Filed 9/27/18
                CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION TWO


THE PEOPLE,                               B281816

       Plaintiff and Respondent,          (Los Angeles County
                                          Super. Ct. No. GA085329)
       v.

STEVEN EDWARD FLEMING,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of
Los Angeles County. Michael D. Carter, Judge. Reversed.
      Eric S. Multhaup, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.
               _________________________________
       Steven Edward Fleming appeals the judgment entered
following a jury trial in which he was convicted of one count of
second degree murder.1 (Pen. Code,2 §§ 187, subd. (a), 189.) The
jury found true firearm enhancement allegations pursuant to
section 12022.53, subdivisions (b) through (e)(1), and a gang
enhancement allegation pursuant to section 186.22, subdivision
(b)(1)(C). The trial court denied probation and sentenced
appellant to state prison for an aggregate term of 40 years to life.
       Appellant contends the trial court’s erroneous response to a
jury question during deliberations allowed the jury to convict
appellant of murder for conduct that, as a matter of law,
constituted no more than accessory after the fact. We conclude
that the trial court’s response to the jury’s inquiry misdirected
the jury on the law and thus constituted an abuse of discretion.
The erroneous instruction was prejudicial, and we therefore
reverse.3




      1 Appellant’s first trial on a charge of first degree murder
and firearm and gang enhancement allegations resulted in a
mistrial after the jury acquitted appellant of first degree and
deadlocked as to second degree murder.
      Codefendant Scott Lewis King was also charged in count 1
with first degree murder. Appellant’s and King’s cases were
severed for trial, and King has separately appealed his conviction
in case No. B288298.
      2   Undesignated statutory references are to the Penal Code.
      3 Because the trial court’s error requires reversal of the
conviction, we do not reach appellant’s remaining contentions.




                                  2
                 FACTUAL BACKGROUND
       1.    Marvin Laguan’s murder
       On August 22, 2011, around 9:00 p.m. Cynthia drove to
Mar Vista Avenue in Pasadena to pick up her boyfriend, Marvin
Laguan, at his friends’ house. With her three-year-old son in the
backseat, Cynthia remained in the car as Laguan came out of the
house and spoke with her at the driver’s side window. Laguan
told Cynthia he was going to go back inside to say goodbye to his
friends. At this point, Cynthia noticed an African-American male
wearing a black sweatshirt with the hood over his head walking
by and looking in Laguan’s direction.
       Laguan went over to the person who had stopped about 15
feet away and challenged him, saying, “What are you staring at?”
“Where are you from?” The man responded he was “PDL” and
opened fire on Laguan. Cynthia heard “a lot” of gunshots, and
one shot hit the left end of her car. The shooter then ran down
the street toward Maple Avenue.
       After the shooting Cynthia identified Scott King from a
photographic lineup as the shooter, and described the gun he
used as a revolver. She did not see appellant on the night of the
shooting, nor did she see anyone else walking by her car,
standing on the street nearby, or running with King.
       That night around 10:00 p.m., Oliver and Nicole were
sitting on the front porch of their house on Mar Vista Avenue
when they heard gunshots nearby. They saw two African-
American men running past their house heading south on Mar
Vista Avenue. One was running slightly ahead of the other. By
the time they reached the corner, they were running together.
Both men turned right and continued running on Maple Avenue.




                                3
       Laguan suffered 10 gunshot wounds to his body, two of
which were fatal. Five projectiles, consistent with the .22 long
rifle caliber ammunition used in 10-round revolvers, were
recovered from Laguan’s body.
       2.     Appellant secures a ride home
       After the shooting appellant called his mother Alanda, and
asked her to pick him up at the home of his close friend, Brandi
Rigdell, on Wilson Avenue in Pasadena. Alanda arrived to find
Brandi’s street blocked off by police vehicles.4 A police officer told
Alanda there had been a shooting, and her son would have to
come out and meet her on the corner. Alanda called Brandi and
told her to have appellant meet Alanda at her car.
       Appellant came out of Brandi’s apartment with King and
appellant’s best friend, Maurice Scudder. They crossed the street
and all three got into Alanda’s car, which was parked on Villa
Street. Alanda dropped King off and drove appellant and
Scudder back to her house. Both appellant and Scudder were
quiet, but neither appeared to be nervous.
       3.     Appellant’s trial testimony and statements to police5
       Appellant was 18 years old in August 2011, and 12 years
old when he and King were jumped into the Pasadena Denver
Lanes (“PDL”) gang by fighting each other. Appellant got his


      4 Brandi’s apartment was on Wilson Avenue between
Maple Avenue and Villa Street. Marvin Laguan was shot one
block to the east, on Mar Vista Avenue between Maple and Villa.
      5Appellant’s January 18, 2012 recorded interview was
played for the jury. Appellant also testified in both trials, and
the People read his testimony from the first trial to the jury.




