Filed 6/23/21 P. v. Marez CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B303215
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA463818)
v.
CARLOS MAREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Leslie A. Swain, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Julie L. Garland, Assistant
Attorney General, Charles C. Ragland and Laura Baggett, Deputy
Attorneys General, for Plaintiff and Respondent.
Carlos Marez appeals from his convictions for attempted murder
and shooting at an occupied vehicle, crimes the jury found were
committed for the benefit of a criminal street gang. Appellant contends
that there is insufficient evidence to support his convictions or the gang
allegations. He also contends the trial court committed prejudicial
statutory error by inadvertently omitting from a packet of written
instructions given to the jury for use during its deliberations a self-
defense instruction the court earlier read to jurors.
We reject appellant’s contentions. The record contains substantial
evidence that appellant aided and abetted both crimes with the intent
to kill, and that he did so in order to benefit the criminal street gang to
which he belonged. We also conclude that, although the trial court
erred by failing to provide the written self-defense instruction, the error
was harmless in light of substantial evidence that the crimes were not
committed in self-defense and the court’s oral instruction on self-
defense.
PROCEDURAL BACKGROUND
In August 2018, appellant was charged with attempted murder
with premeditation and deliberation (Pen. Code,1 §§ 664/187, subd. (a);
count 1) and shooting at an occupied vehicle (§ 246; count 2). As to both
crimes, it was alleged that appellant or a principal of the crime
personally and intentionally discharged a firearm during the offense
1 Statutory references are to the Penal Code.
2
(§§ 12022.53, subds. (b), (c) & (e)(1))), and the crimes were committed
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).2
In November 2018, a jury found appellant guilty as to both counts,
and found true the gang allegations as to each count. Appellant was
subsequently sentenced to 15 years to life for count 1 and the gang
allegations (§ 186.22, subd. (b)), plus five years for count 2, which was
stayed (§ 654). Appellant filed this timely appeal.
FACTUAL HISTORY
The Shooting and Police Investigation
On August 17, 2017, Christian Hernandez and about 10 others
attended a family barbeque at his mother’s home on East 3rd Street in
Los Angeles. At about 11:45 p.m., Hernandez, his mother, girlfriend
(Mayela Chavira), and his girlfriend’s sister, were in the front yard
cleaning up. Several children were present.
A small, dark car (later determined to be a blue Ford Escort that
belonged to appellant) with two people inside drove up and stopped in
the street in front of the home. A man wearing a dark sweatshirt and a
hoodie covering his head got out of the passenger side and approached
2 The amended information filed in August 2018 did not allege, as to
count 2, that appellant was personally armed with a firearm, nor did it
contain a gang allegation. The gang allegation as to count 2 was added
November 6, 2018, after the court granted a prosecution motion to amend.
The record does not contain a second amended information. However, based
on the charging allegations read at the start of trial, and the subsequent
verdicts, discrepancies appear to have been corrected to reflect the correct
allegations against appellant identified above.
3
the house, pointing a gun at the people in the yard. Mayela said to
Hernandez, “Be careful. He has a gun.” The man asked Hernandez,
“Where you from?” Hernandez told the man to put the gun away
because kids were present. He also said they were “from nowhere,” and
that only “paisas” were there (by which he meant “just Mexicans”
without gang connections).
The man ran back to appellant’s Escort and got in on the
passenger side. After herding his family indoors, Hernandez ran to his
car, thinking he could use it to block the small car from coming near his
family. Meanwhile, appellant’s car had driven away on 3rd Street, then
made a U-turn and returned to within 60 feet of Hernandez’s car, at
which point Hernandez’s car and windshield were struck by at least one
bullet.
Hernandez pulled his car from its parking spot and rammed it
into the front of appellant’s Escort, pushing it toward the sidewalk and
forcing it to crash into a parked car, to ensure the car would not escape.
