THE PEOPLE v. DONOVEN LESHON GRAY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Donoven Leshon Gray appeals his conviction of first degree murder as an aider and abettor, contending a key instruction misinformed the jury that the perpetrator of the crime and the aider and abettor must be “equally” guilty, when under recent authority, an aider and abettor may be less or more culpable than the perpetrator, depending on their respective mental states.   In addition, defendant contends in his appeal and in a concurrent petition for writ of habeas corpus that trial counsel was ineffective for failing to object to the erroneous instruction or request clarifying instructions.   We agree the instruction at issue (former CALCRIM No. 400) did not correctly state the law, but find no prejudice.   We further conclude that trial counsel's alleged omissions resulted from an informed tactical choice.   Accordingly, we affirm the judgment and deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. Information

Defendant was charged with murder.  (Pen.Code, § 187, subd. (a).)  It was alleged, pursuant to Penal Code section 186.22, subdivisions (b)(1)(C) and (b)(4) that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.¹  It was further alleged that a principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e), personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c) and (e)(1), and personally and intentionally discharged a firearm which proximately caused great bodily injury and death within the meaning of section 12022.53, subdivisions (d) and (e)(1).

B. Evidence at Trial

1. The Shooting

On February 5, 2008, at approximately 7:30 p.m., Juan Antonio Cruz Martinez was shot twice in the back of the head.   One of the shots was fatal.   He was pronounced dead at the scene.   The shooting occurred at the southeast corner of Adams Boulevard and Rimpau Boulevard, near a liquor store.   Martinez was not robbed.   Martinez was not a known gang member.   He had no gang tattoos, nor was he armed.   He was, however, wearing a Los Angeles Dodgers baseball cap, which is sometimes associated with Los Angeles area Hispanic gangs, particularly 18th Street.

Charles Johnson was walking his dog at the time of the shooting.   He saw Martinez standing on the corner.   He heard shots and saw someone running away, but could not identify the shooter.

Security videos of the area showed a white car pass the liquor store twice, stop momentarily near the corner on the south side of Adams, pointing east, then make a three-point turn and park southbound on Rimpau.   All this occurred while Martinez was standing on the southeast corner.   The perpetrator got out of the left rear door of the car, shot Martinez, and immediately got back into the car, which drove away, headed south.

2. Defendant's Arrest

Approximately two weeks after the shooting, on February 18, 2008, police officers observed defendant riding a bicycle through a red light near 10th Avenue and Washington Boulevard.   The officers attempted to initiate a traffic stop, but defendant kept going.   The officers lost sight of him for a few moments, but then spotted his bicycle leaning against a wall in front of a restaurant and saw defendant walking out of the restaurant.   While defendant was detained outside, one officer went into the restaurant.   A man seated inside pointed to the restaurant's garbage receptacle.   There, the officers found a handgun—a fully loaded Smith and Wesson .32 caliber chrome revolver—lying on top of the garbage.   Before the officers said anything to defendant about the gun or informed him of his rights, he called to his friend Kinano Massengale to tell his grandmother that he was “going for a burner.” ²  “Burner” is street vernacular for a gun.

Defendant was a known member of a street gang known as the Black P–Stones.   When taken into custody, defendant had the letters “CSBPS” tattooed on his torso.   The “C” had an “X” through it.   The letters of the tattoo stand for “City Stone Black P–Stones.” ³  The crossed out “C” indicated the gang was affiliated with the Bloods, whose members avoid using the letter “C” due to their long time rivalry with the Crips.⁴  Defendant also had tattoos of the numbers “21,” “25” and “28,” which referred to different cliques of the City Stones.

A criminalist conducted ballistics tests and determined that the handgun found at the restaurant was the gun used to kill Martinez.