                                  4
first gang-related tattoo—“PDL” on his wrist—in January or
February 2011.
       On August 20, 2011, two days before Laguan’s murder,
appellant learned that King’s cousin Wilson Pierre had been
murdered. The “word on the street” was that Pierre had been
killed by a member of a rival Crip gang. Pierre was a member of
a PDL clique, the Project Gangster Bloods. Appellant sent King a
private Facebook message telling him about Pierre’s death. He
also posted to Facebook, “Lanes in peace to the home. Wilson
gone but never forgotten,” and joined the Facebook group “R.I.P.
Wilson Pierre.” King told appellant he was “hurt and upset”
about Pierre’s death, but did not indicate he intended to seek
revenge for the murder. For his part, appellant had only met
Pierre a couple of times, and had no interest in retaliating for his
death.
       On the day of the shooting, appellant, King, and Scudder
walked to La Pintoresca Park to play basketball. While they
were changing their clothes, appellant saw a gun that looked like
a .22 caliber revolver in King’s belongings. It was the first time
appellant had ever seen King with a gun, and he asked King why
he had it. King responded that it was “for his own personal
business.” Appellant told police that King needed a gun for
protection. King was “pretty upset” about Pierre’s death, and
appellant counseled him not to retaliate.
       When they finished playing basketball, the three men went
to Brandi’s apartment where they were joined by Ricky Vaughns.
After a while appellant, King, Scudder, and Vaughns all went to
King’s cousin’s house on Mar Vista Avenue north of Villa Street.
King went inside for 15 to 20 minutes while the others waited
outside. King rejoined the others, and the four men started




                                 5
walking south on Mar Vista Avenue back toward Brandi’s
apartment. When they reached Villa Street, King told appellant
he wanted to talk to him alone, and told Scudder and Vaughns to
leave. Scudder and Vaughns turned west on Villa Street6 while
appellant and King continued walking south on Mar Vista
Avenue. Appellant insisted to police he did not know why King
wanted to go down Mar Vista, but admitted that “[i]t felt like
something was going to happen.”
       As they walked down Mar Vista Avenue, appellant was on
the sidewalk on the west side of the street and King was about
six or seven feet away,7 “in the street sort of.” King seemed
stressed out, and asked appellant for advice on what he should do
about his girlfriend’s pregnancy. At some point, King told
appellant he wanted to bang on the first person he saw,8 which
appellant testified could mean King would be “checking whoever
was in his way” to find out who the person was, or, as appellant
explained to police, meant that King was “going to start some
trouble.” Appellant told police that “trouble” “could mean life or
death or you are going to fight.” But appellant testified that if he



      6 Surveillance video from a market on the corner of Villa
Street and Mar Vista Avenue showed that Scudder and Vaughns
did not leave the area when appellant and King separated from
them.
      7In the second trial appellant testified that he and King
were 15 feet apart as they walked down the street.
      8 Appellant denied this statement by King in the second
trial. When asked about his prior testimony, appellant explained
that he had been “coerced into saying some things.”




                                 6
had thought it was King’s intention to kill someone that night, he
would not have gone with him.
       Appellant saw Laguan standing at the driver’s side of a
white car on the west side of the street. As appellant walked past
the car, Laguan looked at appellant and they acknowledged each
other with a nod of their heads. When appellant reached the
corner, he saw Laguan approach King and say, “What are you
looking at, fool? Where you from?” King responded, “ ‘P.D.L.,’ ”
and reached toward his waistband. Appellant got scared and ran
away. He did not see what happened next, but heard gunshots,
and continued running until he reached Brandi’s apartment.
       King caught up to appellant as he ran, and they reached
Brandi’s apartment about the same time as Scudder. In the first
trial appellant testified that when they reached Brandi’s
apartment King was holding a gun, which appellant recognized
as the same gun he had seen earlier in the day at the park.
Appellant asked King why he had shot Laguan, but King did not
answer and ran to the bathroom. There King emptied the
chamber of the gun into the toilet. King did not have the gun
when he came out of the bathroom, and appellant did not know
what he had done with it. While appellant testified in the second
trial that he never saw the weapon at Brandi’s apartment at all,
he admitted to police that he saw King hide the gun behind the
oven. Before leaving the apartment King changed his clothes and
ordered appellant to do the same. Appellant did so because he
was nervous and afraid.
       Appellant, King, and Scudder left Brandi’s apartment
together and walked to the corner of Wilson Avenue and Villa
Street, where Alanda was parked. All three got into the car, even
though appellant had not offered a ride to King and was




