People v. Abad CA4/1

Filed 6/15/15 P. v. Abad CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067449

Plaintiff and Respondent,

v. (Super. Ct. No. FVI1300181)

RUBEN ABAD et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of San Bernardino County, Eric

M. Nakata, Judge. Reversed.

Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and

Appellant, Ruben Abad.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and

Appellant, Anthony Solis.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland, Scott C. Taylor, Deputy Attorneys General for Plaintiff and

Respondent.
 A jury convicted Ruben Abad and Anthony Christopher Solis in 2013 for the 1989

murder of Herbert Santos. (Penal Code,1 § 187, subd. (a).) The jury also found true the

special circumstance that defendants murdered Santos during the commission of a

robbery (§ 190.2, subd. (a)(17)(A)), and Solis admitted the special circumstance that he

was previously convicted of murder (§ 190.2, subd. (a)(2)).2 Defendants were sentenced

to life without the possibility of parole.

The prosecutor's theory of the case was that defendants hitched a ride with Santos

in Los Angeles County, rode with him to San Bernardino County, robbed him of his

wallet and car, stabbed him to death off an isolated frontage road near Interstate 15, left

his body in the desert, and fled in his car. The prosecutor argued Abad was the actual

killer and Solis was an aider and abettor.

Both defendants claim instructional error regarding Solis's role as a testifying

accomplice. Solis contends a jury instruction, which provided "[i]f the crime of murder

was committed, then Anthony Solis is an accomplice to that crime," was tantamount to an

improper directed verdict or mandatory presumption regarding his status as an aider and

abettor. Abad contends that if the jury was instructed that Solis was an aider and abettor,

the jury "by process of elimination" was also instructed that Abad was the actual killer.

We conclude the instruction was erroneous and that it prejudiced Solis, but not Abad.

1 All further statutory references are to the Penal Code unless otherwise indicated.
2 As discussed below, Solis contends he intended only to waive a jury trial on this
special circumstance, not to admit it.
2
Accordingly, we reverse Solis's conviction and set aside his robbery-murder and prior-

murder-conviction special circumstances.

Both defendants also claim the trial court erred with respect to the extent to which

it found admissible under Evidence Code section 1101, subdivision (b) certain evidence

regarding Solis's commission of a similar crime in 1997. The court allowed Abad to

elicit on cross-examination of Solis that Solis stabbed someone and took his car, but not

that he murdered the victim and was convicted of that murder. Solis contends the court

erred by admitting too much; Abad contends the court admitted too little. We conclude

the trial court did not err as to Solis, but did as to Abad. Under the circumstances, the

court should have admitted all the evidence regarding Solis's 1997 crime and either given

a limiting instruction or severed defendants' trials. (People v. Reeder (1978) 82

Cal.App.3d 543, 553 (Reeder).) Not doing so prejudiced Abad. On that basis we reverse

his conviction and set aside the true finding on the robbery-murder special circumstance.

Solis also contends the trial court erred by (1) failing to instruct the jurors that they

must reach unanimous agreement regarding the object of the robbery—Santos's car or his

wallet, (2) construing his waiver of a jury trial on the special circumstance of his prior

murder conviction as an admission of that conviction, (3) providing an erroneous answer

to the jury's question during deliberations regarding intent to kill, and (4) denying him an

opportunity to introduce evidence correcting allegedly erroneous facts in a probation

report. Solis also challenges the sufficiency of the evidence supporting his murder

conviction and the true finding on the robbery-murder special circumstance. Finally, he

seeks to strike the special circumstance arising from his prior murder conviction because

3
he did not admit, and the jury did not find, that he was the actual killer or, if only an aider

and abettor, that he harbored the required intent to kill in the present offense. Abad joins

these claims to the extent they relate to guilt issues. Because we reverse defendants'

convictions, we address only two of these additional claimed errors: the sufficiency of

the evidence (to determine whether defendants may be retried), and the claimed

instructional error regarding unanimity (for the trial court's guidance in the event of a

retrial). We conclude substantial evidence supports defendants' convictions and true

findings, and that a unanimity instruction may be appropriate on retrial.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Prosecution Case

1. The 1989 Investigation

In March 1989, 56-year-old Santos was living in La Puente, California. On March

19 or 20, he called his sister to tell her he was coming to Las Vegas to live with her and

seek work. On the morning of March 21, a pedestrian walking along Stoddard Wells

Road off of Interstate 15 near Victorville (in San Bernardino County) found Santos's dead

body off the side of the road in the desert. The pedestrian flagged down a passing car and

the occupants called 911. While she waited, the pedestrian saw a knife on the ground on

the other side of the road near marks that looked like people had been scuffling. She also

saw what appeared her to be drag marks leading from the knife to the body.

Detective Michael Lenihan of the San Bernardino County Sheriff's Department

was assigned to collect reports and evidence. Lenihan described the crime scene as a

remote area on the way to a dumpsite, with no residences or businesses nearby,

4
approximately two miles from the Stoddard Wells Road interchange with Interstate 15.

No other roads were visible. Lenihan saw the knife, the scuffle marks, and the drag

marks. He also saw blood near the knife. Lenihan observed tire impressions on the east

side of the road that continued on to the west side of the road, indicating to him that a

vehicle made a U-turn leaving southbound on Stoddard Wells Road.

Santos's body was in some bushes. Lenihan saw blood and a clumping of dirt on

the right side of Santos's body. Santos's pants and underwear were off, but he was

wearing laced-up shoes, socks, and a sweatshirt. There was foliage on Santos's

sweatshirt consistent with being dragged through the desert. Santos's underwear were

between his legs and his pants were about six feet from his body. There was no wallet in

the pants.

At about 11:15 p.m. on March 21, the California Highway Patrol (CHP) found

Santos's car abandoned on the shoulder of Highway 101 near North Hollywood in Los

Angeles County. A records check indicated the car was involved in Santos's murder

investigation, so CHP had it towed to a secure tow yard. When Lenihan was notified the

next day that the car had been found, he had it brought to San Bernardino to be

processed.

The driver's window was halfway down. The dashboard and windshield were

broken and there was a shoeprint on the windshield. There was blood in the front

passenger side of the car. There was a beer can in a caddy in front of the front seat, a

Coke can on the driver's side between the seat and the door, and an additional Coke can

5
and bottle under the driver's seat. The blood tracings were sampled and the car and its

contents were processed for fingerprints.

The knife and sheath were also processed for latent fingerprints and DNA. No

fingerprints were found, but blood on the knife was swabbed for DNA. Because of

limitations in searching fingerprint databases in 1989, sheriff's personnel did not identify

any suspects in Santos's murder.

On March 23, 1989, Gregory Rieber, a forensic pathologist with the San

Bernardino County Coroner's Office, performed an autopsy on Santos. Santos was five

feet, seven inches tall, and weighed 164 pounds. He had three stab wounds: two on the

right lower chest and one on the side of his chest. The wound patterns were consistent

with a single-edged knife and were consistent with the size of the knife recovered from

the crime scene. Santos's sweatshirt had caked blood and mud on the lower right front

and had two tears in the area of his stab wounds, indicating the sweatshirt had ridden up

and exposed his lower chest for the third stab wound. Rieber identified the cause of

Santos's death as stab wounds to his liver, which was enlarged and exhibited signs of

chronic alcoholic liver disease and cirrhosis. Santos likely would have bled to death

within 10 to 30 minutes, faster than someone with a healthy liver. Santos had a blood

alcohol level of 0.28 percent, which would have slowed his reaction time. He had no

defensive wounds.

Rieber opined the marks in the dirt and the blood spatter at the crime scene were

consistent with a struggle and the stabbing of Santos at that location. Santos also had

postmortem abrasions across his lower back and buttocks consistent with being dragged.

6
 On March 28, 1989, Detective Lenihan learned that an employee at a KOA

campground near the Stoddard Wells Road/Interstate 15 interchange recovered a wallet

with an identification card and other paperwork belonging to Santos. There was no cash

in the wallet. Lenihan and another detective interviewed the campground's assistant

manager, Nancy Abbott, who reported that the wallet had been found seven to 10 days

earlier.

The detectives showed Abbott a photograph of Santos. She told them he had been

at the campground about a week or two earlier with two other men and that they bought

sodas or beer. Abbott described Santos as "fairly well dressed and clean looking," and

the other two men as younger and "quite ratty and transient-looking." She could not

understand why they were together.

2. The 2012 Investigation

In 2012, detectives Ryan Ford and Scott Cannon with the San Bernardino County

Sheriff's homicide detail were investigating Santos's unsolved murder as a "cold case."

Physical evidence from the crime scene led them to defendants. Abad's fingerprints and a

palm print were on the exterior of the car windows in a position consistent with Abad

sitting inside the car with the windows rolled down. Several of Solis's prints were also

found inside the car, including one from the Coke can that was between the driver's door

and driver's seat. DNA analysis of blood specks found both inside the car (under the

dashboard) and outside the car (the rear passenger door) matched Solis. Specks of Solis's

blood were also found on Santos's sweatshirt.

