Filed 2/8/18 P. v. Ebert-Stallworth 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPH PETER EBERT-STALLWORTH II,

Defendant and Appellant.
C076574

(Super. Ct. No. 13F00796)

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]



THE COURT:
The opinion filed January 22, 2018, is modified as follows:
1. On page 5, line 7, after the words, “While defendant was in custody”
add the following:
on an unrelated case
2. On page 15, line 23, delete the words “sitting in jail charged with being” so that the sentence will read: “Regardless of who fired the gun, defendant would want the gun gone because defendant was involved in a drug transaction in which someone was killed.”
The Attorney General’s petition for rehearing is denied. There is no change in judgment.




BY THE COURT:



HULL , A.P. J.



DUARTE , J.



HOCH , J.




Filed 1/22/18 P. v. Ebert-Stallworth CA3 (unmodified opinion)
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPH PETER EBERT-STALLWORTH II,

Defendant and Appellant.
C076574

(Super. Ct. No. 13F00796)





Given the manner in which this criminal prosecution was litigated and the very unusual set of verdicts returned by the jury, we must reverse a murder conviction due to a lack of sufficient evidence.
Defendant Christoph Peter Ebert-Stallworth II and a companion drove to a parking lot to buy marijuana but fled without the drugs when one of them fired a gun, killing seller Baron Seidel. The prosecutor’s primary theory was first-degree felony murder based on attempted robbery, but the jury deadlocked on attempted robbery and returned a verdict of not guilty on first-degree murder. The jury, adopting the prosecutor’s alternate theory, found defendant guilty of second-degree murder and found defendant personally and intentionally discharged the firearm causing death. (Pen. Code, §§ 187, 12022.53; unless otherwise set forth, statutory section references that follow are to the Penal Code.)
As presented to the jury, the prosecutor’s theory of second-degree murder depended on defendant being the shooter, with malice implied by defendant shooting the gun in the victim’s face. The court instructed the jury on aiding and abetting a “crime,” but the prosecutor did not argue that defendant aided and abetted a murder either as the target crime or as a natural and probable consequence of some other target offense, and the trial court did not instruct on aiding and abetting murder as a natural and probable consequence of some other target offense.
On appeal, defendant contends there is insufficient evidence that he was the shooter and no basis exists for affirming the murder conviction on an aiding and abetting theory. We agree and reverse the judgment. We need not address defendant’s other contentions of prosecutorial misconduct and ineffective assistance of counsel.
FACTS AND PROCEEDINGS
On the evening of January 4, 2013, the 28-year-old victim, Baron Seidel, and his father were parked in a McDonald’s parking lot in Citrus Heights. They had listed marijuana for sale on a website and were waiting for someone who had phoned -- from a number -- later traced to defendant -- and was driving from Vallejo in a blue Honda Civic to buy marijuana from Baron. Father was in the driver’s seat of the two-door truck, and Baron sat behind him in the back seat with the marijuana in a box.
The transaction was supposed to take place in a Raley’s parking lot across the street from McDonald’s. Around 6:00 p.m., a green sedan swerved into the parking lot. A witness, who was standing in the McDonald’s parking lot waiting for someone, noticed two hooded men of similar appearance get out of the sedan, walk quickly to the truck, and stand “fairly close” to the open passenger door of the truck. There was movement by the two men “kind of” blocking the open door that struck the bystander as a bit suspicious. The bystander looked away for “maybe less than a minute,” heard a loud pop, looked back, and saw the two men rush back to their car and drive away.
Baron died from a gunshot wound to his face caused by a nine millimeter bullet fired from about a foot away. The coroner testified the bullet went “almost” straight in. There was a small amount of angling from left to right, which put it from about the midline of the face, probably within an inch or so to the right in the lower part of the brain. The coroner opined the bullet rendered the victim unconscious, and he died a few minutes later.
A witness described the sedan as a green Honda with an inoperable brake light on the driver’s side. Defendant, at the time, owned a green Lexus with an inoperable brake light on the driver’s side. The two car models are similar in appearance.
We need not recite all evidence placing defendant at the scene, because on appeal he concedes “the evidence establishes appellant was one of the two men who was standing next to [father’s] truck at the time of the shooting. . . .”