At least three shots had been fired at Hernandez before he rammed
appellant’s car and numerous shots followed, for a total of up to 15
gunshots. Mayela testified that, after appellant’s car returned, she saw
the person who had earlier approached the house standing outside the
car and shooting a rifle at Hernandez’s car. After ramming appellant’s
car, Hernandez drove away about 10 miles, out of concern for his family.
He did not see what happened to the people in the car. Meanwhile, two
men from inside appellant’s car ran off. Mayela’s sister called 911.
4
When officers from the Los Angeles Police Department (LAPD)
arrived, they found 10-12 bullet casings in the street, which had likely
come from a small rifle or handgun. There was damage to the front end
of the abandoned Escort, and the airbags had deployed. The vehicle
had no bullet holes, nor were any bullet casings found inside it. From
inside appellant’s car, officers recovered a traffic ticket issued to
appellant, a notebook and speaker (each containing gang writing), and
two cell phones. Appellant’s blood was found on the driver’s side airbag.
After obtaining a search warrant, the LAPD retrieved data from one cell
phone which contained photos of appellant.
Hernandez did not return to his home on the night of the incident
and avoided speaking to the LAPD for several days. By the time he met
with police officers, Hernandez’s car had been repaired. He shared with
the LAPD photographs of his vehicle which had been taken before the
repairs were done. The photos showed, among other things, several
bullet holes in the lower part of Hernandez’s windshield, and bullet
holes in the hood, frame and engine of his car.
Gang Evidence
LAPD Officer Jesus Campos testified as a gang expert on behalf of
the prosecution. Campos had received training regarding gangs and
gang crimes and had personally had contact with 300-to-500 gang
members. He testified that gang members seek to be feared and
respected by members of the community and rival gang members.
Gang members achieve the desired fear and respect by committing
5
crimes, including shootings. Campos testified that gang members ask,
“where you from?” so civilians know they belong to gang and in order to
ascertain whether someone is a member of a rival gang. There is no
correct answer to this question. Even if the person confronted responds
that he or she is “from nowhere,” they will likely be assaulted.
Campos testified that, in August 2017, the “Tiny Boys” gang had
about 90 documented members. The Tiny Boys gang is a criminal
street gang that commits murder, vandalism, narcotics crimes, gun
possessions and extortion, and its principal activities are shootings,
murder, extortion, robberies and gun crimes. “TB” and “Chicago” are
common symbols for the Tiny Boys gang, and its principal rivals are the
Quatro Flats, Primera Flats and Breed Street gangs. The crimes at
issue here took place in Quatro Flats’ territory. Campos opined that
appellant is an admitted member of Tiny Boys street gang and has
several tattoos reflecting his membership in that gang. The notebook
and a speaker recovered from appellant’s car contained Tiny Boys’ gang
graffiti. Evidence admitted at trial included minute orders from March
20 and May 19, 2016, reflecting convictions of members of the Tiny Boys
gang for robbery and the sale of illegal drugs, respectively.
In response to a hypothetical posed by the prosecution based on
the facts of this case, Campos opined that the crime was committed for
the gang’s benefit, and that both the shooter and driver belonged to the
same gang and had been putting in work doing “hood patrol” together.3
3 “Putting in work” is a term commonly used to mean, committing crimes
or assisting in the commission of crimes for the benefit of a street gang to
bolster the status of the gang member and the gang, or to instill fear in the
6
In Campos’ opinion, the crime committed would increase the status of
individual gang members and also benefit the Tiny Boys gang by
intimidating and instilling fear in the victims and members of the
surrounding community, causing them to refrain from summoning
police. In Campos’ opinion, the use of the phrase, “Where you from,”
demonstrates the gang is active and that the driver and passenger were
willing to put in work for the gang.
DISCUSSION
I. The Record Contains Sufficient Evidence to Support
Appellant’s Conviction as to Both Crimes and the Gang
Allegations
Appellant argues there is insufficient evidence to support his
convictions for attempted premeditated murder and shooting at an
occupied vehicle because the evidence demonstrates the shooter acted in
self-defense. Moreover, he contends that even if the shooter had
harbored an intent to kill, there is no substantial evidence that
appellant knew of the shooter’s intent and intended to aid and abet in
the commission of either crime. Appellant is mistaken.
