Does the error in instructing the jury as to the elements of the natural and probable consequences doctrine constitute harmless beyond a reasonable doubt?

Error in instructing the jury as to the elements of the natural and probable consequences doctrine is reviewed under the Chapman¹⁰ harmless beyond a reasonable doubt standard. (See People v. Prettyman, supra, 14 Cal.4th at pp. 271-272; People v. Riva (2003) 112 Cal.App.4th 981, 997-998 & fn. 58.) Here, we cannot conclude that the error was harmless beyond a reasonable doubt.

This was clearly a close case. The jury was deadlocked 9 to 3 and 7 to 5 on Friday afternoon, after more than a day of deliberations. One juror was replaced on Monday morning, but, as the trial court observed, that would not be enough to break the deadlock given the jurors' respective positions as of Friday afternoon. One hour after the alternate juror was empaneled, the jury requested a read back of certain testimony and further instruction, at which time the trial court provided the erroneous instruction on natural and probable consequences. The jury was able to reach its verdicts that afternoon. That the jury was deadlocked as to both defendants, received the additional instructions, and was able to reach its verdicts shortly thereafter suggests that those verdicts were based on the erroneous instructions. (See People v. Brown (2016) 247 Cal.App.4th 211,

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