Filed 11/26/13 P. v. Robinson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055003
v. (Super.Ct.No. FVA801386)
KELLY ROBINSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Affirmed.
David M. Dudley for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, and Kristine
A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION1
Defendant Kelly Robison was 18 years old when he was arrested for a gang-
related shooting. A jury convicted defendant of one count of attempted murder with a
gang enhancement (§§ 664/187, subd. (a), and 186.22, subd. (b)(1)(C)) and acquitted him
of two other counts and witness intimidation. The jury did not find true various firearm
allegations. The court sentenced defendant to a prison term of seven years to life plus 10
years for the gang enhancement.
On appeal, defendant argues the gang expert was not properly qualified and, in the
alternative, the gang issue should have been bifurcated and tried separately.
Additionally, defendant maintains the trial court erred by instructing the jury about flight
showing consciousness of guilt and committed several other forms of instructional error.
After careful but deferential review, we affirm the judgment.
II
STATEMENT OF FACTS
The shooting occurred in the early morning hours of July 31, 2008, in the
driveway of the residence of David Martin and Sharon Martin at 14221 Remington Court
in Fontana. Remington Court is a short street, terminating in two cul-de-sacs, and
intersecting with East Lincoln Loop Road. Evidence reflected the shooting occurred
because of rivalry between the HG and NAW gangs.
1 All statutory references are to the Penal Code unless stated otherwise.
2
A. Testimony of McGraw
Joseph McGraw was visiting his sister, Sharon Martin.2 After midnight on July
31, 2008, McGraw and his sister’s husband, David Martin, were in the garage smoking
cigarettes. When Sharon saw a man with a gun, she called the police and the Martins and
McGraw moved out of the garage to the driveway. McGraw was shot as he was standing
by David and tried to take cover under a vehicle. McGraw could not identify the shooter.
Dr. Paul Burton, an orthopedic surgeon, testified that McGraw sustained an
abdominal injury to the pancreas, a gunshot wound to the flank, and an open fracture to
the elbow. McGraw’s injuries required two surgeries and the insertion of permanent
plates in his elbow.
B. Testimony of Sharon Martin
Sharon testified that, in July 2008, she lived with her husband and children but her
18-year-old son, Tyson, had moved out in June after his high school graduation. When
she went to bed on July 30, McGraw was not inside the house. At 1:00 a.m. on July 31,
Sharon woke up because McGraw was loud and intoxicated. When she looked out the
window, she saw four men walking toward Liberty Loop Road, away from the
Remington Court cul-de-sac. Sharon told David that one of the men, codefendant
Gregory Atkins, was carrying a gun. She called the police because she thought it might
be related to a custody dispute involving David’s daughter. Sharon followed David
2 The Martins also use the surname Salter. Sharon had a 2007 perjury conviction
for using a false driver’s license.
3
toward the cul-de-sac where he was talking to the men down the street. He yelled at them
to “get out of here.” Sharon was able to see codefendant Atkins.
About 10 minutes passed. While waiting for the police, the Martins and McGraw
continued talking and smoking in the garage, before moving to the driveway. At that
point, the neighbor’s motion light activated. David pushed Sharon on the ground as
gunshots were fired. Sharon glimpsed a man wearing the same dark-colored shirt as
codefendant Atkins. She testified that Atkins was the shooter. McGraw yelled that he
had been shot and Sharon ran upstairs to check on her children.
Afterwards, Sharon did not want to talk to the police because she was concerned
about the danger to her family. Although she did not tell the police about recognizing
codefendant Atkins, she did tell them she saw one suspect fleeing in a gray SUV. She
identified codefendant Atkins from a photographic lineup. She decided to cooperate with
the police after her husband planned to surrender to custody and she had been frightened
by a street encounter with codefendant Atkins.
Sharon did not recall that Atkins had been friends with her son, Tyson. She
denied that Tyson was involved in gangs. Since the shooting incident, her family
experienced problems and had to relocate to a new home and schools. She acknowledged
that David Martin had been a Du-Roc Crips gang member.
C. Testimony of David Martin
David Martin testified that, when Sharon told him she had seen some men, one of
whom was armed, he walked up the street to check it out. Sharon tried to stop him
because she preferred to call the police to handle it. David saw four men, wearing dark
4
colors and hoodies, walking toward the cul-de-sac. The men turned and faced him from a
distance of about five feet and he recognized them from previous contacts as defendant,
codefendant Atkins, Ranson Barrett Sparrow, and Jakeen Morgan. Defendant and Atkins
were in front and the other two were behind them.
