Filed 12/18/13 P. v. Bryant CA4/1 Opinion following remand from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. AMALIA CATHERINE BRYANT, Defendant and Appellant. D057570

(Super. Ct. No. SWF014495)

APPEAL from a judgment of the Superior Court of Riverside County, Timothy F. Freer, Judge. Affirmed. Anthony J. Dain, under ap pointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Seni or Assistant Attorney General, James H. Flaherty III, and Kristen Kinnaird Chenelia, Deputy Attorney s General, for Plaintiff and Respondent.2 I. INTRODUCTION Amalia Catherine Bryant k illed her boyfriend with a knif e. A jury found Byrant not guilty of first degree murd er, but guilty of second degree murder (Pen. Code, §§ 187, subd. (a), 189). 1 The jury also found that Bryant pe rsonally used a deadly or dangerous weapon within the meaning of section 12022, subdivis ion (b)(1), in committing the murder. The trial court sentenced Bryant to an aggregate term of 16 years to life in prison. In her initial briefing on appeal, Bryant cl aimed that the trial court erred in failing to instruct the ju ry sua sponte on involuntary manslaughter as a lesser included offense of murder, on the theory that she killed unlawfully wh ile committing the misdemeanor offense of brandishing a weapon or performing a lawful act with criminal negligence. After the People filed their respondent's brief, we requested supplemental briefing concerning whether the trial court committed reversible erro r by not instructing the jury sua sponte that an un intentional killing without malice duri ng the course of an inherently dangerous assaultive felony constitutes voluntary manslaughter. (See People v. Garcia (2008) 162 Cal.App.4th 18, 31 ( Garcia ) [stating that "an unlawful killing during the commission of an inherently dangerous fel ony, even if unintentional, is at least voluntary manslaughter" (italics added)].) We further instructed the parties to assume that the

1 Unless otherwise specified, all subsequent statutory references are to the Penal Code.3 People were correct that Bryant committed, at a minimum, a felony assault with a deadly
weapon. Bryant filed a supplemental brief in wh ich she argued that the trial court should have instructed the jury on voluntary mansla ughter, based on the theory set forth in our request for supplemental briefing, and that the error was prejudicial. The People responded that there was no evidentiary basis fo r the instruction and, alternatively, that any error in failing to instruct the jury on this theory of voluntary manslaughter was harmless. In our initial opinion in this matter, we reversed Bryant's murder conviction, concluding that "the trial cour t erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter, base d on the theory articulated in Garcia. " ( People v. Bryant (Aug. 9, 2011, D057570), re view granted and opn. or dered nonpub. Nov. 16, 2011, S196365.) 2 The Supreme Court grante d the People's petition for review and reversed our judgment. ( People v. Bryant (2013) 56 Cal.4th 959, 971 ( Bryant ).) The Supreme Court concluded:

2 We rejected Bryant's claims that the trial court erred in failing to instruct the jury sua sponte on involuntary manslaughter as a lesser included offense of murder on the theory that Bryant killed un lawfully in the commission of misdemeanor brandishing a weapon or in the commission of a lawful act committed with cr iminal negligence, reasoning that the evidence established that Bryant committed, at a minimum, an assault with a deadly weapon. ( People v. Bryant, supra, D057570.)4 "A defendant who has killed without malice in the commission of an inherently dangerous assaultive felony[ 3 ] must have killed without either an intent to kill or a cons cious disregard for life. Such a killing cannot be voluntary ma nslaughter be cause voluntary manslaughter requires either an intent to kill or a conscious disregard for life. To the extent that [ Garcia , supra , 162 Cal.App.4th at page 31] suggested otherwise, it is now disapproved. "Because a killing without malice in the commission of an inherently dangerous assaultive felony is not voluntary manslaughter, the trial court could not have erred in failing to instruct the jury that it was." ( Bryant, supra , at p. 970.) The Supreme Court expressly "decline[d] to address [Bryant's] alternative contention that, because assau lt with a deadly weapon is not an inheren tly dangerous felony, the trial court erred in failing to instruct the jury on the theory of involuntary manslaughter recognized in [ People v. Burroughs (1984) 35 Cal.3d 824 ( Burroughs )]." ( Bryant, supra , 56 Cal.4th at pp. 970-971, italics added.) The Bryant court remanded the matter to this court for proceedings consistent with its opinion. ( Id. at p. 971.) In a concurring opinion, Justice Kennard concluded that "[b]ecause the defense here presented evidence from which the jury could have reasona bly concluded that defendant lacked malice, but killed while co mmitting an assault w ith a deadly weapon [citation], a jury instruction on involuntary manslaughter as a lesser offense necessarily included within the charged crime of mu rder would have been proper." ( Bryant, supra , 56 Cal.4th at p. 975 (conc. opn. of Kennard, J.), italic s added.) However, Justice Kennard further concluded that the trial court did not have a sua sponte duty to provide

