense . . .
reversal . . . is required unless we are able to conclude that the error was harmless beyond
a reasonable doubt.” [Citations.]‟ [Citation.] Our Supreme Court has explained that
instructional error is harmless beyond a reasonable doubt in situations in which both



       22
          The corresponding portion of CALCRIM No. 520 as given in Sanchez stated,
“ „If you decide that the defendant committed murder, you must then decide whether it is
murder of the first or second degree.‟ ” (Sanchez, supra, 221 Cal.App.4th at p. 1024.)
       23
         The additional instructional error in Sanchez was in defendant‟s favor, since it
“overstated the prosecution‟s burden under the natural and probable consequences
doctrine,” by requiring the defendant himself, rather than the actual killer, to have
harbored malice. (Sanchez, supra, 221 Cal.App.4th at p. 1026.)


                                             38
proper and improper theories of guilt are presented to the jury, if other aspects of the
verdict or the evidence leave no reasonable doubt that the jury made the finding
necessary for malice. (People v. Chun (2009) 45 Cal.4th 1172, 1204-1205 [(Chun)].)”
(Sanchez, supra, 221 Cal.App.4th at pp. 1026-1027.)
       The Sanchez court found that there were no “ „other aspects of the verdict or the
evidence‟ ” in that case to “indicate the jurors unanimously found defendant committed
first degree felony murder.” (Sanchez, supra, 221 Cal.App.4th at p. 1027.) It concluded
that “[t]he instruction advising the jury that unanimity was not required as to the theory
of guilt was therefore prejudicial error as to the finding of first degree murder.” (Ibid.)
However, because the error affected only the degree of murder, it held that the “proper
remedy is to reverse the conviction of first degree murder and remand the cause to the
trial court with directions to allow the prosecution to either retry the case or accept a
reduction of the offense to second degree murder.” (Ibid.)
       The parties argue this remedy should not be employed here, the Attorney General
maintaining that any error was harmless and the defendants arguing that their first degree
murder convictions should simply be reversed. We find the Sanchez remedy entirely
appropriate.
       First, as there are “no „other aspects of the verdict or the evidence‟ in this case to
indicate the jurors unanimously found [Johnson and Thornton each] committed first
degree felony murder[,]” the error was prejudicial as to the finding of first degree murder.
(Sanchez, supra, 221 Cal.App.4th at p. 1027.)
       Second, as in Sanchez, this error only affected the question of degree of the
murder. The Sanchez analysis as to the appropriateness of a conditional reversal applies
equally to the facts of the case before us. The court in Sanchez concluded that
“[A]ssuming some jurors relied on felony murder and others on the natural and probable
consequences doctrine, we hold that all 12 jurors found the elements of malice
aforethought necessary for second degree murder. . . . [¶] . . . [¶] Here, any jurors who
voted guilty on the theory of felony murder, based on a murder committed during



