People v. Rios CA2/2

Filed 10/23/13 P. v. Rios CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B239242

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA085730)
v.

REYES RIOS, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Arthur H. Jean, Jr., Judge. Affirmed.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
 A jury convicted defendant Reyes Rios, Jr., of three counts of attempted willful,
deliberate, and premeditated murder (Pen. Code, §§ 664/187, subd. (a))1 (counts 1-3);
one count of shooting at an inhabited dwelling (§ 246) (count 4); one count of assault
with a semiautomatic firearm (§ 245, subd. (b)) (count 5); and one count of possession of
a firearm by a felon (§ 12021, subd. (a)(1)) (count 6). In all six counts, the jury found
that the offense was committed for the benefit of, at the direction of, and in association
with a criminal street gang (§ 186.22, subd. (b)). In counts 1 through 5, the jury found
that all of the firearm-use allegations were not true. (§§ 12022.5, 12022.53, subds. (c),
(d), (e)(1).)
The trial court found that defendant had suffered a prior strike conviction (§§ 667,
subds. (b)-(i) & 1170.12, subds. (a)-(d)), a prior conviction of a serious felony (§ 667,
subd. (a)(1)), and had served two prior prison terms resulting from three prior convictions
(§ 667.5, subd. (b)).
The trial court sentenced defendant to a total of three consecutive life terms plus
37 years and four months in state prison. In counts 1 through 3, the court imposed a
consecutive term of life with a minimum parole eligibility date of 30 years (15 years for
the gang enhancement, doubled pursuant to the Three Strikes law), plus five years for the
prior serious felony enhancement and one year for the prior prison term enhancement. In
count 5, the court imposed a consecutive term of 18 years (the upper term of nine years,
doubled pursuant to the Three Strikes law). In count 6, the court imposed a consecutive
term of 16 months (one-third the midterm of 24 months, doubled pursuant to the Three
Strikes law). The upper term sentence on count 4 was stayed pursuant to section 654.
Defendant appeals on the grounds that: (1) there is insufficient evidence to
support his convictions for the attempted murders of two of the victims (counts 2 and 3);
(2) there is insufficient evidence to support his conviction for aiding and abetting the
assault with a deadly weapon charge in count 5; (3) the trial court erred when it instructed

1 All further references to statutes are to the Penal Code unless stated otherwise.

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the jury that an aider and abettor is equally guilty, regardless of the extent or manner of
participation; (4) the evidence was constitutionally insufficient to prove defendant had
the specific intent to promote, further, or assist gang member criminal conduct; and (5)
the trial court erred when it refused to address the jury’s written request to explain the
reasonable doubt instruction, requiring reversal of defendant’s conviction.
FACTS
Prosecution Evidence
I. Shooting on Pine Avenue (Counts 1-4)
On January 17, 2010, Elizabeth Fuentes was preparing a barbecue in the courtyard
of her Pine Avenue apartment home in Long Beach. Attending the barbecue were her
five-year-old grandson, Andrew Navarrete; her son-in-law, Catarino Navarrete; her
daughter, Sonia Jarez; and her son, Luis Salcido. Salcido was a member of the 18th
Street gang and used the moniker “Solito.” At approximately 5:00 p.m., Fuentes was
standing outside, and Andrew was right next to her. Salcido and Navarrete stood at the
door to the residence. Salcido had just arrived at the barbecue by bicycle from his sister’s
house, which was just a few blocks away. Fuentes saw a Hispanic man approach and pull
out a gun from a distance of 20 to 25 feet from her. The man stood outside the courtyard
and shot toward the screen door of Fuentes’s residence, where Navarrete and Salcido
were standing. Fuentes grabbed her grandson and put him in back of her. Andrew was
not hit, but Fuentes was shot in the stomach. Bullets broke the glass windows to
Fuentes’s residence, and some bullets struck the inside of the residence, where Jarez and
other members of the family were located when the shooting occurred. After firing
several shots, the shooter walked back toward Pine Avenue. Navarrete and Salcido did
not see the shooter because they were facing the other direction. Fuentes said the man
was wearing black or “dark” and had a cap on his head. He was approximately five feet,
six inches tall, weighed between 170 and 180 pounds, and had a mustache.
Fuentes was hospitalized for two weeks. Navarrete was shot on the right side of
his body and in the arm. He was treated and released. Salcido was shot in the lower back

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and spent a week in the hospital. He still had a bullet in his liver that was sometimes
painful.
Salcido was in custody at the time of trial. He acknowledged that he had a prior
conviction for robbery. Salcido testified that 18th Street and a gang called East Side
Longos (ESL) were “not rivals or allies. They are just whatever.” Salcido previously
admitted to police that there was an ongoing rivalry between the two gangs.
Jorge Escalera Barajas heard the gunshots that afternoon from his residence near
the intersection of 23rd Street and Pine Avenue. He looked out the window and saw a
white- or cream-colored car that looked like a Jeep Cherokee with its engine running. He
saw a Hispanic man with a hooded sweatshirt run to the car and get in the passenger side.
The vehicle then sped away. Barajas could not see inside because the vehicle had tinted
windows.
II. Shooting on 11th Street (Count 5)
On February 11, 2010, Margaret Ellis was at her residence at 11th and Olive
Streets in Long Beach when she witnessed some shots being fired. As she was looking
out her window she saw a Hispanic male standing on the corner. He kept looking east
toward Myrtle Street and walking from the corner to the middle of the street as he did so.
She then saw a primer gray old style “Jeep” drive the wrong way on 11th Street and stop
in front of her door. The male on the corner walked up to the passenger side of the
vehicle and opened the door. When he came out, he had a gun in his hand.
The Hispanic man then walked back to the intersection as the vehicle drove off.
Ellis suddenly heard shooting and saw the man shooting east on 11th Street. Ellis looked
out the door and saw three Black males walking west on 11th Street. The Hispanic man
was shooting at them. The three Black men turned around and ran. They turned right on
Myrtle Street as the Hispanic male was steadily running and shooting at them.
The gray vehicle returned and drove past Ellis’s residence on 11th Street, stopped
at the stop sign, and turned right. Ellis jotted down the vehicle’s license plate number.
She gave the partial plate number 6KM744 to police. Ellis did not recall telling police

