Opinion
A155651
07-30-2021
THE PEOPLE, Plaintiff and Respondent, v. ANDREA MCFALL, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 452151B
WISEMAN, J. [*]
A jury convicted defendant Andrea McFall of second degree murder. On appeal, McFall argues the trial court provided the jury several erroneous instructions, including instructing the jury that a second degree felony murder conviction may be based on the predicate felony of assault with a deadly weapon. While that instruction was incorrect, the error was not prejudicial. We further reject McFall's arguments challenging the aiding and abetting instructions, the trial court's failure to instruct the jury on lesser offenses for aiding and abetting liability or that voluntary intoxication negates proof of implied malice. To the extent there were any errors, they were harmless. Moreover, we reject McFall's request for relief from her second degree murder conviction under Penal Code section 1170.95, an issue that must first be addressed in the trial court. We affirm.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
I. McFall's Relationship with Alexis Ericiga
McFall met Alexis Ericiga in September 2013 and they quickly began a relationship. She lost her housing and ended up staying in hotels with Ericiga each night. Both McFall and Ericiga used methamphetamine multiple times each day. Ericiga made money illicitly, including robbing people and cashing checks that did not belong to him-an endeavor that McFall participated in. Ericiga claimed that he had ready access to firearms, that he murdered people including kids, and at one point asked McFall whether she wanted to see a dead body.
Later that month McFall and Ericiga needed to pay for their stay at a motel, and they used a taxi to travel to an ATM to get some money. McFall remained in the back seat of the taxi while Ericiga left the car to use the ATM. During that time, the taxi driver asked about McFall's tattoos and lifted her dress to her mid-calf, which made McFall feel uncomfortable. McFall then told Ericiga about the taxi driver's actions. He stated “I'm gonna take care of this mother fucker right now, ” and he reached for the gun he brought with him. McFall grabbed his wrist and told him “Don't do nothing stupid.” Ericiga calmed down and the taxi driver drove the couple back to the motel where they were staying. Ericiga asked McFall to get the taxi driver's number for later. The taxi driver handed McFall his business card.
II. Killing of the Taxi Driver
By the end of September, Ericiga and McFall ran out of money. Late at night on September 28, they talked about robbing people or trying to cash checks to make some money. They were driving and stopped at a bank parking lot.
Ericiga became angry at McFall, claiming she was not doing anything-a complaint she interpreted as her failure to rob people. Ericiga asked McFall to call the taxi driver they previously used so that they could rob him. McFall then called the taxi driver and falsely told him her car was broken down. While waiting in the car for the taxi driver to arrive at their location, McFall and Ericiga smoked some methamphetamine. McFall asked Ericiga to use a taser rather than a gun, but Ericiga refused. Twenty minutes later, the taxi driver pulled into the parking lot. Ericiga got out of the car, placed a gun in the waistband of his pants, and spoke to the taxi driver for approximately two minutes. He then shot the taxi driver once in the head, killing him. He did not take anything from the taxi driver. Ericiga got back into McFall's car and yelled, “You just see what I did for you” and “drive.” McFall responded, “I don't give a fuck. Uh, give me a cigarette.” McFall then drove the two of them away. The next day, McFall went to the police to report the killing.
III. Criminal Complaint and Jury Verdict
Based on these facts, the Alameda County District Attorney charged McFall with murder (§ 187, subd. (a), count 1), alleging special circumstances of aiding and abetting the murder and intentionally killing the victim by lying in wait (§ 190.2, subd. (a)(15)), aiding and abetting robbery felony murder (§ 190.2, subd. (a)(17)(A)) and that a principal in the offense was armed (§ 12022, subd. (a)(1)).
On August 31, 2017, the jury found McFall guilty of second degree murder with malice aforethought (§ 187, subd. (a)), a lesser included charge to count 1. The jury also found the special vicarious arming allegation true. The court sentenced McFall to 15 years to life for the murder and one year for the special arming allegation.
DISCUSSION
I. Jury Instructions
McFall claims the trial court prejudicially erred by providing the jury with several erroneous instructions. We review claims of instructional error de novo, considering the “instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; People v. Posey (2004) 32 Cal.4th 193, 218.) “Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict.” (People v. Chun (2009) 45 Cal.4th 1172, 1201 (Chun).) We review each of McFall's arguments in turn.
