[CERTIFIED FOR PARTIAL PUBLICATION [*]]
APPEAL from a judgment of the Superior Court of Kern County No. BF143850C. Thomas S. Clark, Judge.
[Copyrighted Material Omitted]
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
DETJEN, Acting P.J.
On August 19, 2012, Christopher Patterson snatched a gold chain from around the neck of 71-year-old Guadalupe Ramos. In the process, he either knocked or threw her to the pavement of a grocery store parking lot. Patterson fled on foot; Maxamillion Lee McDonald (defendant), the driver of a car parked several spaces away from the Ramos vehicle, pulled out of the lot and picked Patterson up a block or two away. With defendant in the car was Lawrence Slaughter. The trio - all members of the East Side Crips criminal street gang - then drove to a business that purchased gold. Meanwhile, Guadalupe developed an irregular heartbeat. She was pronounced dead about an hour after the robbery. The day before, defendant, accompanied by Slaughter, had grabbed a gold chain from the neck of a woman in a different store’s parking lot.
Defendant now stands convicted, following a jury trial, of first degree murder during the commission of a robbery (Pen. Code,  §§ 187, subd. (a), 189, 190.2, subd. (a)(17); count 1), robbery (§ 212.5, subd. (c); counts 2 & 4), and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). As to counts 1 and 2, the jury further found defendant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) Following a bifurcated court trial, defendant was found to have been previously convicted of a serious or violent felony (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and to have served two prior prison terms (§ 667.5, subd. (b)). Defendant’s motion for a new trial was denied, and, the People not having sought the death penalty, defendant was sentenced to an unstayed term of life in prison without the
possibility of parole plus 12 years. He was ordered to pay restitution and various fees, fines, and assessments.
In the published portion of this opinion, we hold there was prejudicial instructional error concerning the requirement that defendant must have aided and abetted the robbery at or before the time of the act causing death. We also hold the jury was correctly instructed on the specific intent required by section 186.22, subdivision (b)(1).
In the unpublished portion, we conclude: (1) There was insufficient evidence to support the special circumstance finding; (2) There was sufficient evidence to support the gang enhancements; (3) The error in giving CALCRIM No. 361 was harmless; and (4) The jury was adequately instructed concerning the elements of section 186.22, subdivision (a). We vacate the special circumstance finding and reverse the conviction and enhancement on count 1, affirm the conviction and enhancement on count 2, affirm the convictions on counts 3 and 4, affirm the prior strike and prison term enhancements, and remand the matter for further proceedings.
Defendant raises a number of claims of purported instructional error. We address each in turn.
A. First Degree Felony Murder
Defendant contends the trial court erred by failing to instruct, as to first degree felony murder, that the jury had to find he aided and abetted the
robbery before or at the time of the act(s) causing death. Under the instructions given, he says, the jury could have believed defendant was guilty of aiding and abetting a robbery in progress by acting as a getaway driver before Patterson had reached a place of temporary safety, and, hence, was automatically guilty of felony murder even though the acts that caused Guadalupe’s death had already been committed before he aided and abetted. We agree with defendant that his murder conviction must be reversed.
The prosecution presented evidence from which the jury reasonably could have determined defendant was a coplanner of the robbery and participated in casing the Foods Co for a victim, then acted as the getaway driver for the actual robber - in other words, that he aided and abetted the robbery from the outset. If jurors believed defendant’s testimony, however, he had no idea ahead of time that Patterson was going to commit any kind of crime at the Foods Co, and only went to Patterson’s aid (although suspecting Patterson had committed some kind of crime) after he saw Patterson running away from the store.
Without objection or modification, the trial court gave CALCRIM No. 1603 in conjunction with instructions on robbery, as charged in counts 2 and 4, to wit: “To be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety. A perpetrator has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property.”
During the jury instruction conference, the parties agreed the only applicable theory of first degree murder was felony murder. The People requested that CALCRIM No. 540B be given; defense counsel had no objection. Pursuant to that instruction, the trial court told the jury:
“The defendant is charged in Count 1 with murder under a theory of felony murder. 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: One, the defendant aided and abetted or was a member of a conspiracy to commit robbery; two, the defendant intended to aid and abet the perpetrator in committing or intended that one or more members of the conspiracy commit robbery; three, if the defendant did not personally commit robbery, then a perpetrator, whom the defendant was aiding and abetting or with whom the defendant conspired, personally committed robbery; four, while committing robbery, the perpetrator caused the death of another person; and five, there was a logical connection between the cause of death and the robbery. The connection between the cause of death and the robbery must involve more than just their occurrence at the same time and place.
“A person may be guilty of felony murder even if the killing was unintentional, accidental or negligent.
“To decide whether the perpetrator committed robbery, please refer to the separate instructions that I will give you on that crime.
“To decide whether the defendant aided and abetted a crime, please refer to the separate instructions that I have given you on aiding and abetting. You must apply those instructions when you decide whether the People have proved first-degree murder under a theory of felony murder.
“It is not required that the person die immediately, as long as the cause of death and the felony are part of one continuous transaction.
“It is not required that the defendant be present when the death occurs.”
For reasons not apparent from the jury instruction conference, the trial court omitted a bracketed paragraph from the instruction that would have told jurors: “[The defendant must have (intended to commit[, ]/ [or] aid and abet[, ]/ [or] been a member of a conspiracy to commit) the (felony/felonies)
of ___ <insert felony or felonies from Pen. Code, § 189> before or at the time that (he/she) caused the death.]”
With respect to the robbery-murder special circumstance, and without objection, the trial court gave CALCRIM No. 703, which ...