People v. Cole CA2/5

Filed 3/4/21 P. v. Cole CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B302161

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA464788)
v.

PETER COLE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Ronald S. Coen, Judge. Affirmed.
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, William H. Shin and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.
 I. INTRODUCTION

A jury found defendant Peter Cole guilty of deliberate,
premeditated attempted murder and found true the allegation
that he personally used and discharged a firearm causing great
bodily injury. On appeal, defendant contends that the trial court
erred by failing to instruct the jury sua sponte on the definition of
great bodily injury. Defendant also contends that his trial
counsel rendered ineffective assistance by failing to request a
pinpoint instruction that advised the jury it could consider
provocation when determining whether the attempted murder
was deliberate and premeditated. We affirm.

II. FACTUAL BACKGROUND

On January 9, 2017, at approximately 10:25 p.m., the
victim, D.H., was outside a liquor store on the corner of Western
and Vernon Avenues with a fellow Rolling 40s gang member.1
The liquor store was located in the heart of Rolling 40s gang
territory.
Defendant was a member of the Black P Stones, a Bloods
gang and rival of the Rolling 40s, a Crips gang. He had
numerous gang tattoos on his face and body, including tattoos
that demonstrated his animosity toward his gang’s rivals. For
instance, on his left arm, defendant had a tattoo of a gang symbol
associated with the Rolling 40s that was crossed out, which

1 The victim admitted that he was a Rolling 40s gang
member and that he had Rolling 40s tattoos. He did not want to
testify at trial and was brought to court against his will from
prison.

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meant “Kill a 40.” On his right arm, he had a tattoo of a crossed-
out crab. “Crab” was a derogatory term for a Crip, and, in gang
culture, the tattoo meant “Killing a Crab” or “Killing a Crip.” On
that same arm, he had another tattoo that stated, more directly,
“Fuck Crabs.” On his face, defendant had a tattoo over each
eyebrow: one stated “Black” with an “x” over the “c” and the
other stated “Stone.” The “x” over the “c” was a gang symbol for
“Crip Killer.”
On the night of the shooting, defendant was the rear
passenger in a Toyota Scion. The driver, A.N., and front
passenger, C.H., were also Black P Stone members. When the
Scion drove by the victim’s location on Western, the victim threw
what appeared to be a derogatory gang sign2 at the Scion.
The Scion turned right onto Vernon and stopped in the
middle of the street. Defendant got out of the rear passenger
door carrying a black semi-automatic handgun and walked
toward the victim. When the victim saw defendant approach, he
and his companion turned and ran north on Western. Defendant
shot at the victim as he fled, hitting him in the right side of his
head and above his right hip.3

2 The prosecution’s gang expert testified on cross-
examination that throwing a gang sign to a rival gang member
was a provocative act, in the nature of a challenge, towards the
rival.

3 The victim described his injuries as a “skipped” or
“skinned” wound to his head and a “through and through” wound
to his side from which he felt “a little burning.” An officer who
arrived at the scene observed blood coming from a graze wound to
the right side of the victim’s head and from a gunshot wound to
the right side of his hip.

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 The night of the shooting, at approximately 10:25 p.m., two
Los Angeles Police Officers were parked in an unmarked police
car on a side street near the intersection of Vernon and Western.
When they heard four or five gunshots west of their location, they
drove toward the intersection of Vernon and Western. They
reached the intersection a few seconds later and were flagged
down by citizens who reported that a vehicle driving away from
that location westbound on Vernon had been involved in a
shooting.
The officers observed that a dark-colored Scion “was the
only vehicle driving westbound [on Vernon] at the time.” They
followed the Scion for “a couple of minutes,” and were then joined
by a patrol vehicle that took over the lead position in what
became a pursuit. When the pursuit came to an end in Black P
Stones territory, the officers saw defendant get out of the rear
passenger door of the Scion. The officers pursued defendant and
apprehended him. They found a .22 caliber handgun on
defendant’s person and a .22 caliber round in his sock.
Following the shooting, the victim continued northbound on
Western to a shop nearby. Once inside, he sat down, saw blood,
and realized that he had been shot. Someone in the shop called
911.
Police officers responded to the 911 call and observed
paramedics treating the victim, who was then transported to a
hospital. The uncooperative victim would not identify his shooter
to police, but told them that he heard six gunshots, had pain in
his head, and felt light-headed.4

4 Photographs taken of the victim while he was in the
hospital depicted him grimacing in apparent pain, with a
bleeding head wound that covered half of his face in blood, and a