4
that she saw male Hispanic subjects arguing with three male Black subjects who were
walking westbound on 11th Street.
III. The Police Investigation
Police found seven shell casings and two bullets at the scene of the Pine Avenue
shooting. Police found 10 casings and five bullet fragments at the scene of the shooting
at 11th and Myrtle Streets. Tests revealed that all 17 nine-millimeter shell casings were
fired from the same gun.
The partial license plate number Ellis saw matched the license plate number
(6KRM744) of a vehicle registered to defendant. Defendant also owned an Isuzu
Trooper with the license plate number 6GAC001. Defendant had twice brought his Isuzu
Trooper to a repair shop run by Jose Luis Cortez in order to have the vehicle repainted.
Cortez knew defendant as “Hyper.” Cortez’s worker, Jaime Lopez, did the actual
painting. The first time Cortez saw the Isuzu it was red or orange. In 2009, the Trooper
was painted beige or a cream color. A few months later, sometime in 2010, Lopez
painted it gray.
Because of ongoing investigations being conducted by Detective Hugo Cortes of
the Long Beach Police Department, in March 2010 a wiretap was authorized of
telephones belonging to defendant and other persons who were members of ESL. On
April 15 and 19, 2010, police tried to stimulate conversation about the shootings among
the people who were being tapped. The police asked for the assistance of the Press
Telegram to disseminate certain information. The first press release contained a partial
description of the suspect, a vehicle description, and a sketch of an Isuzu Trooper. The
second press release contained a sketch of defendant made from an old booking
photograph.
Among the recorded conversations was one between defendant and Lopez in
which they discussed the sanding down and repainting of defendant’s Trooper.2 The jury

2 Pertinent portions of the recorded conversations are discussed within the opinion.

5
heard several conversations between defendant and Ruhani Bustamante, a fellow ESL
member.
Police discovered defendant’s Isuzu Trooper in Compton and took it to the police
tow yard, where it was searched. Defendant’s registration was inside. Police found a
dismantled nine-millimeter handgun wrapped in a blue bandana behind the interior panels
on the rear passenger side. The slide and magazine were present but removed from the
weapon. A box of nine-millimeter ammunition was behind the gun. Police found an
insurance card that listed a 1990 Toyota 4Runner as also being registered to defendant.
The 4Runner was never located.
IV. Gang Evidence
Long Beach Police Officer Chris Zamora testified as a gang expert. He testified
that respect for the gang is very important in the gang culture. When gangs feel respected
it may only mean they are feared. The gangs maintain their territory by intimidating the
community. Officer Zamora had investigated the ESL gang for the bulk of his career.
He gave a conservative estimate that the gang had 900 members. Officer Zamora
described the primary activities of ESL, ranging from assaults to shootings, and stated
that their rivals include all of the Crips gangs, which are primarily African-American.
Certified court documents and Officer Zamora’s testimony established that ESL members
had committed predicate offenses. Officer Zamora identified defendant and gave his
opinion that he was an active member of ESL with the moniker “Big Hyper.”
Officer Zamora stated that Fuentes’s residence on Pine Avenue was within ESL’s
territory. The scene of the 11th Street shooting was also within ESL’s territory. In the
latter location, the ESL gang was “running up against Insane Crips and Rolling 20’s gang
territory.”
When given a hypothetical based on the facts of the Pine Avenue shooting, Officer
Zamora stated that the shooting was committed for the benefit of, in association with, and
for the furtherance of ESL. Officer Zamora’s opinion was based on the fact that a rival
gang member was in ESL territory, and territory is very important to a gang. Doing a
violent act gets rid of the rival or instills fear in him and his gang.

6
 Based on a hypothetical scenario rooted in the facts of the 11th and Myrtle Streets
shooting, Officer Zamora stated that the shooting was committed for the benefit of, at the
direction of, and in association with ESL. Officer Zamora asserted that the shooting also
had its roots in the gangs trying to maintain their territory. This kind of crime instills fear
in the community. ESL often committed race-based crimes because it scares not only
rival gang members but the entire community, since anyone could be shot just because of
his or her race. Moreover, the participation of two people in the shooting was common in
gang-related shootings. The nonshooter acted as a lookout, getaway driver, and a witness
to the act so that the shooter could later take credit and raise his status in the gang.
With regard to count 6, which charged defendant with being a felon in possession
of a firearm, the parties stipulated that defendant had a prior felony conviction.
Defense Evidence
Defendant did not testify or offer any evidence on his behalf.
DISCUSSION
I. Sufficiency of the Evidence in Counts 2 and 3
A. Defendant’s Argument
Defendant argues that there is insufficient evidence he intended to aid and abet the
attempted murders of Fuentes and Navarrete, since there is no evidence that he shared the
concurrent intent necessary to find him guilty under the “kill zone” theory. Defendant
argues that the error is not only one of state law, but also a denial of due process under
the United States Constitution.
B. Relevant Authority
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence.” (Ibid.) “The federal standard of review is to the same effect: Under