A. The Standard of Review
“‘When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most
community and rival gangs. (See, e.g., People v. Gonzalez (2021) 59
Cal.App.5th 643, 646; People v. Franklin (2016) 248 Cal.App.4th 938, 946.)
7
favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ [Citation.] In so
doing, a reviewing court ‘“‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’” [Citation.]’ [Citation.]” (People v. Morales (2020) 10 Cal.5th
76, 88.) If believed by the jury, the testimony of a single witness is
sufficient to uphold a judgment, even if that testimony is
uncorroborated, contradicted, or inconsistent or false in other respects,
unless the testimony is physically impossible or inherently improbable.
(People v. Elliott (2012) 53 Cal.4th 535, 585; People v. Panah (2005) 35
Cal.4th 395, 489.) We do not reweigh the evidence, resolve conflicts in
the evidence, or reevaluate the credibility of witnesses. (People v.
Jennings (2010) 50 Cal.4th 616, 638 (Jennings); People v. Jacobo (2019)
37 Cal.App.5th 32, 42.) “‘Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact.’” (People v.
Brown (2014) 59 Cal.4th 86, 106.) The same principles apply to claims
of insufficient evidence regarding gang allegations or enhancements.
(See People v. Leon (2008) 161 Cal.App.4th 149, 161.)
B. Controlling Law Regarding Aiding and Abetting, Attempted
Murder, Shooting at an Occupied Vehicle, and Self-Defense
8
The crime of attempted murder has two elements: (1) a specific
intent to kill, and (2) the commission of a direct but ineffectual act
toward accomplishing the attempted killing. (§§ 664/187; People v.
Canizales (2019) 7 Cal.5th 591, 602.)
As the jury was instructed, aiding and abetting an attempted
murder requires that the aider or abettor knew of the direct
perpetrator’s intent to commit the crime, intended that the perpetrator
commit the crime, and the aider or abettor, by his words or actions in
fact aided and abetted the perpetrator’s commission of the crime.
(CALCRIM Nos. 400, 401; People v. Johnson (2016) 62 Cal.4th 600,
639.)
The crime of shooting at an occupied vehicle requires the willful
and malicious shooting of a firearm at an occupied vehicle where the
shooter did not act in self-defense.4 (§ 246; CALCRIM No. 965.) As the
jury was instructed, in order to find that appellant aided and abetted a
shooting at an occupied vehicle, it must find the required aiding and
abetting, and also find that the perpetrator willfully and maliciously
shot a firearm at an occupied vehicle. (CALCRIM No. 965.)
Self-defense or the defense of another are defenses to attempted
murder and to shooting at an occupied vehicle. A perpetrator acts in
lawful self-defense or defense of another if he reasonably believed he or
4 As discussed below, the written instructions informed the jury that the
prosecution was required to prove the perpetrator did not act in self-defense.
(CALCRIM No. 965.) Here, the trial court did not read the self-defense
element.
9
someone else was in imminent danger of suffering bodily injury,
reasonably believed the immediate use of force was necessary to defend
against danger and used no more force than necessary to defend against
the perceived danger. (People v. Humphrey (1996) 13 Cal.4th 1073,
1082; CALCRIM No. 3470.)
C. Governing Law Regarding the Gang Allegations
Section 186.22, subdivision (b)(1) provides for additional
punishment of “any person who is convicted of a felony committed for
the benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” Two elements are required. First,
the crime must be gang related. (People v. Albillar (2010) 51 Cal.4th
47, 60 (Albillar); In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [the
crime itself must have a connection with the gang’s activities].) Not
every crime committed by a gang member is gang related. However,
where several gang members commit a crime together, a jury may
reasonably infer that they committed the crime in association with the
gang. (See Albillar, at p. 62.) An expert’s testimony that a gang’s
reputation for viciousness is enhanced by the gang’s criminal conduct is
sufficient to raise the inference that the conduct was committed for the
benefit of the gang. (Id. at p. 63.)