David said Tyson “socializes” with the NAW gang. Defendant, Atkins, and
Sparrow had been friends with Tyson in high school in 2007. David had seen defendant
at the Martin house and in the park playing basketball where David had smoked
marijuana with defendant. Morgan was also in school with Tyson. A couple of days
before this incident there had been a shooting nearby involving David’s daughter.
David asked the four men what they were doing and defendant asked for Tyson.
David told him Tyson was not living there. When David said Sharon had called the
police and the men should leave, they started to walk away. Defendant raised his shirt
and displayed the butt of an automatic gun in his waistband.
After following the men, David returned to his house where Sharon and McGraw,
who was drunk, were arguing in the driveway and waiting for the police. When the
neighbor’s motion detector lights activated, David saw the four men emerge from behind
another house. Defendant and Atkins began firing guns. David shoved Sharon down and
squatted behind a vehicle. The gunshots hit their vehicles and the house. McGraw was
wounded. Defendants ran off and fled in an SUV.
When David was first interviewed by the police, he did not cooperate because he
5
was about to serve a one-year jail sentence for a 2008 robbery conviction3 and he thought
he would not be able to protect his family if he testified. He decided to testify after a
threatening encounter with Atkins and Sparrow. In August 2008, he identified defendant,
Atkins, Sparrow, and Morgan in photographic lineups. David testified that defendant and
Atkins had the guns and were the shooters.
David admitted he was formerly a gang leader with the Du-Rock Crips gang with
a 25-year association. He had been involved in violence and a victim of three shootings.
He testified it was against the rules of the gang to cooperate with the police. Instead, the
gang would engage in retaliation. A person in custody was in danger if he was labeled a
snitch or a rat. In October 2008, the four men who had been involved in the shooting
threatened David while they were all incarcerated. They yelled at him and called him a
snitch. Atkins asserted he was from “Palmer Blocc” and “HG.” Defendant called David
an “OG,” meaning an older gangster. David was more concerned about his family’s
safety than his own. Other people had threatened him about testifying and his family had
to relocate.
In cross-examination, David admitted having testified at the preliminary hearing
that he first heard about the men walking by from Sharon when he was upstairs playing a
game. He was not sure whether she said one of the men had a gun. There were
numerous inconsistencies between David’s testimony at trial, at the preliminary hearing,
and in various other statements he made to the police, particularly about who was armed
3 David also admitted he had a 1997 felony conviction for burglary.
6
during the shooting.
D. Other Prosecution Evidence
The first officer on the scene, Casey Mutter, heard gunshots as he approached the
location and was flagged down by David Martin. McGraw was on the ground bleeding.
Martin said the assailants had run away in a northeastern direction between two houses.
Martin was upset and uncooperative. He said he could not identify the assailants because
he had dived for cover. Sharon Martin told Mutter she was inside the house when she
heard several gunshots and she saw four men run to a gray SUV and speed away. She
was not forthcoming about other details. Mutter did not observe an SUV leaving the
scene.
Police Sergeant Thomas Yarrington also responded to the report involving four
Black males and a gun. As Yarrington approached Remington Court, he heard five
gunshots in rapid succession. In less than one minute, he drove to the scene where it was
chaotic with lots of yelling. McGraw was coherent but moaning. Both of the Martins
were argumentative and uncooperative, consistent with the behavior of other witnesses in
gang-related crimes. David said the shooters left in a silver or gray SUV. Sharon told
the police she had observed four or five Black males and one was carrying a gun so she
called 911. After she heard gunshots, they fled in a silver SUV or on foot.
On August 5, 2008, the Martins contacted a police detective, Cliff Ohler, to offer
more information. David Martin continued to be uncooperative but he identified the four
assailants as defendant, Atkins, Sparrow, and Morgan in photographic lineups. David did
not mention defendant, who used the gang moniker of “Punches,” having possession of a
7
gun. David was fearful of retaliation.
On August 6, 2008, the detective learned defendant was staying with a gang
member, Jason Wooten, who was affiliated with “HG” —Hustler Gang or Heritage
Gang—and known as “Problem Child.” Police arrested defendant after chasing him
through a residential neighborhood and overcoming his resistance to being handcuffed.