7
principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, 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.” (Ibid.; see also Jackson v.
Virginia (1979) 443 U.S. 307, 318-319.)
Under the kill zone theory, “a shooter may be convicted of multiple counts of
attempted murder . . . where the evidence establishes that the shooter used lethal force
designed and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill
zone’) as the means of accomplishing the killing of that victim. Under such
circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter
intended to kill not only his targeted victim, but also all others he knew were in the zone
of fatal harm. [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 745-746.)
The culpability for the attempted murders of any within the kill zone is based on a
theory of concurrent intent rather than transferred intent. (People v. Bland (2002) 28
Cal.4th 313, 331 (Bland).) “The conclusion that transferred intent does not apply to
attempted murder still permits a person who shoots at a group of people to be punished
for the actions towards everyone in the group even if that person primarily targeted only
one of them.” (Id. at p. 329.)
C. Evidence Sufficient
According to defendant, the prosecution was required to establish that defendant
aided and abetted the shooter’s concurrent intent to create a kill zone around every person
who was near the intended target. And, since the kill zone theory relies on a legal
fiction—that the shooter’s malice would be inferred by reason of shooting into an area
occupied by more than the target—it is difficult to imagine under the circumstances of
the case, how such an intent could be found. Defendant asserts that there was simply no
evidence that defendant, acting as an aider and abettor, intended to aid and abet the
attempted murder of victims within the kill zone.

8
 The elements of attempted murder are specific intent to kill and a direct but
ineffectual act toward accomplishing the intended killing. (People v. Smith, supra, 37
Cal.4th at p. 739.) The kill zone instruction relates only to the intent element, which is
the only element defendant disputes. (People v. McCloud (2012) 211 Cal.App.4th 788,
804.) “One who intentionally attempts to kill another does not often declare his state of
mind either before, at, or after the moment he shoots. Absent such direct evidence, the
intent obviously must be derived from all the circumstances of the attempt, including the
putative killer’s actions and words.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945-
946.)
As for aiding and abetting liability, the jury was instructed that it had to find that
defendant acted with knowledge of the unlawful purpose of the perpetrator and with the
intent or purpose of committing or encouraging or facilitating the commission of the
crime, and that by act or advice he aided promoted, encouraged, or instigated the
commission of the crime. The jury was also instructed that a person who aids and abets
the crime need not be present at the scene of the crime, although this is a factor to
consider in determining if a defendant aided and abetted. (CALJIC No. 3.01.) (See
People v. Campbell (1994) 25 Cal.App.4th 402, 409.) Other factors include the
defendant’s companionship or relationship with the perpetrator and his conduct before
and after the offense. (Ibid.)
In determining the sufficiency of the evidence, each case must turn on its own
particular facts. (People v. Smith, supra, 37 Cal.4th at p. 745.) In the instant case, the
circumstantial evidence of the shooter’s intent clearly showed an intent to kill everyone
in the vicinity of the intended target, Salcido. The shooter shot a semiautomatic weapon
at least seven times into a family group consisting of three adults and a child. All of them
were in a relatively confined space in the courtyard of an apartment building. The
shooter actually struck all three adults, even though they were in different places within
the area of the courtyard. This is a clear indication that the shooter shot wildly and
sprayed the family members with bullets. Concurrent intent exists “‘when the nature and
scope of the attack, while directed at a primary victim, are such that we can conclude the

9
perpetrator intended to ensure harm to the primary victim by harming everyone in that
victim’s vicinity.” (Bland, supra, 28 Cal.4th at p. 329.) “‘[T]the trier of fact may
reasonably infer from the method employed an intent to kill others concurrent with the
intent to kill the primary victim. . . . Where the means employed to commit the crime
against a primary victim create a zone of harm around that victim, the factfinder can
reasonably infer that the defendant intended that harm to all who are in the anticipated
zone.’” (Id. at p. 330.)
The jury could reasonably infer that defendant waited in his vehicle with the
engine running after having supplied the weapon and thereby shared the intent of the
actual shooter. Thus defendant was present at the scene of the crime, even though his
presence was not required in order for him to be an aider and abettor. Defendant’s
wiretapped conversations with a fellow gang member showed that the shooting was a
gang “job,” and thus defendant shared companionship with the shooter, another factor
supporting a shared intent. Defendant took the shooter to the scene, and, after the
shooting, the perpetrator ran to the Trooper and defendant sped away, which are also
factors in support of a finding that defendant was an aider and abettor. (See People v.
Campbell, supra, 25 Cal.App.4th at p. 409.) Defendant’s recorded conversation with
Bustamante showed that the gun used in the shooting actually belonged to defendant.
The fact that Salcido arrived at the barbecue only minutes before the volley of shots
began indicates that defendant and the shooter either followed Salcido as he cycled the
few blocks to his mother’s house, or they were lying in wait. In any event, the shooter
and the driver knew that there were likely to be other people in the courtyard that Salcido
had just entered. It was an apartment building, and any number of residents could have
been in the line of fire. Defendant evinced no surprise when Bustamante read to him that
there was a $10,000 reward for information leading to the arrest and conviction of this
person responsible for the shooting that injured a woman and two men.” Defendant
merely replies, “Yeah.”
In the instant case, the fact that defendant as an aider and abettor supplied the
transportation and the weapon and waited while the shooter entered the courtyard of an

