Filed 7/15/15 P. v. Adams CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

                                            SECOND APPELLATE DISTRICT

                                                         DIVISION FOUR



THE PEOPLE,                                                                   B252187

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. TA103351)
          v.
                                                                              ORDER MODIFYING OPINION
LEO LLOYD ADAMS,                                                              AND DENYING PETITION FOR
                                                                              REHEARING
          Defendant and Appellant.
                                                                              [NO CHANGE IN JUDGMENT]



THE COURT*
          It is ordered that the opinion filed June 26, 2015, be modified as follows:
          1. The following paragraph is inserted in place of the last sentence in the first
paragraph on page 2:
          “In supplemental briefing, appellant argues the court erred in failing to instruct the
jury that the doctrine of natural and probable consequences cannot be used to support first
degree murder and the error was prejudicial because there was no evidence of intent to
kill, premeditation and deliberation. He also argues the use of the doctrine to support the
first degree attempted murder charges violated his right to due process because it allowed
the jury to convict him without proof of express malice, premeditation and deliberation.
We find no prejudicial error and affirm.”
          2. A section III is inserted after section II and before the DISPOSITION,
consisting of the following text:
                                                “III
          Appellant challenges the application of the doctrine of natural and probable
consequences to the murder and attempted murder charges in his case.
   A. First Degree Murder
          The jury was instructed that it could find appellant guilty of murder on two
theories: as aider and abettor of murder and as aider and abettor to assault with a firearm
where murder was a natural and probable consequence of the target crime. Appellant
argues the second instruction was erroneous because, under People v. Chiu (2014) 59
Cal.4th 155, 167, “a defendant cannot be convicted of first degree premeditated murder
under the natural and probable consequences doctrine. . . .” Respondent does not dispute
Chiu’s retroactive application, and concedes it was error to instruct the jury on the
doctrine in relation to the murder charges.
          The parties disagree whether the instructional error was harmless. “When a trial
court instructs a jury on two theories of guilt, one of which was legally correct and one
legally incorrect, reversal is required unless there is a basis in the record to find that the
verdict was based on a valid ground. [Citations.]” (Chiu, supra, 59 Cal.4th at p. 167.) In
Chiu, the jury complained about a holdout juror who appeared to prevent a unanimous
verdict on first degree premeditated murder based on the doctrine of natural and probable
consequences; the jury reached a verdict after the holdout juror was replaced. (Id. at
p. 168.) On that record, the court could not conclude beyond a reasonable doubt that the
jury based its verdict on the theory that defendant directly aided and abetted the murder.
(Ibid.)
          Here, there is no indication that the jury based its verdict on the natural and
probable consequences doctrine; to the contrary, another instruction and the prosecutor’s
closing argument directed the jury to find appellant aided and abetted murder with the
intent to kill. The jury was instructed with CALCRIM 702 that the special circumstance
allegation of multiple murder (Pen. Code, § 190.2, subd. (a)(3)) required the prosecution

                                                 2
to prove beyond a reasonable doubt that appellant acted with “the intent to kill.” In
closing argument, the prosecutor focused on the fact that appellant brought a “loaded and
already cocked” assault rifle “ready to be fired” in what he knew was “a gang fight.” She
argued this fact showed appellant directly aided and abetted the murders and had the
specific intent to kill. Although the prosecutor addressed the natural and probable
consequences doctrine, she strongly suggested that bringing a loaded gun was
inconsistent with lack of knowledge that the gun would be used to kill.
       The jury found the multiple murder allegation to be true, which means that, as
instructed, it must have found appellant acted with intent to kill. (People v. Murtishaw
(1989) 48 Cal.3d 1001, 1044 [jurors are presumed to follow court instructions].) Because
aider and abettor liability under the natural and probable consequences doctrine does not
require an intent to kill (Chiu, supra, 59 Cal.4th at p. 165), the jury’s finding of such an
intent shows it did not rely on the natural and probable consequences doctrine to find
appellant guilty of murder.
       Appellant argues the instructional error was prejudicial because the evidence does
not support a finding that he acted with premeditation and deliberation or intended to aid
and abet premeditated murder because he did not know what Brim would do with the
rifle. Factors such as planning, motive, and the manner of killing are relevant to the
inference that a murder was a result of ‘“preexisting reflection and weighing of
considerations rather than mere unconsidered or rash impulse.’ [Citation.]” (People v.
Cole (2004) 33 Cal.4th 1158, 1224.)
       That appellant brought a loaded rifle, engaged and ready to fire, which Brim
immediately fired at an unarmed rival gang member as a result of an ongoing gang war,
shows appellant had given advance consideration to the possibility the rifle would be
used to commit murder and had planned accordingly with a gang-related motive in mind.
(See, e.g., People v. Lee (2011) 51 Cal.4th 620, 636 [bringing loaded gun shows
consideration of possibility of violence]; People v. Miranda (1987) 44 Cal.3d 57, 87,
disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4


