1

Filed 1/4/21 P. v. Brink CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JERRY EDWARD BRINK,

Defendant and Appellant.

C086561

(Super. Ct. No. MCYKCRBF-2016-40)

Someone savagely beat Kristopher McCraw to death on Christmas Eve in 2015. 

Michael Moore testified that the murder was committed by his half-brother, defendant 

Jerry Edward Brink. Moore recounted that defendant repeatedly kicked the victim with 

such force that “you could hear things breaking” and that Moore believed defendant 

would kill the victim if the beating continued.

1

 Defendant testified on his own behalf and 

1 Moore testified against defendant after pleading guilty to involuntary 

manslaughter, assault by means of force likely to result in great bodily injury, and first 
2

blamed the fatal beating on Moore. A jury convicted defendant of second degree murder 

(Pen. Code, §§ 187, 189, subd. (b)),2first degree burglary (§ 459), and assault by means 

of force likely to produce great bodily injury (§ 245, subd. (a)(4)). The jury, however, 

left blank the verdict forms alleging the special circumstances that a person other than an 

accomplice was present in the residence during the burglary and that defendant 

personally inflicted great bodily injury on the victim. The trial court sentenced defendant

to a term of 15 years to life for the murder plus 6 years for the burglary and 4 years for 

the assault. The trial court stayed the sentences for burglary and assault under section 

654. The trial court also imposed various fines and fees.

On appeal, defendant contends (1) the trial court erred in instructing the jury that it 

could convict him of second degree murder based on the felony-murder rule premised on

assault by means of force likely to produce great bodily injury, (2) the trial court’s jury 

instructions were further erroneous because Senate Bill No. 1437 (2017-2018 Reg. Sess.) 

(Stats. 2018, ch. 1015, § 2) abrogated the natural and probable consequences theory of 

murder for a person who is not the actual killer and the evidence in the record does not 

show that defendant was convicted on any legally valid theory, (3) the trial court’s failure 

to conduct an ability-to-pay hearing requires this court to strike his $10,000 restitution 

fine (§ 1202.4, subd. (b)), $120 court operations fee (§ 1465.8), and $90 court facilities 

fee (Gov. Code, § 70373), and (4) the abstract of judgment must be corrected to reflect 

that he was convicted of first degree burglary in count 3 and that the sentence for assault 

by means likely to produce great bodily injury was ordered stayed under section 654.

The Attorney General concedes that the trial court erred in instructing the jury on 

felony murder based on an assaultive felony, but argues that the instructional error was 

degree burglary in exchange for a sentence of up to six years and the understanding that 

Moore would testify truthfully against defendant.

2 Undesignated statutory references are to the Penal Code.
3

harmless beyond a reasonable doubt. The Attorney General also concedes that the 

abstract of judgment should be corrected to conform with the sentence imposed by the 

trial court.

We conclude that the trial court erred in instructing the jury that it could rely on 

assault by means of force likely to cause great bodily injury to convict defendant of 

murder based on the felony-murder rule. The instructional error was prejudicial because 

the record does not establish beyond a reasonable doubt that the jury relied on a valid 

theory when it convicted defendant of second degree murder. Because defendant does 

not challenge the sufficiency of the evidence in support of his convictions, there is no 

impediment to remanding this matter to give the People 30 days to elect to retry 

defendant on the murder charge. Our conclusion that the judgment must be reversed 

obviates the need to consider defendant’s remaining claims. Accordingly, we reverse and 

remand.

BACKGROUND

Prosecution Evidence

Daniel Effman testified that in December 2015 he lived in Happy Camp, 

California, about a thousand feet away from the home of McCraw. Effman was good 

friends with defendant, whom he called by the nickname “Rabbit.” By contrast, he knew 

Moore “[n]ot well at all.” On Christmas Eve in 2015, defendant and his half-brother, 

Moore, unexpectedly arrived at Effman’s house sometime after 10:00 p.m. Defendant 

and Moore stayed for about three hours, during which time they drank alcohol with 

Effman. They also talked to Effman’s aunt “about Native American things.” Defendant 

and Moore were happy. Defendant played his guitar and sang.