In a recorded police interview, defendant initially said he had heard about a
shooting but he denied being involved. He claimed he was at home on the night of the
shooting. Defendant knew Sparrow and Morgan but he denied having any gang
affiliations except with Pasadena Denver Lane Bloods. Defendant explained that “HG”
refers to “Harry Glenn,” a “dead homie.” Defendant had “Punches” tattooed on his
forearm. Later in the interview, defendant admitted being “HG” or “Hustler Gang.” He
said the shooting occurred because of retaliation and escalation among gang members.
The people present were “Smooth” (Marquis Walker), Problem Child (Jason Wooten),
and Jakeen Morgan, but not Sparrow. Only one person, Smooth or “Keese”4 had a gun.
Defendant claimed the NAW gang shot first and Smooth shot back in response.
Defendant ducked when he heard the shooting and then began running.
While searching Atkin’s residence, police found a .45-caliber semiautomatic
handgun, a box of .25-caliber ammunition, and a sock containing 13 or 14 rounds of .38-
caliber ammunition. Atkins’s stepdad claimed the gun belonged to him. There was gang
graffiti, including the initials “HG” in one of the bedrooms, which was not occupied by
4 Keese could not be identified until later.
8
Atkins.
E. Gang Testimony
A gang expert, Kellen Guthrie, testified about gang culture and practice. He was
familiar with the HG gang, also known as Koehler Park Hustler. In July and October
2008, HG was an active gang with several members. HG is a rival gang with NAW. The
primary activities of HG were attempted murder, assault with a deadly weapon, and
robbery. Atkins and defendant were active HG members.
In May 2006, Craig Payne of HG was shot close to the Martin house by shooters
yelling NAW. Marquis Walker, also known as Keece, was an HG member. Wooten, or
Problem Child, was an HG member. Both Walker and Wooten had been victims of
shootings.
In July 2008, HG was involved in a dispute over territory with NAW. The
shooting at the Martin residence was directed at their absent son, Tyson, and the NAW
gang. David Martin was a former Du-Roc gang member. Additional gang-related
testimony will be discussed below.
III
GUTHRIE’S QUALIFICATIONS AS A GANG EXPERT
Defendant contends Guthrie was not qualified to testify as a gang expert, including
his opinions about defendant and the HG gang.
A witness is qualified to testify as an expert if the witness has specific knowledge,
skill, experience, or education pertaining to the matter on which the testimony is offered.
(Evid. Code, § 720.) “The trial court’s determination of whether a witness qualifies as an
9
expert is a matter of discretion and will not be disturbed absent a showing of manifest
abuse. [Citation.] ‘“Where a witness has disclosed sufficient knowledge of the subject to
entitle his opinion to go to the jury, the question of the degree of his knowledge goes
more to the weight of the evidence than its admissibility.”’ [Citation.]” (People v. Bolin
(1998) 18 Cal.4th 297, 321-322.) Under Evidence Code section 801, expert opinion
testimony is admissible only if the subject matter of the testimony is “sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact.” (Evid.
Code, § 801, subd. (a).)
At an Evidence Code section 402 hearing, Guthrie testified he had been a police
officer for over four years and had been assigned to the gang unit in the Fontana Police
Department for the previous year and a half. He had attended the police academy for six
months, including a class on gangs. While a patrol officer, he attended one or two
trainings by the gang unit which lasted about 30-60 minutes each. After his assignment
to the gang unit, he attended nine days of gang training. In November 2008, he attended
the Riverside County Gang Investigator’s Conference, a 40-hour class. In the summer of
2009, he attended the San Bernardino County Advanced Gang Awareness training, which
was a 24-hour class. He also attended an eight-hour class on the Mexican Mafia. During
his four years in law enforcement, Guthrie had interviewed hundreds of gang members
and had arrested well over 100 people for gang-related offenses. He had also read
professional literature about gangs. Guthrie had previously testified as a gang expert at
six preliminary hearings, including this case. Guthrie first learned of the HG gang in
August or September of 2008, right after he joined the gang unit. He had contacted at
10
least three HG members and investigated several shootings which involved other HG
gang members as victims.
Over defendant’s objection, the trial court allowed the officer to testify as a gang
expert. We conclude the trial court did not abuse its discretion because Guthrie
demonstrated the special knowledge, training and education required to qualify him as an
expert on gangs. Most notably, Guthrie qualified as a gang expert based on his four years
of experience as a police officer and a gang investigator, his specialized gang training, his
contacts with hundreds of gang members, and his investigation and review of gang-
related crimes, including those involving the HG gang. Even if another gang expert had
more experience than Guthrie, Guthrie certainly had greater knowledge of gangs and the
HG gang sufficiently beyond common experience of the average person. (Evid. Code,
§ 801, subd. (a).)