A. Second Degree Felony Murder Jury Instruction
McFall argues the trial court erroneously instructed the jury that a conviction for second degree felony murder may be based on an underlying felony of assault with a deadly weapon. Although this theory of liability is legally invalid, the error was harmless beyond a reasonable doubt. (People v. Aledamat (2019) 8 Cal.5th 1, 7 (Aledamat)[standard of review for legally invalid jury instructions].)
We reject the People's argument McFall forfeited this claim because McFall's trial counsel expressly requested the second degree felony murder instruction. Generally, a “failure to object does not waive an instructional error on appeal if the instruction was an incorrect statement of law or the defendant's substantial rights were affected.” (People v. Vega (2015) 236 Cal.App.4th 484, 495 [reviewing instructional error even though defense counsel agreed to the erroneous instruction].) Accordingly, we consider the merits of McFall's claim.
The jury was provided two theories of liability for second degree murder: felony murder-based on aiding and abetting an assault with a deadly weapon-and implied malice murder-based on performance of a dangerous act with a conscious disregard for human life. The CALCRIM No. 541B second degree felony murder instruction stated: “To prove that the defendant is guilty of second degree murder under this theory, the People must prove that: [¶] 1. The defendant aided and abetted assault with a deadly weapon; [¶] 2. The defendant intended to aid and abet the perpetrator in committing assault with a deadly weapon; [¶] 3. The perpetrator committed or attempted to commit assault with a deadly weapon; [¶] and [¶] 4. The perpetrator did an act that caused the death of another person. The person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.”
The People concede this instruction was erroneous. We agree. “The felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state.” (Chun, supra, 45 Cal.4th at p. 1182.) While second degree felony murder requires an unlawful killing during the commission of a felony inherently dangerous to human life, that predicate felony “must be an independent crime and not merely the killing itself. Thus, certain underlying felonies ‘merge' with the homicide and cannot be used for purposes of felony murder.” (Id. at p. 1189.) For that reason, a second degree murder charge may not be based on an underlying felony that is “assaultive in nature”-a felony “that involves a threat of immediate violent injury.” (Id. at p.1200.) Relatedly, “a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.” (People v. Ireland (1969) 70 Cal.2d 522, 539.) Here, the second degree felony murder instruction was based on the underlying offense of assault with a deadly weapon, an assaultive crime and an integral part of the homicide. This renders the instruction erroneous. (See ibid.)
The parties primarily dispute whether this error was prejudicial. When a jury has been instructed on two separate theories of culpability, one legally valid and one legally invalid, courts assess whether the error was harmless beyond a reasonable doubt. (Aledamat, supra, 8 Cal.5th at pp. 8, 13 [incorrect statement of the law is a legally invalid theory]; Chapman v. California (1967) 386 U.S. 18, 23-24 [federal standard for harmless error].) “An examination of the actual verdict may be sufficient to demonstrate harmlessness, but it is not necessary.” (Aledamat, at p. 13.) “[I]f other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for conscious-disregard-for-life malice, the erroneous felony-murder instruction was harmless.” (Chun, supra, 45 Cal.4th at p. 1205.) After reviewing the verdict and evidence here, we conclude beyond a reasonable doubt the error did not contribute to the verdict. (See Id. at p. 1201.)
1. Implied Malice Murder Jury Instructions
First, a jury could have properly based its verdict on a legally valid theory of second degree implied malice murder if properly instructed on that theory. (Chun, supra, 45 Cal.4th at p. 1202.) Those instructions were provided here. The trial court instructed the jury with CALCRIM No. 520-instructions for second degree implied malice murder-requiring the People to prove that when the defendant committed an act that caused the death of another person, “she had a state of mind called malice aforethought.” The instruction further explained there are two kinds of “malice aforethought, ” express malice and implied malice, and proof of either was sufficient to establish the state of mind required for murder. A defendant acts with implied malice if “1. She intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time she acted, she knew her act was dangerous to human life; [¶] AND [¶] 4. She deliberately acted with conscious disregard for human life.” The instruction finally noted that “[i]f you decide the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree” as provided in the instructions. The jury was fully instructed and permitted to find implied malice as a theory for liability. (See Chun, at p. 1202.)