7
 a) Abad's Interview

Detectives Ford and Cannon went to Abad's home in Bakersfield. He agreed to

give an audiotaped interview at the local police station.3

Abad was born in 1964, which would have put his age at 24 in March 1989. He

said he was from Santa Maria, California and lived there until 2005 or 2006. Abad

denied ever being in La Puente or on Interstate 15 heading toward Las Vegas in the late

1980's or early 1990's. He denied ever hitchhiking and, when the detectives showed him

a photo of Santos's car, denied ever getting a ride in it. When detectives showed him a

photo of Solis and stated his name, Abad said he was not sure if he recognized the photo

and had only "heard of" Anthony and did not know Anthony's last name. Detective

Ryan, however, noted that when he showed the photo, Abad's "shoulders and his body

kind of stiffen[ed]," which was the first instance in which there was a "change in his body

language." The detectives then showed Abad three photos of randomly selected Hispanic

males to gauge his reaction. Abad slowly relaxed and resumed his original posture.

Then the detectives showed him a photo of Santos and asked if he knew someone by that

name. Abad said he did not recognize the photo or the name, but, once again, his posture

changed. Abad relaxed again after a few minutes.

The detectives told Abad there was physical evidence tying him to Santos's car,

and they accused him of stealing the car with Solis. Abad denied ever stealing any car,

but offered no explanation for why physical evidence would indicate he had been in

3 Abad did not testify at trial, but the jury heard his interview.
8
Santos's car. The detectives then told Abad they were investigating the murder of the

car's owner and that they had evidence placing him in the car around the time of the

murder. Abad asked to leave the interview. The interview ended and detectives took

fingerprint and DNA samples from Abad pursuant to a search warrant.

b) Solis's Interview

The detectives interviewed Solis at a state prison in Chino, where he was serving a

life sentence for a murder he committed in 1997 for which he was convicted in 2000.

Solis initially denied any knowledge of the crime and claimed not to recognize Santos or

Abad in photos the detectives showed him. Solis told the detectives they "really couldn't

do a whole lot to [him]" because he "had already been doing time." However, when the

detectives alluded to the death penalty, Solis relented and told them that he was present

when Abad killed Santos without Solis's participation.

B. Solis's Defense Case

Solis testified at trial. He lived in Lompoc, California in 1989. In early 1989, he

spent about two months in a residential group treatment home in Baldwin Park (in Los

Angeles County), where he first met Abad. Abad arrived later, and their stays overlapped

by about two or three weeks. They discovered they were both from the same general

area, and Solis knew of Abad's brothers, but not Abad. Sometime in March 1989, Solis

decided to leave the home and return to Lompoc. Abad decided to leave with Solis and

travel together back to the Lompoc/Santa Maria area. They walked from the Baldwin

Park group home to a bus stop in neighboring La Puente, intending to catch a local bus to

9
a Greyhound station in El Monte. They drank beer as they walked. Around 11:30 a.m.,

Santos drove by the bus stop in his car, circled back around, and offered defendants a

ride. Defendants accepted.

The three men stopped at a liquor store, bought beer and wine, and then just

"cruised around," "aimlessly." Around 2:00 p.m., when Santos decided he was too

intoxicated to drive, Solis started driving, with Santos in the front passenger seat and

Abad in the rear. Santos directed Solis to the freeway and passed out sometime later.

As Solis drove Santos's car north on Interstate 15 toward Las Vegas in the

Victorville area, Santos woke up, said something to the effect of "what the F is going

on?" and hit Solis on the right side of his face with a wine bottle. Solis began bleeding.

As he attempted to block further blows by Santos, Solis exited the freeway to avoid

crashing. As Solis was doing so, Abad reached over from the back seat and stabbed

Santos twice. Solis was not previously aware that Abad had a knife.

After Solis stopped the car, Abad and Santos got out and fought. Solis saw Abad

stab Santos a third time. As Abad and Santos moved toward the front of the car, Solis

waited behind the rear passenger side to avoid being caught up in the fight. Solis lost

sight of Abad and Santos and returned to the front passenger seat of the car; he was in no

condition to drive because his head was still bleeding from being hit with the wine bottle.

Abad returned to the car a few minutes later without Santos, and he and Solis

drove off toward Los Angeles. Worried how he would explain his bleeding if stopped by

police, Solis intentionally broke the dash board by kicking it and put his blood on it. As

they drove through Los Angeles on the way to the Lompoc/Santa Maria area, Santos's car

10
broke down on the freeway. At Abad's direction, defendants wiped their fingerprints

from the car before abandoning it. They walked to a Greyhound station and took a bus to

the Lompoc/Santa Maria area, where they parted ways and never spoke again.

Solis denied participating in the assault on Santos or in dragging the body away.

He did not intend for Santos to be robbed or killed, and did not even know for certain

whether Santos was dead when he was abandoned in the desert. Solis denied taking

Santos's wallet or even knowing that he had one. He also denied ever going to the KOA

campground. Solis admitted he initially lied to the detectives who interviewed him. He

further admitted to a felony conviction in 1990 for robbery and assault, two felony

convictions in 1992 for theft, and one felony conviction in 2000 for stabbing and theft.4

C. The Prosecution's Rebuttal Case

Mark Correa testified that in 1989 he was a minister working with a network of

churches that operated residential facilities in California and that Solis was a resident of

the La Puente home in 1989. Solis left the home with another resident.

Pastor Edward Maestas testified he was also involved with the La Puente group

home. He recognized Solis as having resided at the home for less than a month. After

Solis left the home, there were reports of property missing. Solis left the home with a

person from the Santa Maria area. A few days after Solis left, he called Maestas and

asked if he and the person he left with could return to the home. Maestas said no.

Detective Ford testified that during his interview of Solis, Solis was the first to

mention that the cause of Santos's death was stabbing.

4 The jury was not informed Solis's conviction in 2000 was for murder.
11
D. Conviction and Sentencing

The jury ultimately convicted both defendants of first degree murder and found

true the robbery-murder special circumstance. Prior to trial, Solis waived his right to a

jury trial on his prior-murder-conviction special circumstance, which the trial court

interpreted as Solis admitting to the prior conviction. The court sentenced both

defendants to the prescribed term of imprisonment for life without the possibility of

parole.

DISCUSSION

I.

INSTRUCTIONAL ERROR REGARDING ACCOMPLICE LIABILITY

Defendants contend the trial court erroneously instructed the jury regarding Solis's

status as a testifying accomplice, which resulted in an impermissible directed verdict or

burden-shifting presumption. The trial court instructed the jury, for purposes of the rule

requiring that a testifying accomplice's testimony be corroborated by independent

evidence, that "[i]f the crime of murder was committed, then Anthony Solis is an

accomplice to that crime." Solis argues that because "[a] murder was indisputably

committed," this instruction was tantamount to directing a verdict—or at least imposing a

mandatory presumption—that Solis was therefore guilty as an aider and abettor. Abad

argues that by instructing the jury that Solis is an accomplice, "by process of

elimination," the trial court was directing a verdict that Abad was guilty as the

perpetrator. We conclude the trial court committed instructional error, which was

prejudicial to Solis but not to Abad.

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A. Background

The prosecutor argued at trial that Abad stabbed Santos, and Solis was liable as an

aider and abettor.5 This theory was supported in part by Solis's testimony, which

implicated Abad as the perpetrator, but denied liability as an aider and abettor. But

because Solis was a potential accomplice, and because a defendant (Abad) cannot be

convicted based on the uncorroborated testimony of an accomplice (as discussed below),

the trial court instructed the jury with CALCRIM No. 335 as follows:

"If the crime of murder was committed, then Anthony Solis is an
accomplice to that crime.

"You may not convict the defendant Abad of murder based on
the statement or testimony of an accomplice alone. You may use the
statement or testimony of an accomplice to convict the defendant
Abad only if:

"1. The accomplice's statement or testimony is supported by
other evidence that you believe;

"2. That supporting evidence is independent of the
accomplice's statement or testimony;

"AND

"3. That supporting evidence tends to connect the defendant
to the commission of the crimes.

"Supporting evidence, however, may be slight. It does not need
to be enough, by itself, to prove that the defendant is guilty of the
charged crime, and it does not need to support every fact mentioned
by the accomplice in the statement or about which the accomplice
testified. On the other hand, it is not enough if the supporting
evidence merely shows that a crime was committed or the

5 The prosecutor stated in his opening statement, "You have to determine the killer
and the non-killer . . . . One person did it. I would argue it's Mr. Abad."
13
 circumstances of its commission. The supporting evidence must
tend to connect the defendant to the commission of the crime.

"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 the light of all the other evidence." (Italics
added.)

The trial court also gave CALCRIM No. 301, which provides as follows: "Except

for the testimony of Anthony Solis, which requires supporting evidence if you decide he

is an accomplice[,] [t]he testimony of only one witness can prove any fact. Before you

conclude that the testimony of one witness proves a fact, carefully review all the

evidence." (Italics added.) The prosecutor, believing Solis's status as an accomplice was

beyond dispute, proposed a version of CALCRIM No. 301 that placed our italicized

portion in brackets, intending for the court to omit it. However, the court read the jury

the bracketed language.