3 Elsewhere in its opinion, the Supreme C ourt stated that "assa ult with a deadly weapon [is] an offense we assume to be inherently dangerous." ( Bryant, supra , 56 Cal.4th at p. 966.)5 such an instruction in this case because the legal principl e on which the instruction would be based "has been so 'obfuscated by infrequen t reference and inadequate elucidation' that it cannot be considered a general principle of law." ( Ibid. , quoting People v. Flannel (1979) 25 Cal.3d 668, 681( Flannel ).) On remand, Bryant claims that the trial court erred in failing to instruct the jury sua sponte that an unlawf ul killing committed without ma lice in the course of an assaultive felony cons titutes the crime of involuntary manslaughter. 4 In light of Supreme Court authority concerning a trial court's sua sponte instructional du ties, we must reject Bryant's contention. The Supreme Court has repeat edly held that a trial court has no sua sponte duty to instruct on a legal principle that has been "obfuscated by infrequent reference and inadequate elucidation." ( Flannel, supra, 25 Cal.3d at p. 681; see also People v. Michaels (2002) 28 Cal.4th 486, 529 ( Michaels ) [a "trial court . . . has no duty to . . . instruct on doctrines of law that have not been established by au thority"].) In this case, it is undisputed that there is no auth ority holding that an unlawful killing committed without malice in the course of an assaultive felony constitu tes the crime of involuntary manslaughter. Thus, even assuming that the jury instruction that Bryant proffers in her

4 Our rejection in People v. Bryant , supra , D057570, of Bryant's argument that the trial court erred in failing to instruct the ju ry sua sponte on involuntary manslaughter as a lesser included offense of murder on the th eory that she killed unlawfully in the commission of misdemeanor brandishing a we apon or in the commission of a lawful act committed with criminal neglig ence remains valid in the wake of the Supreme Court's reversal of our prior opini on on other grounds. Bryant do es not contend otherwise.6 briefing on remand is a correct statement of the law, under binding authority, the trial court had no sua sponte duty to provide such an instructi on in this case. Accordingly, we affirm the judgment.
II.
FACTUAL BACKGROUND 5 "On November 24, 2005, neighbors re sponded to the apartment in which defendant lived with her boyfriend Robert Golden to find defendant screaming and Golden lying facedown in the front doorway. Defendant was pleading with Golden to 'wake up.' Golden had a stab wound to the chest and no pulse; he was later pronounced dead at the hospital. During two police interviews and in testimony at trial, defendant recounted [the events that le d to Golden's death]. She st ated that during a physical altercation, she grabbed a knife from the kitche n and threatened to hurt Golden if he did not let her leave. Golden lu nged for the knife, and the tw o struggled over it. Defendant broke free with the knife in her hand. When Golden [advanced] to ward defendant, she made a thrusting motion at him with the knif e, and it went into his chest. Defendant claimed that she never intended to kill Golden. "The trial court instructed the jury on first degree premeditated murder, second degree murder, and voluntary manslaughter based upon heat of passion and unreasonable self-defense, as well as the defense of re asonable self-defense . The jury convicted defendant of second degree murder and found tr ue the allegation that she personally used