3. Defendant's Interviews

Detective James Yoshida conducted an interview of defendant after his arrest.⁵  During the interview, Detective Yoshida told defendant his gun had been involved in a shooting that took place near Adams, that there was a white car involved in the crime, and that he knew defendant was in the car.   Defendant eventually admitted he had been in the car with three other people, in the back passenger-side seat.  “Tiny Cat” or “Cat” was driving.  “Ace Capone” was in the front passenger seat.⁶  Massengale was the fourth occupant and the shooter.   Prior to the shooting, they were all gathered at a female friend's house.⁷  Massengale asked defendant to get his gun.   Defendant asked why.   Massengale said “because we want to go put it down.” ⁸  Defendant said “Well, go then.”   Massengale said that he did not have “one.”   Defendant was driven to his house, where he got the gun and gave it to Massengale.⁹  Defendant said to Massengale:  “The only thing you got to do is squeeze that motherfucker.   It's on you.” ¹⁰  Massengale asked, “[W]here we gonna go serve?”   Defendant said he did not know, that Massengale was the one who wanted to “go put it down” and that the only reason he (defendant) was going along was to get his gun back when Massengale was finished.

The group returned briefly to their prior location, and Massengale gave his cell phone to a female friend to hold for him.¹¹  As they were driving around, they turned onto Adams, and Massengale said:  “I see a Faketeen,” referring to Martinez.¹²  At that time, defendant said he was “just sitting in the back passenger's seat ․ watching people and the scenery.”   After they spotted Martinez, Cat drove the car around the block, made a u-turn, and said to Massengale:  “Go ahead[,] do your thing.”   Defendant described himself at that point as “nervous” and “jittery” because the four of them were in an area where they were “not supposed to be” and had only one weapon.   He slouched down in his seat.   Massengale got out of the car and defendant heard two shots.   Massengale tried to give the gun to defendant when he got back in the car, but defendant said, “No, you hold it until tomorrow․  Don't give it to me right now.”

After they had driven a short distance away, Cat wanted to return to the scene of the shooting.   Defendant said:  “What? Are you stupid?   You just going to go kill somebody out of this damn car and you want to go back in the same car and look at what you did?   No. Hell, no.   Park this motherfucker and let me out.   You go back if you want to.”   Cat acknowledged that defendant was right and parked the car on a dead-end street.   Defendant got out and took a bus home.¹³  Massengale gave defendant the gun the next day, fully loaded, and defendant returned it to its hiding place.¹⁴

Defendant further told Detective Yoshida at the taped interview that sometime after the shooting, an older man from the neighborhood had said to defendant, “I heard you ․ and Cat ․ took [Massengale] out last night and schooled him.”   Defendant responded:  “Nigger, I ain't did shit ․ you need to watch your mouth.”   On the day defendant was taken into custody by the officers, he had the gun in his possession because earlier in the day, 18th Street gang members had pointed a gun at him and threatened to shoot.

Detective Yoshida conducted a second, unrecorded interview with defendant a few days after the first.   In that interview, defendant said that when the driver stopped the car and Massengale started to get out, defendant stopped him, calling him a “fool” and saying “don't do something stupid.”   Defendant reminded Massengale they were on a busy street, in front of a liquor store, and told him to “think smarter than that.” ¹⁵  Defendant pointed out to Massengale that as he (defendant) was sitting in the back passenger seat, Massengale would have to climb over defendant to get back into the car quickly.   After the shooting occurred, defendant told Massengale to hurry up.   Defendant described himself at that point as scared.   He also stated he was “not really worried about what he [Massengale] [was] fittin' to go do,” but “just thinking of [his] surrounding[s].”  When they were driving away, defendant, concerned that the driver was going too slowly, urged him to “ ‘get out of here.   Get on the freeway.’ ”

4. Gang Evidence

The shooting occurred in West Boulevard Crips territory, near an 18th Street stronghold.   The 18th Street gang is primarily Hispanic.   The Black P–Stones and 18th Street gangs are enemies, as are the Black P–Stones and the West Boulevard Crips.   Officers who testified at trial were familiar with numerous assaults, homicides and attempted homicides committed by members of the Black P–Stones against members of 18th Street and vice versa.   All three gangs put up graffiti in the area.   Prior to the shooting, there had been an increase in the size and amount of 18th Street graffiti, indicating 18th Street gang members were spending a significant period of time in the area.   In some places, Black P–Stones and West Boulevard Crips graffiti had been crossed out, which represents a form of disrespect and can lead to violent retaliation.