10
apartment building occupied by multiple families with the intent to kill, clearly shows his
concurrent intent with the shooter. The “‘nature and scope of the attack’” supports the
conclusion that the shooter intended to kill Salcido and anyone who was near him.
(Bland, supra, 28 Cal.4th at pp. 329-331.) The jury reasonably arrived at the inference
that defendant shared the shooter’s intent to kill anyone and everyone in the zone.
Defendant was properly convicted of the attempted murders of Fuentes and Navarrete.
II. Sufficiency of the Evidence in Count 5
A. Defendant’s Argument
Defendant contends there is insufficient evidence that he aided or abetted the
assault with a deadly weapon in count 5, which took place at 11th and Myrtle Streets. He
asserts that he was not placed at the scene, and the wiretapped calls did not evidence his
knowledge of the incident, let alone his complicity with its commission. Even though a
vehicle registered to defendant was placed at the scene, this is insufficient evidence that
he was driving the car or was otherwise aware of the crime.
B. Relevant Authority
The standard of review for insufficiency of the evidence and the elements of aider
and abettor liability are discussed in the first portion of this opinion.
C. Evidence Sufficient
Margaret Ellis testified that she saw a Hispanic male standing on the corner and
looking around. She saw a gray vehicle, which looked like an older Jeep, pull up in front
of her house, and the man from the corner walked up to the passenger side of the Jeep
and opened the door. He then came out of the Jeep with a gun in his hand. Suddenly,
shots rang out and she saw the man shooting eastward on 11th Street while the man in the
Jeep drove off. Ellis saw that the Hispanic male was shooting at three Black men.
When the Jeep came back, Ellis saw and recorded its license plate number. The
number she gave the police was a partial number, i.e., 6KM744. The license plate was
later connected to defendant. The title to two automobiles found at defendant’s residence
showed that he owned vehicles with license plate numbers 6GAC001 (an Isuzu) and
6KRM744 (a Toyota).

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 After police arranged to have information printed in the newspaper about the two
cases with a description and sketches of the suspect and the vehicle, defendant and
Ruhani Bustamante had a telephone conversation. Contrary to defendant’s assertion,
their conversation clearly implicates defendant in the 11th and Myrtle Streets shooting.
Bustamante informs defendant that his “Jeeps” was sketched in the paper along with “a
picture that looks like you in a sketch fool.” Bustamante reads the newspaper report to
defendant. The report connected the vehicle and the suspect to both the Pine Avenue and
the 11th Street shootings. Bustamante says, “Anyways fool it shows, it shows your
vehicle fool.” Defendant asks what color the car is in the drawing, and Bustamante says
it is white because it is just a drawing. Bustamante tells defendant to “just get rid of it.”
Defendant asks if the 11th and Myrtle was part of it, and Bustamante says it was and
asks, “Did you throw, did you tell anyone about that?” When he asks if defendant told a
specific person (the Paisa) defendant replies, “No that dude don’t know.” Bustamante
tells defendant to just get rid of his car and shave off his mustache and his head hair.
Bustamante later says “they are linking that one up to the one on Myrtle fool that is why
I’m telling you fool they are on to everybody, fool. . . .” During one of their several
conversations in which they speculate about who is talking, Bustamante says, “It could be
that little fucken hina that lives there. She probably saw the license plate to the ranfla
(car). What it looks like, remember? She was looking out the window?” Defendant
responds, “Yeah.”
Bustamante then tells defendant to take his old nine-millimeter gun away from
whoever has it. He specifies that it is the gun they used at the 2200 block with “the
eighteen streeters.” He says that “they” went on to use it at the Myrtle Street shooting,
and Bustamante scolded defendant for not having cut it up as he had been told to do.
Again contrary to defendant’s assertion, this exchange does not indicate that defendant
was not involved in the 11th and Myrtle Streets shooting, but only that Bustamante was
not aware of which gun the shooter used in that shooting.
With respect to defendant’s vehicle, another caller tells defendant that “they said
that white over there with the lady over there on Pine” and “over here primered with the

12
Blacks.” Defendant later calls someone to see if they have the newspaper for the 17th
because “they say . . . the Trooper is coming up on it.” Defendant tried to have his car
repainted after the sketch of the car and the suspect appeared in the newspaper.
Defendant actually asked Lopez to sand his car down to get rid of all of the white and
gray paint and to go back to the red so that one could never tell that it was anything but
red. He also told Lopez to take off the tire in the rear, the part that held the tire, and to
cover up the holes where it was attached. Defendant changed his appearance to appear
different than the sketch.
Later defendant tells Bustamante that he threw the “juguete,” or the toy, in the
ocean personally. He then says he disassembled it into different pieces and threw it in
several places. He tells someone else he threw the “slingshot” in the water.
On June 3, 2010, Detective Sorenson searched defendant’s Isuzu Trooper in the
city tow yard and found parts of a disassembled nine-millimeter handgun wrapped in a
blue bandana behind the interior panels in the cargo area of the car. The magazine was
out and the slide was removed. There was a box of nine-millimeter ammunition behind
the gun.
Troy Ward, a firearms examiner, examined seven cartridge cases from the Pine
Street shooting and 10 fired nine-millimeter cartridge cases with respect to the 11th and
Myrtle Streets shooting. The 10 cartridge cases were all fired by one firearm, and the
seven cartridges were also fired from one firearm. A comparison of the cartridges
revealed that all 17 were fired from the same gun. That gun was the disassembled gun
found in defendant’s Isuzu.
Finally, there was expert evidence that all of the Crips gangs, which are primarily
African-American gangs, are direct rivals of ESL, defendant’s gang, and have been for
several decades. The area of 11th and Myrtle Streets is one where their territories “butt
up against each other.”
“‘Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence, it is the jury, not the appellate court which must be convinced of