5 Our factual background is taken from th e Supreme Court's opinion in this matter. ( Bryant, supra, 56 Cal.4th at pp. 963-964.)7 a deadly weapon. The trial court sentenced defendant to 15 years to life in prison for murder, plus a consecutive year fo r the weapon enhancement." ( Bryant , supra , 56 Cal.4th at pp. 963-964.)
III. DISCUSSION The trial court did not err in failing to instruct the jury sua sponte that an unlawful killing committed without malice in the course of an assau ltive felony constitutes the crime of involuntar y manslaughter Bryant claims that the trial court erred in failing to instruct the jury sua sponte that an unlawful killing committed without malice in th e course of an assaultive felony constitutes the crime of involuntary manslaughter.
A. The People's contention that this cour t should not address Bryant's claim is without merit The People maintain that this court should not consider Bryant's jury instruction claim on remand, and offer two reasons in supp ort of this contention. First, the People maintain that Bryant's claim is not within the scope of th e Supreme Court's remand. In support of this argument, the People contend that Bryant ra ised the same claim in the Supreme Court, and the Supreme Court declin ed to consider the claim and remanded the matter to this court "for further proceed ings consistent" w ith its opinion. ( Bryant, supra , 56 Cal.4th at p. 971.) We are not persuaded. Our cons idering on remand an issue not addressed by the Supreme Court is not incons istent with the Supreme Court's opinion. Accordingly, we conclude that Bryant's cl aim is not outside the scope of the Supreme Court's remand.8 The People also contend that Bryant is presenting this claim for the first time on remand, and that in doing so, sh e is "engaging in piecemeal litig ation that is prejudicial to the People." We agree that Bryant did no t offer this theory of instructional error 6 in her initial briefing on a ppeal, but we exercise our disc retion to consider her claim, notwithstanding any possible fo rfeiture, for the following reas ons. First, at the time Bryant filed her initial briefing on appeal, the Court of Appeal in Garcia had concluded both that "[a]n unintentional killing, without malic e, during the commission of an inherently dangerous felony does not constitute involuntary manslaughter" ( Garcia , supra , 162 Cal.App.4th at p. 26, italics altered) and that "an unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter." ( Id . at p. 31.) However, in Bryant , our Supreme Court disapproved
Garcia to the extent that it suggests that "[a] defendant who has killed without malice in the commission of an inherently dange rous assaultive felony" has committed voluntary manslaughter. ( Bryant, supra , 56 Cal.4th at p. 970.) Furt her, in her concurring opinion
in Bryant , Justice Kennard expressly stated that "an assault with a d eadly weap on [can] constitute an unlawful act that make s a killing occurring during the assault involuntary manslaughter." ( Bryant, supra , at p. 971 (conc. opn. of Kennard, J.).) Justice Kennard also observed that although the issue is not "a ground on which [the Supreme Court] granted review," it is an issue "closely co nnected to the facts of this case." ( Ibid .) We

6 Bryant did contend in her initial briefing on appeal that the trial court erred in failing to instruct the jury sua sponte on involuntary manslaughter, albeit for reasons different from those that she asserts on remand from the Supreme Court. (See fns. 2 and 4, ante .)9 conclude that there has thus been a material change in the law, warranting our exercise of discretion to consider Bryant's claim, despite her failure to present this argument in her initial briefing on appeal. With respect to the People's contention that Bryant has engaged in "piecemeal litigation," we note that the position that the People took in the Supreme Court in this matter is directly contrary to the position they previously advocated in their opposition to Bryant's appeal in this court. As noted pr eviously, after the initial briefing on appeal in this court was complete, we asked the par ties to submit supplemental letter briefs addressing the following question: "Did the trial court co mmit reversible error by not instructing the jury sua sponte that an unintentional killing without malice during the course of an inherently dangerous assau ltive felony constitutes voluntary manslaughter? (See [ Garcia, supra , 162 Cal.App.4th 18].)" In their response to our request, the People conceded the existence of such a sua sponte duty, stating in their su pplemental letter brief, "[T]he trial court [had] a sua sponte duty to instruct on the Garcia theory of voluntary manslaught er if there were substantial evidence that appellant did not subjectively appreciate that her conduct endangered [Robert's] life." Notwithstanding their concessi on in this court of the existence of a trial court's sua sponte duty to instruct on the Garcia theory of voluntary manslaughter, where factually supported, the People argue d in the Supreme Court that "the Garcia [court] did not articulate an additional theory of mans laughter" and that this court "adopted the
Garcia theory of voluntary manslaughter as if [by] divine writ . . . ."10 Accordingly, in light of the material ch ange in the law, the significant change in the People's litigation posture, and the Peopl e's failure to demonstrate any actual prejudice caused by Bryant's failure to rais e this claim in her in itial briefing on appeal, we exercise our discretion to c onsider Bryant's claim that the trial court erred in failing to instruct the jury sua sponte that an unl awful killing committed without malice in the course of an assaultive felony constitute s the crime of involuntary manslaughter, notwithstanding her failure to raise this claim in her initial briefing on appeal.
B. The trial court did not have a sua sponte duty to instruct on Bryant's novel theory of involuntary manslaughter
1. A trial court has no duty to instruct on a legal principle t hat has been so "obfuscated by infrequent reference and inadequate elucidation" that it cannot be considered a general principle of law ( Flannel , supra , 25 Cal.3d at p. 681.)
In Flannel , supra , 25 Cal.3d 668, the court consider ed whether a "[trial] court erred in failing to instruct the jury sua sp onte that defendant's honest but unreasonable belief that he must defend himself from deadly attack negates malice so that the offense is reduced from murder to manslaughter." ( Id . at p. 672.) The Flannel court acknowledged that "decisions, including those of this court, recognize, albeit without full discussion, that one who hold s an honest but unreasonable belief in the necessity to defend against imminent peril to life or grea t bodily injury does not harbor malice and commits no greater offense than manslaughter." ( Ibid .) The Flannel court further observed "it has been legal doctrine, even tho ugh infrequently applied in the past, that a genuine but unreasonably held belief negates th e mental state of malice aforethought that is necessary for a murder conviction." ( Id . at p. 682.)11 Despite the existence of such doctrinal underpinnings, the Flannel court held that the trial court in that case had no sua sponte duty to instruct the jury on the law of imperfect self-defense. ( Flannel , supra , 25 Cal.3d at p. 682.) The Flannel court reasoned: "[A] trial court's duty to instru ct sua sponte on this defense[ 7 ] arises only in a case in which the eviden ce presents issues relevant to 'general principles of law.' When a rule applies so seldom that courts have found no occasion to give it full, substantive discussion and California Jury Instructions, Criminal (CALJIC) has not set it out as a standard instruction, we d ecline to proclaim that, heretofore, the rule expressed a general principle. We conclude that the court did not err in failing to inst ruct of its own motion." ( Id . at p. 672.) The Supreme Court explained its holding th at a trial court has no sua sponte duty to instruct on novel legal theories, stating that such theories have not received sufficient elucidation to constitute a "gen eral principle[] of law." ( Flannel , supra , 25 Cal.3d at p. 681.) The Flannel court reasoned: "[T]he sua sponte 'rule seems und oubtedly designed to promote the ends of justice by providing some judicial safeguards for defendants from the possible vagaries of ineptness of counsel under the adversary system. Yet the trial cour t cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. The judge need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts.' [Citation.] Given the undeveloped state of the unreasonable belief rule, we cannot impose upon the instant trial court so formidable a duty as to co nceive and concoct an instruction