After the trial court instructed the jury, the court held a sidebar conference at the

prosecutor's request. The prosecutor said, "I thought you were going to get rid of the

bracketed portion, 'he is an accomplice.' " Solis's counsel and the trial court responded

that whether Solis is an accomplice "is up to the jury to decide." Realizing Solis's status

as an accomplice was disputed, the prosecutor advised the court that "[t]he instruction we

gave them [CALCRIM No. 335] is that [Solis] is an accomplice," whereas "the Court

14
should have given [CALCRIM No.] 334," which leaves that determination to the jury.6

The following exchange then occurred, in which the trial court blamed counsel and

rationalized why CALCRIM No. 335 was still applicable:

"THE COURT: Well, I gave what you guys gave me. I read what
you read. I can't help it if you messed it up. Don't tell me I'm
supposed to read something if you didn't give it to me to read.

"[Prosecutor]: We all agreed on 335.

"THE COURT: What?

"[Prosecutor]: We all agreed on 335 . . . . That's the instruction
we all agreed on. [¶] There was no objection from either defense
counsel as far as that instruction goes; now there is objection.

"THE COURT: I don't know they are objecting. What they are
saying and what I agree with, 335 says, 'If the crime of murder was
committed, then and only then, Solis is an accomplice to that crime.'
'If.' And the wording of that is equivocal. Actually, the wording is
that the jury still has to find that there was a murder; right? That's
what it says. Correct?

"[Prosecutor]: Correct.

"THE COURT: They can find there was, and they are not guilty.

"[Prosecutor]: As long as there is no objection to giving that
instruction.

6 CALCRIM No. 334 is titled "Accomplice Testimony Must Be Corroborated:
Dispute Whether Witness Is Accomplice," and provides (in part) as follows: "Before you
may consider the (statement/ [or] testimony) of as
evidence against (the defendant/) [regarding the crime[s]
of ], you
must decide whether ) (was/were) [an] accomplice[s] [to
(that/those) crime[s]]. A person is an accomplice if he or she is subject to prosecution
for the identical crime charged against the defendant." (Underscoring and some italics
added.)
15
 "THE COURT: [Abad's counsel], [Solis's counsel], do you object?

"[Abad's counsel]: No.

"[Solis's counsel]: No objection.
"THE COURT: They're not objecting. It is what it is. Okay. Take
a few minutes. Off the record."

B. Legal Framework

Section 1111 provides that a "conviction cannot be had upon the testimony of an

accomplice unless it be corroborated by such other evidence as shall tend to connect the

defendant with the commission of the offense." 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." (Ibid.) " 'A witness is liable to

prosecution within the meaning of section 1111 if he or she is a principal in the crime.'

[Citation.] A principal includes those who 'directly commit the act constituting the

offense' and those who 'aid and abet in its commission.' " (People v. Carrasco (2014) 59

Cal.4th 924, 968 (Carrasco), quoting § 31.) Liability "as an aider and abettor requires

proof that the person in question 'aid[ed] or promote[d] the perpetrator's crime with

knowledge of the perpetrator's unlawful purpose and an intent to assist in the commission

of the target crime.' " (People v. Manibusan (2013) 58 Cal.4th 40, 93 (Manibusan).)

"Whether someone is an accomplice is ordinarily a question of fact for the jury; only if

there is no reasonable dispute as to the facts or the inferences to be drawn from the facts

may a trial court instruct a jury that a witness is an accomplice as a matter of law."

(People v. Valdez (2012) 55 Cal.4th 82, 145.)

16
 As noted above, the Judicial Council of California has formulated two instructions

that address accomplice testimony and the need for corroboration: CALCRIM Nos. 334

and 335. The former applies when there is a dispute as to whether the witness was an

accomplice; the latter applies when the witness is an accomplice as a matter of law (for

example, when the witness is a codefendant who confesses on the stand and implicates

his fellow codefendants (People v. Hill (1967) 66 Cal.2d 536, 555 (Hill)). Both inform

the jury it cannot convict the defendant based upon the testimony of an accomplice,

absent other evidence—evidence independent of the witness's testimony—that tends to

connect the defendant to the crime. (CALCRIM Nos. 334, 335.) Both also inform the

jury that the corroborating evidence may be slight and that an accomplice's testimony

should be viewed with caution. (Ibid.) However, CALCRIM No. 335 instructs the jury

that a particular witness is an accomplice, whereas CALCRIM No. 334 defines an

accomplice in accordance with section 1111 and places on the defendant the burden of

proving the witness was an accomplice. (Ibid.)

Jury instructions that relieve the prosecution of the burden of proving each

element of the charged offense beyond a reasonable doubt violate a defendant's due

process rights under the United States and California Constitutions. (People v. Flood

(1998) 18 Cal.4th 470, 480-481, 491 (Flood).) Such erroneous instructions also violate

United States and California constitutional principles requiring all material issues be

decided by the trier-of-fact. (Ibid.) Although a trial court may direct a verdict for a

defendant if the evidence is legally insufficient to establish guilt, under no circumstances

may a court direct a verdict for the prosecution. (Ibid.; People v. Kobrin (1995) 11

17
Cal.4th 416, 423.) Furthermore, the "prohibition against directed verdicts for the

prosecution extends to instructions that effectively prevent the jury from finding that the

prosecution failed to prove a particular element of the crime beyond a reasonable doubt."

(Flood, supra, at p. 491.)

An instruction that requires the jury to find an elemental fact based on proof of a

predicate fact is unconstitutional because it "subvert[s] the presumption of innocence

accorded to accused persons and also invade[s] the truth-finding task assigned solely to

juries in criminal cases." (Carella v. California (1989) 491 U.S. 263, 265 (Carella);

People v. Vanegas (2004) 115 Cal.App.4th 592 (Vanegas).) "In determining whether a

challenged instruction constitutes an impermissible mandatory presumption we put

ourselves in the place of the jurors and ask whether the instruction, 'both alone and in

context of the overall charge, could have been understood by reasonable jurors to require

them to find the presumed fact if the State proves certain predicate facts.' " (Vanegas,

supra, 115 Cal.App.4th at pp. 599-600, quoting Carella, supra, 491 U.S. at p. 265.)

C. Analysis

The People concede, as they must, that "the trial court erred in instructing the jury

with CALCRIM No. 335." Solis's status as an accomplice was disputed. Yet, the

instruction imposed a mandatory presumption by requiring the jury to find an elemental

fact ("Solis is an accomplice"—that is, a perpetrator or aider and abettor—to the crime of

murder) based on proof of a predicate fact ("that the crime of murder was committed")

(Vanegas, supra, 115 Cal.App.4th at p. 599), thus obviating the need for the jury to

18
determine whether Solis acted as an aider an abettor and did so with the requisite intent.

(Manibusan, supra, 58 Cal.4th at p. 93.)

The People argue the error does not require reversal because defendants "invited

the error by agreeing to the erroneous instruction." We disagree. "As appellate courts

have explained time and again, merely acceding to an erroneous instruction does not

constitute invited error." (People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20.)

Rather, "[i]nvited error will be found . . . only if counsel expresses a deliberate tactical

purpose in resisting or acceding to the complained-of instruction." (People v. Souza

(2012) 54 Cal.4th 90, 114.) The People do not articulate any tactical advantage either

defendant may have sought to obtain by agreeing to CALCRIM No. 335. Thus, the

doctrine of invited error does not apply.

The standard of reversal applicable to an instructional error that creates an

improper mandatory presumption is the Chapman v. California (1967) 386 U.S. 18, 24

(Chapman) "harmless beyond a reasonable doubt" standard. (Vanegas, supra, 115

Cal.App.4th at p. 602; Flood, supra, 18 Cal.4th at pp. 502-503.). In finding this standard

applicable, we are not persuaded by Solis's argument that the instructional error rises to

the level of an impermissible directed verdict, which would constitute structural error

requiring reversal per se. The only case Solis cites for this proposition states the rule in

dicta and goes on to conclude that the jury instruction at issue there created a mandatory

presumption regarding the malice element of homicide, which the Supreme Court held

was subject to Chapman review. (See Rose v. Clark (1986) 478 U.S. 570, 579-580.) Nor

are we persuaded by the People's argument that the instructional error here arose from

19
ambiguous instructions, which are subject to reversal only if there is a "reasonable

likelihood that the jury has applied the challenged instruction in a way that violates the

Constitution." (People v. Huggins (2006) 38 Cal.4th 175, 192.) The record reveals

nothing ambiguous about CALCRIM No. 335. It told the jury precisely what to do if it

found a murder had been committed: find that Solis was an accomplice to that murder.

We must now determine whether either defendant suffered prejudice under Chapman.

1. The Instructional Error Prejudiced Solis

On the record before us, we cannot say we are convinced beyond a reasonable

doubt that the erroneous instruction did not contribute to Solis's conviction because we

cannot say the mandatory presumption was unimportant in relation to everything else the

jury considered regarding Solis's role in Santos's murder. (Vanegas, supra, 115

Cal.App.4th at p. 602.)

The People argue that CALCRIM No. 335 was not prejudicial in the context of the

overall charge to the jury. The People note the jury was instructed that defendants were

presumed innocent until proven guilty beyond a reasonable doubt and that either

defendant could be found guilty or not guilty of murder. However, this does not

eliminate all potential for mischief by the erroneous instruction. On one hand, the jury

could have found that neither defendant murdered Santos, in which case the presumption

of innocence would prevail and the jury could find both defendants not guilty. On the

other hand, if the jury found Abad guilty of murder, the jury could reasonably have

concluded CALCRIM No. 335 required them to also find Solis guilty as an accomplice.