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 During an interview by Los Angeles Police Department
Detective Richard Campos the day after the shooting,5 defendant
admitted that he shot the victim, whom he knew from jail. In
describing his prior interaction with the victim, defendant
explained, “I beat him up in jail.” According to defendant, on the
evening of the shooting, he “got into an argument with [his]
girl[friend],” and he called his “brother,” C.H., to pick him up.
C.H. arrived in a Scion driven by A.N. and picked up defendant.
As they drove, defendant was “doing coke” and “smoking weed” in
the back seat. Defendant was “flamed up because [his]
girl[friend]” “kicked [him] out” and he did not “know where [he
was] going to lay [his] head.”
Defendant went to visit another female friend, who lived on
Van Ness. He then wanted to return to his neighborhood and
told his companions not to drive “through the enemies,” i.e., rival
gang territory, because he was on drugs and “wasn’t thinking
straight all the way.” He was “chillin” in the back seat when his
companions proceeded toward Vernon and Western, in Rolling
40s gang territory. Defendant admitted that they drove past an
unmarked police car in that vicinity but believed that it “was long
gone” by the time of the shooting.
As the Scion turned from Western onto Vernon, defendant
heard the victim make a derogatory comment about the Black P

bullet wound above his right hip that punctured the skin and
caused some bleeding.
At trial, the victim testified that defendant was not the
shooter.

5 A video recording of the interview was played for the jury
and a transcription of the interview was marked as Exhibit 43.

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Stones. The Scion’s driver stopped the car, defendant “just
bounced out,” and he started shooting until the gun’s clip was
empty. Defendant claimed that the shooting was not planned;
“[i]t just happened.” Defendant also admitted that the gun was
his.

III. PROCEDURAL BACKGROUND

In an information, the Los Angeles County District
Attorney charged defendant in count 1 with attempted murder in
violation of Penal Code6 sections 664 and 187, subdivision (a).7
The District Attorney alleged that the attempted murder was
committed willfully, deliberately, and with premeditation within
the meaning of section 664, subdivision (a). The District
Attorney also alleged, among other firearm enhancements, that
in the commission of count 1 defendant personally and
intentionally discharged a handgun, causing great bodily injury
to the victim within the meaning of section 12022.53,
subdivision (d). And, the District Attorney alleged as to all
counts that they were committed for the benefit of, at the
direction of, or in association with a criminal street gang with the
specific intent to promote, further, or assist in criminal conduct
by gang members within the meaning of section 186.22,
subdivision (b)(1)(C).

6 All further statutory references are to the Penal Code.

7 Defendant was also charged in counts 2 and 3 with second
degree robbery in violation of section 211 based on an incident
against two other victims two days prior to the attempted
murder.

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 The jury found defendant guilty on count 18 and found true
the allegation that the attempted murder was committed
willfully, deliberately, and with premeditation. In addition, the
jury found true the allegation that defendant personally and
intentionally discharged a handgun causing great bodily injury to
the victim.9
The trial court sentenced defendant on count 1 to life, with
a minimum parole eligibility term of 15 years, plus an additional
25-years-to-life term based on the true finding under section
12022.53, subdivision (d).

IV. DISCUSSION

A. Duty to Instruct on Meaning of Great Bodily Injury

Defendant contends that the term great bodily injury, as
used in section 12022.53, subdivision (d), had a technical
meaning particular to the law which should have been explained
to the jury as part of the court’s instruction on the elements of
that firearm enhancement. Because the court failed to define the
term for the jury, using the definition in section 12022.7,
subdivision (f) or an equivalent,10 defendant concludes that the
prosecution was relieved of its burden of proving each element of

8 The jury also found defendant guilty on counts 2 and 3.

9 The jury also found true the other firearm allegations and
the gang allegations.

10 Section 12022.7, subdivision (f) provides: “As used in this
section, ‘great bodily injury’ means a significant or substantial
physical injury.”

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the section 12022.53, subdivision (d) enhancement, including that
the victim suffered the requisite great bodily injury.

1. Background

On the section 12022.53, subdivision (d) enhancement, the
trial court instructed the jury using a modified form of the
CALJIC No. 17.19.5 pattern instruction,11 but in doing so, the
court did not give the bracketed definition of the term “great
bodily injury” that is included in the pattern instruction.
Defendant, however, did not request that the definition be
included in the court’s instruction or otherwise suggest that the
term “great bodily injury” had a technical legal meaning that
must be explained to the jury.

