People v. Williams CA2/5 ( 2024 )

Filed 9/6/24 P. v. Williams CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B326140
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.BA482285)
v.
TYREK WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Sylvia W. Beckham, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield and William H.
Shin, Deputy Attorneys General for Plaintiff and Respondent.
The jury found Tyrek Williams guilty of first degree murder
(Pen. Code1, § 187, subd. (a); count 1), three counts of attempted
willful, deliberate, premeditated murder (§§ 664 & 187, subd. (a);
counts 2-4), shooting at an occupied vehicle (§ 246; count 5), four
counts of assault with a firearm (§ 245, subd. (a)(2); counts 6-9),
and possession of a firearm by a felon (§ 29800, subd. (a)(1); count
10). The jury found true gang enhancements as to all counts
(§ 186.22, subd. (b)(1)(B) [counts 6 10]; 186.22, subd. (b)(1)(C)
[counts 1-5]), and personal and principal firearm use
enhancements as to counts 1 through 9 (§ 12022.53, subds. (a)–(e)
[counts 1-5]; §12022.5, subds. (a), (d) [counts 6-9]). The trial
court set aside the gang enhancement findings in light of recent
amendments to section 186.22 and dismissed the allegations in
the interests of justice. The court sentenced Williams to 50 years
to life in count 1; three consecutive life terms in counts 2, 3, and
4; two years four months in count 6; and three one-year terms in
counts 7, 8, and 9. The court imposed and stayed sentences in
counts 5 and 10 pursuant to section 654.
On appeal, Williams contends there was insufficient
evidence to support his conviction for shooting at an occupied
vehicle in count 5 and his four convictions for assault with a
firearm in counts 6, 7, 8, and 9. He further contends that, even if
supported by substantial evidence, his conviction for shooting at
an occupied vehicle in count 5 must be reversed because the jury
did not receive a written instruction on the offense.
We affirm the trial court’s judgment.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS
A. The Crimes
Video footage from multiple surveillance cameras showed
that on July 10, 2019, at around 11:26 p.m., Williams and
another man got into a stolen silver Buick that was parked near
a house associated with the Swans Bloods street gang. The Buick
travelled to West 74th Street, and at approximately 11:35 p.m.
was slowly driving east. As the Buick drove down the street,
three individuals ran down the driveway at 158 West 74th Street
and a fourth individual ran west on the sidewalk.
At the same time, A.A. was leaving her home at 144 West
47th Street in her Toyota Camry, four or five residences east of
158 West 47th Street. The Camry was in the driveway when
A.A. and her three minor children got into the vehicle. A.A.’s
three-year-old son was seated in the back driver’s side seat. Her
six and seven-year-old daughters were next to him in the back
seat. A.A. backed the Camry out of the driveway so that it would
ultimately face east. As A.A. was backing onto the street she
heard several gunshots being fired down the street. The Buick
drove around the Camry and the shooter fired at the Camry as
the Buick passed it. One bullet struck the back passenger
window on the driver’s side and exited the front passenger side
window. The glass shattered and landed inside the car, hitting
A.A.’s son and causing minor injuries. Another bullet hit the
driver’s side mirror. A.A. did not see the car that shot at the
Camry; she heard it go behind her. A video recording taken from
a camera located at the east end of the block depicted the Buick
3
driving around the Camry as the Buick was driving east on West
74th Street. The Camry pulled back into the driveway at 144
West 74th Street and was soon surrounded by people.
B. The Investigation
Los Angeles Police Officer Walter Ramirez responded to a
report of a shooting at 158 West 74th Street2, as did Los Angeles
Police Officer Daniel Jara. The officers encountered a total of
four gunshot victims. M.A. had been shot in the face and was
bleeding from the mouth, with a projectile stuck in his upper lip.
T.H. had been shot in the left leg. Kevin Johnson was shot on the
left side of his body, and ultimately died of his injuries. Another
victim who refused to identify himself said that a bullet had
grazed his side and showed Officer Ramirez his wound.