Effman did not like that McCraw was selling drugs in the neighborhood. 

Effman’s son was on drugs and would buy his drugs from McCraw. Although Effman 

reported McCraw’s drug dealing to the drug task force at the sheriff’s office, law 
4

enforcement took no action. Effman had heard that there had been a “drug-rip off” 

involving Moore and McCraw that resulted in Moore losing between $1,000 and $3,000.

Effman was interviewed several times by the police in regard to McCraw’s death, 

but at trial denied making many of the earlier statements. The prosecution called 

Siskiyou County Sheriff’s Department Detective Jesus Fernandez, who testified that he 

interviewed Effman on January 5, 2016. On that occasion, Effman said that defendant 

and Moore arrived at his house on Christmas Eve “drunk and partying.” Effman further 

stated that Moore was involved in drug activity and was owed money by McCraw. 

Defendant and Moore “said they were looking to get into some kind of physical 

altercation.” Effman recounted that defendant and Moore “went over to pretty much beat 

[McCraw] up and they overdid it.”

Raymond Myers testified that he was hanging out at McCraw’s house on 

Christmas Eve in 2015. Myers had been using methamphetamine and alcohol. That 

evening, defendant and Moore showed up and knocked on the door. McCraw let them in. 

Defendant, Moore, and Myers wished each other a merry Christmas. Moore told Myers, 

“Just don’t get excited with what happens in the next few minutes.” Myers went to sit 

back down. Moore told Myers, “. . . I don’t want to fight you. I will shoot you right 

where you’re at.” At the time, Myers did not understand what Moore meant. Myers 

testified that Moore and McCraw “had a confrontation, and I guess all hell broke loose.” 

Myers did not see much of what happened because he was “tied up” with Moore. “Blows 

were exchanged” between defendant and McCraw. The fight might have lasted a halfhour and drew to an end when defendant did an “Indian hip flip top” on McCraw. Myers 

explained that “after [defendant] did that, it was over with.”

Myers testified that Moore did not participate in the fight. At one point during the 

fight, Moore tried to pull defendant off of McCraw. Moore told defendant, “that’s 

enough.” At another point, Moore told defendant, “he’s not going to win.” Defendant 

smiled and continued fighting. To Moore, it appeared that defendant was in “a snap stage 
5

where your mind snaps. You don’t care.” Moore “gathered [defendant] up.” Defendant 

was exhausted and nauseated. Myers told Moore that “if they needed anything, [he] 

would be up at Lester’s . . . .” Everyone knew “the code of the river.” The “code of the 

river” was that you “[d]on’t give a pregnant girl a loaded dope pipe.” Three weeks 

earlier, Myers saw McCraw violate the code by giving Effman’s pregnant granddaughter 

drugs. Myers considered it a “Christmas present” that someone stood up for the code of 

the river after McCraw had violated it. Myers saw that McCraw was still alive when 

Moore and defendant left. Myers smoked a cigarette, put wood into the fire stove, and 

left McCraw’s house.

When initially questioned by the police, Myers refused to answer any questions. 

Myers believed it was “okay for people to take the law into their own hands.” The police 

brought Moore to Myers, and Moore gave Myers permission to tell the truth. Myers then 

told the police that he did not see who threw the first punch. Defendant hit McCraw 

more than 10 times. McCraw had “had his head kicked in.” Moore yelled at defendant: 

“Hey, bro, he’s had enough, you know, let him go or knock it off.” Myers saw that 

McCraw was dead. As Moore left, he told Myers to remember “the code of the river.” 

Myers told the police that the code of the river meant that “if you snitch, you wind up in 

the river.”