20
 The People also point to CALCRIM No. 301, which provides that "[e]xcept for the

testimony of Anthony Solis, which requires supporting evidence if you decide he is an

accomplice, the testimony of only one witness can prove any fact." Although the People

do not explain why they contend this instruction is significant, we presume it is because it

appears to leave to the jury the decision whether to find Solis is an accomplice. We are

not persuaded. Even if CALCRIM No. 301 purported to leave that decision to the jury,

CALCRIM No. 335 told the jury how to make that decision: "If the crime of murder was

committed, then Anthony Solis is an accomplice to that crime." In other words, the only

thing the jury had to decide to determine whether Solis was an accomplice was whether

"the crime of murder was committed." If the jury concluded the crime of murder was

committed by Abad—as the prosecutor and Solis argued—then CALCRIM No. 335

instructed the jury to find Solis was an accomplice to that crime.

The People assert Solis suffered no prejudice because the prosecutor did not

conduct himself as though any presumption applied, but rather, explained that Solis's

testimony had to be corroborated by other, independent evidence. However, the court

also instructed the jury: "If you believe that the attorneys' comments on the law conflict

with my instructions, you must follow my instructions." Thus, the jury could reasonably

have found CALCRIM No. 335 applied regardless of the prosecutor's conduct.

Finally, the People note that the jury engaged in lengthy deliberations and even

asked the judge a question about the intent-to-kill requirement for an accomplice.

Neither point convinces us that Solis was not prejudiced. First, after 10 days of trial, the

jury returned a verdict after only about six hours of deliberations (1.5 hours the first

21
afternoon, 4.5 hours the next court day). In Vanegas, supra, 115 Cal.App.4th at p. 603,

fn. 19, the court observed that the jury's ability to sort through potential verdicts and

render its decision after four hours of deliberation supported the inference that the jury

was influenced by a mandatory presumption. Indeed, the court observed that once the

jury determined the predicate fact, "the jurors could have viewed [considering the

elemental fact] a waste of time and contrary to their instructions." (Id. at p. 603.)

Similarly, the brevity of this jury's deliberations in light of the length and complexity of

the trial supports the inference that the jury's evaluation of Solis's guilt as an aider and

abettor was influenced by CALCRIM No. 335's instruction that "[i]f the crime of murder

was committed, then Anthony Solis is an accomplice to that crime."

Second, the jury's question about the intent-to-kill requirement for an accomplice

does not convince us beyond a reasonable doubt that the erroneous jury instruction did

not contribute to the verdict. After approximately 3.75 hours of deliberation (1.5 the first

afternoon and 2.25 the next court day), the jury asked: "With respect to instruction [no.]

701: 'Intent required for accomplice,' please define 'intent to kill.' Would leaving a

person to die after another person stabbed him qualify as 'intent to kill[?] ' " After

consulting with counsel, the court responded, "That is for you, jurors to decide." Less

than two hours later, the jury notified the court that it had reached a verdict. The People

argue that the jury's question indicates the jurors did not feel compelled to find Solis

guilty as an accomplice. While that is one reasonable inference, another is that the lack

22
of substantive guidance in response to the question caused the jury to rely more heavily

on CALCRIM No. 335 to find Solis was an accomplice.7

On balance, the context of the overall charge to the jury, the prosecutor's argument

at trial, the length of the jury's deliberations, and the jury's question regarding intent-to-

kill do not convince us beyond a reasonable doubt that the erroneous instruction was

harmless as to Solis. Accordingly, we reverse Solis's conviction and set aside his

robbery-murder and prior-murder-conviction special circumstances.

2. The Instructional Error Did Not Prejudice Abad

Abad argues he was prejudiced by CALCRIM No. 335 because once it told the

jury that Solis was an accomplice, "[t]he jury would have been forced to conclude

that . . . , by process of elimination Abad was the perpetrator." (Italics added.) This

argument fails because it erroneously presupposes that an accomplice can only be an

aider and abettor.

People v. Heishman (1988) 45 Cal.3d 147 (Heishman) addressed a similarly

erroneous claim. There, the defendant was charged with murdering a woman to prevent

her from testifying that he had raped her. (Id. at pp. 156-157.) Nancy Gentry, a woman

with whom the defendant was romantically involved, testified she drove the defendant to

the victim's home, lured the victim outside, and drove the defendant from the scene after

the murder. (Id. at pp. 158-159.) The defendant's theory at trial was that Gentry killed

the victim, acting on her own. (Id. at p. 162.)

7 As previously noted, we need not address the propriety of the trial court's response
to the jury's question.
23
 The jury was given the following instructions regarding the difference between a

perpetrator and an accomplice, and the requirement for corroboration of an accomplice's

testimony:

"The jury instructions defined principals as including those who
directly and actively commit the crime and those who aid and abet in
its commission with knowledge of the unlawful purpose of the one
who does directly and actively commit it (the perpetrator). As to
accomplices, the jury was instructed: 'An accomplice is one who is
or was subject to prosecution for the identical offense charged
against the defendant on trial. To be an accomplice, the person must
have aided, promoted, encouraged, or instigated by act or advice the
commission of such offense with knowledge of the unlawful purpose
of the person who committed the offense.' (CALJIC No. 3.10 (1979
rev.).) '[In the crime of murder,] [i]f the crime of [murder] was
committed by anyone, the witness [Nancy Gentry] was an
accomplice as a matter of law and her testimony is subject to the rule
requiring corroboration.' (CALJIC No. 3.16, bracketed words added
by the court.)"

(Heishman, supra, 45 Cal.3d at p. 162.)

On appeal following his conviction, the defendant argued, based on the

instructions quoted above, that "the jury was thereby directed to find that Gentry was an

accomplice in the sense of one who assists another and was precluded from finding that

she acted alone." (Heishman, supra, 45 Cal.3d at p. 162.) The California Supreme Court

rejected this argument, explaining that Gentry could be both an accomplice and the actual

killer:

"The instructions did not literally tell the jury it could not find
Gentry was the killer. And Gentry was legally an accomplice 'if the
crime of murder was committed by anyone' including Gentry herself.
CALJIC No. 3.16 was given to make clear that Gentry was being
labeled an accomplice for purposes of the rule requiring
corroboration if her testimony were believed. The instruction could
not reasonably be understood as precluding rejection of her

24
 testimony—including rejection based on a conclusion that in fact she
was the killer. [Citation.] Defendant's interpretation of the
instruction would make it practically a direction of conviction. Yet
the jury was fully instructed on the presumption of innocence and
the prosecution's burden of proving guilt beyond a reasonable
doubt."

(Heishman, supra, 45 Cal.3d at pp. 162-163.)

Similarly, in People v. Morris (1991) 53 Cal.3d 152 (Morris), the trial court

instructed the jury that two witnesses were accomplices as a matter of law, and defined an

accomplice as essentially an aider and abettor. (Id. at p. 210.) The defendant argued the

trial court's refusal to instruct the jury that "an accomplice could also be a person who

'directly' committed the crime" resulted in a conclusive presumption against his defense

that two testifying accomplices "were the actual killers." (Id. at p. 211.) The Supreme

Court followed its precedent in Heishman and rejected the claim. (Ibid.)

Under Heishman, supra, 45 Cal.3d 147 and Morris, supra, 53 Cal.3d 152, we must

reject Abad's argument that CALCRIM No. 335 left the jury no choice but to conclude,

"by process of elimination," that if Solis was an accomplice, Abad must have been the

perpetrator. An accomplice can be either a perpetrator or an aider and abettor. (§ 31;

Carrasco, supra, 59 Cal.4th at p. 968.) Therefore, simply because the jury was instructed

that Solis was an accomplice—that is, a perpetrator or an aider and abettor—it does not

follow that the jury was instructed that Abad could only have been the perpetrator.

Abad's argument is even less persuasive than the defendants' in Heishman and Morris,

where the jury instructions defined an accomplice essentially as being an aider and

abettor, suggesting more strongly that the non-testifying defendant was the actual

25
perpetrator. If our Supreme Court found no error under those circumstances, we certainly

find none here.

Abad also argues more generally, citing Hill, supra, 66 Cal.2d 536, that instructing

the jury that Solis was an accomplice as a matter of law "could be viewed by the jurors as

an unintentional imputation of [Solis's] guilt to [Abad]." The concern addressed in Hill,

however, arises "where a codefendant has made a judicial confession as to crimes

charged," such that "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." (Id. at p. 555.) Here,

there is no confessed guilt to impute to Abad; to the contrary, Solis denied guilt and

implicated Abad. Thus, Hill is inapposite.

In sum, although the trial court erroneously instructed the jury that Solis was an

accomplice as a matter of law, we conclude Abad was not prejudiced by the instruction.

If anything, Abad benefitted by the jury having been instructed that Solis's testimony

against him must be corroborated.

II.

ADMISSIBILITY OF SOLIS'S 1997 MURDER AND CONVICTION

Abad and Solis each appeal the trial court's admittedly "weasely" compromise

ruling regarding the extent to which evidence regarding Solis's conviction in 2000 for a

murder he committed in 1997 would be admissible to show a common design and plan

between that murder and Santos's. Abad contends the court erred by admitting too little

detail, while Solis contends the court admitted too much. We agree with Abad that the

26
trial court erred by over-sanitizing the details regarding Solis's prior murder and that this

error prejudiced Abad. We disagree with Solis.