13
the defendant’s guilt beyond a reasonable doubt. 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.’ [Citation.]” (People v. Perez (1992) 2 Cal.4th 1117, 1124.) Given the
abundance of circumstantial evidence and the incriminating statements discussed ante,
we conclude the evidence was sufficient to support defendant’s conviction as an aider
and abettor of the shooting on 11th and Myrtle Streets.
III. Aiding and Abetting Instruction
A. Defendant’s Argument
Defendant contends the trial court erred by instructing the jury with CALJIC No.
3.00, which contained language stating that each principal, regardless of the extent or
manner of participation, is equally guilty. He argues that the trial court had the duty to
instruct the jury that he could be guilty of a lesser offense than the actual perpetrator. If
the trial court had no such sua sponte duty, defense counsel was ineffective in failing to
request a proper instruction.
B. Proceedings Below
The trial court instructed the jury with CALJIC No. 3.00 that “Persons who are
involved in committing a crime are referred to as principals in that crime. Each principal,
regardless of the extent or manner of participation is equally guilty. Principals include:
Those who directly and actively commit the act constituting the crime, or those who aid
and abet the commission of the crime.”
C. Relevant Authority
Generally, an aider and abettor is guilty of the crime he or she intended to aid and
abet. (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) “If the mens rea of the
aider and abettor is more culpable than the actual perpetrator’s, the aider and abettor may
be guilty of a more serious crime than the actual perpetrator.” (Id. at p. 1120.)
Conversely, if the aider and abettor’s mens rea is less culpable, the aider and abettor may
be guilty of a lesser crime. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164
(Samaniego).)

14
 Purportedly erroneous instructions are reviewed in the context of the entire charge
to determine whether it is reasonably likely the jury misconstrued or misapplied the
challenged instruction in a manner that violates the Constitution. (People v. Frye (1998)
18 Cal.4th 894, 957, disapproved on another point in People v. Doolin (2009) 45 Cal.4th
390, 421 & fn. 22; People v. Holt (1997) 15 Cal.4th 619, 677.)
D. No Error
We first agree with respondent that defendant has forfeited this claim. A party
may not complain on appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has requested modification or
amplification. (People v. Lee (2011) 51 Cal.4th 620, 638.)
In Samaniego, this court considered whether a challenge to CALCRIM No. 400—
the CALCRIM instruction corresponding to CALJIC No. 3.00—had been forfeited by the
defendant’s failure to object to the instruction below. (Samaniego, supra, 172
Cal.App.4th at pp. 1162-1163.) We determined that, since CALCRIM No. 400 is
generally an accurate statement of law, the defendant was obliged to request modification
or clarification and, having failed to do so, forfeited his challenge to the instruction. (Id.
at p. 1163)
In the instant case, defendant failed to object to CALJIC No. 3.00 or to request
clarifying or amplifying language, and we do not believe defendant’s substantial rights
would be affected by a forfeiture. CALJIC No. 3.00 is a correct statement of the law that
instructs the jury that an aider and abettor is as guilty as a principal in the offense the
perpetrator commits. Because defendant did not ask the court to correct or clarify an
otherwise accurate statement of general legal rules, he cannot complain on appeal that the
reading of the instruction was error, and he has therefore forfeited his claim on appeal.
(People v. Lee, supra, 51 Cal.4th at p. 638.)
Defendant also argues that any forfeiture of his claim was due to his counsel’s
failure and that this failure constitutes ineffective assistance of counsel. The burden is on
defendant to establish ineffective assistance by a preponderance of the evidence. (People
v. Ledesma (1987) 43 Cal.3d 171, 218.) There are two elements to an ineffective

15
assistance claim. “[A] defendant seeking relief on the basis of ineffective assistance must
show both that trial counsel failed to act in a manner to be expected of reasonably
competent attorneys acting as diligent advocates, and that it is reasonably probable a
more favorable determination would have resulted in the absence of counsel’s failings.”
(People v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. Washington (1984) 466
U.S. 668.) A reviewing court “need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.” (Strickland, at p. 697.)
In the instant case, even if the claim were not forfeited we would find it meritless.
Therefore, defendant suffered no prejudice from counsel’s failure to object. As we
observed in Samaniego, an instruction such as CALJIC No. 3.00 may have the potential
to mislead the jury in certain cases. (Samaniego, supra, 172 Cal.App.4th at p. 1165.) We
noted that the Supreme Court in McCoy, supra, 25 Cal.4th at page 1122, concluded that
an aider and abettor could be guilty of a greater offense than the direct perpetrator, and
we determined that McCoy’s reasoning led inexorably to the further conclusion that an
aider and abettor’s guilt may also be less than the perpetrator’s, if the aider and abettor
has a less culpable mental state. (Samaniego, supra, 172 Cal.App.4th at p. 1164; see also
People v. Woods (1992) 8 Cal.App.4th 1570, 1577 (Woods).) Nevertheless, we stated
that the “equally guilty” language was “generally correct in all but the most exceptional
circumstances,” although in Samaniego we found it misleading. (Samaniego, at p. 1165;
cf. People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero) [the instruction can be
misleading even in unexceptional circumstances].)
Here, even if the jury believed someone else was the shooter and defendant was an
aider and abettor, it necessarily found the following regarding defendant in order to find
that he aided and abetted the attempted murders: defendant knew the shooter intended to
murder or attempt to murder the victims; defendant intended to commit, encourage, or
facilitate the commission of murder and attempted murder; and defendant did something
that in fact aided, promoted, encouraged, or instigated the commission of murder and
attempted murder (CALJIC No. 3.01). Thus, the jury necessarily found that defendant