                                              39
commission of a kidnapping, necessarily found the presence of malice.” (Sanchez, supra,
221 Cal.App.4th at pp. 1027-1028.)
       The same reasoning is true here as to felony murder based on murder perpetrated
during commission of an attempted robbery, the basis for felony murder necessarily
accepted by any juror who found felony murder in the present case. (See § 189, first ¶.)
The Sanchez court described its reasoning as follows: “[T]he felony-murder rule „simply
describes a different form of malice under section 188. “The felony-murder rule imputes
the requisite malice for a murder conviction to those who commit a homicide during the
perpetration of a felony inherently dangerous to human life.” ([People v.] Hansen
[(1994)] 9 Cal.4th [300,] 308.)‟ (Chun, supra, 45 Cal.4th at p. 1184; see People v. Friend
(2009) 47 Cal.4th 1, 75-76.) A verdict based on murder during the course of a
kidnapping therefore was a murder committed with malice, which supports a minimum
finding of second degree murder.” (Sanchez, supra, 221 Cal.App.4th at p. 1028.)
       Johnson takes issue with Sanchez, as we understand his argument, for equating the
imputed malice underlying a felony murder verdict with a factual finding of implied
malice. Absent reliance on the felony murder doctrine, implied malice is demonstrated
where the defendant performs “ „ “an act, the natural consequences of which are
dangerous to life” ‟ ” and “knows that his conduct endangers the life of another and . . .
acts with a conscious disregard for life.” ‟ ” (Chun, supra, 45 Cal.4th at p. 1181, quoting
People v. Patterson (1989) 49 Cal.3d 615, 626.) Sanchez, Johnson argues, ignores the
fact that a juror finding guilt based on felony murder did not have to consider whether the
facts showed the defendant acted with conscious disregard for life. While the facts in
Sanchez might support a conclusion that any juror who found felony murder based on the
kidnapping in that case necessarily believed the defendant acted with conscious disregard
for human life, Johnson maintains this cannot be said here because there was evidence
that he had independent motives in going to the campground and did not act with such
conscious disregard.
       Whatever merit there may be to Johnson‟s argument in the abstract, it is not
persuasive on the facts of this case. The attempted robbery was perpetrated by use of


                                             40
firearms wielded by Schnebly and Crocker. In order to find the defendants aided and
abetted the attempted robbery, the jurors had to find the defendants knew the perpetrators
intended to commit the crime, intended to aid and abet commission of the crime, and in
fact aided, facilitated, promoted, encouraged or instigated commission of the crime. (See
CALCRIM No. 401.) Risk to human life is inherent in the crime of robbery—hence its
inclusion among the felonies supporting felony murder. Here, with an attempted robbery
perpetrated by means of firearms, no reasonable juror could have believed the defendants
aided and abetted the robbery without also believing they were aware of the danger and
acted in conscious disregard of life. “In other words, on this evidence, no juror could
find felony murder without also finding conscious-disregard-for-life malice.” (Chun,
supra, 45 Cal.4th at p. 1205.)
       Alternatively, as in Sanchez, “any juror who may have voted for guilt under the
natural and probable consequences theory also found malice. . . . Thus, a verdict of guilty
of murder in this case, under both theories, satisfies the elements of second degree
murder—an unlawful killing with malice aforethought.” (Sanchez, supra, 221
Cal.App.4th at p. 1028.) At a minimum, the jurors agreed unanimously that the
prosecution proved the elements of second degree murder.
       We conclude that the matter should be remanded to the trial court. The
prosecution may elect to retry the defendants, or allow a conviction of murder in the
second degree to be entered against them.
C.     CALCRIM No. 404 (Johnson)
       Johnson requested a jury instruction on voluntary intoxication by simply listing
“CALCRIM 404” on defendant‟s proposed instructions filed with the trial court. The
court gave the following instruction pursuant to CALCRIM No. 404: “If you conclude
that defendant Marvin Johnson was intoxicated at the time of the alleged crime, you may
consider this evidence in deciding whether the defendant: 1. Knew that Buck Crocker
intended to commit murder or attempted murder [¶] AND [¶] 2. Intended to aid and abet
Buck Crocker in committing murder or attempted murder. [¶] Someone is intoxicated if
he or she took any drug, drink, or other substance that caused an intoxicating effect.”


                                            41
The court also instructed the jury “Do not consider evidence of intoxication in deciding
whether attempted kidnapping or attempted robbery is a natural and probable
consequence of murder or attempted murder.” (Emphasis added.) In this last sentence,
the court reversed the offenses of murder and attempted murder with the target offenses
of kidnapping and robbery.24 No one objected to this obvious error, nor did Johnson
object to (or even comment on) the scope of the intoxication instruction as a whole.
       Johnson now argues that the trial court erred in two ways in giving this instruction.
First, the instruction was incomplete because it failed to instruct the jury that it could
consider whether voluntary intoxication affected Johnson‟s knowledge that Crocker
intended to commit robbery and kidnapping, and Johnson‟s requisite intent to aid and
abet the attempted robbery and attempted kidnapping—issues which underlay the first
degree felony murder charge. Johnson argues that, as instructed, the jury was told only
how it could consider the effect of intoxication in connection with forming the intent for
second degree malice murder.25 Second, Johnson contends that the last sentence of the
jury instruction was completely garbled and made no legal sense. The last sentence
should have read: “[d]o not consider evidence of intoxication in deciding whether murder
or attempted murder is a natural and probable consequence of attempted robbery or
attempted kidnapping.” (CALCRIM No. 404, emphasis added.) There was no question