A. Background

Solis was convicted in 2000 for a murder he committed in 1997 in which he

stabbed the victim, left his body by the side of a freeway, and drove off in the victim's

car. Robbery was the apparent motive in the 1997 murder.

Abad raised via motion in limine the extent to which the 1997 murder would be

admissible. Abad's counsel advised the court that if Solis testified, Abad's counsel would

seek to use Solis's subsequent offense to show a common design and plan between that

murder and Santos's, which would support Abad's defense theory that Solis robbed and

murdered Santos without Abad's participation.8 (Evid. Code, § 1101, subd. (b).) The

prosecutor advised the court that if Solis testified, the prosecutor would seek to use the

murder conviction—along with Solis's other felony convictions—solely for purposes of

impeaching Solis's credibility. (Evid. Code, § 788.) Solis's counsel objected to

admission of the subsequent offense as either impeachment or common design or plan

evidence.

8 Abad's counsel also argued he would use the subsequent offense to show that Solis
learned from his prior conviction—in which he did not testify—that it would behoove
him to testify and blame his alleged accomplice. We need not address this aspect.

27
 Regarding the prosecutor's intent to use the 2000 conviction as impeachment

evidence under Evidence Code Section 788, the trial court stated, "I can think of no

greater prejudice to Mr. Solis than to allow in a prior or a subsequent murder."9

The prosecutor responded, "I would probably lose if I sought to introduce the fact that

[Solis] was convicted of a murder, but I don't want to do that. I just want to introduce the

fact that he's been convicted of various felonies, which is relevant [to his credibility]."

The prosecutor reiterated that he did not intend to use the subsequent offense as common

design or plan evidence under Evidence Code section 1108, subdivision (b).

Abad's counsel then requested that defendants' trials be severed, and explained

why he had not requested this earlier:

"I didn't ask for a severance in this case, and if I can explain and
make the record. It was represented by [Solis's counsel] that Mr.
Solis was not going to testify. It became an issue that—and I know
that he has that right, but it became an issue just recently that there
might be an issue of Mr. Solis testifying. What we have now is that
if Mr. Solis does testify, then I represent Mr. Abad. [¶] . . . [¶]
And Mr. Abad has certain fundamental rights, and one of those
rights is to have a vigorous cross-examination of his accuser.

[¶]

"And so I think that what's happening is, depending on how the
Court rules, it's actually creating an issue for a severance that I know
that the Court would have liked me to bring before, but again, it was
represented that neither of the clients were going to testify. Well,
Mr. Solis. So I apologize, but this is something that I think that the
Court should consider, especially since my client's fundamental trial

9 There was some confusion regarding how to characterize the 1997 offense and
2000 conviction because they were subsequent to Santos's 1989 murder, but prior to
defendants' murder trial.
28
 rights are at issue. [¶] And I will just proffer to the Court that
there's not a lot of evidence against my client other than Mr. Solis."

The trial court responded, "If you're making a motion to sever at this point, your

motion is denied, all right? There's just not—well, first of all, it's not timely. Second of

all, there is no reason at this point to do that because I haven't ruled yet."

Solis's counsel reiterated his objection that "any kind of description of subsequent

murder or certainly the facts and circumstances surrounding the subsequent murder"

would be "highly prejudicial" and "almost directing a verdict against Mr. Solis." The

court responded, "Well, maybe yes and maybe no. I mean, that's up to the jury to decide

whether or not there is that common plan or scheme." The court then gave the following

ruling:

"The fact that Mr. Solis was involved in a very similar type of
incident which involved the same type of result as this case, the
probative value of the other crime, evidence to prove or disprove the
facts of this case, I think as [Abad's counsel] sits there, he has to,
given the statement of Mr. Solis, defend his client. I think that it's
paramount from [Abad's counsel]'s standpoint.

"And the existence of any rule or policy requiring exclusion in this
matter, and I hate to do the weasely thing to do in my analysis, but
that seems to be the fairest thing in my mind to do.

"The – [Abad's counsel], you will be allowed to use . . . the
subsequent murder but not identify it as a subsequent murder. I
agree with [the prosecutor] that it is the middle road here. The court
will allow you under [Evidence Code section] 1101[, subdivision]
(b) and find that the probative value of the prior, even though it is
eight years later, that is a factor that I have to consider, but I think
that given the gravity of that and the gravity of this case that it is a
factor that is not as great as the factors that show a common plan,
design in this case.

29
 "The specific questions that you mentioned yesterday, I will allow
you, should Mr. Solis testify, to ask with the exception that you must
avoid the subsequent conviction. The jury is not to be made aware
through your questioning that it was a prior murder."

The court clarified that Abad's counsel could ask Solis if he was "accused of stabbing an

individual," but could not elicit that the victim died or that Solis was convicted of murder.

The trial court also clarified that in finding Solis's subsequent murder offense

admissible under Evidence Code section 1101, subdivision (b), the court had balanced its

probative value against its potential prejudice:

"I think that I have to make it abundantly clear that I have made the
analysis under Evidence Code [s]ection 352, and I find that the
probative value in asking Mr. Solis those questions and in allowing
Mr. Solis to do that outweighs its prejudice, even though – and we
have – because of the extreme prejudice of the prior of subsequent
murder, the Court is allowing [Abad's counsel] to cross-examine Mr.
Solis should he testify but not go into the subsequent charge. So
that's for the record."

Solis testified during trial, portrayed himself as a victim of Santos, and blamed

Abad for the murder. Abad's counsel cross-examined Solis regarding his subsequent

murder as follows:

"Q And then you talked about how in 2000 you were actually
convicted of stabbing a person and robbing them; correct?

"A I wasn't – I didn't talk about it. I admitted to it.

"Q Okay. And that involved you stabbing a person and taking their
car and driving home with it, didn't it?

"A Correct."

30
B. Admissibility and Prejudice as to Solis

Solis contends the trial court erred by admitting evidence regarding his 1997

murder to establish a common design or plan. Although we need not address Solis's

claimed error because we reverse his conviction on other grounds, we nonetheless

address it because it relates to Abad's challenge and for the guidance of the trial court in

the event of a retrial.

"Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence

of a person's character, including evidence of character in the form of specific instances

of uncharged misconduct, to prove the conduct of that person on a specified occasion.

Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit

admission of evidence of uncharged misconduct when such evidence is relevant to

establish some fact other than the person's character or disposition." (People v. Ewoldt

(1994) 7 Cal.4th 380, 393, footnote omitted (Ewoldt).)10

"[E]vidence of a defendant's uncharged misconduct is admissible where the

uncharged misconduct and the charged offense are sufficiently similar to support the

10 Evidence Code section 1101 states: "(a) Except as provided in this section and in
[Evidence Code s]ections 1102, 1103, 1108, and 1109, evidence of a person's character or
a trait of his or her character (whether in the form of an opinion, evidence of reputation,
or evidence of specific instances of his or her conduct) is inadmissible when offered to
prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits
the admission of evidence that a person committed a crime, civil wrong, or other act
when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, or whether a defendant in a
prosecution for an unlawful sexual act or attempted unlawful sexual act did not
reasonably and in good faith believe that the victim consented) other than his or her
disposition to commit such an act. [¶] (c) Nothing in this section affects the
admissibility of evidence offered to support or attack the credibility of a witness."
31
inference that they are manifestations of a common design or plan." (Ewoldt, supra, 7

Cal.4th at pp. 401-402.) "[E]vidence of a common design or plan is admitted not to

prove the defendant's intent or identity, but to prove that the defendant engaged in the

conduct alleged to constitute the charged offense." (Id. at p. 399.) In other words,

"Evidence of a common design or plan is admissible to establish that the defendant

committed the act alleged." (Id. at p. 394, fn. 2.)

"To establish a common design or plan, the evidence must demonstrate not merely

a similarity in the results, but ' "such a concurrence of common features that the various

acts are naturally to be explained as caused by a general plan of which they are the

individual manifestations." ' " (People v. Balcom (1994) 7 Cal.4th 414, 423-24 (Balcom),

quoting Ewoldt, supra, 7 Cal.4th at pp. 393-394.) "[T]he common features must indicate

the existence of a plan rather than a series of similar spontaneous acts, but the plan thus

revealed need not be distinctive or unusual." (Ewoldt, supra, 7 Cal.4th at p. 403.) "The

circumstance that the uncharged offense occurred after the charged offense does not

lessen its relevance in demonstrating the existence of a common design or plan."

(Balcom, supra, 7 Cal.4th at p. 425.) We review the trial court's decision to admit

evidence under Evidence Code section 1101, subdivision (b) for an abuse of discretion.

(People v. Harris (2013) 57 Cal.4th 804, 841.)

The trial court did not abuse its discretion in finding Santos's murder and the 1997

murder committed by Solis sufficiently similar to establish a common design or plan. In

both cases, the victim was stabbed to death, the victim's body was left on the side of the

32
freeway, the assailant drove off in the victim's car, and robbery was suspected as the

primary motive.

Solis argues the crimes are not sufficiently similar because the 1997 victim was

stabbed 100 times, whereas Santos was stabbed only three times. He argues "[t]his

suggests a sharply different motivation" in the 1997 murder, such as a "rage killing."