Officer Jara recovered three bullet casings from the street
in the area near 158 West 74th Street where the four people were
shot. All three casings were .22 caliber. In addition to A.A.’s
Camry, which was in the driveway at 144 West 74th Street, a
vehicle that was double-parked in front of 158 West 74th Street
had been hit by gunfire and bore marks from four bullet impacts.
The apartment building at 158 West 74th Street had three bullet
impacts. Three other vehicles parked in front of 158 West 74th
Street were also struck by the gunfire.
On July 15, 2019, the owner of the stolen Buick discovered
it parked on the street. She reported the Buick recovered and
took it to a car wash, where it was washed and vacuumed. After
the cleaning, officers discovered several nine-millimeter casings
2 Officer Ramirez was wearing a body camera. Footage
from the camera was played for the jury.
4
inside the vehicle. Officers also recovered a .22 caliber bullet
casing in the vacuum collection system at the car wash.
In a search of the Swans’s house in connection with a later
shooting, officers discovered a trail of blood in the yard leading to
a bloody potato chip bag inside a block wall. The bag contained
two .40 caliber firearms and a nine-millimeter firearm, all of
which had magazines and appeared to be in functional working
order. Sample cartridges fired from the nine-millimeter firearm
matched cartridges found at the scene of the July 10, 2019
shooting. The .22 caliber bullet casings found at the scene and
the car wash were all fired from the same gun, but the gun was
not recovered.
C. Statements to Undercover Agents
After he was arrested, Williams talked to an undercover
agent while waiting in a holding cell. Williams told the
undercover agent that his brother had been shot in the arm by
the Seven Trays before the Fourth of July, and that the Swans
“[w]ent right back on they ass.” Williams said that he “caught”
one of the Seven Trays on July 10 at around 10:00 or 11:00 p.m.
on 74th between Broadway and Main. Williams and
“two . . . other homies . . . went to go smack on them . . . [and] two
of ‘em got hit.” The driver in the shooting was a friend of
Williams’s who was later accidentally shot in his sleep and killed.
Only Williams and one other person who committed the shooting
were still alive.
Williams used a “deuce deuce” in the shooting. Williams
“[t]ook them first three shots, everybody went down.” He was
certain he hit someone. Then something happened to his gun.
5
Williams fired two more shots before stopping. Williams’s gun
was destroyed after the shooting, so he knew the police did not
find it. He said the police “hit the trap house; they got the .40.”
The other “homey” was supposed to burn the car they used in the
shooting, but he parked it on the street.
Codefendant J’son Morris was also arrested and spoke with
an undercover agent while in a holding cell.3 He denied direct
involvement in the shooting, but he knew the details. They used
“a nine and a .22.” Morris said one of the guns was destroyed and
the other was taken by the police. There were two shooters and a
driver. Morris did not get in the Buick. He was in another car,
which was burned after the shooting.4
DISCUSSION
A. Sufficiency of the Evidence (counts 5-9)
Williams contends there was insufficient evidence to
support his conviction for shooting at an occupied vehicle in count
5 and for committing assault with a firearm in counts 6, 7, 8, and
9. He asserts that the jury’s true findings on the personal
firearm use enhancements in connection with those counts
compel the conclusion that the jury found he was the direct
perpetrator, a finding that he believes is incompatible with the
3 The jury acquitted Morris of all charges.
4 The car was a Dodge Charger that was used as a trailer
car. The car did not follow the Buick down West 74th Street.
6
evidence.5 He further argues that there is insufficient evidence
that he possessed the mens rea necessary to be convicted as a
direct aider and abettor. Alternatively, Williams asserts that the
personal firearm use enhancements must be stricken. The
contentions lack merit.