       24
          When the trial court instructed the jury on the natural and probable
consequences doctrine, immediately prior to instructing on intoxication, it correctly stated
the relationship between the offenses: “To prove that a defendant is guilty of murder or
attempted murder, under this theory, the People must prove that: . . . [¶] [3]. Under all of
the circumstances, a reasonable person in the defendant‟s position would have known
that the commission of murder or attempted murder was a natural and probable
consequence of the commission of the attempted kidnapping or attempted robbery.”)
(Emphasis added.)
       25
          To be comprehensive, the instruction should have included additional language
to the effect that the jury could consider evidence of Johnson‟s intoxication in deciding
whether Johnson “[k]new that Buck Crocker intended to commit attempted robbery or
attempted kidnapping” and “[i]ntended to aid and abet Buck Crocker in committing
attempted robbery or attempted kidnapping.”


                                              42
as to the target offense and the non-target offense; the instruction, likely through a word
processing error, just got it backwards. Johnson thus claims that he was deprived of the
benefit of the intoxication instruction.
       The Attorney General contends that Johnson‟s claim that CALCRIM No. 404 is
incomplete was waived because Johnson failed to request a modification of CALCRIM
No. 404 to include an instruction regarding requisite intent to aid and abet the attempted
robbery and kidnapping underlying the felony murder. We nevertheless address the
underlying issue in the event the failure to request a modification of the instruction gives
rise to an ineffective assistance of counsel argument.
       A defendant may present evidence of intoxication on the question whether he is
liable for criminal acts as an aider and abettor. (People v. Mendoza (1998) 18 Cal.4th
1114, 1133 (Mendoza).) However, “[o]nce a jury finds a defendant did knowingly and
intentionally aid and abet a criminal act, intoxication evidence is irrelevant to the extent
of the criminal liability. A person who knowingly aids and abets criminal conduct is
guilty of not only the intended crime but also of any other crime the perpetrator actually
commits that is a natural and probable consequence of the intended crime. . . . [¶] We
also stress that although evidence of intoxication is admissible on the question of aider
and abettor liability, a jury can still find an intoxicated person guilty as an aider and
abettor. Evidence of intoxication, while legally relevant, may be factually
unconvincing. . . .” (Id. at pp. 1133-1134.)
       “If the court gives any instruction at all on the relevance of intoxication (see
People v. Castillo [(1997)] 16 Cal.4th [1009,] 1014 [no sua sponte duty to instruct on
intoxication]), it might simply instruct that the jury may consider intoxication in
determining whether a defendant tried as an aider and abettor had the required mental
state. It might also instruct that the intoxication evidence is irrelevant on the question
whether a charged crime was a natural and probable consequence of the target crime.
The court would not additionally be required to parse out those elements of each crime
charged for which the evidence could be considered or distinguish between the
knowledge and the intent requirements.” (Mendoza, supra, 18 Cal.4th at p. 1134.)