This distinction does not convince us that the trial court erred in finding the other

similarities sufficient to support an inference of a common design or plan.11

Solis asserts that the fact that the victims' vehicles were taken in both cases "shows

only that [Solis] needed transportation home after committing the crime." However, the

similarity also supports the inference that robbery was the motivation in both cases.

Solis argues the eight-year gap between Santos's murder in 1989 and the 1997

murder also undermine the trial court's finding. We are unpersuaded. Our Supreme

Court has affirmed the admissibility of evidence of crimes separated by almost twice as

many years. (See, e.g., Ewoldt, supra, 7 Cal.4th at p. 405 [12 years]; People v. Ing

(1967) 65 Cal.2d 603, 612 [15 years].)

The People side with Solis in arguing that the subsequent murder was

inadmissible. They suggest Abad is now contradicting himself because his counsel

argued to the trial court that "the two murders were substantially dissimilar." This

11 In another context, Solis argues in his opening brief that the fact that Santos's
pants and underwear were removed suggests the crime was motivated more by a desire to
humiliate and dehumanize than to rob. If Solis is correct about this and about the motive
of the 1997 murder being emotional rather than financial, then the murders are even more
similar.
33
argument is disingenuous. The record reveals that when Abad's counsel was

acknowledging the differences between the murders he was doing so only to explain that

they were not similar enough to satisfy the heightened standard applicable to establishing

identity. (Ewoldt, supra, 7 Cal.4th at p. 403 ["The greatest degree of similarity is

required for evidence of uncharged misconduct to be relevant to prove identity. . . . 'The

pattern and characteristics of the crimes must be so unusual and distinctive as to be like a

signature.' "].)

We, therefore, conclude the trial court did not abuse its discretion in finding

evidence regarding the 1997 murder admissible under Evidence Code section 1100,

subdivision (b). This conclusion, however, does not end our inquiry because "to be

admissible such evidence 'must not contravene other policies limiting admission, such as

those contained in Evidence Code section 352.' " (Ewoldt, supra, 7 Cal.4th at p. 404.)

The trial court specified for the record that it did not find that the "extreme prejudice" to

Solis of admitting evidence of the "very similar" crimes substantially outweighed the

"paramount" importance to Abad. Again, we find no abuse of discretion.

The probative value of the evidence of Solis's 1997 murder stems from its

similarity to the circumstances of Santos's murder. The probative value of this evidence

is increased because its source is independent of the evidence regarding Santos's murder.

34
(Balcom, supra, 7 Cal.4th at p. 427.)12 However, it is decreased by its slight

dissimilarities and remoteness in time. (Ibid.)

Regarding the prejudicial impact of the evidence, the fact that Solis was convicted

of the 1997 murder decreases, in at least one way, the potential for prejudice, undue

consumption of time, or confusing the issues. (Balcom, supra, 7 Cal.4th at p. 427.) That

is, the jury was not diverted to a determination whether or not Solis had committed the

1997 offense because that fact had already been established by his conviction in 2000.

(Ibid.)13

On balance, we conclude the trial court did not abuse its discretion in finding that

the probative value of evidence regarding the 1997 murder was not substantially

outweighed by its prejudicial effect.

12 "For example, if a witness to the uncharged offense provided a detailed report of
that incident without being aware of the circumstances of the charged offense, the risk
that the witness's account may have been influenced by knowledge of the charged offense
would be eliminated and the probative value of the evidence would be enhanced. The
probative value of such evidence would increase further if independent evidence of
additional instances of similar misconduct, committed pursuant to the same design or
plan, were produced." (Ewoldt, supra, 7 Cal.4th at pp. 404-05.) It is unlikely any
witnesses in the trial for the 1997 murder were influenced by the similarities between that
case and Santos's murder because Solis's involvement in Santo's murder was not
suspected until detectives identified Solis in 2012.
13 The risk of prejudice could have been even further reduced if the jury had been
aware that Solis was serving a life sentence for the 1997 murder because the jury would
not have been tempted to convict Solis of Santos's murder, regardless of his guilt, to
assure that Solis would be adequately punished for the 1997 murder. (Balcom, supra, 7
Cal.4th at p. 427.)
35
C. Prejudice to Abad

Abad contends he was prejudiced by the trial court's erroneous exclusion under

Evidence Code section 352 of the facts that the person that Solis stabbed and robbed in

1997 died and that Solis was convicted of murder in that case. We agree, and reverse his

conviction on that basis.

"The application of Evidence Code section 352 is not limited to a conflict between

opposing sides but may also apply to parties on the same side of litigation when they

have adverse positions relative to the introduction of evidence. [Citation.] The rule is the

same whether the party objecting to introduction of evidence is the prosecution or a

codefendant." (People v. Greenberger (1997) 58 Cal.App.4th 298, 351 (Greenberger).)

"However, in a joint criminal trial, if admission of evidence of significant probative value

to one defendant would be substantially prejudicial to a codefendant the remedy is not

exclusion of the evidence but rather a limiting instruction or severance." (Id. at pp. 351-

352, citing Reeder, supra, 82 Cal.App.3d at p. 553.) This is because "Evidence Code

section 352 must bow to the due process right of a defendant to a fair trial and to his right

to present all relevant evidence of significant probative value to his defense." (Reeder,

supra, 82 Cal.App.3d at p. 553; accord, People v. Babbitt (1988) 45 Cal.3d 660, 684.)

This does not "imply, however, that a defendant has a constitutional right to present all

relevant evidence in his favor, no matter how limited in probative value such evidence

will be so as to preclude the trial court from using Evidence Code section 352." (Reeder,

supra, 82 Cal.App.3d at p. 553.) We review the trial court's ruling for an abuse of

discretion. (Greenberger, supra, 58 Cal.App.4th at p. 352.)

36
 Abad relies heavily on Reeder, supra, 82 Cal.App.3d 543. There, defendant

Reeder was convicted of selling drugs with codefendant Contreras. (Id. at p. 547.)

Reeder's defense was that he "disliked Contreras to an extent that [Reeder] would not

have engaged in narcotic dealings with Contreras." (Id. at p. 550.) In support, Reeder

sought to introduce evidence that Contreras refused to repay a debt owed to Reeder,

caused Reeder's step-daughter to contract tuberculosis and attempted to introduce her to

the use of heroin, and caused Reeder's nephew to use heroin to the extent he suffered a

near-fatal overdose. (Id. at pp. 549-550.) The trial court excluded this evidence, but the

Court of Appeal reversed.

The Reeder court ruled that Reeder should have been allowed to introduce the

evidence, but Contreras should have been able to request a limiting instruction or

severance:

"[W]hen defendant proffered evidence in his defense that created a
risk of prejudice to codefendant Contreras, it was error for the court
to continue the joint trial and exclude defendant's proffered
evidence—thus denying to defendant his right to have admitted, in
his behalf, evidence of significant probative value to support his
defense of innocence. Even though such evidence presented a
danger of prejudice to codefendant Contreras by the jury's possible
misuse of such evidence, this is not a ground for excluding such
evidence. Such a situation is contemplated by Evidence Code
section 355 which provides: 'When evidence is admissible as to one
party or for one purpose and is inadmissible as to another party or
for another purpose, the court upon request shall restrict the evidence
to its proper scope and instruct the jury accordingly.'

" . . . It was the codefendant Contreras who was endangered by
defendant's proffered evidence and who was entitled to the
protection offered by Evidence Code section 355 of requesting an
instruction limiting the use of defendant's evidence to its relevant
admissible purpose. It was up to codefendant Contreras to move for

37
 a mistrial and a separate trial if he felt the danger of prejudice to him
could not be alleviated or eliminated by a limiting instruction—that
the jury would misuse the evidence and determine that Contreras had
a bad character or a propensity for narcotic violations which would
lead to the inference that he committed the offenses charged against
him."

(Reeder, supra, 82 Cal.App.3d at p. 555.)

We find Reeder persuasive. Abad sought to introduce evidence with significant

probative value—that Solis stabbed someone to death. Solis's own testimony establishes

that he views the outcome of a stabbing to be material. With regard to Santos's murder,

Solis testified he did not flee from Abad (whom Solis claimed to barely know)

immediately after Abad stabbed Santos because he wasn't sure Santos was dead: "Well,

it's like this, had I seen somebody get their head chopped off, then I know they're dead,

but I didn't know that this guy died, so no. I just didn't panic and, you know, I got to get

away from this guy because he just killed somebody because I didn't know that that

person was dead." Solis also testified he did not feel the need to call for help for Santos

after he was stabbed because "just because somebody is stabbed doesn't necessarily mean

that they're going to die"—a point Solis punctuated by stating, "I've been stabbed before

and I didn't die." In ruling on the admissibility of the 1997 murder, the trial court also

noted the materiality of the different outcomes of a stabbing: "You can ask the questions,

you just can't say what the outcome is. Just because a person gets stabbed doesn't mean

necessarily that they die. Lots of people have those kinds of wounds, okay?" Yet, even

though the trial court recognized the "paramount" importance of this evidence to Abad's

defense, the court excluded it. This was error. Instead, it was incumbent upon Solis to

38
request a limiting instruction or to move for severance. (Reeder, supra, 82 Cal.App.3d at

pp. 551-352.)14

The People cite People v Homick (2012) 55 Cal.4th 816 and Greenberger, supra,

58 Cal.App.4th 298 as examples of cases where evidence was properly excluded. Those

cases are distinguishable because—as the People acknowledge in their briefing—the

excluded defense evidence had limited probative value. (People v Homick, supra, 55

Cal.4th at pp. 865 [characterizing the probative value of the excluded evidence as

"marginal" and "slim"]; Greenberger, supra, 58 Cal.App.4th at p. 352 [characterizing the

probative value of the excluded evidence as "not significant to [defendant]'s defense"].)