1. The Evidence Did Not Preclude the Jury from
Finding Williams Guilty as a Direct Perpetrator
Williams first argues he could not be convicted as a
perpetrator in counts 5 through 9 because the People, in closing
argument, relied upon his admission to the undercover agent that
his firearm became inoperable after he fired five rounds, and are
therefore bound by his statements. Williams asserts that the
prosecution presented no other evidence that he personally shot
at the Camry; thus, his admission that the gun became
inoperable must be taken as uncontradicted proof of the fact that
he did not fire at the Camry. We reject the contention. Even if
we assume (without deciding) that the People are bound by
Williams’s admission, the evidence does not preclude the
possibility that Williams was the shooter.
Williams described the shooting to the undercover agent as
follows:
“On the set. As soon as I (Unintelligible) ‘em. Pow, pow.
Took the first three shots, everybody went down. I was, like, oh, I
5 Williams offers no authority or argument supporting his
assertion that, by finding that he personally used a gun, the jury
necessarily found that he was the perpetrator and could not have
instead aided and abetted those offenses by personally using or
discharging a firearm.
7
know I hit one. On Blood, the homey shooting, too.
(Untranslatable Sound.) Busting—he got the .40 lemon squeeze
(Phonetic). I’m, like, oh, that motherfucka is (Unintelligible;
Background Laughter). Damn, Blood.
“On Blood, somehow, my—either he shot my gun or
somebody else shot my deuce deuce and it fucken fucked up.
Plus, I looked and I’m, like, oh, shit. Shot two more times. After
that, I stopped, but the homey is talking about—he was, like,
good thing you stopped, nigga ‘cause that—that last shot you was
finna take, if that shit would’ve backfired, it would’ve fucked you
niggas up. We had destroyed that motherfucka.”
In his opening brief, Williams does not explain how his
statements to the undercover agent showed that it was
“physically impossible” for him to have fired at the Camry; he
simply states that the other shooter6 must have engaged in an
“unplanned, spur-of-the-moment shooting at the Camry” in which
Williams was not involved. In the reply brief, Williams theorizes
that the shooting at the Camry necessarily occurred after the
victims in counts 1 through 4 had been shot and after Williams’s
gun became inoperable. Williams’s theory relies on his
admissions to the undercover agent and his faulty assertion that
the shots fired at the Camry were taken as the Buick approached
it from the east. Williams argues that after he fired at them,
three of the targeted people ran down the driveway (south) and
the fourth ran down the sidewalk heading west. Given those
facts, the bullets that hit the Camry could not have been stray
gunfire because the Buick was positioned between the targeted
6 Williams refers to Morris as the other shooter involved in
the crimes. Because Morris was acquitted on all counts, we refer
to Williams’s cohort as “the other shooter.”
8
people and the Camry when the Camry was shot. Williams
concedes that he and the other shooter shot at the victims in
counts 1 through 4, but posits that he was unable to fire the .22
caliber firearm after the initial shooting because the gun was
damaged. Thus, the other shooter must have shot at the Camry
independently, in what was essentially a separate incident.
The ballistics evidence belies this theory, however.
Contrary to Williams’s statement of facts in the opening brief,
A.A. testified that one bullet hit her driver’s side mirror and
another bullet entered through the rear driver’s side window
showering glass on her son, who was sitting on the driver’s side of
the vehicle in the back seat, and exited through the front
passenger window. Given the positioning of the Camry—which
was backing out and preparing to drive east—the only way this
could have occurred is if the Buick was passing or had passed the
Camry and the shooters were firing to the west in the direction of
the four people who they targeted in the shooting. The evidence
allows for the possibility that the Camry was hit by bullets
intended to hit the victims in counts 1 through 4 and was not
struck in an “unplanned, spur-of-the-moment shooting” aimed
specifically at the Camry.
Second, even if Williams’s statement that he fired three
shots in the direction of the targeted victims in counts 1 through
4 is accepted as true, his admission to the undercover agent does
not preclude the possibility that he fired his last two shots at the
Camry. Williams did not tell the undercover agent where he
aimed the final two shots or what he believed he hit. Nor did he
tell the undercover agent that he stopped shooting before the
other shooter stopped; only that he stopped shooting before he
intended to. We give little weight to the suggestion that if
9
Williams had shot the Camry he would necessarily have told the
undercover agent. Williams did not mention hitting anything
other than his intended victims. Yet the prosecution presented
evidence that bullets hit five cars (including the Camry) and an
apartment building—some multiple times—making it highly
likely that, regardless of where Williams believed he was aiming,
he struck other objects in addition to the people targeted in the
shooting. The evidence did not preclude the possibility that
Williams was the perpetrator in counts 5 through 9.