No witness could identify which of the two men was the shooter.
Father testified under a grant of immunity for selling marijuana but claimed ignorance of the shooting. He saw the two men approach the truck but did not know who or why. Father claimed he did not see or hear anything before the gunshot. He was looking the other way, fumbling to open his door, which required him to start the engine and lower his window to open the handle from the outside. He did not know whether the two men got into the truck and therefore thinks they did not.
After the shooting, father threw the box of marijuana in the dumpster but then told police about it, and they recovered it. The box also contained a nine millimeter shell casing.
A knife was found at Baron’s feet on the floor of the back seat. Father did not recognize the knife but they did keep tools in the truck for their work in the drywall business.
The bystander, when asked at trial about the position of the driver of the green sedan when he was at the truck, testified, “I wouldn’t be able to say exactly because even though I was looking, I wasn’t trying to be nosy.” But the person who later got into the driver’s seat of the sedan (presumably defendant) “possibly was standing closest to the [open] passenger door [of the two-door truck]. And the individual who got into the passenger seat of the car [sedan] when they left was standing to the right of that individual. And that’s what I can remember or can recall.” At trial, the witness pointed to a photograph to show where they were standing. The prosecutor asked, “So we have, as indicated by your pointer, one of the individuals standing almost next to the inside of the door and the other one standing in the area if you were to get into the backseat?” The witness answered, “Correct.” On cross-examination, the witness was asked, “basically you saw them both standing within the radius of that door; is that correct?” The witness answered, “Yes.” The witness was asked, “So they are up fairly close to the vehicle, right?” He answered, “Correct.”
Ten days after the shooting, police made a traffic stop of defendant driving his green Lexus with an inoperable driver’s side brake light. In the trunk, police found a loaded Smith and Wesson .357 revolver and four bags of marijuana totaling about four ounces (134 grams).
The jury saw a video of a police interview in which defendant denied being at the crime scene and denied ever being in Sacramento or Citrus Heights.
Defendant’s girlfriend, Daisy Romo, told police that defendant said he liked to “rob weed” [sic] with his partner, Cory Haines (spelling uncertain). About a week before this incident she saw defendant with two guns, one with a cylinder that spins (revolver) and a smaller one that does not spin.
At trial, Romo said defendant told her only once that he likes to “rob weed,” or maybe he said he was robbed once, and she told police that Cory was defendant’s partner only because she was scared and was just agreeing with what the police said. On the night of the shooting, she got a phone call from defendant after 10:00 p.m. and, at his request, picked him up at a house where he was with Cory and “some other dude.” Defendant told her he threw his phone away.
While defendant was in custody, he requested and Romo arranged a three-way call with defendant’s friend Mario. Romo heard defendant ask Mario to “get rid of that thing or sell it.” At trial, she testified she did not know what the “thing” was but told police it was a gun because the police kept asking her where the gun was, and being questioned by the police scared her. Maybe “thing” was marijuana.
At trial, defendant’s sister did not recall which number she gave police when they asked for defendant’s phone number -- until the prosecution played in open court an audio-recording of a phone call defendant made from jail to his sister. She told defendant that the police had phoned her, and she knew he did not want her to give out his new phone number, so she gave them the number for his old phone (that he discarded after the shooting). Defendant said, “No, no, no, no, no. Oh, no, no, no. . . . [⁋] . . . [⁋] [(deep sighing breath)] . . . [T]hat new number didn’t matter. You just prob’ly gave ‘em the case right there . . . .” When she confirmed which number she gave to police, defendant said with a deep sighing breath, “You just gave ‘em the case,” at which point the automatic jail advisement stated, “This call may be recorded and monitored by law enforcement.” Defendant continued, “You shouldn’t have said [--], no[,] the new number . . . doesn’t matter. You understand? That’s why I got a new number. That new number didn’t matter.” There was more deep sighing breathing from defendant and he said, “I’ma done, I’m sweatin’ and shit. I’m gonna stop talkin’ about this shit, but, oh, my God. That could be fuckin’ bad.” If the police tried to use the phone number against him, he needed her to come to court and say she gave the police the wrong number. He said he might be in jail a long time waiting for trial, “and if I lost, I’m lookin’ at life, so.”