16
must have intended that the victims be killed, which means he shared the intent to kill
them. “Absent some circumstance negating malice one cannot knowingly and
intentionally help another commit an unlawful killing without acting with malice.”
(McCoy, supra, 25 Cal.4th at p. 1123.) Moreover, “[i]t would be virtually impossible for
a person to know of another’s intent to murder and decide to aid in accomplishing the
crime without at least a brief period of deliberation and premeditation, which is all that is
required” for first degree murder, and for the premeditated attempted murder in this case.
(Samaniego, supra, 172 Cal.App.4th at p. 1166.)
Moreover, even if the trial court erred in instructing the jury with CALJIC No.
3.00, any such error was harmless. We review instructional error with respect to CALJIC
No. 3.00 using the harmless error test under Chapman v. California (1967) 386 U.S. 18,
24. (See Samaniego, supra, 172 Cal.App.4th at p. 1165.) Under that test, we find the
error harmless if we determine beyond a reasonable doubt that the jury verdict would
have been the same absent the error. (Ibid.)
Instructing the jury that principals are “equally guilty” amounts to reversible error
when the trial court precludes the jury from making appropriate findings under other
instructions. (Samaniego, supra, 172 Cal.App.4th at pp. 1165-1166 [no reversible error
where the jury made appropriate findings under other instructions].) In the instant case,
the court’s additional instructions correctly and specifically described the mental state
necessary to find defendant guilty under an aiding and abetting theory.
As noted, the trial court instructed with CALJIC No. 3.01, which defines the
elements of aiding and abetting.3 CALJIC No. 3.01 provided a detailed explanation of

3 CALJIC No. 3.01, as read to defendant’s jury, states: “A person aids and abets the
commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose
of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging
or facilitating the commission of the crime, and [¶] (3) By act or advice, aids, promotes,
encourages or instigates the commission of the crime. [¶] A person who aids and abets
the commission of a crime need not be present at the scene of the crime. [¶] Mere
presence at the scene of a crime which does not itself assist the commission of the crime

17
the principles underlying an aiding and abetting theory in contrast to CALJIC No. 3.00,
which was merely a brief introduction of general principles to apply when more than one
person is involved in committing a crime. We see no reasonable possibility that the jury
failed to understand that CALJIC Nos. 3.00 and 3.01, when read together, required the
jury members to evaluate defendant’s personal mental state as separate from the mental
state of the shooter in order to determine his culpability, especially since defendant was
tried alone.
The jury was also instructed that its sole duty was to decide whether the People
have proved the guilt of the defendant on trial. (CALJIC No. 2.11.5.) The jury was
directed to consider the instructions as a whole and each in light of all the others.
(CALJIC No. 1.01.) The trial court instructed the jury in terms of CALJIC No. 3.31, that
there must be a union of act and specific intent. The jury was separately instructed on
attempted murder as a violation of sections 664 and 187 (CALJIC No. 8.66). The court
also instructed with CALJIC No. 8.67, defining “willful,” “deliberate,” and
“premeditated” attempted murder. The totality of the court’s instructions ensured that the
jury found the requisite mental state to convict defendant of premeditated attempted
murder.
Moreover, unlike the cases of Nero and Woods, the jury had no queries in regard
to these instructions. Specifically, the jurors did not ask the trial court whether the jury
could convict defendant of a lesser included offense. (Cf. Nero, supra, 181 Cal.App.4th
504, 509-510 [prejudicial error for court to inform jury that aider and abettor and
perpetrator are “equally guilty” when jury asked whether it could convict aider and
abettor of lesser offense]; Woods, supra, 8 Cal.App.4th at p. 1579 [jury asked trial court
if an aider and abettor could be found guilty of second degree murder if the actual
perpetrator is guilty of first degree murder].) There is no indication that the jury was
misled by CALJIC No. 3.00.

does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being
committed and the failure to prevent it does not amount to aiding and abetting.”

18
 Finally, as discussed ante, the evidence adduced at trial in support of an attempted
murder conviction against defendant was strong and showed that he and an accomplice
planned to kill Salcido and anyone else in the line of fire. There is no indication or
suggestion that when the shooter fired into the courtyard, he and the waiting getaway
driver (who also supplied the gun) harbored different mental states. The jury found the
gang allegations true, i.e., that the attempted murders and assault were committed “for the
benefit of, at the direction of, or in association with any criminal street gang,” within the
meaning of section 186.22, subdivision (b)(1), and with the “specific intent to promote,
further, or assist in any criminal conduct by gang members” within the meaning of
section 186.22, subdivision (b)(1). There was overwhelming evidence of the gang
allegations, and evidence of those allegations showed that the attempted murders and
assault were committed with the required specific intent. (See Samaniego, supra, 172
Cal.App.4th at p. 1165 [true finding on multiple murder special circumstance showed
defendants had the specific intent to kill].)
Accordingly, even if the trial court had not instructed the jury with CALJIC No.
3.00, it is beyond a reasonable doubt that the jury would have convicted defendant of
attempted murder as an aider and abettor. Trial counsel was not ineffective for failing to
object to the reading of CALJIC No. 3.00, since the instruction is a correct statement of
law and there were no grounds for finding defendant guilty of a lesser crime, and the
reading of the instruction did not prejudice defendant. Defendant’s argument is without
merit.
IV. Sufficiency of the Evidence of Gang Allegation
A. Defendant’s Argument
According to defendant, the prosecutor failed to present substantial evidence to
support the gang allegations that the charged crimes were part of a gang-related
enterprise and committed with the intent to benefit a gang. The evidence presented was
mere unsubstantiated, speculative opinion of an expert who relied on the often-used
generality that an assault benefits the gang to establish territory and intimidate the