The second element relates to defendant’s state of mind and
requires that he have the specific intent to promote, further, or assist in
criminal activity by other gang members. This prong is satisfied by an
10
evidentiary showing that the defendant intended to promote, further, or
assist other gang members in any criminal conduct. (§ 186.22, subd.
(b)(1); Albillar, supra, 51 Cal.4th at pp. 64–66.)
Our decision in People v. Romero (2006) 140 Cal.App.4th 15, 20
(Romero) is instructive. In Romero, the defendant picked up fellow
gang members, one of whom was armed and said, “Let’s go do this.” (Id.
at p. 17.) The defendant drove the group to a liquor store in rival gang
territory where two men—neither of whom was a known gang
member—stood outside. (Ibid.) Defendant’s cohort aimed a rifle from
the car window and fired three shots, killing one man. (Ibid.)
Defendant was convicted of first-degree murder and attempted murder,
and the jury found true the gang allegations. (Id. at pp. 17–18.)
In Romero, we rejected defendant’s assertion that the evidence
was insufficient to support the gang allegations. (Romero, supra, 140
Cal.App.4th at p. 18.) We observed that defendant was an active gang
member, and the liquor store was located in rival gang territory. (Id. at
p. 19.) The shooting would elevate the shooter’s status within his gang
whether or not the victims were gang members themselves, and the
evidence created a reasonable inference that defendant specifically
intended to further his co-gang member’s criminal conduct. (Id. at p.
20.)
D. Analysis
Applying these principles here, we conclude the record contains
sufficient evidence to support the jury’s conclusion that the shooter
11
harbored an intent to kill and willfully and maliciously shot at
Hernandez’s occupied vehicle. And, as in Romero, supra, 140
Cal.App.4th 15, there was sufficient evidence to show that appellant
was aware of the shooter’s intent and had the specific intent to further
his co-gang member’s criminal conduct. (Id. at pp. 17–20.) The record
also contains substantial evidence that the crimes were committed for
the benefit of, at the direction of, or in association with a criminal street
gang, and were intended to promote and benefit the Tiny Boys gang.
(Ibid.)
The jury could reasonably conclude that appellant drove the
Escort involved in the incident: it was registered to him, a traffic ticket
with his name on it was found inside the car, and his DNA was found on
the driver’s-side air bag that deployed at the scene. The evidence also
supports a conclusion that appellant, an admitted gang member, aided
a fellow armed gang member in a plan to confront and kill a rival gang
member by driving the co-member into rival territory. Appellant
remained close by in his car while the shooter approached the group
gathered in front of the residence, questioned Hernandez about his gang
status while pointing a gun at him, then returned to the passenger seat
of appellant’s car. Under these circumstances, it may reasonably be
inferred that the conduct was undertaken in an effort to garner respect
from rival gang members and/or civilians. (See People v. Sanchez (2016)
63 Cal.4th 411, 457 [“Because direct evidence of a defendant’s intent
rarely exists, intent may be inferred from the circumstances of the
crime and the defendant’s acts”].)
12
Appellant further aided the shooter by making a U-turn on 3rd
street to provide a better vantage point from which to fire at Hernandez
who, by then, was in his own parked car. The number of bullet holes in
Hernandez’s car (as many as 15) and their location demonstrated an
intent to kill, given that most of the bullet holes were located on the
driver’s side of Hernandez’s front windshield. “‘“‘[T]he act of firing
toward a victim at a close, but not point blank, range “in a manner that
could have inflicted a mortal wound had the bullet been on target is
sufficient to support an inference of intent to kill . . . .” [Citations.]’”’”