The defense did not offer any witnesses.
The jury instructions offered two theories for murder -- (1) first-degree felony murder based on an attempted robbery, and (2) second-degree murder with malice aforethought.
As applicable to second-degree murder, the court instructed the jury on aiding and abetting pursuant to CalCRIM Nos. 400 and 401, including that “Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.” But the court did not instruct on a theory of murder as a natural and probable consequence of a target offense, nor did the prosecution rely on such theory or request instruction on it. Instead, the court simply instructed that the People must prove that (1) a perpetrator committed “the crime”; (2) defendant knew the perpetrator intended to commit “the crime”; and defendant (3) intended to and (4) did in fact aid and abet the perpetrator in committing “the crime.”
The court also instructed the jury on voluntary manslaughter heat of passion and involuntary manslaughter in imperfect self-defense, indulging the defense hypothesis that there may have been a sudden quarrel about price or the seller threatened the buyers with the knife.
The prosecutor’s arguments to the jury focused on felony murder based on attempted robbery with defendant being the shooter, for which “it does not matter if it was accidental, negligent, on purpose. It does not matter.” The prosecutor acknowledged, “The fact that the gun went off and they both split leaving the box there seems to indicate that he didn’t intend necessarily to shoot him, to kill him, because he didn’t take the marijuana. I think the gun was out, pointed at him, and maybe there was a reach for the box, struggle, and he just did it. It’s over like that. [¶] It doesn’t take much to pull a trigger. That gunshot, that loud boom . . . . It’s like we’re not thinking ‘box.’ We’re thinking, ‘Let’s get the hell out of here. We’re in Sacramento, Citrus Heights, wherever, we’ve got to get out of here.’ And that’s why they split at that time.”
The prosecutor argued that if the jury was not sure whether there was an attempted robbery, there was “second degree murder with intent to kill . . . by virtue of shooting in the nose where he did, that is your implied malice there. Your intent is shown by where he shot him at.” The prosecutor offered a speculative scenario that maybe defendant came for a legitimate marijuana purchase but when he got there, Baron jacked up the price. Defendant refused to pay it. “And then a named called [sic] or something. Gun comes out and he shoots him. There’s disagreement. There’s some pissed-off feelings, something like that. You can have second degree murder right from that because it’s an inherently dangerous act there. You got no intent to kill, but you got an inherently dangerous act with pulling out a gun in a drug deal and pointing it at a person’s face. That by itself, that’s an inherently dangerous act, and that gun goes off can get you second degree murder.” Thus, the prosecutor was positing that defendant was the shooter.
Defense counsel in closing argument told the jury there was no evidence that defendant was the shooter, as opposed to his companion being the shooter. And the prosecution failed to produce evidence that defendant aided and abetted a shooting or an attempted robbery. Defense counsel speculated that defendant got in the front seat of the truck, and that is why the victim’s father in the driver’s seat got such a good look at defendant and could describe what he called “little pubic hairs” on defendant’s chin. And maybe defendant’s companion got in the back seat and fired the close range shot. Counsel argued that, whoever fired the shot, it was a sudden and unexpected event. Maybe Baron pulled out the knife that was found on the floor. Defense counsel argued the shooting was, at worst, voluntary manslaughter. In any event, “there is nothing to prove that my client was the one [who fired the gun]. The evidence is equally -- circumstantial evidence points equally to the other guy. And if that’s the case, you have to adopt the position that says my client is innocent. That’s the law.”
In rebuttal, the prosecutor argued to the jury that there was no evidence that defendant or his companion got into the truck. The prosecutor reiterated, “I don’t doubt that that gunshot was not meant to happen in that fashion. [⁋] . . . [⁋] . . . [T]he fact that the two people ran off without taking the box indicates they basically surprised themselves. It didn’t mean to happen. Boom. ‘Let’s get out of here.’ Not even worrying about the box of marijuana. . . .”