As the trial court explained when it denied defendant’s new trial motion: “With
regard to the gang expert, the Court will allow that there are probably more experienced
gang experts. But I don't think that is the standard for which the Court can allow the
officer to testify. [¶] . . . And it is my recollection that this person who is a gang expert
has qualified as such before in court . . . he has testified several times and qualified as an
expert. [¶] How the jury is to take the level of his expertise is up to them. They could
have found him not credible at all, especially in light of what I recall being a vigorous
cross-examination of this witness. [¶] So [any misrepresentations] would have been
brought out on cross-examination if he made any misrepresentations as to the gang
alleged to be the subject matter of this trial.”
11
Although defendant is highly critical of the depth of Guthrie’s experience, even if
Guthrie’s experience was less extensive than some other gang officers, he nonetheless
had sufficient gang training and experience for the trial court reasonably to conclude that
he was qualified to testify as an expert. The jury could then evaluate his knowledge of
gangs, including the HG gang, from his testimony on direct and cross-examination.
(CALCRIM No. 332; People v. Bolin, supra, 18 Ca1.4th at p. 322.) The trial court did
not err in allowing Guthrie to testify that defendant was a member of HG, a criminal
street gang, and that the shooting occurred because of a dispute with the NAW gang, with
whom Tyson was affiliated.
IV
BIFURCATION OF THE GANG ENHANCEMENT
Defendant next contends the trial court abused its discretion when it denied his
motion to bifurcate the trial on the gang enhancements from the trial on the substantive
charges. We conclude there was no abuse of discretion because the evidence on the gang
enhancement was cross-admissible with the evidence on the underlying charges.
Furthermore, any error was harmless.
Before trial, defendant joined codefendant Atkins’s motion to bifurcate the trial
because the gang evidence would be unduly prejudicial and was not relevant to the
underlying charges. The prosecutor argued the gang evidence was relevant to prove both
the gang enhancements and the motive for the shooting, which was done in retaliation for
a previous gang-related shooting. The prosecutor also argued the gang evidence was
relevant to explain the witnesses’s inconsistent statements, reluctance to testify and bias.
12
The court found that the probative value of the gang evidence on the substantive charges
outweighed its prejudicial effect and denied the motion. The court also found it would be
“derelict in its duty” if it bifurcated the gang evidence from the evidence on the witness
intimidation charge. Finally, the court found the gang evidence would tie directly to the
attempted murder charge if the jury believed the witnesses and further noted that it was
the jury’s task to judge the credibility of witnesses. The trial court allowed the prosecutor
to present the testimony of the gang expert over defense objection. The court denied
defendant’s new trial motion on the same grounds.
A trial court’s denial of a bifurcation motion is reviewed for abuse of discretion.
(People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) Because a gang enhancement is
inextricably intertwined with the attached substantive offense, less need for bifurcation
generally exists with a gang enhancement than with a prior conviction allegation. (Ibid.)
Even if some of the evidence offered to prove the enhancement would be inadmissible at
a trial of the substantive crime when no gang enhancement is charged, a court may still
deny bifurcation because of countervailing considerations such as avoiding an increased
expenditure of funds and judicial resources favoring joint trials. (Id. at p. 1050.) Here,
the trial court properly denied defendant’s motion to bifurcate the gang enhancement
allegations. The gang evidence was relevant to prove the motive for the shooting that
defendant’s gang had an ongoing dispute about territory and the shooting in the instant
case was retaliatory. (See People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550;
People v. Martin (1994) 23 Cal.App.4th 76, 81-82 [gang activity or membership
admissible as to motive, though damaging to defense].)
13
As the prosecutor argued, the People would be prejudiced by bifurcating the gang
allegation because the “People would have to present an attempt[ed] murder which would
appear to be random and unprovoked. There would be no motive for the jury.” The jury
was properly instructed on motive, based on CALCRIM No. 370: “The People are not
required to prove that the defendant had a motive to commit the crime charged. In
reaching your verdict you may, however, consider whether the defendant had a motive.
[¶] Having a motive may be a factor tending to show that the defendant is guilty. Not
having a motive may be a factor tending to show the defendant is not guilty.”