2. Verdict Sheet
Significantly, the verdict sheet indicates that the jury made an implied malice finding. It expressly stated McFall was guilty of second degree murder because she “did unlawfully, and with malice aforethought, murder [the victim].” (See Aledamat, supra, 8 Cal.5th at p. 13.) The verdict was further confirmed by all twelve jurors in post-verdict polling. Although the form references “malice aforethought” rather than “implied malice, ” that distinction is not significant, contrary to McFall's assertions. The jury instructions explained that “malice” may be either express or implied. The phrase “malice aforethought” on the verdict sheet thus encompasses implied malice.
Despite this express language, McFall speculates the jury never affirmatively concluded her second degree murder conviction was based on implied malice. The jury was only presented with one second degree murder boilerplate verdict form identifying malice aforethought, but it was not provided an additional verdict form identifying felony murder as the basis for second degree murder liability. According to McFall, the jury's only option for second degree murder was to conclude it was committed with malice aforethought. This is unconvincing. (Cf. People v. Osband (1996) 13 Cal.4th 622, 690 [“When ‘the jury has been properly instructed as to the different degrees of the offense, it must be presumed that if [the jurors'] conclusion called for a form of verdict with which they were not furnished, they would either ask for it or write one for themselves' ”].) The jury was properly instructed on second degree murder based on malice aforethought, and the verdict form supplied the jurors with the information to make that finding. (Cf. People v Pearson (2012) 53 Cal.4th 306, 323 [vacating special circumstance finding where jury instructions omitted the requisite mental state and the jury's verdict form did not supply the jury with that missing element].)
3. Prosecutor's Argument
The prosecutor also did not present any argument about second degree felony murder, further demonstrating the jury did not base its verdict on an invalid theory. (In re Martinez (2017) 3 Cal.5th 1216, 1227 [prejudicial error found where prosecutor argues legally invalid theory at length in closing argument].) Instead, he urged the jury to convict McFall of second degree implied malice murder. Summarizing that theory, the prosecutor argued, “The issue is whether or not... the act of her by calling the victim to the area when she knew previously that Mr. Ericiga had threatened to kill him and setting that up was just so dangerous that she's guilty of implied malice murder.” He explained the implied malice law to the jury, noting that for a conviction, there “doesn't need to be a specific intent to kill. Here it's where a defendant intentionally does an act, here that [McFall] intentionally called [the victim] to the [bank] parking lot... knowing that her co-part[icipant] was going to confront that unsuspecting victim.” The prosecutor concluded, “if you find the previous things that I was-had just spoken about are true, then she is guilty of implied malice murder. Second degree murder.” The implied malice murder instructions, along with “the prosecutor's explanation[] permitted the jury to base a second degree murder verdict on a finding of malice separate from the felony-murder rule.” (Chun, supra, 45 Cal.4th at p. 1203.) Given the prosecutor's argument, it is unlikely the jury would have relied on the erroneous theory for its verdict.
4. Evidence of Implied Malice
McFall disputes this conclusion by claiming the evidence that she harbored implied malice was weak. We disagree.
Implied malice exists when a killing is proximately caused by an act “ ‘ “deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”' ” (People v. Knoller (2007) 41 Cal.4th 139, 143.) It “ ‘depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.' ” (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1142.) Here, McFall admitted she intentionally called the taxi driver to her and Ericiga's location by falsely claiming her car was broken and she needed assistance. More importantly, the natural and probable consequence of this act was dangerous to human life. At that time, she was aware of Ericiga's violent tendencies, even shielding the location of her family from Ericiga because of the danger he presented to them. Ericiga repeatedly boasted about killing people. In her statement to the police, McFall stated that for six days prior to the shooting, Ericiga kept talking about killing everybody. The day before the shooting, Ericiga and his friend indicated their need to clean up after a dead body. Based on their prior interactions with the taxi driver, McFall was aware that Ericiga wanted to harm the taxi driver. She nevertheless chose to call the victim to her and Ericiga's location.