                                               43
       Our Supreme Court has further written in Mendoza that “The applicable legal
standards are settled. . . . [A] trial court has no sua sponte duty to instruct on the
relevance of intoxication, but if it does so instruct . . . it has to do so correctly. [Citation.]
The appellate court should review the instructions as a whole to determine whether it is
„reasonably likely the jury misconstrued the instructions as precluding it from
considering‟ the intoxication evidence in deciding aiding and abetting liability.
[Citation.] Any error would have the effect of excluding defense evidence and is thus
subject to the usual standard for state law error: „the court must reverse only if it also
finds a reasonable probability the error affected the verdict adversely to defendant.‟
(People v. Humphrey [(1996)] 13 Cal.4th [1073,] 1089.)” (Mendoza, supra, 18 Cal.4th at
pp. 1134-1135.)
       Viewing the instructions as a whole, it is not reasonably likely the jury believed it
was precluded from considering intoxication evidence. The jury was instructed on felony
murder, including that the jury had to first find that Johnson aided and abetted an
attempted kidnapping or an attempted murder in order to be found guilty of felony
murder. The jury was instructed on “aiding and abetting,” including that the jury had to
find that the defendant “knew that the perpetrator intended to commit the crime” and
“intended to aid and abet the perpetrator in committing the crime.” The jury was also
told that it was to consider all of the instructions together as a whole. Even if the
intoxication instruction was incomplete, it did not inform the jurors that they were
precluded from considering evidence of intoxication in connection with the knowledge
and intent required for aiding and abetting felony murder. Nor did counsel make any
such suggestion; the issue of voluntary intoxication was never even addressed by the
prosecutor in closing.
       As to the garbled last sentence of the jury instruction on intoxication, any error
was harmless. It did not preclude the jury from considering relevant intoxication
evidence. It was an attempt to instruct the jurors that they couldn‟t consider intoxication
on whether one crime was a natural and probable consequence of the other, because such
instruction would not be relevant. (Mendoza, supra, 18 Cal.4th at p. 1134.) Because the


                                               44
instruction was garbled, it failed in that regard. But it did not “have the effect of
excluding defense evidence,” and was not error. (Ibid.; see People v. Letner and Tobin
(2010) 50 Cal.4th 99, 187 [even if instructions on voluntary intoxication were inadequate,
error harmless where, among other things, prosecutor did not argue that jury could not
consider voluntary intoxication and defendants did not “actually argue[] a voluntary
intoxication defense to the jury”].)
       Finally, the asserted errors were not prejudicial because there was no evidence that
Johnson‟s ingestion of alcohol and drugs on the day of the murder affected his ability to
understand that Crocker intended to commit robbery or kidnapping, or his ability to form
an intent to aid and abet Crocker in committing robbery or kidnapping.
       As we have discussed, before lunch on the day of the shootings, Johnson was
“down at the creek” drinking beer, whisky and smoking marijuana. He described this as
getting “a buzz on.” Johnson testified that the most significant effect of his intoxication
was that it led him to brag about the possibility that there was a great deal of money and
marijuana at the campsite. Further, he sometimes blamed his alleged inability to clearly
recall at trial certain conversations that occurred the day of the shootings on the fact that
he was “just a little bit drunk, little bit”26 or “buzzed.” 27



       26
           On direct exam, Johnson‟s attorney asked him about a specific conversation
between Schnebly and Thornton in the car on the way to the lake after Crocker picked up
the duffel bag with the weapons. Johnson was asked whether Schnebly and Thornton
were “talking about what was going to happen up there, anything like that?” Johnson
testified, “Nothing straight up came out. They were—they were just like saying that
they‟re going to—we‟re going to go out the lake. We‟re just going out there and talk.
Like I said, okay, I‟m going to try to get my wife. And that‟s pretty much all I was
gathering. I mean, I was just a little bit drunk, little bit, so I really can‟t quite remember
exactly what was being talked about because I was drinking some whisky that day.” If
anything, Johnson attempted to minimize his drinking, as he did generally with his
involvement in the crimes.
       27
        Johnson testified that when he mentioned to Schnebly, Crocker, and Cory (the
other man who was with them that afternoon) that there was money and marijuana at the
Lake Mendocino campsite he had been “drinking. I was—I was talking about, you know,
what was out there and everything, you know. I—I talk a lot when I drink.” At that