In addition, the gang evidence was relevant to the witness intimidation charge—
for which defendant was not convicted—because defendant told David Martin he should
have kept it “on the street” when confronting him on his way to court, a reference to the
gang code of conduct. Finally, the gang evidence was relevant to show why the Martins
were uncooperative with police and reluctant to identify their assailants in fear of
retaliation. On the other hand, the gang evidence was not unusually likely to inflame the
jury against defendant any more than the evidence in a typical gang case. Under these
circumstances, the trial court did not abuse its discretion by denying defendant’s motion
to bifurcate the gang enhancement.
In any event, any error was harmless as it is not reasonably probable a result more
favorable to defendant would have been reached absent the error. (People v. Watson
(1956) 46 Cal.2d 818, 837.) First, there was no unexpected, inflammatory gang evidence
presented at trial. Second, because the jury found defendant not guilty of other counts
and found the gun enhancement allegations not true, it shows the jury considered the
14
evidence and did not simply convict defendant of the charged crimes and enhancements
because he was a gang member. Although David Martin did not initially cooperate with
police and denied being able to identify his assailants on the night of the shooting, he
explained that he was concerned about the safety of his family and himself. He also
explained that he was in a street gang and it was against the gang’s rules to cooperate
with police. David’s inconsistency identifying who were the individuals with the guns
probably caused the jury to find the personal gun use allegations not true. Nevertheless,
David Martin repeatedly identified defendant as one of the assailants. We recognize that
David was a problematic witness but—again—the jury could evaluate his credibility, as it
apparently did.
Furthermore, defendant attempted to elude arrest during a police chase for 45
minutes. Finally, defendant admitted to Detective Ohler that he was near Remington
Court before the shooting. Under these circumstances, any error in not bifurcating the
trial on the gang enhancements was harmless.
V
CALCRIM NO. 372
Defendant next contends that the trial court erred by instructing the jury, based on
CALCRIM No. 372, about flight as consciousness of guilt because there was no evidence
he knew he was accused of a crime at the time he fled from officers. Turner held a flight
instruction is proper when defendant flees a crime scene or his usual environs or escapes
custody after arrest. Here the evidence showed defendant was fleeing from his “usual
environs.” (People v. Turner (1990) 50 Cal.3d 668, 718; People v. Carrera (1989) 49
15
Cal.3d 291, 313-314.) We conclude the jury instruction on flight was proper and any
error was harmless.
Defense counsel objected to CALCRIM No. 372 on the ground there was no
evidence defendant knew he had been accused of a crime at the time he fled from the
officer. The court overruled the objection, finding there was “ample evidence” of flight.
The court subsequently instructed the jury based on CALCRIM No. 372 as follows: “If
the defendant fled or tried to flee or after he was accused of committing the crime, that
conduct may show that he was aware of his guilt. If you conclude that the defendant fled
or tried to flee, it is up to you to decide the meaning and importance of that conduct.
However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” A
flight instruction is appropriate when there is evidence that the defendant fled from the
police. (People v. Moringlane (1982) 127 Cal.App.3d 811, 821-822.)
Detective Ohler testified that, on August 8, 2008, he went to Jason Wooten’s
house to arrest defendant. After the detective asked Wooten, a fellow HG gang member,
to get defendant, defendant fled from the residence, jumping walls and fences and
running through a series of backyards for 45 minutes while ignoring an officer’s repeated
commands to stop. Based on defendant’s behavior, the jury could reasonably infer
defendant fled because he knew he was being accused of involvement in the shooting the
previous week. Defendant was fleeing his “usual environs,” his fellow gang member’s
residence. (People v. Turner, supra, 50 Cal.3d at p. 718.)
Even assuming it was error to give the flight instruction, there was no reasonable
probability the instruction affected the jury’s verdict. (People v. Turner, supra, 50 Cal.3d
16
668, 695.) CALCRIM No. 372 leaves the factual determination about the meaning of
flight to the jury. (People v. Visciotti (1992) 2 Cal.4th 1, 60-61.) The jury was informed
some of the instructions might not apply, the jurors should not assume the court was
suggesting anything about the facts because a particular instruction was given, and the
jurors should apply the instructions to the facts “as you find them.” (People v. Barnett
(1998) 17 Cal.4th 1044, 1153.) Additionally, the flight instruction emphasized that the
evidence of flight from the police was not alone sufficient to establish guilt: “The
cautionary nature of the [flight] instruction[] benefits the defense, admonishing the jury
to circumspection regarding evidence that might otherwise be considered decisively
inculpatory.” (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) In light of the
cautionary nature of the instruction and the strong evidence of defendant’s guilt, any error
was harmless.