The gang expert, Officer Brian Thayer, was asked a hypothetical based on the evidence presented and expressed the opinion that the shooting was for the benefit of and in furtherance of the Black P–Stones gang.   In his opinion, the gang members in the car had driven to rival gang territory and were “hunting for a rival gang member to kill.”

The defense called no witnesses.

C. Pertinent Jury Instructions

The jury was instructed pursuant to CALCRIM No. 400:  “A person may be guilty of a crime in two ways:  One, he may have directly committed the crime.   I will call that person the perpetrator.   Two, he may have aided and abetted a perpetrator who directly committed the crime.   A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.”   The jury was further instructed pursuant to CALCRIM No. 401:  “To prove that the defendant is guilty of the crime of murder based upon this theory [aiding and abetting], the People must prove that, one, the perpetrator committed the murder;  two, the defendant knew that the perpetrator intended to commit the crime;  three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;  and four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime.”

The jury was also instructed on premeditation and the difference between first and second degree murder.   Specifically, the jury was informed:  “If you decide that the defendant has committed the murder, you must decide whether it is murder of the first or second degree.  [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation.   The defendant acted willfully if he intended to kill.   The defendant acted deliberately if he carefully weighed the consideration for and against his choice and, knowing the consequences, he decided to kill.   The defendant acted with premeditation if he decided to kill before committing the act that caused the death․  [¶] ․ [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime.   If the People have not met this burden, then you must find that the defendant is not guilty of first degree murder.”   The court further stated:  “You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of the greater crime.”

D. Pertinent Argument

During argument, the prosecutor repeatedly stated that defendant was an aider and abettor, and that the shooter and the aider and abettor are “equally” guilty.   She also argued that the crime committed was, at a minimum, second degree murder, but that the evidence pointed clearly to premeditation.   She further argued that the statements made by defendant were not evidence of withdrawal, but evidence of facilitation, of “a trainer watching his student.”   Pointing to defendant's statements to Massengale about his being a “fool” and “do[ing] something stupid,” the prosecutor argued these represented comments on the disadvantageousness of the location of the car and a recommendation to wait until they were in a better position—advice which Massengale heeded.

Defense counsel argued that the principal issue in the case was “whether or not [defendant] knew, when he lent that weapon to Kinano Massengale on February 5th, 2008, whether he knew that Kinano Massengale was going to kill somebody with that weapon that night.”   She pointed out that the gang experts had said “putting it down” did not necessarily mean killing someone, but could also mean other crimes, such as robbery, carjacking, burglary, theft, drug sales, or intimidation.   She emphasized the lack of evidence that Massengale told defendant what he was planning to do.   She argued that defendant's statements established that he did not intend to participate in a shooting and that once he realized what Massengale intended, he tried to stop it—to withdraw from the crime.   She contended that defendant's refusal to immediately take the gun back was evidence that he was surprised by the shooting.   She argued that defendant should be found not guilty.   At no point did she argue that the jurors should, in the alternative, find defendant guilty of second degree murder.

E. Jury Questions

During deliberations, the jury asked for a re-reading of the testimony regarding defendant's second interview with Detective Yoshida.   The jurors also sent out a note, stating:  “We would like a clarification on the instruction.   Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime.   Specifically, the term, ‘the crime’ if it refers only to the murder of Jose Martinez, or some crime that has a high possibility of turning into murder.”   In discussions with the court outside the presence of the jurors, the prosecutor suggested clarifying for the jurors that they could find “implied malice by doing an act that has a high probability of resulting in murder, and that's how you get to second degree murder.”   Defense counsel objected.   The court stated that it was inclined to “indicate to the jurors that the crime in the aiding and abetting section refers to the murder and that the murder may be either a first or a second degree under either an express or implied malice theory ․ [b]ut not to reread the [malice] instructions because the jurors have those.”   Counsel for both sides agreed to the court giving that response.