7 In People v. Barton (1995) 12 Cal.4th 186, 200, th e Supreme Court explained that " 'unreasonable self-defense' is . . . not a true defense; rathe r, it is a shorthand description of one form of voluntary manslaughter."12 embodying that rule. 'The duty of the trial court involves percipience—not omniscience.' [Citations.]" 8 ( Id . at p. 683.) Similarly, in Michaels , supra , 28 Cal.4th 486, the Suprem e Court concluded that a trial court did not have a sua sponte duty to instruct on "unreasonable or imperfect defense of others" ( id . at p. 529), because a "trial court . . . has no duty to so instruct on doctrines of law that have not be en established by authority." ( Ibid .) In reaching this conclusion, the Michaels court applied Flannel and its progeny:

" Flannel held that a trial court was not required to instruct on imperfect self-defense until th at defense was recognized by California decisions. ([ Flannel, supra, 25 Cal.3d at pp. 680–683].) Applying the same analysis, courts have refused to require a trial court to instruct on its own motion that an unreasonable belief one is acting under duress is a par tial defense to robbery ( People v. Bacigalupo (1991) 1 Cal.4th 103, 125–126 ( Bacigalupo I )); that imperfect self-defense is a defe nse to the crime of torture ( People v. Vital (1996) 45 Cal.App.4th 441, 446); or that imperfect self-defense is a defense to the crime of mayhem ( People v. Sekona (1994) 27 Cal.App.4th 443, 451). "This reasoning governs here. At the time of defendant's trial, the concept of imperfect defense of others was not a commonly known and established defense. We ackn owledge that this concept follows logically from the interplay be tween statutory and decisional law. . . . But the trial court here wa s not required to so instruct on its own motion, because the doctrine ofimperfect or unreasonable selfdefense was not a well-established legal doctrine under California law." ( Michaels, supra, 28 Cal.4th at p. 530.) In sum, the Supreme Court has repeatedly held that a legal concept that has been referred to only infrequently, and then with " 'inadequate elucidation,' " cannot be