VI
PINPOINT INSTRUCTION ON AIDING AND ABETTING
A pinpoint instruction relates particular facts to a legal issue in the case,
pinpointing the crux of the defendant’s case. A trial court may properly refuse
instructions that duplicate other instructions. (People v. Wright (1988) 45 Cal.3d 1126,
1134; People v. Sanders (1995) 11 Cal.4th 475, 560; People v. Wooten (1996) 44
Cal.App.4th 1834, 1848.)
During the discussion on jury instructions, defense counsel asked the trial court to
instruct the jury with a modified version of CALCRIM No. 415, the conspiracy
instruction, as follows: “You have heard evidence that Defendant Kelly Robinson may
17
have accompanied or associated with the perpetrator of the shooting on July 31st, 2008.
While you may consider that accompaniment or association in determining whether
Defendant Robinson aided and abetted with the commission of that crime, such
accompaniment or association does not by itself demonstrate Defendant Robinson aided
and abetted in that crime.” The court denied the defense request because there was no
evidence of a conspiracy and “it is not this Court’s occupation to rewrite” CALCRIM No.
415 “to dovetail to this case.”
Defendant contends the trial court should have expressly informed the jury that
associating with a perpetrator does not establish aiding and abetting. Defendant claims
the requested instruction should have been given because the jury heard his videotaped
police statement in which he admitted that he was present with other HG members near
Remington Court on the night of the shooting but denied he witnessed or participated in
the shooting.
We conclude the trial court properly denied defendant’s request to give a modified
version of the conspiracy instruction since there was no allegation or evidence that
defendant was involved in a conspiracy and the standard jury instructions adequately
stated the relevant law on aiding and abetting in CALCRIM Nos. 400 and 401. (People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1163, 1165-1166.) The jury was instructed
that in order to find a defendant guilty of a crime based on aiding and abetting, the People
must prove that, “The defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime.” The jury was also instructed that, “Someone
aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he
18
specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate
the perpetrator’s commission of that crime.” In addition, the court instructed the jury that
“the fact that a person is present at the scene of a crime or fails to prevent the crime does
not, by itself, make him an aider and abettor.” These instructions, as a whole, made clear
that merely accompanying or associating with the perpetrator of a crime was insufficient
to constitute aiding and abetting, and supplied adequate direction to the jury concerning
defendant’s liability as an aider and abettor of a crime. Therefore, the trial court properly
rejected the proposed pinpoint instruction. (People v. Wright, supra, 45 Cal.3d at p.
1134.) The trial court’s refusal to give defendant’s proposed pinpoint instruction did not
prejudice defendant, in light of the other instructions that were given and the strong
evidence that he was not merely accompanying or associating with other HG members
before the shooting. (See People v. Hernandez, supra, 33 Cal.4th at p. 1054.)
VII
CALCRIM Nos. 400 AND 401
Defendant next contends CALCRIM No. 400 precluded the jury from finding him
guilty of a lesser offense than the actual shooter because it states a person is “equally
guilty” of a crime whether he committed it personally or aided and abetted the perpetrator
in committing it. (People v. Nero (2010) 181 Cal.App.4th 504, 518.) Alternatively,
defendant urges that it was ineffective assistance to fail to object to the instruction.
Having failed to request modification or clarification of the instruction in the court below,
defendant forfeited his claim. (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1163-
1165; People v. Lopez (2011) 198 Cal.App.4th 1106,1118-1119.) But, based on the
19
instructions as a whole and the circumstances of the case, there is no reasonable
likelihood that the instruction misled the jury. Finally, defendant fails to demonstrate
prejudice from counsel’s allegedly deficient performance.
In evaluating a claim of instructional error, a reviewing court examines the
challenged instructions to determine “whether there is a ‘reasonable likelihood’ that the
jury understood the charge as the defendant asserts.” (People v. Kelly (1992) 1 Cal.4th
495, 525.) In addressing this question, the reviewing court “consider[s] the specific
language under challenge and, if necessary, the charge in its entirety.” (Ibid.; California
v. Brown (1987) 479 U.S. 538, 541-542; People v. Carrasco (2006) 137 Cal.App.4th
1050, 1061.) The reviewing court “determine[s] whether the instruction, so understood,
states the applicable law correctly.” (People v. Warren (1988) 45 Cal.3d 471, 487.) An
instruction can only be found to be ambiguous or misleading if, in the context of the
entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its
words. (People v. Harrison (2005) 35 Cal.4th 208, 251-252.) Based on the instructions
as a whole, and the circumstances of the case, there is no reasonable likelihood that the
instruction misled the jury.