19
neighborhood. Defendant asserts that his gang enhancements be stricken, requiring
remand of the associated sentences.
B. Relevant Authority
To subject a defendant to the consequences of section 186.22, the prosecution
must prove that the crimes for which the defendant was convicted were “committed for
the benefit of, at the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang members.”
(§ 186.22, subd. (b)(1); see also People v. Gardeley (1996) 14 Cal.4th 605, 616-617;
People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Not all crimes committed by
gang members fall within the purview of section 186.22, subdivision (b). (See People v.
Ochoa (2009) 179 Cal.App.4th 650, 661-663 & fn. 7; People v. Ramon (2009) 175
Cal.App.4th 843, 853; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.)
A trier of fact may rely on expert testimony about gang culture and habits to reach
a finding on a gang allegation. (In re Frank S., supra, 141 Cal.App.4th at p. 1196;
People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) However, a gang expert’s
testimony alone is insufficient to find an offense gang related. (People v. Ochoa, supra,
179 Cal.App.4th at p. 657; Ferraez, at p. 931.) “‘[T]he record must provide some
evidentiary support, other than merely the defendant’s record of prior offenses and past
gang activities or personal affiliations, for a finding that the crime was committed for the
benefit of, at the direction of, or in association with a criminal street gang.’ [Citation.]”
(Ochoa, at p. 657.)
C. Evidence Sufficient
We believe the testimony offered by the gang expert in conjunction with
defendant’s revealing telephone calls and the circumstances surrounding the shootings
provide ample evidence to show the instant crimes were committed for the benefit of a
criminal street gang.
Officer Zamora testified that fear, which gang members consider to be respect, is
important to gangs because it helps them maintain their territory. Among ESL’s rivals
were the 18th Street gang and any African-American Crips gang. ESL claimed central

20
Long Beach, east of the 710 freeway, as its main territory. Fuentes’s residence on Pine
Avenue was within ESL’s territory. Her son, a member of ESL’s rival gang, was visiting
her when the shooting occurred. The scene of the 11th Street shooting was also within
ESL’s territory, and it bordered the territory of rival African-American gangs. African-
American males were the shooter’s targets.
Officer Zamora was of the opinion that defendant was a member of ESL because
of defendant’s gang tattoos and his admission of membership to officers, including
Officer Zamora. When read a hypothetical question based on the facts of the Pine
Avenue shooting, Officer Zamora stated that the shooting was committed for the benefit
of, in association with, and for the furtherance of ESL. This was due to the importance
territory holds in gang culture. ESL took violent action against a rival gang member in
its territory so as to instill fear in both the rival gang and the community. Although that
rival gang member (Salcido) testified at trial that 18th Street and ESL were “not rivals or
allies. They are just whatever,” the record shows he had previously admitted to police
that there was an ongoing rivalry between the two gangs.
When given another hypothetical based on the facts of the 11th and Myrtle Streets
shooting, Officer Zamora asserted that the shooting was committed for the benefit of, at
the direction of, and in association with ESL. This opinion was also rooted in the
importance of territory in gang culture. Officer Zamora explained that it was irrelevant if
the African-American victims were actually members of a rival gang, since their race and
presence in ESL territory qualified them as ESL targets. The shooting instilled fear in the
community and in rival African-American gangs. The area in which the shooting
occurred was at the border where the ESL territory meets the African-American gangs’
territory. The fact that two people participated in the shooting was common in gang-
related shootings, because the nonshooter could act as a lookout, the getaway driver, and
a witness to the act so the shooter could later take credit and raise his status in the gang.
Defendant’s conversations with Bustamante confirm that the shootings were
committed at a minimum in association with ESL gang members. (See People v.
Morales (2003) 112 Cal.App.4th 1176, 1198 [“The crucial element . . . requires that the

21
crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association
with a gang.”].) Bustamante, in referring to defendant’s nine-millimeter weapon, states,
“You hear me the one that we used at the 2200 block right there fool the with the
eighteen streeter’s, remember?” He later asks defendant if he doesn’t remember the job
that they did “over there with the eighteen streeters, dude.” Bustamante then states that
the police are linking the Pine Street incident to “the one on Myrtle fool that is why I’m
telling you fool they are on to everybody fool.” They both suspect that someone they call
“el pinche guero” is the only one that knows about the “job,” and Bustamante says that
they need to “invite him somewhere” and “take him down.” Bustamante scolds
defendant because the gun used at the Pine Street shooting was given to someone who
used it at the 2200 block of Myrtle Street, and Bustamante had told defendant to cut up
the gun. These conversations and the circumstances of the shootings clearly support the
inference that the shootings were committed by defendant with other gang members.
Accordingly, we conclude the evidence was sufficient to support the gang
allegations.
V. Jury Query Regarding Reasonable Doubt Instruction
A. Defendant’s Argument
Defendant contends the trial court committed reversible error when it refused to
provide further clarification regarding the reasonable doubt instruction, CALJIC No.
2.90. According to defendant, the error affected defendant’s constitutional rights to due
process and was not harmless beyond a reasonable doubt.
B. Proceedings Below
The court instructed the jury on reasonable doubt pursuant to CALJIC No. 2.90 as
follows: “A defendant in a criminal action is presumed to be innocent until the contrary
is proved. And in case of a reasonable doubt whether his guilt is satisfactorily shown, he
is entitled to a verdict of not guilty. This presumption places upon the People the burden
of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as
follows: It is not a mere possible doubt because everything relating to human affairs is
open to some possible or imaginary doubt. It is that state of the case which after the