When the jurors were called in, the court asked:  “Am I correct in assuming that you're referring to the aiding and abetting section?”   Upon receiving an affirmative reply, the court stated:  “And that is instruction no. 401 which has a definition of aiding and abetting.   And if you read the entire section and you read it in conjunction with another instruction or series of instructions that deal with the charge of murder, the aiding and abetting speaks about [how] to prove that the defendant is guilty of the crime of murder.   Based upon this theory, the People must prove that, one, the perpetrator committed the murder;  that defendant knew that the perpetrator intended to commit the crime;  three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;  and, four, the defendant's words or his conduct did, in fact, aid and abet the perpetrator['s] commission of the crime.  [¶] In no. 3, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime refers to the crime of murder and murder is in the first or second degree.   And I've also defined in the instructions the theories of express malice and implied malice.  [¶] So my suggestion is that you put all the instructions, as another instruction indicates that you should, and you read them as a whole.   But in reference to your specific question the crime that is referred to in item no. 3 and instruction 401 is the crime of murder.”

F. Verdict and Sentencing

The jury found defendant guilty of first degree murder and found the special allegations true.   The court sentenced defendant to a term of 25 years to life on count one and a consecutive term of 25 years to life for the section 12022.53, subdivision (d) allegation.   Enhancements for the other allegations were stayed.

DISCUSSION

A. Forfeiture

Defendant contends the court incorrectly instructed on aider and abettor culpability by informing the jury that a defendant is “equally guilty” of the charged crime “whether he committed it personally or aided and abetted the perpetrator who committed it.”   We agree.   In People v. McCoy (2001) 25 Cal.4th 1111, the Supreme Court held that “[i]f the [aider and abettor's] mens rea is more culpable than another's, that person's guilt may be greater even if the other might be deemed the actual perpetrator.”  (25 Cal.4th at p. 1117, 1122.)  “ ‘[O]nce it is proved that “the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea.” ’ ”  (Id. at p. 1118, italics omitted.)  McCoy 's conclusion that an aider and abettor could be guilty of a greater offense than the direct perpetrator, “leads inexorably to the further conclusion that an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state.”  (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164;  accord, People v. Nero (2010) 181 Cal.App.4th 504, 507 [“In [McCoy ], our California Supreme Court held that an aider and abettor may be found guilty of greater homicide-related offenses than those the actual perpetrator committed.   Extending that holding, we conclude that an aider and abettor may be found guilty of lesser homicide-related offenses than those the actual perpetrator committed.”], italics omitted.)   Accordingly, courts have held that the version of CALCRIM No. 400 given to the jury here—a version stating that the perpetrator and aider and abettor are “ ‘equally guilty’ ”—can be misleading.¹⁶  (People v. Samaniego, supra, at p. 1165;  People v. Nero, supra, at pp. 518–519.)

Respondent contends the issue was forfeited by trial counsel's failure to object or to request clarification.  (See People v. Samaniego, supra, 172 Cal.App.4th at p. 1163.)   We disagree.   An instruction which is incorrect in law implicates the defendant's right to due process;  this type of claimed error “is not ․ the type that must be preserved by objection.”  (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) As stated in People v. Andersen (1994) 26 Cal.App.4th 1241:  “[F]ailure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error.  [Citations.]  Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.   Accordingly, it seems far better to state straightforwardly ․ that an appellate court may ascertain whether the defendant's substantial rights will be affected by the asserted instructional error and, if so, may consider the merits and reverse the conviction if error indeed occurred, even though the defendant failed to object in the trial court.”  (26 Cal.App.4th at p. 1249.)