8 Although the Flannel court concluded that the trial court did not have a sua sponte duty to instruct the jury in th at case concerning the doctrine of imperfect self-defense, the Flannel court stated that in all subsequent cases, trial courts would have such duty. ( Flannel , supra , 25 Cal.3d at p. 683.)13 considered a general principle of law requi ring a sua sponte ju ry instruction. ( Flannel , supra , 25 Cal.3d at p. 681; accord In re Christian S. (1994) 7 Cal.4th 768, 774 ["We observed in [ Flannel, supra, 25 Cal.3d at page 681] that the doctrine [of imperfect selfdefense] had been 'obfuscate d by infrequent reference and inadequate elucidation' and thus, before the trial in that case, had not become a general principle of law requiring a sua sponte instruction"].)
2. The trial court had no sua s ponte duty to instruct the jury that an unlawful killing committed without malice in th e course of an assaultive felony constitutes the crime of involuntary manslaughter In her supplemental brief on remand, Bryant offers two theories in support of her contention that the trial court erred in failing to instruct th e jury sua sponte that an unlawful killing committed without malice in the course of an assaultive felony constitutes the crime of involuntary manslaug hter. First, she argues that such an instruction was required pursuant to Burroughs, supra , 35 Cal.3d 824. In Burroughs , the Supreme Court stated, "[A]n unintentional homicide committed in the course of a noninherently dangerous felony may prope rly support a conviction of involuntary manslaughter, if that felony is committed without due caution and circumspection." ( Id

. at p. 835.) Second, Bryant argues that be cause manslaughter functions as a " 'catch-all' concept," which includes "all unl awful homicides that do not am ount to murder . . . this Court should conclude that an unlawful killi ng without malice in the course of a felony assault with a deadly weapon is necessarily involu ntary manslaughter . . . ." Bryant does not dispute th at there is no auth ority holding that an unlawful killing committed without malice in the course of an assaultive felony co nstitutes the crime of14 involuntary manslaughter, pur suant to either theory. 9 In light of the l ack of authority in support of either theory of involuntary ma nslaughter, it is clear that pursuant to the Supreme Court law cited above, the trial court di d not have a sua sponte duty to instruct the jury that an unlawful k illing committed without malice in the course of an assaultive felony constitutes the crime of involuntary manslaughter. 10 (See e.g., Michaels , supra , 28 Cal.4th at p. 529 ["tr ial court . . . has no duty to instru ct on doctrines of law that have not been established by authority"]; accord Flannel , supra , 25 Cal.3d at p. 682.) 11
IV.

9 Bryant expressly acknowledges that "t here appears to be no currently valid published case which addresses the issue of whether the crime of assault with a deadly weapon is a felony inherently dangerous to lif e." Bryant also does not cite any case in which a court has relied on the "catch-all" na ture of manslaughter to conclude that an unlawful killing committed without malice in the course of an assaultive felony constitutes the crime of involuntary manslaughter.
10 In her concurring opinion in Bryant , Justice Kennard persua sively articulates why such an instruction is a prop er statement of the law. ( Bryant, supra , 56 Cal.4th at pp. 971-975 (conc. opn. of Kennard, J.).) However, we need not expressly decide whether such an instruction is or is not a proper stat ement of the law, becau se even assuming that Justice Kennard's view is correct, there was no sua sponte duty to instruct in this case, for the reasons stated in the text. (See Bryant, supra , 56 Cal.4th at p. 975 (conc. opn. of Kennard, J.) [stating that while "a jury instru ction on involuntary manslaughter as a lesser offense necessarily included within the ch arged crime of murder would have been proper," the trial court had no sua sponte dut y to provide such an instruction, citing Flannel ].)
11 Bryant's supplemental brief contains a single sentence in which she argues, "[T]o the extent a request for such an instruction from trial counsel was required . . . appellant received the ineffective assistan ce of counsel." Bryant did not present this claim in her initial briefing on a ppeal, and she has not adequately briefed the issue of ineffective assistance of counsel in her supplemental br iefing on remand. Accordingly, we deem Bryant's claim of ineffective of assistance of counsel forfeited for purposes of this appeal, and decline to consider the merits of that claim.15 DISPOSITION The judgment is affirmed.