McFall claims she acted with conscious concern for the victim's life when she urged Ericiga to use a taser instead of his gun during their planned encounter with the victim. But this simply demonstrates McFall was aware Ericiga was armed with a deadly weapon and thus dangerous the night of the shooting. When Ericiga asked McFall what he should do once the victim arrived at their location, McFall responded, “I don't know, ” and “I don't care, do what you're going to do, I've done too much already”-statements indicating McFall's conscious disregard for the victim's life. (See People v. Olivas (1985) 172 Cal.App.3d 984, 988 [implied malice is “the state of mind of a person who acts with conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don't care if someone is hurt or killed' ”].) True, McFall did not shoot the victim here and her act was not as egregious as the defendant's conduct in Chun-willfully shooting at an occupied vehicle. (See Chun, supra, 45 Cal.4th at p. 1205.) But on this factual record, the jury determined McFall consciously disregarded the victim's life, which is supported by the evidence.
We conclude beyond a reasonable doubt that the instructional error did not contribute to McFall's second degree murder verdict.
Given this conclusion, we do not address the People's remaining arguments regarding harmless error.
B. Aiding and Abetting Instructions
Premised on her belief that she was tried as an aider and abettor, McFall next challenges aiding and abetting jury instructions on several grounds. None of those claims warrants reversal.
1. Additional Background
The trial court instructed the jury that “[t]o decide whether [McFall] aided and abetted a crime, please refer to the separate instructions I'll give you on aiding and abetting.” It provided the jury with the general principles of aiding and abetting liability in CALCRIM No. 400, stating in relevant part, “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.”
In addition, the jury was instructed with CALCRIM No. 401 for aiding and abetting intended crimes. That instruction stated, “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.”
The trial court identified the circumstances under which the jury must use the aiding and abetting instructions, stating: “You must apply these instructions when you decide whether the People have proved First Degree Murder under a theory of Felony Murder.” Consistent with that statement, the trial court also provided the jury with CALCRIM No. 540B, first degree felony murder instructions, identifying McFall's potential liability as an aider and abettor. That instruction provided, in part: “The Defendant may be guilty of Murder under a theory of Felony Murder even if another person did the act that resulted in the death. I will call... the other person the perpetrator. [¶] To prove that the Defendant is guilty of First Degree Murder under this theory, the People must prove that: [¶] 1. The Defendant aided and abetted Robbery or Attempted Robbery; [¶] 2. The Defendant intended to aid and abet the perpetrator in committing Robbery or Attempted Robbery; [¶] 3. If the Defendant did not personally commit Robbery or Attempted Robbery, then a perpetrator, whom the Defendant was aiding and abetting, committed Robbery or Attempted Robbery; and [¶] 4. While committing Robbery or Attempted Robbery, the perpetrator caused the death of another person.”
As previously discussed, the trial court also provided the jury with the erroneous CALCRIM No. 541B instructions, expressly identifying McFall's role as an aider and abettor in second degree felony murder: “To prove the Defendant is guilty of Second Degree Murder under this theory, the People must prove that: [¶] 1. The Defendant aided and abetted assault with a deadly weapon.... [¶] To decide whether the Defendant aided and abetted that crime, please refer to the separate instructions I will give you on aiding and abetting. You must apply those instructions when you decide whether the People have proved Second Degree Murder under a theory of Felony Murder.”
2. Omitting Element for Aiding and Abetting
McFall faults the trial court for failing to sua sponte identify the “crime” in CALCRIM No. 401, and argues the instructions omitted critical elements necessary for finding she aided and abetted implied malice murder. She speculates this permitted the jury to convict her of aiding and abetting an implied malice murder based on her knowledge that Ericiga was going to commit some unspecified crime, such as brandishing or threatening the victim, rather than finding she intended Ericiga to commit the dangerous act that caused death-an element she claims was required for her conviction. Resolving whether the aiding and abetting instructions were erroneous here is unnecessary since any potential error was harmless.
The court in People v. Powell (2021) 63 Cal.App.5th 689, addressed a similar argument and determined the standard CALCRIM No. 410 aiding and abetting instructions were erroneous because they were not appropriately tailored for implied malice murder. (Powell, at p. 714.) The court reasoned that an aider and abettor for implied malice murder “need only intend the commission of the perpetrator's act, the natural and probable consequences of which are dangerous to human life, intentionally aid the commission of that act and do so with conscious disregard for human life”-the aider and abettor does not need to intend the result of that act, murder. (Ibid.) It is unnecessary to address Powell at length because like the decision in that case, we conclude any error was harmless. (Ibid.)