Moore testified that he and his family went to visit his mother’s house around 

noon on Christmas Eve in 2015. While there, Moore called defendant to ask if he and his 

family wanted to spend Christmas Eve with Moore and his family. Moore went to pick 

up defendant. Defendant was having a conflict with his girlfriend, so Moore and 

defendant went to their mother’s house. Moore gave defendant a special gift, a new 

guitar. Moore and defendant played music, reminisced, and talked about “what was 

happening with the tribe.” After dinner, Moore and defendant began drinking rum and 

coffee. Together they consumed two bottles of rum.
6

Around 10:00 p.m., Moore took defendant to his house but defendant’s girlfriend 

did not want him there. Defendant and Moore decided to go see Effman, who Moore 

considered to be a longtime friend. At Effman’s house, they drank more alcohol, 

defendant played his guitar, and they all “had a pretty good time.” Because it was hot 

inside the house, defendant took off his shirt. Defendant “started acting . . . stupid.” 

Moore testified that defendant “started talking about, I’m a savage warrior, and we need 

to do this and do that with the tribe.” At some point, the topic turned to Effman’s 

neighbor, McCraw. Effman said, “[McCraw]’s just doing the same old shit.” Moore 

responded, “Burning people and ripping people off all the time?” McCraw was “just a 

problem in general.” As defendant started getting “cocky,” Moore decided it was time to 

go home.

As Moore and defendant pulled out of Effman’s driveway, Moore saw McCraw’s 

light on and asked defendant if he wanted to stop at McCraw’s house. At first, defendant 

did not want to stop. But then after being asked again by Moore, defendant said, “Yeah, 

pull in there.” They got out of the car, defendant with his guitar. Moore got to the door 

first because defendant turned around and put his guitar into the car. McCraw let them 

both inside. Moore greeted Myers and asked why he was not at his brother’s house. 

Myers responded that he did not want to be in the way after all of his brother’s children 

showed up for Christmas. Myers was sitting on a bench that had been taken out of a 

school bus. Moore heard defendant say, “Get the fuck away from here. Get the fuck off 

me.” Myers said, “What the fuck?” Moore told him, “I don’t know. Stay out of this. 

It’s none of our business. Let them deal with it.” At that point, defendant and McCraw 

started knocking things over. Moore told them, “You guys really going to do this right 

now? It’s Christmas Eve. Come on, knock it off.” McCraw held defendant by his shirt, 

and defendant pushed McCraw into a wall. Moore thought they were only going to 

exchange words. Moore then told them, “Okay, well, do what you guys got to do then. 

Fucking deal with it.” The fight “got real serious after that.” McCraw did or said 
7

something and Moore found himself yelling at his brother to stop. Moore told McCraw 

to get out of the front door so that defendant and Moore could leave. Moore got between 

McCraw and defendant. Defendant stomped on Moore’s hand. Moore got hit in the head

– most likely by Myers. Moore went down for a few seconds.

Defendant kicked McCraw and landed “some pretty hard hits.” McCraw kicked 

back and defendant aggravated a prior rib injury. McCraw ended up on the floor in the 

fetal position. Defendant “not only flew off the handle, he became enraged like [Moore 

had] never seen him before.” Defendant was in such an “intense frame of mind” that it 

scared Moore. The fight “was so out of control” that Moore thought defendant might kill 

McCraw. McCraw was leaning on his elbow and moaning when Moore and defendant 

were ready to leave. Moore had to move McCraw out of the way so that they could 

leave. Moore was scared and knew that McCraw was hurt. Moore had previously told an 

investigator and his attorney that McCraw was lying motionlessly.

Moore acknowledged that he was testifying as part of a plea deal in which he 

agreed to testify during defendant’s trial in exchange for a six-year prison term based on 

his admission of assault by means of force likely to cause great bodily injury, involuntary 

manslaughter, and first degree burglary.

Dr. James Olson works as a forensic pathologist. Dr. Olson performed the autopsy 

on McCraw on January 4, 2016. A body scan of McCraw had already been completed. 

The scan showed that McCraw’s body had multiple fractured bones – including a 

complete fracture of his jawbone, a broken nose, and fractured maxillary bone. 