Regarding who was the shooter, the prosecutor argued the absence of a witness did not prevent the jury from figuring out who did the shooting: “You have a person with the same type of gun, a semiautomatic instead of a revolver owned by him and now missing. You have a person that initiates the whole conversation through his phone to go down there and do this. You know that he gets rid of that phone because he’s connected to what happened. And you know when he’s stopped in Concord ten days later, he has another bag of marijuana, and he has another gun with that marijuana. So this is a person that carries a gun with his marijuana. So you can bet that he had that semiautomatic with him when he was going to do the marijuana in Citrus Heights. [¶] And that gun killed Baron. And that’s why that gun has not been found. And that’s why that gun was told [to Mario] to sell it or get rid of it. . . .” The prosecutor said the bystander described the person closest to the open door of the truck as being the person who got into the driver’s seat of the sedan and drove off. It was defendant’s car, so it makes sense he was the driver. The prosecutor argued: “I would suggest to you that the person that did the shooting on that night is the person closest to that open doorway. Dr. Reiber, the coroner, said the shot was basically straight in. When you have two people at angles there, but one closest to the doorway right there is going to be the defendant leaning straight in. The partner is going to be alongside the door here.”
Actually, the coroner testified the shot was “almost” straight in.
The prosecutor continued, “Also, the fact that when he was on the jail call and started snapping with his sister, that would be a moment when the truth is coming out. And he’s blurting over the fact [automated reminder] that he’s being recorded, doesn’t even care. ‘You gave him the case.’ And he’s just saying, ‘Everything is over for me.’ That would be a moment that if you truly were not the shooter and you truly were a person who was there for a regular buy and your partner or your other perpetrator acted like a lone wolf basically and just freaked out and shot him, you’re like, ‘What the hell did you just do?’
“At the moment you got somebody investigating you for murder and you know that because they’ve already been there, then your sister digs up your number and you start seeing everything crashing down, that’s when names are going to come flying out. That’s when you’re going to say, ‘I can’t believe that so and so did that. He got me into this.’ Something is going to come out.
“Nothing comes out. He doesn’t mention self-defense. He doesn’t mention the other guy. He doesn’t do anything because it’s all him. He is the one that did the shooting. That’s why he says, ‘You just made their case.’ They went and talked to him about investigation for murder. When he said, ‘You just made their case,’ that’s what it is. He doesn’t have to say, ‘You made their case for a first degree robbery.’ He doesn’t have to spell it out. We know what he’s talking about.”
The jury was unable to reach a verdict on the charge of attempted robbery and therefore returned a verdict of not guilty on first-degree felony murder. The court declared a mistrial on Count Two, attempted robbery.
The jury found defendant guilty of second degree murder and found that defendant personally and intentionally discharged a firearm causing death.
Defendant moved for a new trial on the ground of insufficiency of the evidence, because the case was based on inferences and the trier of fact must adopt the inference pointing to innocence. The trial court denied the motion. It appears the trial court may have applied the wrong standard by concluding independently that the evidence sufficed to support the jury’s findings, despite defense counsel’s citation of the correct standard that the trial court is supposed to act as an independent trier of fact. (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) However, defendant on appeal does not challenge the denial of the motion for new trial.
The court imposed a sentence of 40 years to life -- 15 years to life for the murder plus 25 years to life for the gun enhancement.
DISCUSSION
I
Standard of Review
“A state court conviction that is not supported by sufficient evidence violates the due process guarantees of the federal and California Constitutions, and is therefore invalid. [Citation.] In determining whether a criminal conviction is supported by sufficient evidence for purposes of federal due process, a reviewing court must ‘determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ . . . ‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ [Citation.]” (People v. Boatman (2013) 221 Cal.App.4th 1253, 1262 (Boatman), citing Jackson v. Virginia (1979) 443 U.S. 307, 318 [61 L.Ed.2d 560].)