2. Analysis

“In a criminal case, a trial court has a duty to instruct the
jury on ‘“‘“the general principles of law relevant to the issues
raised by the evidence.”’”’ (People v. Kimble (1988) 44 Cal.3d 480,
503 . . . .) The ‘general principles of law governing the case’ are

11 The CALJIC No. 17.19.5 pattern instruction provides, in
pertinent part: “If you find the defendant[s] guilty of [one or
more of] the crime[s] thus charged, you must determine whether
the defendant[s] intentionally and personally discharged a
firearm [and [proximately] caused [great bodily injury] [or]
[death] to a person] [other than an accomplice] in the commission
of [that] [those] [felony] [felonies]. [¶] . . . [¶] [The term ‘great
bodily injury’ means a significant or substantial physical injury.
Minor, trivial or moderate injuries do not constitute great bodily
injury.]” (Italics added.)

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those principles connected with the evidence and which are
necessary for the jury’s understanding of the case. (Ibid.; People
v. Wickersham (1982) 32 Cal.3d 307, 323 . . . .) As to pertinent
matters falling outside the definition of a ‘general principle of law
governing the case,’ it is ‘defendant’s obligation to request any
clarifying or amplifying instruction.’ (People v. Kimble, supra, 44
Cal.3d at p. 503.)” (People v. Estrada (1995) 11 Cal.4th 568, 574
(Estrada).) And, although the court must define technical terms
that have meanings peculiar to the law, there is no duty to
amplify or clarify commonly understood words used in jury
instructions. (Ibid. [“When a word or phrase ‘“is commonly
understood by those familiar with the English language and is
not used in a technical sense peculiar to the law, the court is not
required to give an instruction as to its meaning in the absence of
a request.”’ [Citations.] A word or phrase having a technical,
legal meaning requiring clarification by the court is one that has
a definition that differs from its nonlegal meaning. [Citation.]”].)
On the issue of whether the term “great bodily injury” has
acquired a technical, legal meaning, our Supreme Court in People
v. Escobar (1992) 3 Cal.4th 740 (Escobar) has observed: “‘The
term “great bodily injury” has been used in the law of California
for over a century without further definition and the courts have
consistently held that it is not a technical term that requires
further elaboration. [Citations.].’” (Id. at p. 750, fn. 3, quoting
People v. La Fargue (1983) 147 Cal.App.3d 878, 886–887.)
A decade before the Supreme Court’s observation in
Escobar, supra, 3 Cal.4th 740, the court in People v. Kimbrel
(1981) 120 Cal.App.3d 869 (Kimbrel), expressly rejected the
notion that the term great bodily injury had a technical legal
meaning that required a clarifying definition. In that case, the

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defendant appealed from his conviction for assault with a deadly
weapon in violation of section 245, subdivision (a). (Kimbrel,
supra, 120 Cal.App.3d at p. 870.) Because the trial court
instructed the jury that a “‘deadly weapon’” was “‘any object,
instrument, or weapon which is used in such a manner as to be
capable of producing, and likely to produce, death or great bodily
injury,’” the defendant contended that the court erred in not
defining “‘great bodily injury’” sua sponte. (Ibid.) According to
the defendant, the term “‘great bodily injury’” had acquired “a
restrictive technical legal meaning of which the jury was not
apprised,” and therefore “either the omitted [former] CALJIC
[No. 9.0312] definition or a definition modeled on former [ ]
section 12022.7[13] should have been given.” (Kimbrel, supra, 120
Cal.App.3d at p. 872.)
The court in Kimbrel, supra, 120 Cal.App.3d 869, rejected
the assertion that the term great bodily injury required the
further definition suggested by the defendant. According to the
court, “[t]he substitution of ‘significant’ or ‘substantial’ for ‘great,’

12 According to the court in Kimbrel, supra, 120 Cal.App.3d
869, former CALJIC No. 903 “define[d] great bodily injury as a
‘significant or substantial bodily injury or damage; it does not
refer to trivial or insignificant injury or moderate harm.’” (Id. at
p. 873, fn. omitted.)

13 The court in Kimbrel, supra, 120 Cal.App.3d 869 explained
that former section 12022.7 defined “great bodily injury” by using
examples “representing generalized instances of great bodily
injury” that were included within that term. (Id. at p. 874–875.)
But, as noted in Kimbrel, section 12022.7 was thereafter modified
to define great bodily injury simply as “‘a significant or
substantial physical injury.’” (Id. at p. 873, fn. 2.)