2. Substantial Evidence Supports the Finding that
Williams Directly Aided and Abetted the Offenses
Williams argues that the evidence is insufficient to support
his convictions on an aiding and abetting theory of liability
because there is not substantial evidence that he possessed the
requisite mens rea. Williams misapprehends the mental state
required to directly aid and abet the offenses.
a. Direct aiding and abetting
“A person [directly] aids and abets the commission of a
crime when he or she, (i) with knowledge of the unlawful purpose
of the perpetrator, (ii) and with the intent or purpose of
committing, facilitating or encouraging commission of the crime,
(iii) by act or advice, aids, promotes, encourages or instigates the
commission of the crime. (People v. Beeman [(1984)] 35 Cal.3d
547, 561 [(Beeman)].)” (People v. Cooper (1991) 53 Cal.3d 1158,
1164.) “ ‘[O]utside of the natural and probable consequences
doctrine, an aider and abettor’s mental state must be at least
10
that required of the direct perpetrator.’ ([People v.] McCoy
[(2001)] 25 Cal.4th [1111,] 1118.) If the offense charged is a
‘ ‘‘ ‘specific intent’ ” ’ crime, the accomplice must share the
perpetrator’s specific intent. (Ibid.) In contrast, if the charged
offense is a general intent crime, the aider and abettor need only
knowingly and intentionally facilitate the direct perpetrator’s
commission of the crime, without intending some additional
result or consequence not required for the crime.” (People v.
White (2014) 230 Cal.App.4th 305, 317–318.) “[T]he fact that an
aider and abettor must harbor a specific intent to aid the direct
perpetrator of [a] general intent crime ‘does not transform the
underlying offense into a specific intent crime.’ ” (Id. at p. 318.)
b. Shooting at an occupied vehicle
Section 246 provides in pertinent part: “Any person who
shall maliciously and willfully discharge a firearm at an . . .
occupied motor vehicle . . . is guilty of a felony . . . .” “ ‘ [S]ection
246 is not limited to the act of shooting directly “at” an inhabited
or occupied target. Rather the act of shooting “at” a proscribed
target is also committed when the defendant shoots in such close
proximity to the target that he shows a conscious indifference to
the probable consequence that one or more bullets will strike the
target or persons in or around it.’ ” (People v. White, supra, 230
Cal.App.4th at p. 316, quoting People v. Overman (2005) 126
Cal.App.4th 1344, 1356.) “ ‘It is settled that a violation of section
246 is a general intent crime.’ ” (People v. Iraheta (2014) 227
Cal.App.4th 611, 620.)
Here, the prosecution introduced substantial evidence that
satisfies the elements of shooting at an occupied vehicle.
11
Williams admitted to the undercover agent that he and the other
shooter went to the scene of the crime to commit a shooting.
Video recordings that captured the shooting depicted the scene as
a neighborhood filled with residences and cars, such that a
shooting would have the probable consequence of striking a car
located within the range of the shooters’ gunfire, such as the
Camry. This was particularly likely in light of the fact that
Williams and the other shooter were firing from a moving vehicle
at multiple victims who were likely to—and did—disperse once
the shooting commenced, which increased the range of their
gunfire. Ballistic evidence showed that, in addition to the Camry,
which was struck twice, four other cars and an apartment
building were struck by the gunfire—some multiple times. The
jury could readily infer from the nature of the scene and the
numerous objects hit, that (1) the other shooter intended to fire
his gun and was consciously indifferent to the probable
consequence that he would likely be firing at occupied vehicles,
including the Camry; (2) Williams was aware of the other
shooter’s intent and was also consciously indifferent to the
probable consequence that the other shooter would fire at an
occupied vehicle, including the Camry; and (3) Williams intended
to aid and abet the other shooter and did so by firing a gun
himself. (See People v. White, supra, 230 Cal.App.4th at p. 316.)
c. Assault with a firearm
“ ‘[A]ssault does not require a specific intent to cause injury
or a subjective awareness of the risk that an injury might occur.