(People v. Virgo (2013) 222 Cal.App.4th 788, 798.) Moreover,
Hernandez did not drive toward appellant’s car until after the shooter
had fired numerous times at him. Appellant’s assertion that
Hernandez’s testimony lacked credibility is irrelevant. The jury
accepted Hernandez’s account and we do not reweigh witness
credibility. (See Jennings, supra, 50 Cal.4th at p. 638.) Finally, the
prosecution’s gang expert testified that gang members commit crimes
like the ones committed here, at least in part, to intimidate and instill
fear in members of a community and deter them from calling the police.
Taken together, the evidence is sufficient to support a conclusion that
appellant intentionally assisted the shooter in the commission of the
crimes against Hernandez (who was in rival gang territory), for the
benefit of, at the direction of or in association with the criminal street
gang to which both the shooter and appellant belonged.
We reject appellant’s assertion that the evidence compels the
conclusion that the shooter acted in self-defense. Hernandez did not
13
move his own car until after he had been fired upon. That the shooting
continued as Hernandez drove toward the shooter (who fired as many
as 15 shots in all) suggests a continuation of the initial plan to kill
Hernandez, not self-defense.
Finally, appellant’s reliance on People v. Albarran (2007) 149
Cal.App.4th 214 (Albarran) is misplaced. In Albarran, the appellate
court concluded that admission of certain gang evidence was prejudicial
error. (Id. at pp. 217, 230–231.) In Albarran, unlike here, there was no
indication in the commission of a crime that the perpetrator had a gang-
related motive. (Id. at pp. 217–219.) Moreover, the court reasoned that
even if evidence of gang membership was relevant, other evidence (a
threat to police officers, references to involvement of the Mexican Mafia
and evidence identifying other gang members and unrelated crimes)
was unduly prejudicial. (Id. at pp. 229–231.) Here, by contrast, the
crimes occurred in rival gang territory after the shooter asked
Hernandez, “Where you from?”, a question commonly employed by gang
members to instigate violence. And, unlike Albarran, no unduly
prejudicial evidence was introduced.
II. The Trial Court Erred in Failing to Provide the Jury a
Written Copy of the Self-Defense Instruction it had Given
Orally, but the Error Was Harmless
Appellant argues that the trial court committed prejudicial
statutory error by failing to include a copy of the self-defense
instruction (CALCRIM No. 3470), which the court had given verbally to
the jurors, in the jury’s packet of written instructions. We agree that
14
the court erred by inadvertently omitting the written instruction, but
conclude the error was harmless.
A. Pertinent Facts
During its conference with counsel regarding jury instructions, the
trial court stated it intended to give the self-defense instruction
requested by appellant (CALCRIM No. 3470), and to instruct the jury
that the right to self-defense may not be contrived (CALCRIM No.
3472). Both instructions were included when the trial court orally
instructed the jury. As read, CALCRIM No. 3470 defined self-defense
and defense of another, and informed the jury that “[t]he People have
the burden of proving beyond a reasonable doubt that the defendant did
not act in lawful self-defense or defense of another. If the People have
not met this burden, you must find the defendant not guilty of
attempted murder as charged in count 1 and shooting at an occupied
vehicle as charged in count 2.”5 The court also orally instructed
5 Specifically, the court orally instructed the jury that: “Self-defense is a
defense to attempted murder as charged in count 1 and shooting at an
occupied vehicle as charged in count 2. The defendant is not guilty of those
crimes if he used force against the other person in lawful self-defense or
defense of another. [¶] The defendant acted in lawful self-defense or defense
of another if: [¶] Number 1, the defendant reasonably believed that he or
someone else was in imminent danger of suffering bodily injury. . . . [¶]
Number 2, the defendant reasonably believed that the immediate use of force
was necessary to defend against that danger and; [¶] 3, the defendant used
no more force than was necessary to defend against that danger. [¶] Belief
in future harm is not sufficient no matter how great or how likely the harm is
believed to be. [¶] The defendant must have believed there was an imminent
danger of bodily injury to himself or someone else. Defendant’s belief must
have been reasonable and he must have acted because of that belief. [¶] The
15
pursuant to CALCRIM No. 3472: “A person does not have the right to
self-defense if he or she provokes a fight or quarrel with the intent to
create an excuse to use force.”
