Filed 3/23/16 P. v. Williams CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069253
         Plaintiff and Respondent,
                                                                        (Kern Super. Ct. Nos. BF151132A &
                   v.                                                              BF151132B)

MARTY J. WILLIAMS ET AL.,
                                                                                         OPINION
         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         Robert Navarro, under appointment by the Court of Appeal, for Defendant Marty
J. Williams.
         Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and
Appellant David Gregory Marquez
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION
       Appellants/defendants Marty J. Williams and David Gregory Marquez were
jointly tried and convicted of felony offenses resulting from an assault on Troy Basil and
Willie Mae Billingsley, which occurred after an argument about a debt. Both defendants
punched Basil with their fists, and Williams used a wooden chair leg to hit Basil and
Billingsley on their heads. Basil suffered a traumatic brain injury, and Billingsley
required multiple stitches in her scalp.
       Marquez was convicted of assault with a deadly weapon (the wooden chair leg) on
Basil, as an aider and abettor of Williams (Pen. Code, § 245, subd. (a)(1)).1
       Williams was charged with premeditated attempted murder of Basil (§§ 664/187,
189, subd. (a)), but convicted of the lesser included offense of attempted voluntary
manslaughter (§§ 664/192, subd. (a)). Williams was also convicted of assault with a
deadly weapon on both Basil and Billingsley.
       In this joint appeal, Marquez contends there is insufficient evidence to support his
conviction for assault with a deadly weapon on Basil as an aider and abettor of Williams,
and argues there is no evidence that he knew Williams intended to use the wooden chair
leg to beat Basil. He also challenges the aiding and abetting instructions.
       Also on appeal, Williams’s appellate counsel has filed a brief that summarizes the
facts with citations to the record, raises no issues, and asks this court to independently
review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Williams has filed
a letter brief and contends his defense attorney was prejudicially ineffective for failing to
exclude the victims’ testimony. We order the abstract of judgment corrected as to
Williams and otherwise affirm as to both defendants.




       1   All further statutory citations are to the Penal Code unless otherwise indicated.


                                               2
                                          FACTS
       Willie Mae Billingsley (Billingsley), Troy Basil (Basil), and Deidra Hubbard
(Hubbard) lived in an apartment on Union Avenue in Bakersfield. David Marquez
(Marquez) hung out in the same neighborhood, and frequently visited Billingsley’s
apartment because he was in a romantic relationship with Hubbard. During his visits,
Marquez spoke highly of a man who Billingsley later learned was Marty Williams
(Williams).
       Sometime in September 2013, Billingsley loaned $35 to Marquez. Billingsley
testified the loan did not involve drugs.2 Billingsley repeatedly asked Marquez to repay
the loan, but he failed to do so.
Billingsley and Basil ask Marquez to repay the debt
       Around 3:00 p.m. on October 3, 2013, Billingsley saw Marquez in the
neighborhood, and she again asked when he would repay the debt. Marquez said, “I got
you,” as if he was going to pay her, but he failed to do so.
       Around 7:00 p.m., Billingsley and Basil were standing on their apartment balcony.
Billingsley saw Marquez across the street at the Ramkabir Motel. Basil said he wanted to
talk to Marquez to collect the debt. Hubbard was not present.
       Billingsley and Basil walked across Union Avenue to the motel and went to the
room No. 32, where Marquez had been standing. Billingsley and Basil walked into the
motel room. Billingsley testified that Marquez, Williams, and a woman were inside.
       Billingsley testified she had not personally met Williams, and she did not know his
real name. However, she recognized Williams because he had visited someone in her
apartment building a few times. She believed his street name was “Psycho.”



       2Billingsley testified she had a prior conviction for felony petty theft in 2006. She
admitted that she used drugs, but testified she did not use drugs on the day of the assault
or when she appeared at trial.