Rather, assault only requires an intentional act and actual
knowledge of those facts sufficient to establish that the act by its
12
nature will probably and directly result in the application of
physical force against another.’ [Citation.] ‘The mens rea [for
assault] is established upon proof the defendant willfully
committed an act that by its nature will probably and directly
result in injury to another, i.e., a battery. Although the
defendant must intentionally engage in conduct that will likely
produce injurious consequences, the prosecution need not prove a
specific intent to inflict a particular harm. . . . The evidence must
only demonstrate that the defendant willfully or purposefully
attempted a “violent injury” or “the least touching,” i.e., “any
wrongful act committed by means of physical force against the
person of another.” [Citation.] In other words, “[t]he use of the
described force is what counts, not the intent with which same is
employed.” [Citation.] Because the offensive or dangerous
character of the defendant’s conduct, by virtue of its nature,
contemplates such injury, a general criminal intent to commit the
act suffices to establish the requisite mental state. [Citations.]’
[Citation.]” (People v. Golde (2008) 163 Cal.App.4th 101, 108–
109.) “[N]o subjective intent to injure a particular victim is
required. Rather, a defendant’s intended acts are evaluated
objectively to determine whether harm to a charged victim was
foreseeable.” (People v. Felix (2009) 172 Cal.App.4th 1618, 1629.)
Substantial evidence also supports a finding that Williams
aided and abetted assault with a firearm. As we have already
discussed, the prosecution introduced evidence that Williams and
the other shooter went to the scene with the intent of shooting
the victims in counts 1 through 4, and that Williams knew of the
other shooter’s intent to shoot the targeted victims. The force
employed was gunfire, which “ ‘by its nature will probably and
directly result in injury to another[.]’ ” (People v. Golde, supra,13
163 Cal.App.4th at p. 108.) The other shooter was firing in a
residential neighborhood with many cars; it was objectively
foreseeable that the victims could be harmed, regardless of
whether they were the intended targets. Finally, Williams aided
and abetted the shooter by shooting with him.
3. The Jury Did Not Need to Decide Whether
Williams Was a Perpetrator or a Direct Aider and
Abettor
Williams next argues that, even assuming he could have
been the perpetrator in counts 5 through 9, the evidence was
insufficient for the jury to determine whether he, or the other
shooter, or both shooters, fired at the Camry, which requires that
the convictions be reversed. Alternatively, if the convictions are
not reversed, Williams argues that the gun use enhancements
must be reversed for the same reason. He cites to People v. Allen
(1985) 165 Cal.App.3d 616 (Allen), People v. Botello (2010) 183
Cal.App.4th 1014 (Botello), and People v. Smith (2005) 135
Cal.App.4th 914 (Smith) to support these arguments. None of
these cases assist Williams.
In Allen, supra, 165 Cal.App.3d at pages 621 and 626,
evidence was presented that the two defendants were in the same
room with the victim when the victim was shot twice with the
same gun and killed. There were no eyewitnesses to the
shooting. (Id. at p. 625.) The jury convicted both defendants of
murder and found that both defendants personally used a firearm
in the commission of the offense. (Id. at p. 621.) The defendants
argued that their convictions were not supported by substantial
evidence because it was impossible to know which defendant was
14
the shooter. (Id. at p. 625.) Alternatively, they argued that the
personal firearm use enhancements must be reversed because
only one firearm was used, and it was impossible to know which
defendant wielded the weapon. (Id. at p. 626.)
The Court of Appeal affirmed the murder convictions,
stating that “[u]nder the[] circumstances [of the case], it is
immaterial that the evidence was silent as to which defendant
actually shot [the victim]; it is virtually inconceivable that the
one who did not shoot him did not aid and abet the shooting . . . .”