B. Prejudice

The effect of an instruction that omits or misdescribes an element of a charged offense is measured against the harmless error test of Chapman v. California (1967) 386 U.S. 18, 24.  (People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.)   An instructional error may be deemed harmless if the jury necessarily resolved the pertinent factual issues against the defendant under other, properly-given instructions.  (Ibid.;  see People v. Castillo (1997) 16 Cal.4th 1009, 1016 [correctness of jury instruction determined “ ‘from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction’ ”].)   Here, the jury was properly instructed on deliberation and premeditation and was further instructed in accordance with CALCRIM No. 401 that in order to find defendant guilty on an aiding and abetting theory, it must find that the perpetrator (Massengale) committed murder, that defendant knew Massengale intended to commit murder and that before or during the commission of the crime, defendant intended to, and by word or conduct did, aid and abet Masssengale's commission of it.   The jury's finding that defendant knew of Massengale's intent to murder prior to aiding and abetting him by word or conduct would necessarily have led it to conclude that he had at least a brief period of deliberation and premeditation, which is all that is required to support first degree murder.   (See People v. Samaniego, supra, at pp. 1165–1166.)

Moreover, “an appellate court may find the error harmless ․ if it determines beyond a reasonable doubt that the jury verdict would have been the same absent the error.”  (People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.)   Although the jury was given the choice between first and second degree murder, the evidence in this case pointed inexorably to deliberation and premeditation.   It was undisputed that defendant and his cohorts developed a plan to commit a crime when they were at their friend's house on “hood day.”   At Massengale's request, defendant retrieved a loaded gun, gave it to Massengale, and instructed him on how to fire it.   Assuming the jury might have harbored a reasonable doubt as to defendant's understanding of Massengale's intentions,¹⁷ subsequent events, as related by defendant himself and confirmed by the video recordings, eliminated any such doubt.

As defendant related, the car drove into hostile gang territory, where defendant admitted being “nervous” and “jittery” over the group's relatively meager firepower.   Massengale spotted Martinez in front of the liquor store, identified him as a “Faketeen,” and indicated an intention to exit the car.   Defendant counseled Massengale not to “do[ ] something stupid,” noted that from their respective positions in the car, Massengale would be forced to climb over defendant to get back in, and told him to “think smarter than that.”   The car was re-positioned.   The driver urged Massengale to “[g]o ahead[,] do your thing.”   Defendant “just s[a]t there.”   After the shooting, defendant's sole concern was to escape and avoid apprehension.

The jury could have credited the defense's argument that defendant's statements to Massengale were intended not to instruct and facilitate the crime, but to dissuade him from committing it.   Had the jurors interpreted defendant's statements in that way, however, they would have returned a verdict of not guilty, as defense counsel urged.   Having rejected the defense's interpretation, they could not reasonably have found that defendant made no effort to aid and abet Massengale after his murderous intent became clear.   The statements defendant admitted making in an effort to establish a defense supplied the evidence needed to support the verdict.   On this record, no rational jury could have found defendant guilty of second degree murder.

C. Competence of Trial Counsel

Defendant contends that trial counsel's failure to request more specific instructions on the liability of aiders and abettors demonstrated a lack of competence.  “To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings.”   (People v. Lewis (1990) 50 Cal.3d 262, 288.)   Our conclusion that any error in giving the former version of CALCRIM No. 400 was harmless under the evidence presented forecloses reversal on this basis.   Moreover, the record reflects that trial counsel's decision to deflect the jury's focus from second degree murder represented a deliberate strategy, not incompetence or inadvertence.   (See People v. Lewis, at p. 288, quoting People v. Pope (1979) 23 Cal.3d 412, 425 [“ ‘[W]here the record shows that counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ ”].) ¹⁸

When the jurors asked the question concerning the aiding and abetting instruction, defense counsel objected to the prosecutor's proposal that they be specifically informed of the possibility of finding second degree murder on a theory of implied malice.   In argument, defense counsel did not urge the jurors to return a verdict of second degree murder if they did not believe defendant intended to withdraw, but focused solely on convincing the jurors that the evidence supported withdrawal, which would have provided a complete defense.   That counsel's strategy was ultimately unsuccessful in obtaining a not guilty verdict does not support that it was faulty from the beginning;  nor is it evidence of incompetence.¹⁹

DISPOSITION

The judgment is affirmed.   Defendant filed a concurrent petition for writ of habeas corpus alleging the same failings of counsel as those presented in the direct appeal.   As we have concluded counsel was not ineffective and defendant was not prejudiced by counsel's alleged errors, his petition is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Undesignated statutory references are to the Penal Code..  FN1. Undesignated statutory references are to the Penal Code.