                                              3
       Marquez walked outside the motel room with Basil and Billingsley. Basil asked
Marquez for the money. Basil and Marquez walked to the motel’s driveway as they
talked. Billingsley walked away and did not hear the conversation. Billingsley testified
it sounded like Marquez and Basil became angry with each other.
       Basil and Marquez talked for five or 10 minutes and then stopped. Basil told
Billingsley that they were going to leave, and they walked across Union Avenue and
headed to their apartment building. Marquez immediately followed them, and then
stopped on the median on Union Avenue. He pointed and yelled, “[S]omebody go get
Suspect out of Room 34.”3 Marquez appeared to be yelling at a few people who were
standing outside the motel.
Defendants confront the victims
       Marquez continued to follow Billingsley and Basil across Union Avenue to the
apartment building. Williams followed Marquez across the street, and ran behind
Billingsley and Basil. Billingsley and Basil stood against the apartment building’s fence.
Marquez and Williams approached them. Marquez partially pulled a knife from his
pocket. Billingsley told Marquez, “[D]on’t do it.” Marquez returned the knife to his
pocket without “flicking” it.
       Billingsley and Basil headed upstairs to their apartment. While they walked up the
back staircase, Billingsley saw Williams run through the apartment building’s parking
lot. A broken chair was in the area, and Williams picked up a broken leg from the chair.
The broken chair leg was about two to two and one-half feet long. Marquez was standing
in the middle of the parking lot when Williams picked up the chair leg.
       Billingsley and Basil reached the second floor. Williams ran toward the back
stairs, still holding the chair leg. Marquez ran to the other staircase. Billingsley and


       As we will discuss below, Billingsley initially believed Williams’s street name
       3
was Psycho, but she later learned his street name was “Suspect.”


                                              4
Basil tried to hurry to their apartment. However, Williams and Marquez came upstairs
from the opposing staircases. Billingsley testified they reached the second floor and
“closed in” on them from opposite sides. Billingsley was afraid defendants were going to
hurt them.
Defendants attack the victims
       Billingsley and Basil were within three doors of their apartment when defendants
“doubled teamed” Basil. Both defendants punched Basil in the midsection with their
fists. Basil tried to punch back and escape, but he fell down. Billingsley testified
Williams raised the chair leg above his head and hit Basil’s head once “with all his
might.”
       “Q.                  … What was David [Marquez] doing?
       “[Billingsley].      Just standing there.
       “Q.                  Watching?
       “A.                  I assume.”
       Billingsley testified she got between Williams and Basil, said to stop, and tried to
block additional blows. Williams then hit Billingsley in the head with the chair leg.
       Basil got up and tried to make it to their apartment. When he reached the
doorway, Williams again used the chair leg to hit Basil in the head. Basil fell down and
tried to get away. Each time Basil tried to get up, Williams repeatedly hit him in the head
with the chair leg. Billingsley testified that she did not see Marquez at this point. Basil
passed out and stopped moving. Williams finally stopped hitting him. Marquez and
Williams left the area.
The victims’ injuries
       Billingsley tried to revive Basil by splashing water on his face. Basil regained
consciousness, and she helped him into the apartment. Billingsley testified Basil “was
just sitting there and couldn’t talk,” and he kept “blacking out.”



                                              5
       The police and emergency personnel arrived, and both Basil and Billingsley were
taken to the hospital. Billingsley testified her head was “busted all the way to the skull.”
She received 15 stitches “on the outside” of her head and additional stitches “inside.”
       Basil was admitted to Kern Medical Center’s critical care unit. He suffered a
depressed skull fracture on the left side of his head, consistent with blunt force trauma,
which resulted in a severe traumatic brain injury. He was in critical condition, required a
respirator to maintain breathing, and placed in a medically-induced coma to limit ongoing
swelling in his brain.
       Basil remained in a coma for a week and required ventilator support for two or
three weeks. He was discharged from the hospital after about one month. He required a
significant amount of support, nursing care, physical therapy, and rehabilitation to regain
normal daily functions such as walking, talking, and feeding himself. At the time of trial,
Basil had trouble walking, speaking, and with his memory.
Identification of the suspects
       Billingsley testified that while she was being treated at the hospital, her roommate
Hubbard visited her, and they talked about what happened. Hubbard had not been
present during the assault. Billingsley kept saying that Psycho attacked them, referring to
the second suspect’s street name. Billingsley testified that Hubbard replied, “[N]o, it’s
not Psycho, it’s Suspect.”
       At trial, Billingsley testified that Williams was the man who attacked them with
the broken chair leg, and she was only mistaken about his street name and not his
identification.

            “Q. … But you’re confident that no matter what the name, that
       Mr. Williams here is the person that you’ve been talking about?

              “A.    Yes.

              “Q.    Okay. How sure are you?