The trial court instructed the jury with CALCRIM No. 400 that a person may be
guilty of a crime if he directly committed the crime or if he aided and abetted someone
else who committed the crime, and that a “person is equally guilty of the crime whether
he or she committed it personally or aided and abetted the perpetrator who committed it.”
The court also instructed the jury with CALCRIM No. 401, explaining the requirements
20
of aider and abettor liability to the jury.5 Under the plain language of CALCRIM No.
401, an individual cannot be guilty of aiding and abetting attempted murder unless the
direct perpetrator committed the crime, the aider and abettor knew of the direct
perpetrator’s intent, the aider and abettor shared the same intent as the direct perpetrator,
and the aider and abettor did in fact aid and abet the perpetrator’s commission of the
crime. All of these elements must be met for the aider and abettor to be equally guilty of
the direct perpetrator’s crime.
Defendant relies upon People v. Nero, supra, 181 Cal.App.4th 504, in which Nero
and his sister were found guilty of second degree murder. The prosecution’s theory was
that the sister, acting as an aider and abettor, had handed Nero the knife used to stab the
victim. Aider and abettor instructions contained the same “equally guilty” language to
which defendant objects here. After the jury asked if the sister could be guilty of a
different offense than Nero, the trial court informed the jury that principals in a crime are
5 “To prove that a defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2.
The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or
during the commission of the crime, the defendant intended to aid and abet the
perpetrator in committing the crime; [¶] AND 4. The defendant’s words or conduct did in
fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets
a crime if he or she knows of the perpetrator’s unlawful purpose and he specifically
intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the
defendant does not need to actually have been present when the crime was committed to
be guilty as an aider and abettor. [¶] [If you conclude that defendant was present at the
scene of the crime or failed to prevent the crime, you may consider that fact in
determining whether the defendant was an aider and abettor. [¶] However, the fact that a
person is present at the scene of a crime or fails to prevent the crime, does not, by itself,
make him an aider and abettor.]”
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equally guilty and the jury found both Brown and Nero equally guilty of second degree
murder. (Id. at p. 507.) Relying on People v. McCoy (2001) 25 Cal.4th 1111, the
appellate court concluded that the jury was misled by the “equally guilty” language,
particularly since the jury had asked the trial court several times whether it could convict
codefendant Brown as an aider and abettor of a lesser crime than that committed by Nero.
(Nero, at p. 507.)
The Nero court focused primarily on the “equally guilty” language of CALJIC No.
3.00 without considering the language of CALJIC No. 3.01, which sets out the elements
of aider and abettor liability, now set forth in CALCRIM No. 401. Based on the
requirements set forth in CALCRIM No. 401, an aider and abettor must share the specific
intent of the direct perpetrator. If a defendant is not the perpetrator, but is somehow
involved in the crime while having a less culpable mental state than the actual
perpetrator, he cannot be liable as an aider and abettor. (People v. Beeman (1984) 35
Cal.3d 547, 560.) In a case where the charged crime is a specific intent crime, any aider
and abettor has to share the perpetrator’s specific intent. (People v. Prettyman (1996) 14
Cal.4th 248, 259, citing Beeman, at pp. 560-561].) CALCRIM No. 400, when read in
conjunction with CALCRIM No. 401, correctly set forth the law on aider and abettor
liability. (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1163, 1165-1166.)
Finally, Nero is distinguishable. The attempted murder in this case was willful,
premeditated, and deliberate. The jury was not instructed on a lesser included crime,
such as attempted voluntary manslaughter. The trial court correctly instructed the jury
that, if it found defendant aided and abetted the attempted murder, he would be equally
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guilty. (See People v. Lee (2003) 31 Cal.4th 613, 624-625.) Unlike Nero, the jury did
not ask whether it could convict defendant of a lesser crime. Instead, the jury’s questions
showed it properly focused on the requirements set forth in CALCRIM No. 401. The
jury first sent a note to the court asking: “Can you please help to clarify all the
components of aiding and abetting? [¶] Do the defendants need to meet all 4 criteria of
aiding and abetting to be considered guilty?” The jury sent the court a second note which
asked: “Does either of the Defendants presented in this trial have to be the perpetrator?”
In light of the instructions as a whole, there is no reasonable probability the jury
was misled by the “equally guilty” language in CALCRIM No. 400. (See People v.
Lopez, supra, 198 Cal.App.4th at pp. 1119-1120 [any error harmless, as jury was
instructed with CALCRIM No. 401]; People v. Samaniego, supra, 172 Cal.App.4th at p.