McFall was not tried as an aider and abettor to second degree implied malice murder. (Cf. Aledemat, supra, 8 Cal.5th at p. 14 [instructional error harmless where “no one ever suggested to the jury” they should rely on an invalid legal theory or factually inadequate theory].) The prosecution proceeded on the theory that McFall personally committed an act that was so dangerous that it constituted conscious disregard of human life. The prosecutor argued “the act of her by calling the victim to the area when she knew previously that Mr. Ericiga had threatened to kill him and setting that up was just so dangerous that she's guilty of implied malice murder.” As set forth above, the evidence amply supported this theory. The record did not necessitate a specific aiding and abetting instruction that McFall intended Ericiga to commit a dangerous act causing death. (Cf. People v. Valdez (2012) 55 Cal.4th 82, 152[trial court sua sponte duty to identify the target crimes in conspiracy instruction under the natural and probable consequences doctrine arises when “uncharged target offenses form a part of the prosecution's theory of criminal liability and substantial evidence supports the theory”].) Based on the evidence, arguments of counsel, and instructions provided, we see no reasonable likelihood the jury relied on aiding and abetting to reach its verdict for second degree murder. (People v. Prettyman (1996) 14 Cal.4th 248, 272, superseded by statute, as stated in People v. Lopez (2019) 38 Cal.App.5th 1087, 1103.)
During the conference on jury instructions, McFall's counsel disclosed his intent to argue that McFall's only potential liability for first degree murder was as an aider and abettor. In his closing argument, McFall's counsel thus argued that McFall's liability as an aider and abettor to murder required her to specifically intend for Ericiga to commit the target crime: murder. Significantly, the jury found McFall not guilty of first degree murder.
Disputing this conclusion, McFall maintains she could not be validly convicted as the perpetrator of second degree implied malice murder because she was not the actual killer. Relying on cases addressing Penal Code sentencing enhancements for personally inflicting injury or actually killing a victim, McFall claims second degree implied malice murder requires the defendant to have “personally killed” the victim. (People v. Garcia (2020) 46 Cal.App.5th 123, 143, 152 [defining § 190.2, a special circumstance statute imposing additional penalties based on whether the defendant is the “ ‘actual killer,' ” as “the person who personally kills the victim, whether by shooting, stabbing”]; People v. Slough (2017) 11 Cal.App.5th 419, 423 [defining § 12022.7 subd. (a), governing sentencing enhancements for “[a]ny person who personally inflicts [great bodily injury] on any person other than an accomplice in the commission of a felony or attempted felony”]; People v. Rodriguez (1999) 69 Cal.App.4th 341, 346 [addressing § 1192.7, subd. (c)(8), defining a “ ‘serious felony' ” as a “ ‘felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice' ”].)
That reliance is misplaced. Unlike the statutory enhancements in those cases, second degree implied malice murder does not require the defendant to actually kill the victim. (CALCRIM No. 520 [“The defendant committed an act that caused the death of another person”].) Instead, any homicide requires the defendant's act or omission be the “ ‘proximate cause of the death.' ” (Zemek v. Superior Court (2020) 44 Cal.App.5th 535, 552.) Generally, “ ‘[p]roximate cause is clearly established where the act is directly connected with the resulting injury, with no intervening force operating.' ” (People v. Cervantes (2001) 26 Cal.4th 860, 866-867.) But “[i]f an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is ‘dependent' and not a superseding cause, [it] will not relieve defendant of liability.” (Id. at p. 871.) Here, Ericiga shooting the victim was a reasonably foreseeable result of McFall calling the victim to Ericiga's location given all the circumstances-Ericiga's prior interactions with the victim, his violent tendencies, and his stated desire to kill people. (See ibid. [“ ‘ “ ‘The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act' ”' ”].) Although McFall did not pull the trigger, her act of phoning the victim to Ericiga's location proximately caused the victim's death. (See, e.g., People v. Lopez (2020) 56 Cal.App.5th 936, 954-955 [defendant's acts accusing the victim gang member of being “no good” was the proximate cause of gang member's death, sufficient for conviction for second degree implied malice murder].)