FN2. The court held an Evidence Code section 402 hearing and ruled the defendant's comment was a spontaneous statement..  FN2. The court held an Evidence Code section 402 hearing and ruled the defendant's comment was a spontaneous statement.

FN3. The City Stones are a subset of the Black P–Stones..  FN3. The City Stones are a subset of the Black P–Stones.

FN4. At the time of trial, defendant had an additional tattoo—the letters “BS” on his face.  “BS” stands for “City Stones,” the “B” replacing the “C” in City.”.  FN4. At the time of trial, defendant had an additional tattoo—the letters “BS” on his face.  “BS” stands for “City Stones,” the “B” replacing the “C” in City.”

FN5. The interview was recorded and the recording was played to the jury..  FN5. The interview was recorded and the recording was played to the jury.

FN6. Detective Yoshida testified that “Tiny Cat” and “Ace Capone” were the monikers of active Black P–Stone members..  FN6. Detective Yoshida testified that “Tiny Cat” and “Ace Capone” were the monikers of active Black P–Stone members.

FN7. Defendant referred to February 5, the day the shooting occurred, as a “hood thing.”   Detective Yoshida explained that the numbers “2” and “5” are significant to the City Stones because their claimed territory is between Second Avenue and Fifth Avenue, and that a “hood day” is a special day for gang members to “putting in work” or perform significant criminal acts in support of the gang..  FN7. Defendant referred to February 5, the day the shooting occurred, as a “hood thing.”   Detective Yoshida explained that the numbers “2” and “5” are significant to the City Stones because their claimed territory is between Second Avenue and Fifth Avenue, and that a “hood day” is a special day for gang members to “putting in work” or perform significant criminal acts in support of the gang.

FN8. Detective Yoshida explained that “put it down” referred to putting in work for the gang, committing a crime of some kind, not necessarily murder.   Defendant later said, referring to the shooting, that it was Massengale's first time, and that before defendant got the gun, Massengale said “I ain't never done my issue before.   I'm trying to get mine․  Can I use that?”   Detective Yoshida was not familiar with the phrase “my issue,” but he believed from the context, it meant a shooting or murder.   He also explained that junior gang members who have not “put in serious work” are usually accompanied by more senior members when they commit crimes.   He believed that the incident could have been a “training mission” for Massengale..  FN8. Detective Yoshida explained that “put it down” referred to putting in work for the gang, committing a crime of some kind, not necessarily murder.   Defendant later said, referring to the shooting, that it was Massengale's first time, and that before defendant got the gun, Massengale said “I ain't never done my issue before.   I'm trying to get mine․  Can I use that?”   Detective Yoshida was not familiar with the phrase “my issue,” but he believed from the context, it meant a shooting or murder.   He also explained that junior gang members who have not “put in serious work” are usually accompanied by more senior members when they commit crimes.   He believed that the incident could have been a “training mission” for Massengale.

FN9. Based on efforts defendant made to keep the location of the gun hidden from the others, Detetctive Yoshida expressed the opinion that this was not a “hood” gun, that is, a gun owned by the gang and being kept by defendant, but defendant's own gun..  FN9. Based on efforts defendant made to keep the location of the gun hidden from the others, Detetctive Yoshida expressed the opinion that this was not a “hood” gun, that is, a gun owned by the gang and being kept by defendant, but defendant's own gun.