AARON, J. WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.AARON, J. concurring: While Bryant's claim fails in light of th e Supreme Court authority discussed in the majority opinion, I write separately to ex press my disagreement with the "inadequate elucidation" doctrine ( People v. Flannel (1979) 25 Cal.3d 668, 681) and to urge that it be reconsidered. In my view, a trial court's oblig ation to instruct sua sponte should turn not upon the frequency with which a principle a ppears in case law, but rather, upon the clarity of the legal principle in volved and whether that princi ple applies to a given set of facts. (Cf. People v. Sedeno (1974) 10 Cal.3d 703, 715 [" 'I t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues rais ed by the evidence. [C itations.] The general principles of law governing the case are t hose principles closel y and openly connected with the facts before the court, and which ar e necessary for the jury's understanding of the case.' [Citation.]"].) To conclude otherwise allows the possib ility that a defendant may stand convicted of an offense merely because the facts of the defendant's case do not fall within wellestablished doctrine, even if the law does not support the conviction. The fact that no court has previously articulated the validity of the defendant's appellate claim is not a sufficient reason to deny that defendant a ne w trial at which the jury is properly instructed. Most fundamentally, case law to th e effect that a defendan t is entitled only to jury instructions that are rooted in "well-established legal doctrine" ( People v. Michaels (2002) 28 Cal.4th 486, 530) represents, in my view, an unwarranted departure from the ordinary rule that decisions th at "explain or refine the holdin g of a prior case, those which2 apply an existing precedent to a di fferent fact situation, even if the result may be said to 'extend' the precedent, or those which draw a conclusion that was cl early implied in or anticipated by previous opinions," apply fully to a defendant's case on appeal. ( People v.
Guerra (1984) 37 Cal.3d 385, 399; see e.g., Correa v. Superior Court (2002) 27 Cal.4th 444, 463, fn. 5 ["Our holding is applicab le to defendant's case and applies fully retroactively, as is the nor m for judicial decisions"].) Courts ordinarily apply even a change in the law on direct appeal, regardless of whether the trial court could ha ve reasonably been expected to have anticipated such a change. (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 11 44 ["the general rule [is] that judicial decisions, even those overru ling prior authority, ha ve full retroactive effect"].) For example, if a trial court, relying on past Supreme Court precedents, instructs on an offense, that trial court is deemed to have erred if the Supreme Court overrules those precedents on appeal. ( People v. Chun (2009) 45 Cal.4th 1172, 1200- 1201 ( Chun ).) In Chun , the court stated: "We overrule People v. Robertson [(2004)] 34 Cal.4th 156, and the reasoning, although not the result, of People v. Randle [(2005)] 35 Cal.4th 987. This conclusion means the trial court erred in this case in instructing the jury on the se cond degree felony-murder rule." ( Chun, supra , at p. 1201.) In a footnote following this quotation, the Chun court explained that the trial court in that case had erred, even t hough the court had correctly app lied the law as it existed at the time of trial: "When we say the trial court erred, we mean, of course, only in light of our reconsideration of past precedents. As of the time of trial, . . . ample authority suppor ted the trial court's decision to3 instruct on felony murder." ( Chun, supra, 45 Cal.4th at p. 1201, fn. 8.) I agree that, where warranted by an evol ution in the law, a trial court may be reversed for instructional error even if the trial court correctly applied binding precedent in giving the instruction in ques tion. If this is the case, then a trial court should be held to have committed reversible error for failing to instruct in accordan ce with the logical evolution of the law, where there is no controlling authority to the contrary. In short, the principal rationale that the Supreme Court has provided—the unfairness of requiring a trial court to anticipate developments in the law ( Flannel, supra , 25 Cal.3d at p. 683)—is, in my view, an insuffici ent justification for creating an exce ption to the ordi nary rule that "a trial court must instruct on the general prin ciples of law governing the case, i.e., those principles relevant to the issu es raised by the evidence." ( Id . at pp. 680-681.) A court commits error where it acts contrary to a higher court's articulation of the law, even if such error is understandable give n the state of the law at the time the lower court acted. (See, e.g., Chun, supra, 45 Cal.4th at pp. 1200-1201; People v. Hendrix (2013) 214 Cal.App.4th 216, 239 ["We conclude that the trial court's legal analysis here was erroneous. The error is understandable because this case presents a significantly different context for the app lication of the decisional law related to [Evidence Code] section 1101, subdivision (b)"]; People v. Torres (2005) 127 Cal.App.4th 1391, 1400-1401 [" As modified, the instruction thus required defendant to meet the burden of proving he was incapable of distinguis hing right from both legal and moral wrong at the time he committed the crimes. This was error. [¶ ]The trial court's4 focus on moral wrong was understandable in li ght of case law on the matter"].) I see no reason to employ a different rule with respect to the asserted instru ctional error of the type at issue in this case. In sum, in my view, the novelty of application of a legal principle is not a sufficient basis upon which to conclude that a defendant should be de prived of the benefit of otherwise legally correct instruction on th e applicable law. I would urge the Supreme Court to reconsider this aspect of Flannel and its progeny, while recognizing that, in the interim, this court remains bound by such precedent.

AARON, J.