                                              6
              “A.    I’m 100 percent.

              “Q.    Okay. No doubt in your mind.

              “A.    No doubt.

              “Q.    How about for Mr. Marquez?

              “A.    One hundred percent.

              “Q.    Okay. No doubt in your mind there, either?

              “A.    No doubt.”
        Billingsley testified she also knew someone named “Psycho Mike,” but that
person was not involved in the assault.
Basil’s identification and trial testimony
        On January 28, 2014, just a few weeks before the trial, an investigator from the
district attorney’s office met with Basil, and showed photographic lineups, which
included defendants’ pictures. Basil was lucid and responsive to questions. Within five
seconds of looking at the separate lineups, Basil identified Williams and Marquez as the
men who beat him. Basil said he was 100 percent sure of his identifications.
        At trial, Basil identified both defendants as the men who attacked him. However,
he could not remember the details about the attack. Basil recalled that he looked at a
photographic lineup and identified two people, but he could not remember his prior
statements to investigators. Basil testified he did not have any problems speaking or with
his memory prior to the attack.
Defense evidence
        Williams did not introduce any defense evidence.
        Marquez called Bakersfield Police Officer Berumen, who testified he responded to
the apartment and spoke to Billingsley at the scene. Billingsley was hysterical. She said
that someone named “Psycho” attacked her and used a wooden chair or table leg to attack
them.


                                             7
       Officer Berumen testified he later spoke to Billingsley at the hospital, where she
was calmer. Billingsley said she went to the motel with Basil and confronted “David”
because he owed her money. David became angry and called out to Psycho. Billingsley
said they left the motel and returned to their apartment. As they were about to go into
their apartment, David and Psycho approached from different directions, and Psycho hit
her on the head with the wooden object. The two men punched Basil, and Psycho hit
Basil twice in the head with the wooden object. Billingsley said she had never before
seen Psycho. Billingsley never mentioned Suspect. Billingsley never said they went into
Marquez’s motel room, or that she saw Psycho in the motel room before the assault.
       Officer Berumen testified he returned to the apartment building and found a chair
in the parking lot which had been broken into pieces. However, the legs appeared to be
intact, and he did not find the chair leg described by Billingsley.
The charges, verdicts, and sentences
       Both defendants were initially charged with count I, attempted murder of Basil,
and that the offense was willful, deliberate and premeditated. (§§ 664/187, subd. (a),
§ 189); and counts II and III, assault with a deadly weapon (§ 245, subd. (a)(1)), a
wooden chair leg, on Basil and Billingsley; with enhancements for infliction of great
bodily injury (§ 12022.7, subd. (a)), and great bodily injury which resulted in brain injury
or permanent paralysis (§ 12022.7, subd. (b)); personal use of a deadly or dangerous
weapon, a wooden chair leg (§ 12022, subd. (b)(1)), and personal infliction of great
bodily injury (§ 12022.7, subd. (a)), with multiple prior conviction allegations.
       During defendants’ joint jury trial, the court granted the People’s motion as to
Marquez, to dismiss count I, attempted murder of Basil, and count III, assault with a
deadly weapon on Billingsley.
       As to Williams, the court granted the People’s motion to dismiss the personal use
enhancements alleged as to counts II and III, assault with a deadly weapon on Basil and
Billingsley.

                                              8
       Marquez was convicted of count II, assault with a deadly weapon on Basil, with
the section 12022.7, subdivision (b) allegation found true, that the victim suffered great
bodily injury including brain injury or permanent paralysis.
       Williams was found not guilty of count I, the attempted murder of Basil, but guilty
of the lesser included offense of attempted voluntary manslaughter (§§ 664/192, subd.
(a)). Williams was convicted of counts II and III, assault with a deadly weapon on Basil
and Billingsley, with the section 12022.7, subdivision (b) great bodily injury
enhancement found true as to Basil, and the section 12022.7, subdivision (a) great bodily
injury enhancement found true as to Billingsley.
       The court found the prior conviction allegations true for both defendants.
Marquez was sentenced to five years. Williams was sentenced to the second strike term
of 23 years.4
                                      DISCUSSION
I.     Substantial Evidence to Support Marquez’s Conviction
       In count II, Marquez was tried and convicted of assault with a deadly weapon (the
wooden chair leg) on Basil, based on the theory that he aided and abetted Williams. On
appeal, Marquez does not contest that Williams’s attack upon Basil was an assault with a
deadly weapon. Instead, Marquez argues there is insufficient evidence to support his
conviction as an aider and abettor. Marquez contends there is no evidence he saw
Williams pick up the chair leg, that he knew Williams was going to beat Basil with the
chair leg, or that he even encouraged or spoke to Williams. Marquez notes that he and
Williams reached the second floor on different staircases, the chair leg was likely not
present when defendants punched Basil with their fists, and there is no evidence he knew
Williams was going to retrieve the chair leg and start beating Basil. Marquez asserts it