FN10. Detective Yoshida explained that the gun recovered from the restaurant's trash receptacle did not have a safety, and could be fired by simply pulling the trigger..  FN10. Detective Yoshida explained that the gun recovered from the restaurant's trash receptacle did not have a safety, and could be fired by simply pulling the trigger.

FN11. Defendant explained that Massengale gave the female his cell phone to hold because “you don't want to be running outside and drop the phone.”.  FN11. Defendant explained that Massengale gave the female his cell phone to hold because “you don't want to be running outside and drop the phone.”

FN12. “Faketeen” is a derogatory term for an 18th Street gang member..  FN12. “Faketeen” is a derogatory term for an 18th Street gang member.

FN13. Defendant later stated that he often took a bus home after spending time with fellow gang members because he lived in rival gang territory and could not afford to be seen with them..  FN13. Defendant later stated that he often took a bus home after spending time with fellow gang members because he lived in rival gang territory and could not afford to be seen with them.

FN14. Defendant told the detective that several of the bullets in the gun had marks on them, which indicated they might be defective.   The detective examined the bullets found in the gun retrieved from the garbage receptacle at the restaurant and confirmed that they contained the marks described.   He stated that this was evidence that defendant was familiar with firearms and ammunition..  FN14. Defendant told the detective that several of the bullets in the gun had marks on them, which indicated they might be defective.   The detective examined the bullets found in the gun retrieved from the garbage receptacle at the restaurant and confirmed that they contained the marks described.   He stated that this was evidence that defendant was familiar with firearms and ammunition.

FN15. Detective Yoshida expressed the opinion that this was a commentary on Massengale's tactics and not an attempt to dissuade him.   Additionally, Yoshida explained that the video recording showed that at the time of the shooting, the white car was parked across the street from the liquor store, not in front of it..  FN15. Detective Yoshida expressed the opinion that this was a commentary on Massengale's tactics and not an attempt to dissuade him.   Additionally, Yoshida explained that the video recording showed that at the time of the shooting, the white car was parked across the street from the liquor store, not in front of it.

FN16. The current version of CALCRIM No. 400 omits the word “equally.”.  FN16. The current version of CALCRIM No. 400 omits the word “equally.”

FN17. Massengale asked defendant to get his gun so “we” could “go put it down.”   Although the officers testified that the term “put it down” could refer to a number of different crimes intended to benefit the gang, the fact that defendant specifically instructed Massengale on how to fire the gun strongly indicated he understood the contemplated crime to involve the discharge of the weapon..  FN17. Massengale asked defendant to get his gun so “we” could “go put it down.”   Although the officers testified that the term “put it down” could refer to a number of different crimes intended to benefit the gang, the fact that defendant specifically instructed Massengale on how to fire the gun strongly indicated he understood the contemplated crime to involve the discharge of the weapon.

FN18. In his reply brief, defendant cites People v. Castillo, supra, 16 Cal.4th at p. 1020, [Brown, J., concurring] and People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1051 for the proposition that trial counsel has a duty to ensure that the instructions adequately assist the jury in understanding the theory of the defense.   At trial, the theory of the defense was that defendant had withdrawn from the enterprise and was not guilty;  the jury was fully instructed on that theory..  FN18. In his reply brief, defendant cites People v. Castillo, supra, 16 Cal.4th at p. 1020, [Brown, J., concurring] and People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1051 for the proposition that trial counsel has a duty to ensure that the instructions adequately assist the jury in understanding the theory of the defense.   At trial, the theory of the defense was that defendant had withdrawn from the enterprise and was not guilty;  the jury was fully instructed on that theory.

FN19. We note that defendant had rejected a plea offer of second degree murder with a sentence of 40 years to life.   The sentence he received was only ten years more.   On this record, defense counsel had ample basis to pursue a defense that could have resulted in a complete acquittal..  FN19. We note that defendant had rejected a plea offer of second degree murder with a sentence of 40 years to life.   The sentence he received was only ten years more.   On this record, defense counsel had ample basis to pursue a defense that could have resulted in a complete acquittal.

EPSTEIN, P. J. SUZUKAWA, J.