McCraw’s entire face was bruised as well as his forehead. The left ear was severely 

injured, almost torn off. McCraw had three lacerations in the upper lip. There were areas 

of bruising on both sides of the lower rib cage that were associated with several rib 

fractures. McCraw had injuries on his arms and hands that “appeared most likely to be 

part of defensive injuries.” Dr. Olson determined that the cause of death had been 

multiple blunt force injuries to the head. McCraw’s injuries were most likely caused by 
8

kicking. Dr. Olson could not determine how long after being beaten that McCraw lived, 

noting that “[h]e may have actually lingered for a while in a coma and then died or he 

may have died fairly quickly.” If McCraw had lingered, he would not have been 

conscious or able to render any assistance to himself.

James Williams sold firewood to McCraw on a monthly basis. On December 29, 

2015, Williams went to McCraw’s house to bring him some firewood. Williams 

approached McCraw’s house after sunset and found it to be completely unlighted. 

Williams retrieved a flashlight and looked inside to see McCraw’s body lying on the 

floor. Williams went straight home and told his girlfriend that McCraw had been beaten 

to death. Williams’s girlfriend called the police. Siskiyou County Sheriff’s Department 

Lieutenant Behr Tharsing and Deputy Welch were dispatched to McCraw’s residence. 

The officers found McCraw’s body lying approximately four feet from the entrance. 

There was “lots of blood” on and around McCraw’s body, causing Lieutenant Tharsing to 

believe there had been a struggle.

Siskiyou County Sheriff’s Department Detective Jesus Fernandez testified that he 

interviewed defendant on January 5, 2016. Defendant said that he had visited his family 

for the holidays but had not gone out in the late hours on Christmas Eve. Another 

detective who was present during the interview asked how defendant would account for 

his fingerprints being at the crime scene. Defendant said “basically he didn’t know 

exactly what we’re talking about” and that he did not know McCraw. Defendant added 

that he had never been to McCraw’s house. Defendant and Moore were both arrested for 

McCraw’s death on January 8, 2016.
9

Defense Evidence

The defense called Moore’s wife, Sheona Moore, as a witness.3 Sheona had 

attempted to divorce Moore but the process was not successfully completed, and she 

needed to start it again. In 2015, Sheona experienced difficulties in her household due to 

suspected drug use by Moore. After Moore was arrested, Sheona cleaned out his room 

and found “needles and baggies.” Sheona knew “about a situation wherein [Moore] lost 

money to Kris McCraw concerning medical marijuana.” On Christmas morning 2015, 

Sheona observed that Moore had an injury on his hand that “looked like a boxer split” 

that is a “split between your knuckles when you’ve been fighting or punching a wall 

. . . .” Sheona asked about the injury and Moore told her “several different things” about 

having gotten cut on a piece of tin at Effman’s house. Moore later went to the hospital to 

seek treatment after the cut became painful and swelled.

Sheona explained that one of Moore’s legs is shorter than the other due to surgery. 

Although Moore attended defendant’s trial with the use of a cane, Sheona stated that he 

did not need it. Moore was also capable of kicking, and had actually kicked Sheona 

during an argument. Moore threw punches at Sheona and she hit back. Moore then 

“picked up his leg and kicked [her].”

Defendant testified on his own behalf as follows: Around 2:00 p.m. on Christmas 

Eve in 2015, Moore picked up defendant and they went to their mother’s house. Over the 

course of the day, defendant and Moore drank two bottles of rum. At some point in the 

evening, Sheona was supposed to take defendant home. Defendant and Moore kept 

playing music instead. Sheona’s baby became fussy, and Moore assumed the task of 

driving defendant home. Moore announced they would “make a few laps” by driving 

3 For the sake of clarity and due to a surname shared with Michael Moore, we refer 

to Sheona by her first name.
10

around their small town, Happy Camp. They ended up going to Effman’s house around 

9:30 p.m. Moore and defendant played music at his house. They drank a variety of 

alcoholic drinks and defendant became more intoxicated. They talked about tribal issues, 

construction, and defendant’s job working with fisheries. They did not discuss McCraw, 

who defendant did not know. Defendant was unaware of a drug deal between Moore and 

McCraw that had gone badly.

Moore and defendant left Effman’s residence and drove off. Moore unexpectedly 

pulled up to what looked to defendant like a shack or a shed. Defendant grabbed his 

guitar because he assumed “it was going to be a break for me to stop and play guitar . . . 

before we headed back home.” Moore told defendant to put the guitar away. Moore 

entered and the door nearly closed behind him. Defendant saw Myers and another person 

he did not know. That person turned out to be McCraw.