When it read the instruction regarding shooting at an occupied
vehicle (CALCRIM No. 965), the court omitted the element that the
prosecution had the burden to prove the perpetrator did not act in self-
defense, although, as noted above, that principle was included in the
oral reading of CALCRIM 3470 (“[t]he People have the burden of
proving beyond a reasonable doubt that the defendant did not act in
lawful self-defense or defense of another. If the People have not met
this burden, you must find the defendant not guilty.”). The court
defendant is only entitled to use that amount of force that a reasonable
person would believe is necessary in the same situation. If the defendant
used more force than was reasonable, the defendant did not act in lawful self-
defense or defense of another. [¶] When deciding whether the defendant’s
beliefs were reasonable, consider all of the circumstances as they were known
to and appeared to the defendant and consider what a reasonable person in a
similar situation with similar knowledge would have believed. [¶] If the
defendant’s belief [sic] were reasonable, the danger does not have to actually
have existed. [¶] The defendant’s belief that he was threatened may be
reasonable even if he relied on information that was not true. However, the
defendant must actually and reasonably have believed that the information
was true. [¶] A defendant is not required to retreat. He or she is entitled to
stand his or her grounds and defend himself or herself and if necessary, to
pursue an assailant until the danger of death or bodily injury has passed.
This is so even if safety could have been achieved by retreating. [¶] The
People have the burden of proving beyond a reasonable doubt that the
defendant did not act in lawful self-defense or defense of another. If the
People have not met this burden, you must find the defendant not guilty of
attempted murder as charged in count 1 and shooting at an occupied vehicle
as charged in count 2.”
16
informed the jurors that it would provide them a written copy of its
instructions for use during their deliberations.
During closing argument, both sides addressed the issue whether
the shooter had acted in self-defense. The prosecutor stated: “the
perpetrator was not acting in self-defense . . . . I’m pretty sure that
when [defense counsel] . . . gives his closing argument he’s going to . . .
[argue] that what really happened was that the shooter was defending
the defendant from getting rammed by [Hernandez’s car] and that’s
why the shooter shot at him so many times.”
The prosecution argued that the evidence showed the shooting
was not done in self-defense, and that Hernandez did not ram his car
into appellant’s until after the shooting began.
In his closing, defense counsel said his “argument [was] primarily
focused on the question of intention . . . and did [appellant] intend the
shooter to do what the shooter did? . . . [T]here is a self-defense
instruction. . . . If the shooter was acting in self-defense or in defense of
the people in the car, he’s not guilty of a crime. If [the shooter was] not
guilty of the crime, [appellant was] not guilty of the crime. The
[prosecution] need[s] to prove beyond a reasonable doubt that . . . the
shooter did not act in self-defense. [¶] I say this because the evidence
. . . suggested that [the shooter] might have been acting in self-defense
. . . or [in defense of] the car.”
Before it began its deliberations, the jury was given a 36-page
packet of written instructions. That packet included CALCRIM No.
3472 (the right to self-defense may not be contrived) and CALCRIM No.