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in the context of bodily injury, makes no gains on meaning” and
“the attempted negative definition of great bodily injury as ‘not
[referring] to trivial or insignificant injury or moderate harm’”
was misleading because “[n]ot every nontrivial or insignificant or
nonmoderate injury is ‘great.’” (Id. at pp. 873–874.)
The court in Kimbrel, supra, 120 Cal.App.3d 869 therefore
concluded: “We are persuaded by the long acceptance of ‘great
bodily injury’ as a term commonly understandable to jurors that
it has not acquired a technical legal definition requiring in the
absence of special circumstances a clarifying instruction.” (Id. at
p. 876.)
Given the Supreme Court’s observation in Escobar, supra, 3
Cal.4th 740—that great bodily injury is not a technical term
requiring further elaboration—and the long-standing holding in
Kimbrel, supra, 120 Cal.App.3d 869 to that same effect, we
conclude that the trial court did not have a sua sponte duty to
define that term further as now suggested by defendant. If, as
defendant contends, a further definition was required in this case
due to the lack of evidence regarding the severity of the victim’s
wounds,14 it was incumbent upon his trial counsel to request a

14 Although he concedes in a footnote that a “through and
through” gunshot wound may constitute great bodily injury,
citing People v. Le (2006) 137 Cal.App.4th 54, 59–60, defendant
nevertheless maintains that case is distinguishable because there
is no evidence that the victim here was disabled following his
injury. We are not persuaded that the evidence showing the
severity of the victim’s wounds was insubstantial. The photos of
the victim’s head and side graphically depict the nature and
severity of the wounds. And, the victim testified that he was
bleeding, his head hurt, his side burned, and he felt light-headed.
Given that evidence, there is no reasonable likelihood that the

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clarification or amplification of the term specifically tailored to
the facts of this case. His failure to do so therefore forfeited the
contention on appeal. (People v. Nguyen (2015) 61 Cal.4th 1015,
1051 [“‘When, as here, a phrase “is commonly understood by
those familiar with the English language and is not used in a
technical sense peculiar to the law,”’” and the “defendant
believe[s] the instruction [is] incomplete or misleading, he ‘ha[s]
the obligation to request clarifying language’”].)
In his opening brief, defendant cites to, but does not
address, the Supreme Court’s observations in Escobar, supra, 3
Cal.4th 740, and does not mention Kimbrel, supra, 120
Cal.App.4th 869.15 In his reply brief, defendant attempts to

jury would have returned a different finding on the great bodily
injury enhancement if it had been instructed with the definition
urged by defendant.

15 The cases cited in defendant’s opening brief are inapposite.
For instance, he cites People v. Clark (1997) 55 Cal.App.4th 709
(Clark) as holding that a court’s “failure to define great bodily
injury was error.” In Clark, the court concluded that the trial
court erred in failing to deliver “CALJIC No. 17.20 or any
equivalent instruction setting forth the elements of infliction of
great bodily injury for purposes of [ ] section 12022.7.” (Clark,
supra, 55 Cal.App.4th at pp. 713–714, fn. omitted and italics
added.) It did not hold that the trial court erred in failing to
define “great bodily injury” and indeed the court, in defining
assault with a deadly weapon by means of force likely to produce
great bodily harm, instructed the jury that “‘[g]reat bodily injury
refers to significant or substantial bodily injury or damage; it
does not refer to trivial or insignificant injury or moderate
harm,’” which is almost identical to the instruction that
defendant contends on appeal the trial court was required to
deliver. (Clark, supra, 55 Cal.App.4th at p. 714.)

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distinguish these cases as arising in different contexts, such that
they are not persuasive authority for the issue on appeal. But
there is nothing about the context of either case that suggests
those courts were interpreting the term great bodily injury in a
manner that differed significantly from its use in this case.

B. Ineffective Assistance of Counsel

On the attempted murder charge, defendant contends that
he received ineffective legal assistance because his trial counsel
failed to request a pinpoint instruction, similar to CALJIC No.
8.73, advising the jury that it could consider provocation when
determining whether he acted with deliberation and
premeditation. According to defendant, because his trial counsel
apparently was unaware that evidence of provocation could
negate an inference that he acted with deliberation and
premeditation, his failure to request an instruction on that issue
fell below the objective standard of reasonableness under
prevailing professional norms.

1. Background

At trial, the prosecution introduced the video of defendant’s
interview with Detective Campos during which defendant
claimed that he was angry the night of the shooting because he
had a fight with his girlfriend and that he was also using drugs.
Defendant further maintained that the shooting was not planned,
asserting instead that it “just happened” when he heard the
victim’s derogatory remark about the Black P Stones. And, his
trial counsel elicited testimony from the gang expert confirming

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that a derogatory hand gesture, like the one the victim threw at
the Scion that night, would have been a provocative act, in the
nature of a challenge, to the rival gang members in that vehicle.
During the jury instruction conference held prior to the
close of testimony, defense counsel requested, in connection with
the attempted murder count, a lesser included instruction on
attempted voluntary manslaughter based on the evidence of
“heat of passion.” The trial court tentatively denied the request,
pending the completion of testimony.
After the close of evidence, defense counsel renewed his
request for a lesser included instruction on attempted voluntary
manslaughter. According to defense counsel, the gang expert’s
completed testimony about the derogatory comment and hand
gesture made by the victim supported an inference that
defendant was provoked to act, such that he could not have
formed the specific intent to kill necessary for attempted murder.
The trial court, however, disagreed that the expert’s testimony
supported a lesser included instruction on attempted
manslaughter. Specifically, the court concluded that “[t]here is
insufficient evidence of adequate provocation warranting
attempted voluntary manslaughter.” It therefore denied the
renewed request.