Once inside, defendant said something like, “[H]i, how are you doing, bro?” and 

“something smart-mouthed . . . about the place.” The comment was “about it being 

cluttered and it smelled real bad.” McCraw took offense and they “got in each other’s 

face.” Defendant backed up and McCraw took a swing at him. Defendant grabbed 

McCraw and they both fell on a table before “kicking and flailing like a couple cats . . . .” 

Moore was standing to the side. Defendant and McCraw got back up. Defendant 

testified that he did not do “that much damage” to McCraw because it was just “a 

scuffle.” Defendant was certain he did not cause the injuries shown by the autopsy 

photos.

Moore several times told defendant, “Kick his ass, bro.” Defendant and McCraw 

ended up on the ground again – flailing, kicking, and punching each other. After a 

minute, Moore tried to break up the fight. Moore punched McCraw several times. 

Neither defendant nor McCraw was able to get the upper hand. “At some point,” Moore 

said: “Get the F out of here.” McCraw did a “double kick” at Moore from the ground.
11

Moore pushed defendant out the door but did not follow defendant to the car. 

McCraw was still moving when defendant left the residence. Defendant was “spinning” 

from intoxication. He got into the car where he passed out while waiting for Moore. 

After three or four minutes, defendant woke up when Moore nudged him. Defendant did 

not know what happened between Moore and McCraw after defendant left the residence. 

Defendant and Moore never talked about what happened after Moore remained in the 

house with McCraw.

Moore drove to Charlie Brown’s house even though defendant did not want to go 

there. Moore and defendant went inside and defendant passed out. Early the next 

morning, Moore and defendant returned to their mother’s house.

Rebuttal Evidence

The prosecution introduced the testimony of Keturah Greeno. Greeno testified 

that her longtime friends, Moore and defendant, arrived unexpectedly at Brown’s house 

in the early morning hours on Christmas Day. She noticed that Moore “had a lot of blood 

on his hands.” Both defendant and Moore also had blood on their clothes and boots. Her 

brother later told her that Moore and defendant “had blood all over their hands and feet.” 

Although she had known defendant all of her life, she did not initially recognize 

defendant because he “looked like he was in shock of some sort.”

DISCUSSION

I

Second Degree Felony Murder Based on an Assaultive Felony

Defendant argues that the trial court engaged in prejudicial error when it instructed 

the jury that it could convict defendant of murder under the felony-murder rule based on 

assault by means of force likely to cause great bodily injury. The Attorney General 

agrees that the trial court erred in instructing the jury on felony murder but argues that the 
12

error was harmless beyond a reasonable doubt. We conclude that the murder conviction 

must be reversed.

A.

Felony-murder Rule Theory of the Case and Jury Instruction

In urging the jury to convict defendant of murder, the prosecutor advanced 

multiple theories of liability – including felony murder premised on the charged felony of 

assault by means of force likely to cause great bodily injury. During closing argument, 

the prosecutor told the jury: “I think you’ll find you’re spending probably – almost all 

your time with first degree murder because as you’ll see when we get into felony murder, 

you’re going to actually have to read the instructions on burglary and assault with force 

likely to even be able to apply that type of murder. So that’s the way we charged it.”

The prosecutor further argued that “you’re going to look at when the defendant 

committed the act, was – in the course of committing a particular felony. So if you’re 

committing an assault on somebody with force likely to cause great bodily injury, you 

don’t mean to kill them, but while you’re doing that felony, somebody dies – or even two 

people are doing it, kicking at someone, and while they’re doing it, somebody dies, then 

you’re guilty because you were committing a felony.” The prosecutor expressly noted 

that the jury could convict defendant of second degree murder based on the felonymurder rule:

“And then there’s second degree felony murder. [¶] If you decide that the 

defendants – that [defendant] went over there to beat up severely Kristopher McCraw, 

assault him with force likely to cause great bodily injury, didn’t mean to kill him, but he 

went over there to assault him and he got out of hand and he kicked him to death, then it 

becomes second degree felony murder.”
13

The trial court instructed the jury on murder with malice aforethought. 