       4 The People state that Williams’s abstract of judgment must be corrected so that
that box No. 4 is checked to indicate he was sentenced pursuant to the Three Strikes law.
We order the correction.


                                             9
was “uncontested” at trial that he was “not present” when Williams hit Basil in the head
with the chair leg. As we will explain, the record refutes this claim.
        A. Substantial Evidence
        “In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th
297, 331.)
        “Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342,
403.)
        “The standard of appellate review is the same in cases in which the People rely
primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also be reasonably
reconciled with a contrary finding does not warrant a reversal of the judgment.” ’
[Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the
crime and to prove [her] guilt beyond a reasonable doubt.’ ” (People v. Bean (1988) 46
Cal.3d 919, 932933; People v. Stanley (1995) 10 Cal.4th 764, 792793.)

                                              10
       B. Aiding and Abetting
       “Under California law, a person who aids and abets the commission of a crime is a
‘principal’ in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)”
(People v. Prettyman (1996) 14 Cal.4th 248, 259.) “[A]n aider and abettor is a person
who, ‘acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the
intent or purpose of committing, encouraging, or facilitating the commission of the
offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of
the crime.’ ” (Ibid.; People v. Jurado (2006) 38 Cal.4th 72, 136.)
       “Thus, proof of aider and abettor liability requires proof in three distinct areas:
(a) the direct perpetrator’s actus reus—a crime committed by the direct perpetrator,
(b) the aider and abettor’s mens rea—knowledge of the direct perpetrator’s unlawful
intent and an intent to assist in achieving those unlawful ends, and (c) the aider and
abettor’s actus reus—conduct by the aider and abettor that in fact assists the achievement
of the crime.” (People v. Perez (2005) 35 Cal.4th 1219, 1225; People v. McCoy (2001)
25 Cal.4th 1111, 11161117 (McCoy).)
       “ ‘Mere presence at the scene of a crime is not sufficient to constitute aiding and
abetting, nor is the failure to take action to prevent a crime, although these are factors the
jury may consider in assessing a defendant’s criminal responsibility. [Citation.]
Likewise, knowledge of another’s criminal purpose is not sufficient for aiding and
abetting; the defendant must also share that purpose or intend to commit, encourage, or
facilitate the commission of the crime. [Citation.] However,... “[t]he requirement that
the jury determine the intent with which a person tried as an aider and abettor has acted is
not designed to ensure that his conduct constitutes the offense with which he is charged.
His liability is vicarious. Like the conspirator whose liability is predicated on acts other
than and short of those constituting the elements of the charged offense, if the acts are
undertaken with the intent that the actual perpetrator’s purpose be facilitated thereby, he



                                              11
is a principal and liable for the commission of the offense.” ’ [Citation.]” (People v.
Garcia (2008) 168 Cal.App.4th 261, 272273.)
       C. Analysis
       There is substantial evidence to support Marquez’s conviction as an aider and
abettor of Williams’s assault upon Basil. First, Marquez instigated the attack when he
followed the victims across the street to their apartment building after they asked him to
repay the debt, and he presumably refused. Second, he stopped in the middle of Union
Avenue and shouted for someone to get Williams out of room No. 34, demonstrating his
intent to escalate the situation and have Williams participate in whatever confrontation he
planned. Marquez continued to follow the victims, and Williams ran after him. Third,
Marquez and Williams confronted the victims as they stood against the apartment
building’s fence. Marquez pulled his knife, but for some reason, he returned the knife to
his pocket when Billingsley asked him to stop.
       The victims headed to their apartment, and the incident appeared to be over.
Instead of returning to their motel, however, Williams picked up the broken chair leg in
the parking lot, and Marquez was in the parking lot when he did so. There is very strong
circumstantial evidence that Marquez and Williams coordinated what followed. When
the victims tried to retreat into their second floor residence, defendants used two different
staircases to reach the second floor to pursue the victims. Billingsley testified defendant
“closed in” on them from opposite sides of the second floor balcony, and “doubled
teamed” Basil as they both punched him in the midsection.
       On appeal, Marquez asserts the evidence was “uncontested” at trial that he was not
present when Williams hit Basil in the head with the chair leg. The record refutes this
assertion. As we have recounted in the factual statement, Basil fell down after both
defendants punched him with their fists. As Basil tried to get up, Williams raised the
chair leg and hit Basil in the head. Billingsley testified Marquez was “[j]ust standing
there,” and she assumed he was watching as Williams hit Basil in the head. Billingsley