(Allen, supra, 165 Cal.App.3d at p. 626.) The court described the
evidence against the defendants as follows: “Direct testimony
placed both Allen and Brewer in the kitchen when Gregory was
shot there. The fact that he was shot immediately after
addressing the defendants in a friendly manner strongly suggests
that whichever defendant killed him had a preconceived intent to
do so. The immediate aftermath, in which both defendants—
without further ado—attacked Cheryl and shared in the intent to
shoot at Taggra, strongly suggests a prior agreement to kill
Gregory and all witnesses. Indeed, in their arguments to the
jury, both defendants acknowledged that the evidence showed a
preconceived ‘assassination’ plot.” (Id. at pp. 625–626.) The
court found there was insufficient evidence to support the
personal firearm use enhancements, however, because whether
one defendant or the other or both personally used the firearm
was conjecture. (Id. at p. 626.)
In Botello, supra, 183 Cal.App.4th at pages 1016 through
1018, the People presented evidence that the victims were killed
in a drive-by shooting by a single shooter sitting in the front
passenger seat of a vehicle. A witness identified twin brothers as
the driver and front seat passenger, but could not distinguish
15
between them and thus could not say which twin shot the victim.
(Id. at p. 1018.) On appeal, the defendants argued that the
evidence was insufficient to support the murder convictions and
personal firearm use enhancements. (Id. at p. 1016.) The People
conceded that there was insufficient evidence to support the
firearm use enhancements.7 (Id. at p. 1022.) The Court of
Appeal agreed that the personal gun use enhancements must be
reversed because the witness could not say which twin fired the
gun. (Ibid.) The appellate court affirmed the murder convictions
in an unpublished section of the opinion. (Id. at p. 1017.)
In light of the evidence presented in Williams’s case, it is
irrelevant whether Williams was a perpetrator of the offenses or
a direct aider and abettor, because “it is virtually inconceivable
that [if Williams] did not shoot [at the Camry] [he also] did not
aid and abet the shooting . . . .” (Allen, supra, 165 Cal.App.3d at
p. 626.) Williams admitted that he and the other shooter both
intended to shoot the victims in counts 1 through 4. Regardless
of whether they intended to shoot other victims, it was objectively
foreseeable that they could harm the victims in counts 5 through
9, given that the crime scene was a residential neighborhood.
Williams admitted that both he and the other shooter actually
fired at the victims in counts 1 through 4, and were armed with
different guns. Officers recovered casings from two different
guns, many of which were compatible with the .22 caliber firearm
Williams claimed to have used. The men fired from the same
moving vehicle and would have been equally aware of the
7 The People instead argued that the enhancements could
be imposed under section 12022.53, subdivision (e) (Botello,
supra, 183 Cal.App.4th at p. 1022), an issue that is not pertinent
to this case.
16
probable consequence of striking an occupied vehicle in their line
of fire. There is simply no scenario in which Williams was not
guilty either as a perpetrator or as a direct aider and abettor.
The Court of Appeal’s conclusions in Smith, supra, 135
Cal.App.4th 914, do not persuade us otherwise. There, when
analyzing whether the jury’s special circumstance finding was
supported by substantial evidence, the court determined that
insufficient evidence was offered to show that the defendant was
the actual killer or that the actual killer was aided and abetted
by anyone with the intent to kill. (Id. at p. 927.) The court
concluded that, even assuming that the evidence was sufficient, it
consisted of “a single DNA allele on a bathroom towel that was
consistent with both [the defendant] and [another man suspected
to be involved].” (Ibid.) Which of the two men—if either—aided
and abetted the actual killer was a matter of conjecture. (Ibid.)
Smith was unlike the present case in that there was only
“ ‘very, very weak’ ” evidence that anyone aided and abetted the
actual killer, and no evidence that the actual killer was aided and
abetted by two people. (Smith, supra, 135 Cal.App.4th at p. 927.)