The California Supreme Court granted review of this case regarding the prosecution's burden of proof for establishing ineligibility for resentencing under Penal Code section 1170.95, subdivision (d)(3). (People v. Lopez (2020) 56 Cal.App.5th 936, review granted Feb. 10, 2021, S265974.)
3. No Misapplication of the Instructions
Moreover, McFall has not demonstrated the jury invented a target crime that McFall then aided and abetted Ericiga in committing. (See People v. Covarrubias (2016) 1 Cal.5th 838, 926 [“When a defendant claims an instruction was subject to erroneous interpretation by the jury, he must demonstrate a reasonable likelihood that the jury misconstrued or misapplied the instruction in the manner asserted”].) Any references to aiding and abetting were primarily tied to McFall's potential guilt for felony murder and the target crimes were identified as robbery or attempted robbery. The prosecutor argued McFall “called the victim to the location that [she and Ericiga] were waiting at to rob the victim. And then Mr. Ericiga, the co-part[icipant], approached the victim with a gun and shot him. Both are guilty of attempted armed robbery.... [¶] Now that's aiding and abetting a robbery, attempted robbery, but there's also felony murder.” McFall's counsel rebutted this theory of liability in a similar manner, arguing that Ericiga's intent “was to kill. It was an intent unknown to [McFall] here.” Thus, “[i]f there is no robbery, then there's no aiding and abetting, and [McFall] can't be held vicariously responsible for that.... [S]he neither aided or abetted nor is she guilty of Felony Murder.” He explained that as a result, McFall could not be an aider and abettor for murder because she would have “had to specifically intend for Alex Ericiga to commit murder in order for her to be an aider and abettor.”
Consistent with these arguments, the trial court told the jury to consider the aiding and abetting instructions in the context of felony murder. The felony murder instructions correctly identified the target crime McFall must have aided and abetted-robbery or attempted robbery. After viewing the trial record and the instructions as a whole, there is no reasonable likelihood the jury applied the aiding and abetting instruction in a way that violates the Constitution. (See People v. Mitchell (2019) 7 Cal. 5th 561, 579.)
4. Aiding and Abetting and Lesser Offenses
McFall next contends the trial court prejudicially erred by failing to sua sponte instruct the jury that an aider and abettor could be convicted of a lesser offense than the perpetrator, Ericiga. This claim is forfeited.
McFall does not appear to argue the aiding and abetting instructions were incorrect on this particular issue. McFall claims the jury was considering convicting her of manslaughter, evidenced by a jury question about whether all three convictions are necessary to convict a defendant of voluntary manslaughter. But given the instructions, she maintains, the jury could only convict her of that lesser included offense if the jury determined Ericiga was also guilty of manslaughter-the jury could not “decouple [McFall's] degree of culpability from that of Ericiga.”
Such “decoupling” is not necessary. McFall correctly notes that “an aider and abettor's criminal liability may be less than that of the perpetrator, depending on the aider and abettor's mental state.” (People v. Johnson (2016) 62 Cal.4th 600, 639.) But she ignores that “[g]enerally, a person who is found to have aided another person to commit a crime is ‘equally guilty' of that crime.” (People v. Lopez (2011) 198 Cal.App.4th 1106, 1118.) To the extent McFall claims, as we understand it, the aiding and abetting instructions were misleading or incomplete given the evidence in this case, she was required to request any desired modification. (People v. Loza (2012) 207 Cal.App.4th 332, 350 [counsel should have requested a modification to the generally accurate former CALCRIM No. 400 aiding and abetting instructions where jury could have concluded that defendant had a different lesser mental state than the perpetrator of the killing].) The record does not indicate that McFall's trial counsel requested this instruction or objected to the aiding and abetting instructions on this point. This failure forfeits any claim of error. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 [party forfeits on appeal claim that an instruction correct on the law is nonetheless incomplete unless a modification or clarification was requested in the trial court].)
C. Voluntary Intoxication Instructions
McFall argues the trial court should have instructed the jury that it could consider voluntary intoxication to negate her intent to aid and abet an implied malice murder. We disagree.