                                             12
tried to get between Williams and Basil, but Williams hit her in the head and knocked her
down, and then continued to hit Basil in the head until he stopped moving.
       Billingsley testified she did not see Marquez after she was hit in the head, and as
Williams delivered additional blows to Basil’s head. However, the entirety of the record
demonstrates that Marquez was present, and aided and abetted Williams’s brutal attack
on Basil.
II.    The Aiding and Abetting Instructions
       Marquez contends the court’s instructions on aiding and abetting were defective.
Marquez concedes he did not object to these instructions but asserts his claim is not
waived because the alleged instructional error affected his substantial rights and violated
his federal and state constitutional rights to due process. We thus turn to the merits of
Marquez’s contentions. (See, e.g., People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 432 (Bryant); People v. Johnson (2016) 62 Cal.4th 600, 641 (Johnson).)5
       A. CALCRIM No. 400
       As explained in issue I, ante, Marquez was tried and convicted as an aider and
abettor for count II, Williams’s assault with the chair leg on Basil. Marquez argues that
CALCRIM No. 400, defining aiding and abetting, failed to advise the jury that an aider
and abettor could be guilty of a lesser crime than the perpetrator.
       The jury in this case received the following version of CALCRIM No. 400:

              “A person may be guilty of a crime in two ways: One, he or she
       may have directly committed the crime. I will call that person the
       perpetrator. Two, he or she may have aided and abetted a perpetrator, who
       directly committed the crime.

             “A person is guilty of a crime whether he or she committed it
       personally or aided and abetted the perpetrator.” (Italics added.)

       5 In the alternative, Marquez argues defense counsel’s failure to object to the
instructions constituted prejudicial ineffective assistance. We need not reach this
argument since we will address the merits of his instructional claim.


                                             13
       A previous version of CALCRIM No. 400, which was not given in this case,
contained the following version of the second paragraph: “ ‘A person is equally guilty of
the crime whether he or she committed it personally or aided and abetted the perpetrator
who committed it ….’ ” (See People v. Loza (2012) 207 Cal.App.4th 332, 348, italics
added, fn. omitted.)
       A series of cases concluded the “equally guilty” phrase was generally correct but
could be misleading in certain situations. (See, e.g., People v. Lopez (2011) 198
Cal.App.4th 1106, 1118, disapproved on other grounds in People v. Banks (2015) 61
Cal.4th 788, 809, fn. 8; People v. Samaniego (2009) 172 Cal.App.4th 1148, 11641165
(Samaniego); People v. Nero (2010) 181 Cal.App.4th 504, 510, 517518 (Nero)
[rejecting similar “equally guilty” language in CALJIC No. 3.00]).) As a result,
CALCRIM No. 400 was revised to eliminate the “ ‘equally guilty’ ” phrase. (People v.
Loza, supra, 207 Cal.App.4th at p. 348, fn. 8.)
       Marquez asserts the revised instruction still fails to convey to the jury that he
could have been guilty of a lesser crime than the perpetrator of the offense. In making
this argument, Marquez relies on the cases which disapproved of the “equally guilty”
phrase in the previous version of CALCRIM No. 400. We thus turn to those cases.
       In McCoy, supra, 25 Cal.4th 1111, the court rejected the notion that an aider and
abettor cannot be found guilty of a greater offense than that committed by the perpetrator.
McCoy observed that aider and abettor liability for a killing is based on the combined acts
of all the principals and the aider and abettor’s own mental state, which “ ‘ “float[s]
free” ’ ” from the mental state of the perpetrator. (Id. at p. 1119.) When the aider and
abettor’s mental state is more culpable than that of the actual perpetrator, the aider and
abettor may be guilty of a more serious crime. (Id. at p. 1120.)
       Samaniego and Nero held that McCoy supported the further proposition that an
aider and abettor’s criminal liability may be less than that of the perpetrator, depending
on the aider and abettor’s mental state. Samaniego held that the reference in CALCRIM