Here, substantial evidence links Williams to the crimes. The
evidence demonstrated that two men committed the shootings,
and that Williams was one of those men. Williams admitted that
he and another person were actual shooters, and that they used
different guns. Officers recovered two calibers of bullet casings,
one of which matched the caliber of the firearm that Williams
claimed to have used. Williams was necessarily either the
perpetrator or an aider and abettor.
Finally, with respect to the personal firearm use
enhancements, the facts of Williams’s case are readily
distinguishable from those in Allen and Botello. In those cases,
17
only one firearm was used and there was no evidence regarding
which defendant used it. Here, there was evidence that two
firearms were used, and that Williams used the .22 caliber
firearm exclusively—Williams told the undercover agent that he
“took the first three shots” and that after that he was only able to
fire two more rounds because the gun became inoperable. Unlike
Allen and Botello, the Camry was hit by two bullets that could
have been fired from either gun or both, which left open the
possibility that both shooters could have been perpetrators.
Finally, it is not contested that Williams used a firearm—that he
did not use the firearm either as a perpetrator of the crimes in
counts 5 through 9 or as a direct aider and abettor is
inconceivable. Substantial evidence supports the personal
firearm use enhancements.
B. Omission of Written Instruction on Shooting at an
Occupied Vehicle
1. Proceedings
Prior to orally instructing the jury, the trial court advised
the jurors that the court would display the instructions as they
were read. The court stated that if it noticed any errors, the
court would correct the errors before deliberations, and the jury
was to “follow the instructions in their final form as given to [the
jurors] in the jury room.”
As pertinent here, the trial court read CALCRIM No. 335,
which instructs regarding accomplice testimony when there is no
dispute whether the witness is an accomplice. Immediately
following the oral instruction, in sidebar, counsel objected to
18
inclusion of CALCRIM No. 335. The court granted counsel’s
request to remove CALCRIM No. 335 from the instructions and
admonished the jury that the accomplice testimony instruction
would not be included in the written instructions and that the
jury was not to consider it for any purpose. CALCRIM No. 335
was omitted from the written instructions.8
The trial court also read CALCRIM No. 400, which
instructed on basic principles of aiding and abetting. The court’s
oral reading of the instruction included the final optional
bracketed sentence contained in the standard instructions:
“Under some specific circumstances, if the evidence establishes
aiding and abetting of one crime, a person may also be found
guilty of other crimes during the commission of the first crime.”
After court recessed, counsel requested that the trial court strike
the optional sentence from the written instructions. The trial
court granted the request and reiterated that it had instructed
the jury to follow the instructions in their final written form. The
court did not further admonish the jury. The optional sentence
was stricken from the final written instruction provided to the
jury for deliberations.
Finally, the court orally instructed the jury under
CALCRIM No. 965 regarding the elements of shooting at an
occupied vehicle.9 CALCRIM No. 965 is not contained in the
8 Williams’s reply brief inaccurately states that a
paragraph was omitted from CALCRIM No. 335. The instruction
was withdrawn in its entirety.
9 As given, CALCRIM No. 965 states: “The defendants are
charged in count five with shooting at an occupied motor vehicle,
in violation of Penal Code section 245 [sic]. [¶] To prove that a
19
written instructions in the record on appeal. It appears the
instruction was inadvertently omitted from the written
instructions provided to the jury.
2. Analysis
Williams argues that the omission of CALCRIM No. 965
from the written instructions requires reversal of his conviction
for shooting at an occupied vehicle (count 5) because it removed
from the jury’s consideration the requirement that the defendant
shot willfully and maliciously. Williams argues that the omission
of an element of a crime from the instructions is constitutional
error that requires reversal unless it is harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24
(Chapman).) The People concede that the trial court erred, but
argue that the error is statutory and need not be reversed
because it is not reasonably probable that Williams would have
obtained a more favorable result if CALCRIM No. 965 had been
included in the written instructions. (People v. Watson (1956) 46
Cal.2d 818, 836 (Watson).)