17
965 (including the element that the prosecution had to prove that the
perpetrator did not act in self-defense). However, the packet did not
include CALCRIM No. 3470 defining self-defense or defense of another,
even though the court had earlier read that instruction to the jury. The
jury began deliberating at 10:15 a.m. and had reached its verdicts by
3:18 p.m. The jury did not pose any questions to the court regarding
self-defense.6
B. The Court’s Statutory Error Was Harmless
The California Supreme Court has held that, while neither the
state nor the federal Constitution guarantees a criminal defendant the
right to delivery of written instructions in addition to oral instructions,
such an omission constitutes statutory error. (People v. Trinh (2014) 59
Cal.4th 216, 234–235 (Trinh).) Section 1093, subdivision (f), provides
that “[u]pon the jury retiring for deliberation, the court shall advise the
jury of the availability of a written copy of the jury instructions. The
court may, at its discretion, provide the jury with a copy of the written
instructions given.” However, as the California Supreme Court
explained “[n]either the United States Supreme Court nor we have ever
held that oral jury instructions are ineffectual unless augmented by
written copies of the same instructions; to the contrary, we have
established that neither the state nor the federal Constitution
6 The jury did pose two questions during its deliberations. One
questioned what responsibility a lookout bore for actions taken by another,
and whether a lookout had to be aware of the possibility of additional crimes.
The second requested clarification regarding the gun allegation as to count 2.
18
guarantees a criminal defendant the delivery of written instructions in
addition to oral ones.” (Id. at p. 234.) “The failure to provide written
instructions is not tantamount to giving no instructions at all.” (Ibid.)
In Trinh, “the record reflect[ed] [that] counsel and the court
intended the jury to receive a full set of instructions, and the omission
of [two instructions] arose . . . because . . . the trial court inadvertently
omitted them when compiling the written jury instructions. However
unintentional, this omission deprived Trinh of his statutory right to
have a written copy of [the] two instructions delivered to the jury.”
(Trinh, supra, 59 Cal.4th at p. 235.) Nevertheless, the Supreme Court
concluded the error was harmless under People v. Watson (1956) 46
Cal.2d 818, 836. (Ibid.) The omitted instructions were given orally, the
Court presumed jurors heard and followed them, and the record
contained no indication that the jury was confused or failed to
understand and apply the instructions read. Thus, the Court found
there was no reasonable probability the defendant would have received
a more favorable outcome had the jury been given written copies of the
instructions at issue. (Ibid.)
Here, appellant maintains that the court’s failure to include a
written self-defense instruction in the jury’s packet cannot be deemed
harmless error, especially given that when the court read CALCRIM
No. 965 defining the crime of shooting at an occupied vehicle, it omitted
the element requiring the prosecution to prove that perpetrator had not
acted in self-defense. He insists that “[h]ad the jury been properly
instructed and provided with the written self-defense instruction, there
19
is a ‘reasonable chance,’ more than a mere abstract possibility, [he
would have received] a more favorable result.” Appellant is mistaken.
Here, the trial court orally instructed jurors pursuant to
CALCRIM No. 3470 on the principles of self-defense and defense of
another, that appellant could not be convicted if the charged crimes
were committed in lawful self-defense, and that the prosecution had the
burden of proving that the perpetrator did not act in self-defense.
Appellant points to nothing in the written instructions the jury received
that conflicts with the court’s oral instruction. In addition, closing
arguments made by both sides expressly reinforced the instruction
regarding the prosecution’s burden to negate self-defense. Further, the
jury expressed no confusion regarding the concept of self-defense. The
fact that the jury twice requested clarification on specific issues during
its brief deliberations (see fn. 6, ante) is a strong indicator that, had the
jury been confused as to the issue or concept of self-defense, it would
have sought clarification. (See People v. Seaton (2001) 26 Cal.4th 598,
674 [failure to give written instructions was harmless where “[t]he jury
expressed no inability to understand the instructions, and deliberated
only a day before returning its verdict”].) Moreover, appellant’s
principal defense was not that the shooter acted in self-defense. Rather,
defense counsel stressed that appellant was not aware of the shooter’s
intent, and thus had not intended to aid and abet either the attempted
murder of Hernandez or the shooting at his vehicle. Finally, as
discussed at length above, there is more than ample evidence to support
the jury’s finding of appellant’s guilt.
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Based on the weight of the evidence, the jury instructions given,
arguments by counsel, and the absence of any indication the jury was
confused or misled by the inadvertent omission of a written instruction
on self-defense from its packet of written instructions, we conclude that
the trial court’s statutory error was harmless.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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