                                             14
former No. 400, to principals being “ ‘equally guilty’ ” of a crime, was a generally
correct statement of the law. Samaniego concluded the instruction was misleading in
light of the unique facts of that case, where three defendants were convicted of two
counts of first degree murder, but the evidence did not establish which of the three
defendants was the actual perpetrator. (Samaniego, supra, 172 Cal.App.4th at pp. 1162,
1165.) However, Samaniego concluded the instructional error was harmless based on the
entirety of the instructions, including CALCRIM No. 401:

       “… CALCRIM No. 401 … stated that to prove guilt as an aider and abettor
       the prosecution was required to prove ‘1. The perpetrator committed the
       crime; 2. The defendant knew that the perpetrator intended to commit the
       crime; 3. Before or during the commission of the crime, the defendant
       intended to aid and abet the perpetrator in committing the crime; AND 4.
       The defendant’s words or conduct did in fact aid and abet the perpetrator’s
       commission of the crime.’ [¶] It would be virtually impossible for a person
       to know of another’s intent to murder and decide to aid in accomplishing
       the crime without at least a brief period of deliberation and premeditation,
       which is all that is required.” (Samaniego, supra, 172 Cal.App.4th at
       p. 1166, italics added.)
       Nero held that CALJIC former No. 3.00, which contained the “equally guilty”
phrase similar to CALCRIM former No. 400, could be misleading even in unexceptional
cases. Nero concluded the error was not harmless under the circumstances and
recommended modification of the instruction. (Nero, supra, 181 Cal.App.4th at
pp. 518519.)
       In Bryant, supra, 60 Cal.4th 335, the California Supreme Court held that former
CALJIC No. 3.00 generally stated a correct rule of law, even though it contained the
“ ‘equally guilty’ ” phrase. (Id. at p. 433.) Bryant noted that “[a]ll principals, including
aiders and abettors, are ‘equally guilty’ in the sense that they are all criminally liable.”
(Ibid.) Bryant also recognized, however, that the instruction could be misleading where
principals might be guilty of different crimes, and the jury believes the instruction
prevents such a verdict. (Ibid.)


                                              15
       In Johnson, supra, 62 Cal.4th 400, the California Supreme Court addressed the
impact of the “equally guilty” phrase in CALCRIM former No. 400. Johnson held there
was no reasonable likelihood that the jury in that case would have understood that the
phrase “allow[ed] them to base defendant’s liability for first degree murder on the mental
state of the actual shooter, rather than on defendant’s own mental state in aiding and
abetting the killing.” (Id. at p. 641.)
       Johnson reached this conclusion because the jury also received CALCRIM
No. 401, “which sets out the requirements for establishing aider and abettor liability. The
jury therefore was informed that for them to find defendant guilty of murder as an aider
and abettor the prosecution must prove that defendant knew [the perpetrator] intended to
kill [the victim], that he intended to aid and abet [the perpetrator] in committing the
killing, and that he did in fact aid him in that killing, which would have cleared up any
ambiguity arguably presented by CALCRIM former No. 400’s reference to principals
being ‘equally guilty.’ This is not a case like [] Nero, supra, 181 Cal.App.4th 504, in
which the jury expressly asked during deliberations whether it could find the aider and
abettor codefendant guilty of a higher or lesser degree of murder than the codefendant
who was the actual killer, and the court responded by merely rereading CALJIC former
No. 3.00, which included the ‘equally guilty’ language.” (Johnson, supra, at p. 641.)
       B. Analysis
       Marquez argues that even though the jury in this case received the modified
version of CALRIM No. 400, which omitted the “equally guilty” phrase, the instruction
still did “nothing to alleviate the fact that, as instructed, the jury must convict an aider
and abettor of the same level of offense as that of the actual perpetrator.”
       As in Johnson, this assertion is undermined by the fact that the jury herein
received CALCRIM No. 401, which stated in relevant part:

              “To prove that the defendant is guilty of a crime based on aiding and
       abetting that crime, the People must prove that: One, the perpetrator


                                              16
       committed the crime; 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.