(CALCRIM No. 520.) The jury was also instructed with CALCRIM No. 541A on 

second degree felony murder, in pertinent part, as follows:

“The defendant is charged in Count one with murder, under a theory of felony 

murder.

“To prove that the defendant is guilty of second degree murder under this theory, 

the People must prove that: 

“1. The defendant committed assault with force likely to produce great bodily 

injury; 

“2. The defendant intended to commit assault with force likely to produce great 

bodily injury; 

“AND 

“3. The defendant did an act that caused the death of another person;

“A person may be guilty of felony murder even if the killing was unintentional, 

accidental, or negligent.

“To decide whether the defendant committed assault with force likely to produce 

great bodily injury, please refer to the separate instructions I have given you on that 

crime.”

At sentencing, the trial court considered defendant’s motion to stay the sentences 

for first degree burglary and assault by means of deadly force. (§ 654.) During its 

consideration of the issue, the trial court noted that the jury received “instructions as to

the felony murder rule for second-degree murder. The first defendant allegedly 

committed the fatal act and the second coparticipant fatally committed – or excuse me, 

allegedly committed the fatal act.” The trial court elaborated:

“There were two people who were codefendants, [defendant] and Mr. Moore. 

Taking all of this together, it is very possible that the jury found [defendant] murder –

guilty of murder by virtue of the felony murder rule. Rather than having necessarily 
14

committed the fatal act himself. [¶] In other words, they could have believed that Mr. 

Moore committed the blows that actually killed Mr. McCraw. By virtue of the entry into 

the property and the participation in an assault on Mr. McCraw that [defendant] 

committed an act of burglary. [¶] The Court I believe must look to the proposition that is 

most favorable to the defendant in this case. And that would be that he was convicted 

pursuant to the felony murder rule not necessarily because he actually committed the fatal 

act.” (Italics added.)

The prosecutor responded by urging the trial court not to attempt to discern the 

theory on which jurors relied in convicting defendant of second degree murder. The 

prosecutor remarked: “I don’t think that the Court should assume what the jurors decided 

as far as their theory of murder. They don’t have to agree on any theory of murder. 

There’s four different theories of murder at least that were considered by the jury in this 

case and they don’t have to agree unanimously. [¶] And I think regardless of whether 

you know even if there was felon[y] murder, you still have different acts that were 

committed by this defendant. . . . He went in with perhaps not an intent to kill Mr. 

McCraw but with an intent to commit assault with force likely.”

The trial court found that the evidence at trial could be construed so “that the 

burglary, the assault, are part and parcel of the felony murder and therefore both 

required to be stayed” under section 654. (Italics added.)

B.

Felony Murder Premised on an Assaultive Felony

The California Supreme Court has explained, “ ‘[s]econd degree murder is the 

unlawful killing of a human being with malice, but without the additional elements (i.e., 

willfulness, premeditation, and deliberation) that would support a conviction of first 

degree murder.’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun), quoting People 

v. Hansen (1994) 9 Cal.4th 300, 307.) The element of malice for second degree murder 
15

may be express or implied. (Chun, at p. 1181.) Implied malice murder occurs “when the 

circumstances attending the killing show an abandoned and malignant heart.” (§ 188, 

subd. (a)(2).) The second degree felony-murder rule has arisen to supply the implied 

malice element based on proof of “ ‘an unlawful killing in the course of the commission 

of a felony that is inherently dangerous to human life but is not included among the 

felonies enumerated in section 189. . . .’ ” (Chun, at p. 1182, quoting People v. 

Robertson (2004) 34 Cal.4th 156, 164.)

The Chun court limited the types of felonies that can support second degree felony 

murder. (Chun, supra, 45 Cal.4th at p. 1200.) The Supreme Court announced that 

“[w]hen the underlying felony is assaultive in nature, such as a violation of section 246

[(shooting at an inhabited dwelling house)] or 246.3 [(discharging a firearm in a grossly 

negligent manner)], we now conclude that the felony merges with the homicide and 

cannot be the basis of a felony-murder instruction. An ‘assaultive’ felony is one that

involves a threat of immediate violent injury.” (Ibid.) 