                                              3
[bringing loaded gun to kill unarmed victim reasonably suggests advance consideration
of murder].)
       Appellant’s professed lack of knowledge of Brim’s intentions is belied by the
record, which shows Brim and appellant showed up at the scene within minutes of each
other after Roberson called for reinforcement; they appeared to be acting in concert, with
Brim purposefully retrieving from appellant’s car the loaded rifle appellant had brought
and immediately firing it; and they fled the scene after the shooting. (See People v.
Campbell (1994) 25 Cal.App.4th 402, 409 [presence at crime scene, companionship, and
conduct before and after crime, including flight from scene, relevant to shared common
purpose].)
       Under the circumstances, the instructional error was harmless beyond a reasonable
doubt. (People v. Vega-Robles (2015) 236 Cal.App.4th 554, 578–579.)
   B. First Degree Attempted Murder
       Appellant contends that the instruction on the natural and probable consequences
doctrine permitted the jury to convict him of first degree attempted murder based on its
reasonable foreseeability and without proof of intent to kill or premeditation and
deliberation. His contentions are admittedly contrary to the holdings in People v. Favor
(2012) 54 Cal.4th 868 and People v. Medina (2009) 46 Cal.4th 913, which the California
Supreme Court left undisturbed in Chiu, supra, 59 Cal.4th 155, 161–163. As appellant
recognizes, we must reject these contentions under principles of stare decisis. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)”
       The petition for rehearing is denied. There is no change in judgment.




______________________________________________________________________________
*EPSTEIN, P. J.               WILLHITE, J.                  MANELLA, J.



                                             4
Filed 6/26/15 (unmodified version)
                    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

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




THE PEOPLE,                                                                   B252187

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. TA103351)
          v.

LEO LLOYD ADAMS,

          Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles County,
Larry P. Fidler, Judge. Affirmed.
          Stephen Temko, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Scott A. Taryle and Steven E. Mercer, Deputy Attorneys General, for Plaintiff
and Respondent.
                                         ______________________________
       Leo Lloyd Adams appeals from a judgment entered after his jury conviction of
two counts of first degree murder and three counts of attempted murder, as an aider and
abettor, with gang and firearm enhancements. He contends the trial court erred in not
instructing the jury about voluntary manslaughter, based on imperfect defense of another.
He also contends defense counsel was ineffective for not advising him of his right to
testify. We disagree and affirm.


                    FACTUAL AND PROCEDURAL SUMMARY
       In 2008, the Grape Street Crips gang was at war with the East Coast Crips gang.
On September 23, 2008, Debruce Smith, a member of the 89 East Coast Crips, was at the
Compton train station with his girlfriend, Jacqueline Spinks, and his best friend, Terry
Dozier. Two individuals drove up to Smith and told him that there was a “grapester”
behind them and that one of them “got into it with him, but he ain’t nothing.”
       Richard Roberson was a member of the Grape Street Crips. As he walked past
Smith, Smith recognized him as the “grapester” in question. Smith caught up with
Roberson and the two appeared to argue. Roberson then walked past Spinks, talking on
his cell phone. She overheard him mention the name Beezy or Breezy and say, “I got
into it with a coaster.” When Spinks asked Smith what had happened, he, too, answered,
“I got into it with him.” Spinks asked Smith to leave, but he refused, stating, “He wanted
to call his people, I’m going to call mine.” He nevertheless agreed to “walk away,” and
they started walking back.
       When Smith’s cousin, Tinnar Wilson, joined them, Smith was pacing on the
platform. Roberson was standing nearby with two other individuals and was talking on
his cell phone. Smith identified Roberson as a member of an enemy gang and told
Wilson, “This young cat right here is trippin.” As Smith headed off the platform,
Roberson ran after him and made derogatory statements about Smith and his gang.
Wilson offered to “fade,” or fistfight, Roberson. Roberson responded, “When my homies
get here, there ain’t going to be no fading.” Smith was on parole and did not want to
fight, but he again refused to leave the area.