              “Someone aids and abets a crime if he or she knows of the
       perpetrator’s unlawful purpose and he or she specifically intends to, and
       does, in fact, aid, facilitate, promote, encourage, or instigate the
       perpetrator’s commission of that crime.

              “If all of these requirements are proved, the defendant does not need
       to actually have been present when the crime was committed to be guilty as
       an aider and abettor .…” (Italics added.)
       The instructions in this case did not contain the objectionable language addressed
in Samaniego and Nero, it did not otherwise imply that an aider and abettor must be
guilty of the same crime as the perpetrator, and there is no evidence the jury was
confused by the instructions. (Cf. Nero, supra, 181 Cal.App.4th at p. 518; People v.
Woods (1992) 8 Cal.App.4th 1570, 1590.) Instead, the instructions here required the jury
to assess Marquez’s culpability separately, including whether he had the mental state
necessary for aiding and abetting. As in Johnson, we conclude that even accepting
Marquez’s assertion that the revised version of CALCRIM No. 400 was still misleading,
there is no reasonable likelihood the jurors did not understand that they had to base
Marquez’s liability on his own mental state and not the mental state of Williams.
III.   Williams’s Wende Letter
       As explained in the introduction, Williams’s appellate counsel filed a Wende brief.
By letter on December 12, 2014, we invited Williams to submit additional briefing, and
he has filed a letter brief.
       Williams contends his trial counsel was prejudicially ineffective for failing to
pursue various motions to exclude the trial testimony of Billingsley and Basil. Williams
argues Billingsley lacked personal knowledge about the identity of the second suspect.
Williams asserts Billingsley’s trial testimony about the suspect’s street name was based


                                             17
on inadmissible hearsay resulting from her conversation with Hubbard, about whether
that person was known as Psycho or Suspect. Williams separately argues that counsel
should have moved to exclude Basil’s trial testimony because he lacked personal
knowledge or any memory about what happened.
       “In order to demonstrate ineffective assistance, a defendant must first show
counsel’s performance was deficient because the representation fell below an objective
standard of reasonableness under prevailing professional norms. [Citation.] Second, he
must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is
shown when there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (People v. Williams
(1997) 16 Cal.4th 153, 214215.)
       We note that both defense attorneys sought to exclude certain aspects of the
proposed trial testimony from Billingsley and Basil. At trial, Billingsley admitted she
used drugs, but claimed not to have used narcotics on the day of the assault and at the
time of trial. Billingsley also admitted she believed the second suspect’s street name was
Psycho, and later realized his street name was Suspect based on her conversation with
Hubbard. The jury was well aware of Billingsley’s conversation with Hubbard about the
second suspect’s street name, and defense counsel sought to impeach her credibility on
this point. As for Basil, his treating physician offered extensive testimony about the
extent of his traumatic brain injury, and Basil conceded he could not remember exactly
what happened during the attack.
       Nevertheless, Billingsley repeatedly testified that the two men who attacked them
were Marquez and Williams; Williams used the wooden chair leg; and she was only
mistaken about Williams’s street name and not his identification.

            “Q. … But you’re confident that no matter what the name, that
       Mr. Williams here is the person that you’ve been talking about?


                                            18
               “A.   Yes.

               “Q.   Okay. How sure are you?

               “A.   I’m 100 percent.

               “Q.   Okay. No doubt in your mind.

               “A.   No doubt.

               “Q.   How about for Mr. Marquez?

               “A.   One hundred percent.

               “Q.   Okay. No doubt in your mind there, either?

               “A.   No doubt.”
       We thus conclude that to the extent defense counsel was arguably ineffective, his
failure to obtain the exclusion of certain aspects of the victims’ trial testimony was not
prejudicial.
                                      DISPOSITION
       Williams’s abstract of judgment is corrected so that that box No. 4 is checked to
indicate he was sentenced pursuant to the Three Strikes law. In all other respects, the
judgment is affirmed.

                                                         _______________________
                                                         POOCHIGIAN, J.
WE CONCUR:


_______________________
GOMES, Acting P.J.


_______________________
DETJEN, J.




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