People v. Robinson CA4/2

Filed 11/26/13 P. v. Robinson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

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.

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 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.

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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.

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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

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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

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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.

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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

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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.

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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

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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

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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.”

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 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.

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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].)

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 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

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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

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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

22
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.

25
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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