In excluding assaultive felonies from those that can support a second degree 

felony-murder conviction, the Chun court reasoned: “ ‘To allow such use of the felonymurder rule would effectively preclude the jury from considering the issue of malice 

aforethought in all cases wherein homicide has been committed as a result of a felonious 

assault—a category which includes the great majority of all homicides. This kind of 

bootstrapping finds support neither in logic nor in law. We therefore hold that a second 

degree felony-murder instruction may not properly be given when it is based upon a 

felony which is an integral part of the homicide and which the evidence produced by the 

prosecution shows to be an offense included in fact within the offense charged.’ ” (Chun, 

supra, 45 Cal.4th at p. 1189, fn. omitted, quoting People v. Ireland (1969) 70 Cal.2d 522, 

539.)

Here, the trial court erroneously instructed the jury that an assaultive felony – i.e., 

assault by means of force likely to cause great bodily injury – could serve a basis for 
16

second degree felony murder. The charge of assault by means of force likely to cause 

great bodily injury was an integral part of the homicide in this case in which McCraw 

was beaten to death. Defendant’s second degree murder conviction may not rest on an 

application of the felony-murder rule premised on assault by means of force likely to 

cause great bodily injury.

C.

Prejudice 

As a fundamental rule of appellate review, we may not reverse a judgment even if 

we conclude that the trial court erred unless we also determine that the error was 

prejudicial. “California Constitution, article VI, section 13, prohibits a reviewing court 

from setting aside a judgment due to trial court error unless it finds the error prejudicial. 

Accordingly, we must decide whether the error in instructing on felony murder 

prejudiced defendant. [¶] Instructional error regarding the elements of the offense 

requires reversal of the judgment unless the reviewing court concludes beyond a 

reasonable doubt that the error did not contribute to the verdict.” (Chun, supra, 45 

Cal.4th at p. 1201.) “In this situation, to find the error harmless, a reviewing court must 

conclude, beyond a reasonable doubt, that the jury based its verdict on a legally valid 

theory, i.e., either express or conscious-disregard-for-life malice.” (Id. at p. 1203.) 

The Chun court’s holding that instructional error involving felony murder based 

on an assaultive felony integral to the homicide must be reversed unless harmless beyond 

a reasonable doubt was confirmed in People v. Aledamat (2019) 8 Cal.5th 1. In 

Aledamat, the Supreme Court held “that alternative-theory error is subject to the more 

general Chapman harmless error test.[4] The reviewing court must reverse the conviction 

unless, after examining the entire cause, including the evidence, and considering all 

4 Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].
17

relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” 

(Id. at p. 13.)

In this case, we are unable to declare the instructional error harmless beyond a 

reasonable doubt because the record does not establish that jurors relied on a valid theory 

of murder instead of the felony-murder theory based on an assaultive felony. The 

prosecutor’s closing argument indicated that she believed the jury would most likely rely 

on felony murder when she anticipated jurors would spend almost all their time 

considering felony murder – albeit on the charge of first degree murder. The jury 

signaled that felony murder based on an assaultive felony was a possibility in that it 

convicted defendant of assault by means of force likely to result in great bodily injury. 

The evidence at trial unequivocally showed that McCraw was beaten to death. The trial 

court’s comments at sentencing confirmed that the evidence supported a finding that the 

assault was “part and parcel of the felony murder” so that the assault by means of force 

likely to cause great bodily injury had to be stayed under section 654. The evidence in 

the record combined with the jury instructions on second degree felony murder preclude 

a determination that the jury did not rely on the assault by means of force likely to cause 

great bodily injury to convict defendant of second degree felony murder.

