What is the prosecutor's burden of proving that appellant acted as the direct perpetrator or as an aider and abettor in CALCRIM No. 401?

As the People point out, CALCRIM No. 401 required the prosecutor to prove that appellant acted as the direct perpetrator or as an aider and abettor. As to the theory of aiding and abetting, the prosecutor had to prove that: (1) the perpetrator murdered the victim; (2) appellant knew that the perpetrator intended to commit murder; (3) appellant intended to aid and abet the perpetrator in the commission of those offenses; and (4) in fact aided and abetted the perpetrator by words or actions. (See People v. Alexander, supra, 49 Cal.4th at p. 921 [jurors are not required to agree unanimously on whether a defendant was "the shooter" or another "participant in the crime"].) The jury was also instructed regarding the prosecutor's burden of proof and the standard of proving the crimes beyond a reasonable doubt. Finally, the jury was required to make special findings as to whether appellant personally used, intentionally discharged, and proximately caused great bodily injury or death with a firearm. Viewing the instructions as a whole, there is no reasonable likelihood that the jury applied the challenged instructions in a way that violated appellant's due process rights. In reviewing a jury instruction for constitutional error, courts consider "'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the

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