Williams cites Neder v. United States (1999) 527 U.S. 1, 8–
15, which held that omission of an element of an offense from an
defendant is guilty of this crime, the People must prove that, one,
the defendant willfully and maliciously shot a firearm; and two,
the defendant shot the firearm at an occupied motor vehicle. [¶]
Someone commits an act willfully when he or she does it willingly
or on purpose. [¶] Someone acts maliciously when he or she
intentionally does a wrongful act or when he or she acts with the
unlawful intent to disturb, annoy or injure someone else. [¶] A
motor vehicle includes a passenger vehicle. [¶] The term ‘firearm’
is defined in another instruction to which you should refer.”
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instruction is constitutional error and reviewable under
Chapman. Williams mischaracterizes the error, however. Here,
an element of the offense was not omitted from the instructions.
The trial court properly orally instructed the jury on all the
elements of shooting at an occupied vehicle; it failed to provide a
written copy of the instruction to the jury. Omission of a written
instruction that was given upon the jury’s request is an error of
state law,10 subject to harmless error review under Watson.
(People v. Trinh (2014) 59 Cal.4th 216, 235.) Reversal under
Watson is only warranted if there is “a reasonable probability of a
more favorable outcome had the jury received [a] written cop[y] of
[the instruction].” (Ibid.) Assuming that omission of CALCRIM
No. 965 was error, we conclude the error was harmless.11
Williams claims that the omission of CALCRIM No. 965
from the written instructions was not harmless. He argues that
the jury would have disregarded the instruction because the trial
court orally instructed that it was bound to follow the written
10 Section 1093, subdivision (f), provides in relevant part:
“Upon 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, if the jury requests the
court to supply a copy of the written instructions, the court shall
supply the jury with a copy.”
11 Section 1093, subdivision (f), applies when the jury
requests that the court provide a written copy of the instructions.
Here, there was no such request, but the court informed the jury
that it would receive a copy of the instructions and provided the
remainder of the instructions. We assume error for the sake of
discussion, and do not decide the issue.
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instructions if there was any conflict with the court’s oral
instructions. Williams asserts that because (1)
CALCRIM No. 335 was omitted and the jury was admonished not
to consider it for any purpose, and (2) the last sentence of
CALCRIM No. 400 was stricken without further admonishment,
the jury would have been confused regarding the omission of
CALCRIM No. 965 and would have likely concluded that it
should ignore the court’s instruction on shooting at an occupied
vehicle as well.
We disagree. The trial court struck CALCRIM No. 335 in
its entirety immediately after it was given and specifically
admonished the jury not to consider it. The jury received no such
admonition from the court with respect to CALCRIM No. 965.
The jury was properly orally instructed on the elements of
shooting at an occupied vehicle, and none of the written
instructions conflicted with the court’s oral instruction. (See
People v. Trinh, supra, 59 Cal.4th at pp. 234–235 [omission of
written instructions does not nullify orally read instructions that
accurately state the law].) The jury did not submit any questions
to the court regarding shooting at an occupied vehicle. There is
no reason to believe that the jury did not understand and follow
the oral instruction given. (See id. at p. 235 [holding error
harmless where two instructions were omitted from written
instructions and jurors received accurate oral instructions].)
We reject Williams’s argument that the fact that the trial
court struck the final sentence of CALCRIM No. 400 from the
written instructions without further advisement to the jury that
it had done so introduced confusion. The court specifically
advised the jury it would correct any erroneous oral instructions
in the final written instructions, and that to the extent that there
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was a conflict, the jury should follow the written instructions.
Striking the final sentence of CALCRIM No. 400 created a
conflict between the oral and written instructions that we
presume the jury resolved in favor of the final written
instruction, as it was admonished to do. (See People v. Trinh,
supra, 59 Cal.4th at p. 235 [reviewing court presumes that jury
understands and correctly applies instructions].) There was no
such conflict with respect to CALCRIM No. 965. The oral
instruction was not contradicted by any written instruction.
DISPOSITION
We affirm the trial court’s judgment.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
BAKER, Acting, P. J.
KIM, J.
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