“The standard under our state Constitution is ‘identical.’ [Citation.] . . . [W]e ‘must review the whole record in the light most favorable to the judgment below to determine 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.’ [Citation.] Substantial evidence is evidence that ‘maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.’ [Citation.] The ‘whole record’ includes ‘the entire picture of the defendant put before the jury’ and is not limited ‘to isolated bits of evidence selected by the respondent.’ [Citation.] This standard is the same regardless of whether the People primarily rely on circumstantial evidence. [Citation.]” (Boatman, supra, 221 Cal.App.4th at p. 1262, citing inter alia, People v. Johnson (1980) 26 Cal.3d 557, 578.)
The same standard applies to sufficiency of evidence to support sentencing enhancement such as the gun allegation. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
Circumstantial evidence and any reasonable inferences from that evidence may be substantial evidence to support the conviction. (People v. [Royal] Clark (2011) 52 Cal.4th 856, 943.)
Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the judgment. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
II
Insufficient Evidence that Defendant was the Shooter
Defendant argues there was no substantial evidence that he was the shooter and therefore no substantial evidence supports jury’s finding that he personally and intentionally discharged the firearm under section 12022.53, subdivision (d) [enhancement for person who personally and intentionally discharges a firearm and proximately causes death to any person other than an accomplice].) The court instructed the jury: “To prove this allegation, the People must prove that: [¶] 1. The defendant personally discharged a firearm during the commission of that crime; [¶] 2. The defendant intended to discharge the firearm; [¶] AND [¶] 3. The defendant’s act caused . . . the death of a person. . . .”
Defendant contends insufficiency of the evidence requires reversal not only of the gun enhancement, but also of the second-degree murder conviction which was premised on implied malice for defendant shooting the victim in the face. We agree.
There was no direct evidence that defendant was the shooter, and the prosecution relied on circumstantial evidence to ask the jurors to draw an inference that he was.
“An inference is a ‘conclusion reached by considering other facts and deducing a logical consequence from them.’ (Black’s Law Dict. (8th ed. 2004) p. 793, col. 2.) ‘The strength of an inference may vary widely. In some circumstances, the preliminary facts may virtually compel the conclusion. In other circumstances, the preliminary facts may minimally support the conclusion. But to constitute an inference, the conclusion must to some degree reasonably and logically follow from the preliminary facts. If, upon proof of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the dignity of an inference.’ [Citation.]” (Boatman, supra, 221 Cal.App.4th at pp. 1263, 1265-1266 [evidence sufficed for implied malice where defendant knew gun was loaded and intentionally cocked hammer back, albeit “jokingly,” but evidence did not suffice for premeditation and deliberation]; see also, People v. Velazquez (2011) 201 Cal.App.4th 219, 231-232 [reversed judgment where prosecution failed to adduce substantial evidence in case-in-chief and, though prosecution provided the missing evidence on rebuttal, trial court erred in denying defendant’s motion for acquittal after case-in-chief].)
The court here correctly instructed the jury with CalCRIM No. 224 that “before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
We are mindful that this instruction does not govern our standard of review on appeal. The circumstantial evidence jury instruction is “ ‘primarily for the guidance of the trier of fact.’ [Citations.] ‘The rule . . . does no more than to instruct the jury that if a reasonable doubt is created in their minds for any reason they must acquit the defendant. But where the jury rejects the hypothesis pointing to innocence by its verdict, and there is evidence to support the implied finding of guilt as the more reasonable of the two hypotheses, [the reviewing] court is bound by the finding of the jury.’ [Citation.] Thus, even though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendant’s innocence, this alone does not warrant interference with the determination of the trier of fact. [Citations.] Whether the evidence presented at trial is direct or circumstantial, under Jackson and Johnson the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations and fn. omitted.]” (People v. Towler (1982) 31 Cal.3d 105, 118-119; orig. italics.)