2. Analysis

“A criminal defendant’s federal and state constitutional
rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I,
§ 15) include the right to effective legal assistance. When
challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy

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this burden, the defendant must first show counsel’s performance
was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the
defendant must show resulting prejudice, i.e., a reasonable
probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different . . . . On
direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding. [Citations.]” (People v.
Mai (2013) 57 Cal.4th 986, 1009.)
Based on the record before us, we cannot conclude that
there was no satisfactory explanation for counsel’s failure to
request a pinpoint instruction advising the jury that it could
consider the evidence of provocation on the issue of
premeditation. Indeed, the decision on which jury instructions to
request is an inherently tactical choice to be made by counsel.
(People v. Padilla (2002) 98 Cal.App.4th 127, 137.) Here, the trial
court instructed the jury on general principals of law, including
attempted murder (CALJIC No. 8.66) and premeditation and
deliberation (CALJIC No. 8.67). Defendant does not claim that
the instructions given were incorrect or misleading. Thus,
counsel could have reasonably concluded that the instructions,
which correctly stated the law, were adequate to address the
issue of defendant’s intent, namely, that he acted without
premeditation and deliberation.

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 Counsel also may have reasonably refrained from
requesting an instruction on provocation because it was
inconsistent with defendant’s trial strategy, which was to argue
that the prosecution failed to prove the charges beyond a
reasonable doubt. During closing argument, counsel did not
argue that defendant acted without premeditation or deliberation
because he had been provoked, but instead highlighted the weak
eyewitness testimony linking him to the crime by pointing out
that two of the officers who participated in his arrest claimed
that the person who fled from the Scion was wearing a white
shirt when defendant wore a black shirt at the time of his arrest.
Counsel also noted that the victim testified defendant was not
the shooter.
In addition, counsel may have reasonably concluded that
the evidence of provocation was relatively weak, such that a jury
instruction on provocation to negate premeditation and
deliberation was not warranted. Defendant’s claim of
provocation relied heavily on defendant’s statement to the police
that he had fought with his girlfriend and that the shooting
occurred after the victim made a derogatory statement about the
Black P Stones. (See People v. Enraca (2012) 53 Cal.4th 735, 759
[“we have rejected arguments that insults or gang-related
challenges would induce sufficient provocation in an ordinary
person to merit an instruction on voluntary manslaughter”].) Yet
in that same statement to the police, defendant admitted to being
the shooter, admitted that he was armed with a gun when he
went into rival gang territory, and said that he had been “chillin”
before the shooting. Thus, counsel may have reasonably decided
not to pursue a defense that necessarily relied on defendant’s
incriminating statements. (People v. Olivas (2016) 248

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Cal.App.4th 758, 770–772 [defense counsel may have had a
tactical reason for and did not provide ineffective assistance by
failing to request a pinpoint instruction that was inconsistent
with defendant’s primary defense].)16
Finally, even if we were to assume that trial counsel erred
in failing to request a pinpoint instruction on provocation, we
would conclude that defendant was not prejudiced by his
counsel’s assumed error. The evidence of premeditation and
deliberation was strong. As we discuss above, defendant
admitted to the police that he was armed with a gun when he
went into rival gang territory with two fellow gang members. He
also admitted that he was “chillin” before the shooting and that
he believed the unmarked police car that he had observed had
left the scene before the shooting. Further, defendant’s
numerous face and body tattoos demonstrated his allegiance to
the Black P Stones and his animosity toward, and desire to kill,
Rolling 40s gang members. By contrast, and as we discuss above,
the evidence of provocation was comparatively weak. Thus, we
find no reasonable probability that defendant would have
obtained a more favorable result had counsel requested a
pinpoint instruction.

16 We reject defendant’s assertion that trial counsel was
unaware evidence of provocation could be considered by the jury
when weighing the issue of premeditation. Nothing in the record
supports this assertion and it is contrary to the presumption that
counsel acted within the wide range of professional norms.

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 V. DISPOSITION

The judgment of conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.

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