McFall's brief also claims the trial court failed to instruct that mental disability could be considered to negate proof of implied malice. However, she forfeits the claim by failing to provide any cites to the record or argument in support of this contention. (See People v. Reardon (2018) 26 Cal.App.5th 727, 740 [“the failure to explain with particularity how a claimed error caused prejudice forfeits the claim”].) Her argument is also belied by the record-the instructions noted that the jury may consider evidence that McFall suffered from a mental disorder “for the limited purpose of deciding whether, at the time of the charged crime, [McFall] acted with the intent or mental state required for that crime.”
The trial court instructed the jury with CALCRIM No. 625, the voluntary intoxication instruction: “You may consider that evidence only in deciding whether [McFall] acted with an intent to kill, premeditation or deliberation, or [McFall] aided and abetted in the commission of robbery or attempted robbery. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose.” McFall argues this instruction erroneously instructed the jury that it could not consider intoxication for assessing whether she aided and abetted Ericiga in committing an implied malice murder.
The People concede, and we agree, that a jury may consider evidence of voluntary intoxication when determining whether the defendant had the knowledge and intent required for aiding and abetting the commission of the target crime. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) However, McFall again fails to demonstrate any prejudice from the CALCRIM No. 625 instruction here. (Id. at p. 1134 [assessing reasonable probability the error in limiting jury consideration of intoxication evidence affected the verdict].) As previously discussed, the prosecutor did not proceed on an aiding and abetting theory. Moreover, McFall correctly notes that evidence of voluntary intoxication may not be used to establish that a defendant acted without implied malice-the theory argued by the prosecutor and relied upon by the jury. (People v. Soto (2018) 4 Cal.5th 968, 980.)
Further, although McFall was an admitted habitual user of methamphetamine, her testimony demonstrated that it did not render her too intoxicated to appreciate the danger to human life created by her or Ericiga's actions. She explained that she used methamphetamine like a medication, and she acted normal when she took it. She developed a high tolerance for the drug when she was with Ericiga, and despite using methamphetamine at least seven times each day, she maintained a cognitive balance. She described her experience using methamphetamine as “an espresso shot”-she slept every night, ate every single day, and followed a normal routine. Despite her methamphetamine use, McFall was aware of the danger Ericiga presented to the victim because she asked Ericiga to use a taser instead of a gun during their planned encounter. Just before McFall reported the killing to the police, she smoked methamphetamine. However the officer who took McFall's statement and was familiar with the symptoms of methamphetamine influence did not observe any intoxication symptoms in McFall.
Given this record, the voluntary intoxication instruction did not affect the verdict.
II. Section 1170.95 Petition
Finally, we reject McFall's assertion the ameliorative provisions in Senate Bill No. 1437 apply retroactively to her non-final conviction on direct appeal. Senate Bill No. 1437 amended the felony murder rule and natural probable consequences doctrine in sections 188 and 189 “as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It also added section 1170.95, a procedure for seeking retroactive resentencing relief if these changes would affect a defendant's murder conviction sustained before the law was enacted. (Stats. 2018, ch. 1015, § 4.) This legislation did not become effective until after McFall's conviction in 2017. (§ 1170.95, subd. (a)(3) [“changes to Section 188 [and] 189 [are] made effective January 1, 2019”].)
After filing this appeal, McFall filed a section 1170.95 petition in superior court seeking to vacate her conviction. The superior court denied the petition without prejudice because it lacked jurisdiction while her appeal was pending. While the parties were briefing this case, the California Supreme Court in People v. Gentile (2020) 10 Cal.5th 830, determined “[t]he ameliorative provisions of Senate Bill [No.] 1437 do not apply on direct appeal to nonfinal convictions obtained before the law became effective. Such convictions may be challenged on Senate Bill [No.] 1437 grounds only through a petition filed in the sentencing court under section 1170.95.” (Id. at pp. 851-852.) Accordingly, McFall must seek section 1170.95 relief in the trial court, and we express no view on the merits of that petition here.
DISPOSITON
The judgment is affirmed.
WE CONCUR: PETROU, J., ACTING P.J.
JACKSON, J.
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.