                                                45
       However, neither Johnson nor any other witness testified that Johnson‟s drinking
and drug use made him unable to understand Crocker‟s intentions. Nor is there any
evidence that because of drinking or drug use Johnson was unable to form an intent to aid
and abet Crocker. Far from attributing his ignorance of Crocker‟s intentions to alcohol or
drug use, Johnson testified that he did not put together what was happening because he
was only given information in “bits and pieces.” Moreover, Johnson admitted on several
occasions that he was aware that Crocker and Schnebly were going out to the lake “for
the money and the weed.”
       Defense counsel did not argue to the jury that Johnson‟s capacity to understand the
events was affected because he was intoxicated. At most, defense counsel argued that
Johnson displayed bad judgment in drinking and then bragging about the money and
drugs at the campground.
       In light of the paucity of evidence that Johnson‟s drug and alcohol use earlier in
the day had any impact on his ability to understand there was a plan afoot to rob the
people at the campsite or to aid and abet this plan, and the record described above, any
error in giving this instruction was not prejudicial.28




point, he probably had “a 12-pack and a fifth of whisky. We were halfway tanked.” He
was drinking because he wanted to “cop a buzz . . . .” He was also smoking marijuana
and had a “buzz on.” He described himself as “quite toasted” that day. On another
occasion during his testimony he described this conversation as one in which he “had a
little bit too much to drink” and so “said a little too much.” Finally, he also
acknowledged that he set the action in motion by bragging about the marijuana and
money at the campsite. He attributed that to having “a big mouth when I was
drinking . . . .”
       28
          Johnson argues that this instructional error rose to the level of a due process
violation and, therefore, we must consider whether this error was harmless beyond a
reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 23-24. We need not
answer this question because even under the Chapman standard we find no prejudice.


                                              46
D.     Effective Assistance of Counsel (Johnson and Thornton)
       Both Johnson and Thornton argue that to the extent we find that any claimed error
was waived, such a waiver occurred through ineffective assistance of counsel. Having
made no such finding, we need not reach this issue.
E.     Cumulative Error (Thornton)
       Given our conclusion that the defendants‟ convictions must be conditionally
reversed, Thornton‟s claim of cumulative error adds nothing to this appeal. The error in
the accomplice instructions was harmless, and Thornton‟s only other claim of error,
ineffective assistance of counsel, is moot since we did not find any of the claimed errors
waived.
                                   IV. DISPOSITION
       Johnson and Thornton‟s first degree murder convictions are reversed and the
matter is remanded for a new trial on count 1 of the Information. Unless the prosecution
brings each defendant to trial within the period prescribed by law after the remittitur in
this case issues, the trial court shall proceed as though the judgment on appeal had been
reduced on count 1 to second degree murder for each defendant. In all other respects, the
judgments are affirmed.




                                             47
                                   _________________________
                                   Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




A136120, People v. Johnson
A136124, People v. Thornton




                              48
Trial Court: Superior Court of Mendocino County

Trial Judge: Hon. Ann Moorman

Attorney for Defendant and Appellant
Marvin Douglas Johnson, Jr.                  Mark David Greenberg
                                             484 Lake Park Avenue, No. 429
                                             Oakland, CA 946l0

                                             By appointment of the Court of Appeal
                                             under the First District Appellate
                                             Project‟s Independent Case System

Attorney for Defendant and Appellant
Simon Thornton                               Kyle Gee
                                             2626 Harrison Street
                                             Oakland, CA 94612

                                             By appointment of the Court of Appeal
                                             under the First District Appellate
                                             Project‟s Independent Case System

Attorney for Plaintiff and Respondent
People                                       Kamala D. Harris
                                             Attorney General
                                             Dane R. Gillette
                                             Chief Assistant Attorney General
                                             Gerald A. Engler
                                             Senior Assistant Attorney General
                                             René A. Chacón
                                             Supervising Deputy Attorney General
                                             NanetteWinaker
                                             Deputy Attorney General




A136120, People v. Johnson
A136124, People v. Thornton


                                        49