                                                 2
       At some point, a black Tahoe pulled up to the station, and three women and
appellant’s codefendant Ronald Brim got out. Minutes later, appellant, a member of the
118th Street Watts Crips Gang whose nickname was “Beezy,” arrived in a champagne-
colored car. Roberson was overheard saying, “It’s going down,” and telling Brim,
“There goes those niggas there.” Brim reached in through the front passenger window of
appellant’s car and pulled out an automatic rifle. He said, “You bitch ass ain’t going to
do nothing,” cocked the rifle, and fired at least 12 shots. Smith and Dozier were shot as
they were running away and died at the scene. Three bystanders at the crowded station
were wounded.
       The black Tahoe and a gold-colored car were captured by surveillance video at the
train station. Brim was arrested for drunk driving, and an officer identified his Tahoe as
the one involved in the shooting. Spinks and another bystander identified Roberson in a
six-pack photographic lineup. Appellant was arrested in 2010. He owned a gold Pontiac
similar to the champagne-colored car involved in the shooting. Cell phone records
indicated that phones registered to Brim and appellant were used near the train station at
the time of the shooting and travelled away from the area afterwards. A call from a
phone registered to Brim was placed to appellant’s phone immediately before the
shooting.
       Appellant, Roberson, and Brim were charged in a consolidated information with
two counts of first degree murder (Pen. Code, § 187, subd. (a)) and three counts of
willful, deliberate and premeditated attempted murder (Id., §§ 664, 187, subd. (a)), with
gang, multiple murder, and firearm enhancement allegations (Id., §§ 186.22, subd.
(b)(1)(C), 190.2, subd. (a)(3), 12022.53, subd. (d)).1 Appellant’s defense at trial was that
on September 23, 2008, he had been at work between 7:00 a.m. and 7:00 p.m. and could
not have been at the Compton train station at about 6:30 p.m. when the shooting
occurred.

       1
        In a separate count, Brim was charged with possession of a firearm by a felon.
He and appellant were tried before the same jury. Brim received the death penalty.
Roberson, who was a minor at the time of the shooting, was tried separately.
                                             3
       The jury convicted appellant as charged, found the murders to be in the first
degree, the attempted murders to be willful, deliberate, and premeditated, and the special
allegations to be true. The trial court denied appellant’s motion for a new trial and
sentenced him to two life sentences without the possibility of parole, three life sentences
with the possibility of parole, and an additional 125 years.
       This appeal followed.


                                      DISCUSSION
                                              I
       Appellant argues that the court erred in not instructing the jury, sua sponte, on
voluntary manslaughter based on imperfect defense of another. His theory is that he
rushed to the scene to aid Roberson, who had called for help.
       Even in the absence of a request, the trial court must instruct on lesser included
offenses whenever there is substantial evidence that the lesser, but not the greater, offense
was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Voluntary
manslaughter based on imperfect self-defense or defense of another is a lesser offense
included in the crime of murder. (People v. Randle (2005) 35 Cal.4th 987, 997, overruled
on a different ground in People v. Chun (2009) 45 Cal.4th 1172, 1201; People v. Barton
(1995) 12 Cal.4th 186, 201.) We independently review whether the trial court
erroneously failed to instruct on a lesser included offense. (People v. Avila (2009) 46
Cal.4th 680, 705.)
       Initially, we disagree with respondent’s suggestion that an aider and abettor is not
entitled to rely on imperfect self-defense or defense of another. As respondent
recognizes, in the aider and abettor context, the mens rea of each participant in a crime
“‘“float[s] free”’” and is independent of that of any other participant. (People v. McCoy
(2001) 25 Cal.4th 1111, 1119.) Thus, an aider and abettor may be guilty of a greater or
lesser homicide-related offense than the perpetrator. (Id. at p. 1122; People v. Nero
(2010) 181 Cal.App.4th 504, 507.) It follows that an aider and abettor may rely on the
doctrine of imperfect self-defense or defense of another to mitigate the mens rea by

                                             4
negating the malice element of murder. (See People v. Randle, supra, 35 Cal.4th at
pp. 994–995.)
       The doctrine of imperfect defense of another requires that the defendant must have
had “an actual but unreasonable belief he must defend another from imminent danger of
death or great bodily injury.” (People v. Randle, supra, 35 Cal.4th at p. 997.) For an
instruction based on this doctrine, there must be substantial evidence from which the jury
could find the defendant actually had the requisite belief. (Cf. People v. Oropeza (2007)
151 Cal.App.4th 73, 82 [imperfect self-defense].) When a defendant does not testify or
make out-of-court statements, substantial evidence of his or her state of mind may be
found in the testimony of other witnesses. (Ibid.)
       Here, no witness testified appellant rushed to help Roberson because he actually
believed him to be in imminent danger of death or great bodily injury. There was no
evidence that the confrontation between Roberson and Smith was escalating to a fight at
the time Roberson made the phone call. Nor is there evidence Smith or anyone else was
armed and threatening Roberson. To the contrary, Wilson testified that Smith did not
want to fight. There is no evidence that when Roberson said he “got into it” with Smith,
he meant that he and Smith had gotten into a physical altercation or that he needed help
because he was in danger. Spinks repeatedly used the phrase “got into it” to mean
“argue.”
       The evidence indicates Roberson sought to escalate what was essentially a verbal
confrontation to gun warfare. That is how Wilson understood Roberson’s statement that
when his “homies” got to the station, there would be no fist fighting. Smith’s statement
that Roberson was “trippin,” and the fact that Smith, too, considered calling his “homies”
also indicate Roberson was overreacting and attempting to escalate the conflict rather
than asking for help because he was in immediate danger. Notably, there is no evidence
that Smith actually called for reinforcements or that Roberson sought help because he
feared an escalation of the conflict by Smith.
       Since there is no direct evidence of appellant’s state of mind and the
circumstantial evidence indicates Roberson did not seek help because he was in