The trial court's erroneous attempt to sanitize the 1997 murder to protect Solis

prejudiced Abad under either Chapman, supra, 386 U.S. 18 or People v. Watson (1956)

46 Cal.2d 818, 836 (different result must have been "reasonably probable" in the absence

of the error). In denying defendants' motions for acquittal under section 1181.1, the trial

court characterized Solis's motion as an "easy one" and Abad's as a "more difficult one"

because, in contrast to the "significant physical evidencing placing [Solis] at the scene,"

"[t]here's less physical evidence to substantiate [Abad's] participation in this murder,

clearly a homicide, and in the Court's mind clearly a robbery." The limited physical

evidence substantiating Abad's involvement amplified the significance of Solis's

testimony implicating him. Similarly, it amplified Abad's need to implicate Solis as the

14 Because it was Solis's burden to request severance, we are unpersuaded by the
People's argument that Abad forfeited the severance issue by failing to renew his
severance motion in the trial court.
39
actual killer by introducing evidence that he had acted according to a common design or

plan in 1997. Therefore, the trial court's limitation on Abad's ability to do so prejudiced

Abad. Accordingly, we reverse Abad's conviction and set aside the true finding on the

robbery-murder special circumstance.

III.

SUBSTANTIAL EVIDENCE

Solis contends insufficient evidence establishes that he committed or attempted to

commit a robbery. Thus, he contends his murder conviction—to the extent it is based on

a felony-murder theory and not a malice-murder theory (the verdict form does not

specify)—and the true finding on the robbery-murder special circumstance are

unsupported. He also contends insufficient evidence establishes he was either the

perpetrator or aider and abettor in Santos's murder. Consequently, he argues, the trial

court also erred by denying his motion for acquittal at the close of the People's case in

chief. We construe Abad's joinder as asserting these contentions as to his own guilt.

Although we reverse each of defendants' convictions for the reasons explained

above, we nonetheless address the sufficiency of the evidence to support their convictions

because the double jeopardy clause precludes retrial if the evidence is insufficient.

(People v. Grant (2003) 113 Cal.App.4th 579, 584.) As we will explain, we conclude the

murder convictions and special circumstance true findings are supported by substantial

evidence.

When a defendant challenges the sufficiency of the evidence, " '[t]he court must

review the whole record in the light most favorable to the judgment below to determine

40
whether it discloses substantial evidence—that is, evidence which is reasonable, credible,

and of solid value—such that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt.' " (People v. Davis (1995) 10 Cal.4th 463, 509, quoting

People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Letner and Tobin (2010)

50 Cal.4th 99, 161, fn. 19 (Letner) [we apply the same standard of review in assessing the

sufficiency of the evidence supporting special circumstance findings].) " 'Substantial

evidence includes circumstantial evidence and any reasonable inferences drawn from that

evidence.' " (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) We " ' "presume in

support of the judgment the existence of every fact the trier could reasonably deduce

from the evidence." ' " (People v. Davis, supra, at p. 509, quoting People v. Clark (2011)

52 Cal.4th 856, 942-943.)

A. Robbery

"Robbery is the taking of 'personal property in the possession of another against

the will and from the person or immediate presence of that person accomplished by

means of force or fear and with the specific intent permanently to deprive such person of

such property.' " (People v. Lewis (2008) 43 Cal.4th 415, 464.) "Whether an act is

performed with any particular specific intent is a question of fact for the trier-of-fact, and

where there is any substantial evidence to support the trier's finding on such issue, the

finding will not be disturbed on appeal." (People v. Kranhouse (1968) 265 Cal.App.2d

440, 449.)

Regarding Santos's car, defendants argue primarily there is insufficient evidence to

establish that they intended to permanently deprive him of it. Rather, they assert the

41
"purpose for taking the car was manifestly to get back to Santa Maria or Lompoc." We

are not persuaded.

Letner, supra, 50 Cal.4th 99 is instructive. Neither of the defendants in that case

owned a car. (Id. at p. 116.) When a police officer performed a traffic stop on the

defendants while they were driving the murder victim's car (before the officer knew of

the murder), one defendant told the officer they borrowed it to drive the other defendant

home. (Id. at p. 118.) The officer conducted sobriety tests on the driver, concluded the

driver was not in a condition to drive, and told the defendants to lock the car and continue

on foot. (Id. at p. 119.) The defendants abandoned the car and walked home. (Ibid.)

They were later convicted of (among other things) murder and robbery, and were

sentenced to death. (Id. at p. 114.) On direct appeal to the Supreme Court, the

defendants challenged the sufficiency of the evidence supporting the robbery conviction.

The Supreme Court concluded, "The jury reasonably could find that defendants were in

possession of Pontbriant's car, shortly after she was violently murdered. Based upon this

evidence—by itself—the jury reasonably could infer that defendants removed

Pontbriant's car against her will by killing her, thus committing a robbery and an

intentional murder while engaged in a robbery." (Id. at p. 166.) The possibility that the

defendants decided to take the victim's car only after they killed her did not render the

evidence insufficient. (Ibid.)

Similarly, defendants were in possession of Santos's car shortly after he was

violently murdered. Thus, the jury reasonably could infer—from this fact alone—that

defendants robbed Santos. Defendants' argument that they took the car only to get back

42
to Santa Maria or Lompoc fails for several reasons. First, it is similar to the defendants'

unsuccessful claim in Letner that they only borrowed the car to drive one of the

defendants home. (Letner, supra, 50 Cal.4th at p. 118.) Second, the fact that defendants

may have needed the car to satisfy their immediate transportation needs does not negate

the possibility that they intended to deprive Santos (or his heirs) of it permanently.15 As

with the intervening traffic stop in Letner, there is no indication defendants would have

abandoned Santos's car but for it breaking down on the freeway.

Defendants cite People v. Butler (1967) 65 Cal.2d 569, 573 (Butler) for the

proposition that "[a]lthough an intent to steal may ordinarily be inferred when one person

takes the property of another, particularly if he takes it by force, proof of the existence of

a state of mind incompatible with an intent to steal precludes a finding of either theft or

robbery." (Italics added.) However, Butler arose in a context far less analogous than

Letner—the Butler "defendant's only defense to robbery-murder was the existence of an

honest belief that he was entitled to the money" he took because the victim owed it to

him. (Id. at p. 574.)16

15 On this point, defendants cite People v. Moon (2005) 37 Cal.4th 1, 27 for the
proposition that "the Supreme Court recognized that the issue was defendant's intent to
keep the car, not his intent to return it to a particular person." However, Moon also cites
the defendant's killing of the car's owner as one indicia of his intent to keep the car
permanently. (Ibid.)
16 Butler has since been overruled to the extent it "extended the claim-of-right
defense to robberies perpetrated to satisfy, settle or otherwise collect on a debt, liquidated
or unliquidated—as opposed to forcible takings intended to recover specific personal
property in which the defendant in good faith believes he has a bona fide claim of
ownership or title." (People v. Tufunga (1999) 21 Cal.4th 935, 956.)
43
 In any event, substantial evidence beyond defendants' mere possession of Santos's

car further supports the finding that defendants robbed or attempted to rob Santos.

Physical evidence tied defendants to the crime scene; Abad initially denied knowing

Solis, meeting Santos, or hitching a ride with Santos, yet Abad appeared nervous when

detectives showed him pictures of Solis and Santos, and Abad's fingerprints were on

Santos's car; Solis claimed defendants planned to travel northwest to Santa Maria and

Lompoc, yet they diverted northeast toward Las Vegas via Victorville; Solis claimed he

urgently exited the freeway as Santos attacked him, yet Santos's body, drag marks, and

signs of a scuffle were located two miles down a remote frontage road from which no

other roads and the freeway were visible; Solis claimed not to have been drinking Coke,

yet his fingerprints were found on a Coke can in Santos' car, supporting the prosecutor's

theory that Solis drank soft drinks to stay sober while Santos drank alcohol until he

passed out, making Santos an easier target; and Solis denied ever going to the KOA

campground, but campground assistant manager Nancy Abbott testified she saw Santos at

the campground with two men matching defendants' descriptions. Taken together, this

circumstantial evidence constitutes substantial evidence that defendants intended to rob

Santos of his car.

Regarding Santos's wallet, defendants argue that because it was found at the

campground approximately two miles from Santos's body, it likely fell out of his pocket

when the three men were buying drinks and was never the object of a robbery. Again, we

are unpersuaded. First, Solis does not attempt to reconcile this theory with his claim that

he was never at the campground. Second, even if Santos did lose his wallet at the

44
campground, defendants may have been unaware of that fact and still attempted to rob

him of it later.17 The jury could reasonably infer that defendants learned Santos had a

wallet when they stopped at the liquor store and again when they bought drinks at the

KOA campground. Santos losing his wallet at the campground would provide a

reasonable explanation for why Santos's pants and underwear were removed: defendants

were searching for the wallet they had seen earlier but could not find in Santos's pockets.