22
entire comparison and consideration of all of the evidence leaves the minds of the jurors
in that condition that they cannot say they feel an abiding conviction of the truth of the
charge.”
At the end of opening argument, the prosecutor told the jury it was his burden to
prove the charges beyond a reasonable doubt, and he again read the reasonable doubt
instruction to the jury. The jury began deliberating in the afternoon of November 1,
2011, and resumed deliberations at 9:30 a.m. the next day. At 10:10 a.m., the jury sent
questions to the trial court, including the following: “Can you redefine reasonable
doubt?” After discussing the questions with the parties, the trial court responded “No” to
the reasonable doubt query. The court told the jury that counsel had approved the
responses. The court added, “It is one of those things that cannot be defined any further.”
At 10:25 a.m., the jury announced it had reached verdicts.
C. Relevant Authority
The federal Constitution does not require a trial court to define reasonable doubt.
(People v. Aranda (2012) 55 Cal.4th 342, 374 (Aranda).) The failure to do so is,
however, error under state law. (Id. at pp. 350, 374.)
Pursuant to section 1138, the trial court must provide information requested by a
jury concerning any point of law. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The
trial court has the discretion to determine what additional explanations or definitions are
needed to satisfy the jury’s request for information if the instructions given are full and
complete. (Ibid.)
D. No Abuse of Discretion
We first observe that defendant has forfeited this claim. The California Supreme
Court, in People v. Rodrigues (1994) 8 Cal.4th 1060, held that a defendant who believes
that an instruction is unclear has a duty to request clarifying language. Failure to request
such clarification bars appellate review of the issue. (Id. at p. 1192; see also People v.
Kelly (1992) 1 Cal.4th 495, 535-536 [trial court not required to modify accepted standard
instructions without request by party ].)

23
 In any event, we conclude that the trial court properly responded to the jury’s
inquiry. When standard jury instructions are adequate, a trial court does not abuse its
discretion by declining to elaborate on them. (People v. Garceau (1993) 6 Cal.4th 140,
191.) Moreover, CALJIC No. 2.90 has been recognized as “‘the best available definition
of the standard of proof beyond a reasonable doubt.’” (Garceau, at p. 193.)
Furthermore, it has been held that varying from the standard is a “‘perilous
exercise.’” (People v. Freeman (1994) 8 Cal.4th 450, 503-504.) Prejudicial error has
sometimes been found when a trial court has made misguided attempts to expand on the
standard definition. (See, e.g., People v. Johnson (2004) 115 Cal.App.4th 1169, 1172
[reversal required where trial court said, “people planning vacations or scheduling flights
engage in a deliberative process to the depth required of jurors[,] or that such people
finalize their plans only after persuading themselves that they have an abiding conviction
of the wisdom of the endeavor”].) Even paraphrasing the standard jury instruction on
reasonable doubt can be dangerous. (See, e.g., People v. Johnson (2004) 119
Cal.App.4th 976, 985; People v. Garcia (1975) 54 Cal.App.3d 61, [citing cases with
examples of “innovative ‘reasonable doubt’ instructions” held to be erroneous] and
noting that “Well intentioned efforts to ‘clarify’ and ‘explain’ [the accepted definition]
have had the result of creating confusion and uncertainty, and have repeatedly been
struck down by the courts of review of this state.”].) It is certain that reversal is required
when any modification to the instruction results in a reasonable likelihood that a juror
understood the modified language to lessen the prosecution’s burden of proof. (See
Victor v. Nebraska (1994) 511 U.S. 1, 5 [reasonable doubt jury instruction cannot suggest
a higher degree of doubt that is required for acquittal]; People v. Mayo (2006) 140
Cal.App.4th 535, 542 [“an instruction that lowers the People’s burden of proof or detracts
from the heavy burden suggested by use of the term ‘reasonable doubt’ is federal
constitutional error requiring reversal per se . . .”].)
Because the standard jury instruction was clearly adequate, there was no abuse of
discretion, and the trial court wisely chose to refrain from entering these dangerous
waters. Moreover, any error in this regard was harmless under any standard. (Chapman

24
v. California, supra, 386 U.S. 18 [harmless beyond a reasonable doubt]; People v.
Watson, supra, 46 Cal.2d at p. 836 [reasonable probability the error did not affect the
outcome].) The jury found “not true” the firearm allegations, including the allegation
that a principal used a firearm, which indicates that the jury members gave defendant the
benefit of any doubt they might have harbored. Moreover, as we have concluded, there
was overwhelming evidence of defendant’s participation in both shootings and his
possession of a firearm. There was also strong evidence in support of the gang
enhancements, as explained in the previous section. In light of this evidence, any error
was harmless.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.
We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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