The Attorney General asserts the instructional error was harmless because “any 

rational jury would have convicted [defendant] of second degree murder based on either 

an implied malice theory or natural and probable consequences theory.” Defendant’s 

jury was instructed on implied malice murder and natural and probable consequences 

murder.5 The Attorney General musters facts that rely primarily on the testimony of 

5 Our conclusion that the murder conviction must be reversed due to instructional 

error relating to felony murder based on an assaultive felony obviates the need to 

consider defendant’s additional claims of instructional error, including an assertion that 

Senate Bill No. 1437 (2017-2018 Reg. Sess.) also rendered the trial court’s instructions 

on the natural and probable consequences doctrine erroneous as well.
18

Moore and Myers to assert that defendant stomped McCraw to death in arguing that the 

jury necessarily relied on a conscious-disregard-for-life theory of implied malice murder. 

The record, however, does not support the argument that defendant’s murder conviction 

was necessarily based on conscious disregard for life.

As noted above, the prosecutor’s own statements to the jury indicated that she 

expected jurors to rely on a felony-murder theory to convict defendant of murder. 

Moreover, the facts of the case allowed the jury to convict defendant of second degree 

murder by finding that defendant assaulted McCraw but that it was Moore who dealt the 

final and fatal blows. By all accounts, it was Moore’s decision to visit McCraw on the 

evening of the murder. Moore had lost a substantial amount of money to McCraw. 

Defendant appeared to have thought the visit was social in that he initially brought his 

guitar out of the car. Moore told him to put the guitar back. And, it was Moore who 

immediately told Myers to ignore what was going to happen over the next few minutes –

Moore’s statement being made before the fight started.

The jury could well have believed that defendant assaulted McCraw but that 

McCraw was still up and alive when defendant was pushed out of the residence by 

Moore. Except for aggravating a prior injury to his ribs, defendant did not appear hurt. 

Moore, however, had a “boxer split” that was serious enough to require eventual medical 

attention. After the murder, Moore’s boots had blood on them as did defendant’s. On 

this basis, the prosecutor argued an aiding and abetting theory: 

“Let’s look at aiding and abetting. . . . It could be one or the other brothers in this 

case, [defendant] or Michael Moore, and the defendant or the other brother knew that this 

perpetrator committed the crime, and during the commission of the crime was aiding and 

abetting. And the words and the conduct of the defendant did, in fact, aid and abet the 

perpetrator’s commission of the crime so that’s aiding and abetting.”

Consistent with this argument, the trial court instructed on aiding and abetting. 

With this instruction and on the evidence presented in this case, the jury could have 
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decided that it was Moore who delivered the fatal blows and that defendant’s aiding and 

abetting of Moore’s assault served as the basis for the murder conviction.

Contrary to the Attorney General’s argument, the jury could have relied on the 

evidence at trial to convict defendant of felony murder based on aiding and abetting 

Moore’s assaultive behavior that resulted in McCraw’s death. The possibility that jurors 

might have relied on a valid theory of murder does not establish beyond a reasonable 

doubt that jurors did not rely on the invalid theory. On this point, the United States 

Supreme Court has noted that “[j]urors are not generally equipped to determine whether a 

particular theory of conviction submitted to them is contrary to law . . . . When, 

therefore, jurors have been left the option of relying upon a legally inadequate theory, 

there is no reason to think that their own intelligence and expertise will save them from 

that error.” (Griffin v. United States (1991) 502 U.S. 46, 59 [116 L.Ed.2d 371].) Under 

the instructions given in this case, the jury’s conviction of defendant on the charge of 

assault by means of force likely to result in great bodily injury was expressly but 

erroneously available as a theory for a second degree felony-murder conviction. Under 

the Chapman standard, the instructional error in this case cannot be said to have been 

harmless beyond a reasonable doubt.

DISPOSITION

The convictions of first degree burglary and assault by means of force likely to 

result in great bodily injury are affirmed. We vacate defendant’s conviction of second 

degree murder and remand the matter to the trial court. The People shall have 30 days 

within which they may elect to retry defendant on the charge of murder. If the People do 
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not elect to retry defendant, the trial court shall enter a new judgment and resentence 

defendant accordingly. 

 /s/

HOCH, J.

We concur:

 /s/

RAYE, P. J.

 /s/

MAURO, J.