Third, assuming Santos did not lose his wallet, the jury could reasonably infer

defendants robbed Santos of the wallet at the murder scene and discarded the wallet at the

campground while fleeing. (People v. Clark (2011) 52 Cal.4th 856, 945 [evidence that

murder victim had money in her pocket before murder, but not after, "sufficed to raise a

strong inference that at some point after defendant's initial use of force against [victim],

he took money from her pocket"]; People v. Hubler (1951) 102 Cal.App.2d 689, 691-

692, 695-696 [the jury reasonably could infer that the defendant took the victim's purse

based on evidence that the victim was in possession of a purse and wallet when she was

assaulted by defendant and rendered unconscious and that, when she regained

consciousness, her purse was missing].) As for why the wallet was found at the

campground, tire tracks near the murder scene indicated that a vehicle made a U-turn and

traveled southbound on Stoddard Wells Road—toward the KOA campground near the

Interstate 15 interchange.

17 Attempted robbery would also support a felony-murder conviction and robbery-
murder special circumstance. (§§ 189, 190.2, subd. (a)(17).)
45
 In sum, we conclude substantial evidence supports inferences that defendants

robbed Santos of his car and his wallet sufficient to support defendants' convictions for

felony-murder and the true findings on the robbery-murder special circumstance. We

would reach this conclusion even without considering evidence introduced after the close

of the People's case in chief—namely Solis's trial testimony. Accordingly, the trial court

did not err by denying defendants' motions for acquittal. (§ 1118.1; People v. Hajek

(2014) 58 Cal.4th 1144, 1182 ["In determining whether the evidence was sufficient either

to sustain a conviction or to support the denial of a section 1118.1 motion, the standard of

review is essentially the same."].)

B. Murder

Substantial evidence supports Abad's murder conviction. He denied knowing

Solis or meeting Santos, but when confronted with their photographs, Abad appeared

nervous. Abad denied hitching a ride with Santos or otherwise being in his car, yet

Abad's fingerprints were found on the car in an orientation consistent with him sitting

inside of it. The campground assistant manager testified she saw someone matching

defendants' description near the time and location of the crime. The jury could

reasonably have inferred Abad was dishonest with the police to conceal his involvement

in the crime. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1102 ["It is well

established that pretrial false statements by a defendant may be admitted to support an

inference of consciousness of guilt by the defendant."].) Abad's apparent dishonesty and

fingerprints placing him at the crime scene were sufficient to withstand a motion for

46
acquittal at the close of the People's case in chief. Solis's defense testimony implicating

Abad as the perpetrator further supports Abad's conviction.

Substantial evidence also supports Solis's murder conviction. The People's case-

in-chief established Solis's fingerprints and blood were in Santos's car. Solis's blood was

also on Santos's clothing. Detective Lenihan testified he has seen several occasions when

a suspect using a knife cut himself with it, which would explain why Solis was bleeding

even if Santos never hit him with a wine bottle.18 The campground assistant manager's

testimony put Solis near the remote crime scene. This evidence was sufficient to

withstand Solis's motion for acquittal.

Solis's defense testimony further supports his murder conviction. Solis testified he

and Abad were leaving the group home to travel northwest to Santa Maria and Lompoc,

yet they drove northeast with Santos toward his destination of Las Vegas. Solis testified

he urgently exited the freeway when Santos hit him with a wine bottle, yet the crime

scene was two miles from the freeway on an isolated stretch of road leading to a

dumpsite. Solis testified he did not go to the KOA campground, but the assistant

manager's testimony contradicted him. Solis testified he did not drink Coke while

driving Santos's car, but his fingerprints were on a Coke can on the driver's side. The

18 These facts distinguish this case from those Solis cites for the proposition that
determining which of two suspects is the perpetrator is a essentially a " 'coin flip'
situation." These facts also distinguish this case from People v. Russell (1953) 118
Cal.App.2d 136, 138, where there was insufficient evidence to establish whether the
victim had been struck by the defendant or simply fell while intoxicated.
47
jury could easily have disbelieved Solis's version of events and concluded he was the

perpetrator.

Because we conclude substantial evidence supports defendants' convictions and

the true finding on the robbery-murder special circumstance, double jeopardy does not

bar defendants' retrial.

IV.

INSTRUCTIONAL ERROR REGARDING UNANIMITY

Solis contends the trial court erred by not instructing the jury sua sponte that it had

to agree unanimously on the two potential objects of the robbery: Santos's car or his

wallet. Abad joins in this contention. Because we reverse defendants' convictions, we

need not address the merits of this contention. However, because the People may elect to

retry defendants, we briefly discuss this contention to provide the trial court with

guidance in the event of a retrial.

"As a general rule, when violation of a criminal statute is charged and the evidence

establishes several acts, any one of which could constitute the crime charged, either the

state must select the particular act upon which it relied for the allegation of the

information, or the jury must be instructed that it must agree unanimously upon which act

to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).)

"This requirement of unanimity as to the criminal act 'is intended to eliminate the danger

that the defendant will be convicted even though there is no single offense which all the

jurors agree the defendant committed.' " (People v. Russo (2001) 25 Cal.4th 1124, 1132.)

However, "[t]here . . . is no need for a unanimity instruction if the defendant offers the

48
same defense or defenses to the various acts constituting the charged crime." (Jennings,

supra, 50 Cal.4th at p. 679.) Absent a request by counsel, the trial court must instruct on

the unanimity requirement sua sponte when the circumstances warrant it. (People v.

Davis (2005) 36 Cal.4th 510, 561 (Davis).)

On the record before us, we cannot say the trial court erred by failing to instruct

sua sponte on unanimity. Although the prosecutor did identify Santos's car and wallet as

separate objects of the robbery,19 it appears defendants' defenses did not distinguish

between the two objects. Abad's defense to all claims was that he parted ways with

Santos and Solis in Los Angeles County and Solis alone murdered Santos. Solis's

defense was that Abad killed Santos and any intent Solis formed in taking Santos's

property he formed after Santos was already dead. Thus, there appeared to be no need to

instruct the jury on unanimity.

On appeal, however, defendants identify separate defenses to each object that they

did not raise at trial. As discussed above, defendants argue as to the car that they had no

intent to permanently deprive Santos (or his heirs) of it, whereas they argue the wallet

simply fell out of Santos's pocket and was not stolen at all. In this regard, they assert

their case is analogous to Davis, supra, 36 Cal.4th 510, in which the California Supreme

Court held it was prejudicial error not to instruct on unanimity when the defendant

asserted separate defenses as to each object of a robbery. We agree.

19 For example, the prosecutor argued during summation: "To prove a robbery, the
defendant took property that was not his own. In this case, they took his car, and they
took his wallet . . . ." He also argued, "This is an actual robbery. They took his car.
They were successful at taking his car. They were successful at taking his wallet."
49
 In Davis, the defendant and his accomplices drove from South Central Los

Angeles to Westwood with the intent to steal a car that they would use to drive to

Barstow to rob a liquor store there. (Davis, supra, 36 Cal.4th at p. 518.) They

commandeered a Honda occupied by students Brian Harris and Michelle Boyd. (Id. at

pp. 517-518.) Defendant and his accomplices drove to an isolated location, where

defendant took Harris and Boyd into a field and shot them each once in the head. (Ibid.)

Defendant and his accomplices drove to Barstow, but did not end up robbing the liquor

store because there were too many people there. (Id. at p 519.) One of the accomplices

abandoned the Honda and set fire to it in an alley in South Central Los Angeles. (Id. at p.

520.) The defendant and his accomplices divvied up two rings that resembled rings Boyd

always wore but which were not on her body after her murder. (Ibid.) The defendant

was convicted of (among other things) murder and robbery, and the jury found true a

robbery-murder special circumstance; he was sentenced to death. (Id. at p. 517.)

On appeal, the defendant argued the trial court erred by failing to instruct on

unanimity regarding the robbery of Boyd. (Davis, supra, 36 Cal.4th at p. 560.) The

Supreme Court agreed: "The evidence disclosed two distinct takings: the taking of

Harris's car from Boyd and Harris, and the taking of Boyd's rings from her person.

Moreover, the prosecutor argued that the jury could rely on either theory to convict

defendant of the robbery of Boyd." (Id. at p. 561.) The defendant asserted different

defenses as to each object: "as to the car, the defense was that Boyd was not legally in

possession of it; as to the rings, the defense was that its taking constituted only the lesser

included crime of theft." (Id. at p. 562.) Under the circumstances, the Supreme Court

50
found the error prejudicial because the court could not determine "from the record

whether some jurors found defendant guilty of robbery based on the taking of the rings

while others relied solely on defendant's taking of the Honda. On the facts of this case,

some jurors may have had a reasonable doubt as to whether Boyd was still alive when the

intent to take her rings was formed while other jurors may have had a doubt about

whether Boyd was in possession of Harris's car." (Id. at p. 561.)

Similarly, if defendants are retried, and if they assert separate defenses as to the

robbery of Santos's car and wallet—such as those raised in this appeal—the trial court

should instruct the jury on the requirement of unanimity.

51
 DISPOSITION

The judgment is reversed.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

52