1166.)
Defendant alternately argues that, if his claim is deemed forfeited, he was deprived
of his constitutional rights to the effective assistance of counsel by his attorney’s failure
to object to the offending language in CALCRIM No. 400. (U.S. Const., 6th Amend.;
Cal. Const., Art. I, § 15; People v. Lucas (1995) 12 Cal.4th 415, 436.) To meet his
burden, defendant must show: (1) that counsel’s conduct fell below the appropriate
standard of professional competence; and, (2) resulting prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 687.) Prejudice occurs if there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (People v. Jennings (1991) 53 Cal.3d 334, 357.) A
“reasonable probability” is a probability sufficient to undermine confidence in the
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outcome of the trial. (Ibid.) The California Supreme Court has recognized, “‘[A] 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 . . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.’” (In re Jackson
(1992) 3 Cal.4th 578, 604, disapproved on other grounds in In re Sassounian (1995) 9
Cal.4th 535, 545, fn. 6.) For all of the reasons previously discussed, there is no
reasonable probability that a determination more favorable to defendant would have
resulted if defense counsel had asked the trial court to delete the “equally guilty”
language from CALCRIM No. 400. Accordingly, defendant cannot establish prejudice
and his ineffective assistance of counsel claim must be rejected.
VIII
THE JURY’S INQUIRY ABOUT AIDING AND ABETTING
Lastly, we conclude the trial court properly responded to the jury’s question about
aiding and abetting by referring them to CALCRIM Nos. 400 and 401, and any error in
not providing a more direct response was harmless.
Section 1138 provides, in part “After the jury have retired for deliberation, . . . if
they desire to be informed on any point of law arising in the case, they must require the
officer to conduct them into court. Upon being brought into court, the information
required must be given . . . .” The trial court has a primary duty to help the jury
understand the legal principles it is asked to apply. The court does not need to elaborate
on the standard instructions. Where the original instructions are themselves full and
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complete, the court has discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for information. Indeed,
comments diverging from the standard are often risky. (People v. Beardslee (1991) 53
Cal.3d 68, 97.)
When the jury asked about the four criteria for aiding and abetting, the trial court
responded by referring the jury to CALCRIM Nos. 400 and 401. CALCRIM No. 401 is a
correct statement of the law on aiding and abetting but defendant asserts the trial court
was required to instruct the jury the prosecution had to prove all four elements of aiding
and abetting beyond a reasonable doubt. Instead, the court properly advised the jury to
reread the standard instructions on aiding and abetting, providing the answer to the jury’s
question. (Weeks v. Angelone (2000) 528 U.S. 225, 236.) Because the court responded
to the jury’s question by directing its attention to the proper instruction and the jury did
not submit another question indicating it was still confused about this particular issue, the
record supports the conclusion that the trial court adequately responded to the jury’s
question.
Even assuming that the court should have specifically informed the jury that the
prosecution was required to prove all four elements of aiding and abetting, the error was
harmless. Any error in this case was not structural and did not deprive defendant of his
federal constitutional rights. (Chapman v. California (1967) 386 U.S. 18, 24.) At most,
the trial court’s failure to provide a more specific answer to the jury’s question was a
violation of section 1138. The applicable standard for determining prejudice from state
law error is set forth in People v. Watson, supra, 46 Cal.2d at page 836. (See People v.
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Solis (2001) 90 Cal.App.4th 1002, 1015.) Under the Watson standard, an error warrants
reversal only if it appears “reasonably probable” the defendant would have obtained a
more favorable outcome had the error not occurred. (Watson, at p. 836; People v.
Breverman (1998) 19 Cal.4th 142, 178.)
Here, no reasonable probability exists that defendant would have received a more
favorable outcome had the court instructed the jury that the prosecution was required to
prove all four elements of aiding and abetting beyond a reasonable doubt, because
CALCRIM No. 401 told the jury that the People must prove all four elements, that a
defendant in a criminal case is presumed innocent, and the People must prove defendant
guilty beyond a reasonable doubt. The jury was not told that either of the defendants
could be found guilty as an aider and abettor without all four elements being proved
beyond a reasonable doubt. Finally, strong evidence supported that defendant aided and
abetted the shootings. Under these circumstances, any error in not instructing the jury as
defendant requested was harmless.
IX
DISPOSITION
We reject all defendant’s contentions on appeal. Absent any prejudicial error,
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there is no cumulative error. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
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