On appeal we “ ‘presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]’ [Citation.] ‘Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt.’ [Citation.] Simply put, if the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citations.]” (People v. Farnam (2002) 28 Cal.4th 107, 142-143 [existence of alternate theories, other than sodomy, that might possibly have explained presence of sperm in victim’s anal cavity, did not render evidence insufficient to support sodomy conviction].) It is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have proven their case beyond a reasonable doubt. (People v. Casares (2016) 62 Cal.4th 808, 823-824.) If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)
On the other hand, where proven facts give equal support to each of two inconsistent inferences, neither of which is established, judgment as a matter of law must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other. (People v. Allen (1985) 165 Cal.App.3d 616, 626 [both defendants were at the scene and evidence did not show which was holding the gun], citing Pennsylvania R. Co. v. Chamberlain (1933) 288 U.S. 333, 339 [77 L.Ed. 819, 823].) A “coin flip” situation does not constitute substantial evidence. (People v. Smith (2005) 135 Cal.App.4th 914, 927.) This does not mean that the prosecution must eliminate the possibility that the other person was the shooter; it just means that where the facts supporting two inconsistent inferences stand in equipoise, the judgment goes against the party with the burden of proof. (People v. Kovacich (2011) 201 Cal.App.4th 863, 882.)
This case was a close case of inference as to whether defendant was the shooter. The prosecution relies on evidence that defendant possessed guns and was involved with controlled substances and was present and involved in this drug transaction -- none of which establishes that he was the shooter. The prosecution asked the jury to infer that defendant was the shooter because (1) defendant had a semiautomatic gun before this incident consistent with the caliber of bullet used to kill the victim, (2) maybe defendant was inches closer to the victim than defendant’s companion was, (3) defendant asked Mario to get rid of the “thing” which probably meant the gun, and (4) defendant lamented his sister made the case for the police by giving them his phone number.
However, none of this establishes defendant as the shooter. We know nothing about defendant’s companion or whether he had a gun. It appears he was riding “shotgun” in the passenger seat of defendant’s car. Defendant and his companion stood close together at the truck, and therefore either could have reached in and fired the gun at close range. The prosecutor argued to the jury that the coroner said the bullet went “basically” straight into the victim’s face, but the coroner actually said it went “almost” straight in. In any event, the fact that the bullet went almost straight in means nothing, because the victim likely was looking at whoever was holding the gun. That defendant asked Mario to get rid of the gun does not mean that defendant was the shooter, because both defendant and Cory were with Mario after the shooting, so either one could have given Mario the gun. Regardless of who fired the gun, defendant would want the gun gone because defendant was sitting in jail charged with being involved in a drug transaction in which someone was killed. The record does not disclose what happened to Cory.
The People also point to substantial evidence of defendant’s consciousness of guilt, e.g., he fled and discarded his phone after the shooting and lied to police about not being at the crime scene. However, none of this suggests consciousness of guilt of firing a gun, as opposed to consciousness of guilt of illegal drug trafficking in which someone was shot.
We conclude no substantial evidence supports a finding that defendant personally and intentionally fired the gun. The second-degree murder conviction was based on malice implied by defendant firing the gun. Accordingly, we must reverse both the gun enhancement and the murder conviction, unless the murder conviction can be sustained on an aiding and abetting theory, which we next address.
III
Conviction Cannot be Sustained on Aiding and Abetting Theory
Defendant argues there was insufficient evidence that he aided and abetted a murder and no basis to find him guilty of aiding and abetting a murder as a natural and probable consequence of a different target offense. We agree.