                                             5
immediate danger of death or great bodily injury, it would be speculative to conclude that
appellant was under an actual belief that he needed to bring an assault weapon to the train
station in order to defend Roberson from such danger. The trial court was not required to
present a speculative theory the jury could not reasonably find to exist. (People v.
Oropeza, supra, 151 Cal.App.4th at p. 78.) No instructional error occurred.
                                              II
       Appellant complains of ineffective assistance of counsel because trial counsel did
not advise him of his right to testify and did not seek clarification whether appellant’s
prior conviction of possession of an assault weapon could be used for impeachment. The
decision whether to testify “is made by the defendant after consultation with counsel.
[Citations.]” (People v. Carter (2005) 36 Cal.4th 1114, 1198.) To establish a denial of
the right to effective assistance of counsel, a defendant must show that his or her
counsel’s performance was deficient and that there was a reasonable probability of a
more favorable result but for the deficiency. (Strickland v. Washington (1984) 466 U.S.
668, 687, 691–694; People v. Frye (1998) 18 Cal.4th 894, 979.)
       Appellant raised the claim of ineffective assistance of counsel in his motion for a
new trial. In a declaration supporting the motion, appellant stated he wanted to testify but
his trial attorney advised him not to because he would be impeached with his prior
conviction for possessing an assault weapon. According to appellant, counsel did not
advise that the ultimate decision whether to testify was appellant’s. During the hearing
on the motion, counsel testified that, in his long career as a criminal defense attorney, his
usual practice had been to advise his clients of their absolute right to testify; even though
he did not specifically recall having done so in appellant’s case, counsel saw no reason
why he would have deviated from that practice. The trial court found counsel to be
credible and the timing of appellant’s claim to be suspect as it was “hard to believe”
appellant would not have raised the issue earlier if he really wanted to testify.
       Defendant would have us redetermine issues of credibility, but we may not
interfere with the trial court’s reasonable factual determinations at the hearing on the
motion for a new trial, as they are supported by substantial evidence. (People v. Delgado

                                              6
(1993) 5 Cal.4th 312, 329; People v. Rabanales (2008) 168 Cal.App.4th 494, 509.) It
was reasonable for the trial court to infer that, in this case, trial counsel followed his usual
practice of advising his clients of their right to testify. (See People v. Lewis (1999) 74
Cal.App.4th 662, 668 [usual practice testimony supports inference of act in conformity
on particular occasion].) It also was reasonable for the trial court to discredit appellant’s
post-trial claim that his attorney prevented him from testifying. “When the record fails to
disclose a timely and adequate demand to testify, ‘a defendant may not await the outcome
of the trial and then seek reversal based on his claim that despite expressing to counsel
his desire to testify, he was deprived of that opportunity.’ [Citations.]” (People v. Alcala
(1992) 4 Cal.4th 742, 805–806.)
       Contrary to appellant’s representation on appeal, counsel recalled advising
appellant before trial of his right to a hearing on whether his possession of assault
weapon conviction could be used to impeach him. By the time the defense presented its
case, there was clear authority that possession of an assault weapon was a crime of moral
turpitude that could be used for impeachment. (People v. Gabriel (2012) 206
Cal.App.4th 450, 457–458.)
       The trial court’s conclusion that counsel’s performance was not deficient is
supported by substantial evidence, as is its conclusion that appellant’s testimony would
not have made a more favorable result reasonably probable. Appellant was able to
present his alibi defense through his co-workers and employment records, and his
testimony that he was at work at the time of the shooting would have been cumulative.
Appellant’s claim that he could have convinced the jury he loaned his phone out is
suspect since it would have been impeached with his prior inconsistent statement to the
investigating officer. We find no ineffective assistance of counsel under the
circumstances.




                                               7
                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          EPSTEIN, P. J.
We concur:



     WILLHITE, J.



     MANELLA, J.




                                      8