On appeal, the Attorney General’s entire argument on aiding and abetting is as follows: “[T]here was substantial evidence appellant personally shot Baron, so the jury did not have to rely on an aiding and abetting theory in order to convict appellant of second degree murder. [Citation.] As such, this Court need not address appellant’s argument. [¶] In any event, assuming, arguendo, the other male individual shot Baron, the evidence at trial supported a finding appellant aided and abetted Baron’s murder. Appellant liked to rob people of weed with a partner. [Citation to record.] He drove to the marijuana sale with another male individual. [Citation to record.] Appellant and the other male stood next to the passenger door of [father’s] truck and were fairly close to the vehicle. [Citation to record.] Baron was shot in the face at close range while he was in the backseat. [Citation to record.] The jury could reasonably infer appellant provided the shooter with the gun used to shoot Baron: Baron was shot by a semiautomatic gun; appellant was seen with a semiautomatic gun the week before he was arrested; and after appellant was arrested, he made arrangements to have his semiautomatic gun disposed of. [Citation to record.]”
However, the prosecutor did not argue this theory to the jury, and we see no basis to conclude that the jury found defendant aided and abetted a second-degree murder.
Outside of the natural and probable consequence doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator, and when the crime is murder, the aider and abettor must know and share the murderous intent of the actual perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1117-1118; see also, People v. Chiu (2014) 59 Cal.4th 155, 165 [aider and abettor may not be convicted of first-degree premeditated murder under natural and probable consequence doctrine].)
A person may be found guilty of second-degree murder as a natural and probable consequence of aiding and abetting a target offense such as assault or brandishing a gun, even where such target offenses are not charged and are not inherently dangerous (such as perhaps a drug offense that was not charged in this case). (People v. Gonzalez and Soliz (2011) 52 Cal.4th 254, 298-299 [assault]; People v. Lucas (1997) 55 Cal.App.4th 721, 732-733 [brandishing]; see also, People v. Culuko (2000) 78 Cal.App.4th 307, 322 [aider and abettor may be convicted of second degree murder on a natural and probable consequence theory even where the target offense is not inherently dangerous]; CalCRIM No. 403 [natural and probable consequence where target offense is not charged].)
However, the jurors must be instructed on such a theory -- which they were not in this case -- and the trial court has no sua sponte duty to identify for the jury target offenses not urged by the prosecution. The prosecution here did not rely on the commission of any target offenses other than attempted robbery. (Gonzalez and Soliz, supra, 52 Cal.4th at p. 299; People v. Prettyman (1996) 14 Cal.4th 248, 254, 267-268; People v. Huynh (2002) 99 Cal.App.4th 662, 677-678.)
Here, the prosecutor told the court before jury selection that the prosecution was not asking for an aiding and abetting instruction. Additionally, on the day before jury selection, the trial court -- over defense objection -- allowed the prosecutor to change the gun enhancement allegation from the originally-charged allegation that defendant was armed with a firearm (§ 12022, subd. (a)(1)) to allege defendant personally and intentionally discharged the gun and caused death (§ 12022.53, subd. (d)). And, as indicated, the prosecution argued to the jury only that defendant was the shooter.
The defense did ask for aiding and abetting instructions, and the court gave them.
With respect to first-degree murder, the court instructed the jury on aiding and abetting, but the jury found defendant not guilty of first-degree murder and deadlocked on attempted robbery.
For second-degree murder, the jury received general aiding and abetting instructions calling for the prosecution to prove that defendant knew the perpetrator “intended to commit the crime” and intended to and did aid and abet commission of that crime.
Perhaps the evidence may have supported convicting defendant of aiding and abetting second-degree murder on a natural and probable consequence theory for aiding and abetting a different target offense, but the prosecutor did not rely on or request jury instruction on such a theory in the trial court, and does not argue it on appeal.
We therefore cannot sustain the judgment against defendant on an aiding and abetting theory.
Defendant discusses whether or not he could be guilty as an accessory after the fact for being the getaway driver. The trial court denied his request for a jury instruction on accessory after the fact. The Attorney General does not urge this possibility on appeal. We need not address the matter.
We conclude there was no substantial evidence that defendant was the shooter, and we must reverse the murder conviction and gun enhancement.
DISPOSITION
The judgment is reversed.



HULL , Acting P. J.



We concur:



DUARTE , J.



HOCH , J.