                                7
uncomfortable with King in the car. Appellant asked King if he
still had the gun. King said no, he had put it in a safe place.
       A few weeks later Vaughns called appellant and asked him
to help retrieve the gun from Brandi’s apartment for King.
Appellant testified that Vaughns drove to the apartment, and
appellant stayed in the car while Vaughns went inside. But
appellant told police that he and Vaughns had gone inside the
apartment and retrieved the gun from behind the stove together.
They brought the gun to King. The weapon was intact, and
appeared to be the same gun appellant had seen in King’s
possession on the day of Laguan’s murder.
       Appellant told police that he believed King had shot
Laguan because King was angry and upset about Pierre’s
murder. But he insisted that Laguan’s murder was not planned.
       4.    Scudder’s police interview and testimony from the
             first trial9
       On the night of the shooting, Scudder met up with
appellant, King, and Vaughns at King’s cousin’s house on Mar
Vista Avenue near Villa Street. After leaving the cousin’s house,
they walked down Mar Vista together, but when they reached
Villa Street, appellant told Scudder, “Just go to Brandy’s [sic]
house. We going to come over there. I’ll meet you over there.
We’re about to go do something.” Appellant and King proceeded
down Mar Vista Avenue, leaving Scudder and Vaughns behind on


      9  The trial court found Scudder was unavailable to testify,
and allowed the prosecutor to read Scudder’s testimony from the
first trial to the jury. The recording of Scudder’s January 26,
2012 interview with police was also played to the jury.




                                 8
Villa Street. Hearing what sounded like gunshots four or five
minutes later, Scudder ran to Brandi’s apartment. Appellant and
King arrived at the apartment about three minutes after
Scudder.
       Appellant and King immediately ran to a back room and
closed the door. Scudder went to the room and saw both men
rushing in and out of the bathroom. The gun was in several
pieces, and Scudder guessed it must have been a revolver because
it had been taken apart. Scudder saw King pass the cylinder to
appellant, but did not see anyone take the gun or any of its pieces
out of the room or hide anything in the apartment.
       5.     Gang evidence
       Corporal Carlo Montiglio of the Pasadena Police
Department testified as the prosecution’s gang expert. The PDL
gang began in the late 1970’s. By 2011, with hundreds of active
members, it was the largest criminal street gang in Pasadena.10
       Montiglio testified that PDL is a Blood gang, and its
membership is predominantly African-American. In addition to
the deep rooted rivalry between Crip and Blood gangs in general,
there is a fierce and long-standing rivalry between Pasadena’s
African-American and Hispanic gangs. PDL’s rivals in Pasadena
include the Villa Boys Pasadena Trece gang (“Villa Boys”) and


      10 Montiglio testified about the gang’s primary criminal
activities and described two predicate acts committed by
documented PDL gang members. One was a murder committed
by Dwayne Rice in 2009, and the other was a robbery and
attempted robbery committed by King in 2010. Montiglio opined
that both Rice and King were members of PDL at the time of
their offenses.




                                9
the Varrio Rifa Pasadena gang (“VRP”). In 2011, PDL was
engaged in gang wars with the Villa Boys and VRP. Montiglio
described the boundaries of the territory claimed by PDL, and
testified that the rival Villa Boys gang claimed the area of Mar
Vista Avenue between Villa Street and Maple Avenue as part of
its territory. According to the expert, the mere presence of a gang
member in the territory claimed by a rival gang often results in
violent conflict.
       Montiglio explained that it is extremely important for a
gang to seek revenge for the murder of one of its members. But
retaliation for a gang member’s murder is not limited to killing
the person responsible for the murder or even going after another
member of the responsible gang. Rather, a gang may retaliate for
the murder of one of its own by killing a member of some other
gang or even someone with no gang affiliation. This sort of
revenge benefits the gang because it demonstrates the gang’s
willingness to commit violence, which sows fear in the community
and among rival gangs, thereby enhancing the gang’s status.
       Montiglio explained that in gang parlance, to “bang” refers
to intimidation or violence committed by a gang member.
According to Montiglio, “banging” or “gangbanging” may consist
of verbal threats and intimidation, and can include assault on a
rival with fists, shooting a rival, wounding a rival, or killing a
rival. Montiglio opined that when a gang member who is upset
about a rival says he wants to “bang on” the first person he sees
and goes into rival gang territory armed with a firearm, “bang” in
that context refers to carrying out an act of violence.
       Montiglio testified that gang members frequently commit
shootings in pairs or groups, which allows for a division of labor
and helps to avoid apprehension. For example, while one person




                                10
is the shooter, another may be the getaway driver, still another
provides a distraction, and someone else serves as a lookout for
police.
       Based on his review of departmental resources, field
identification cards, and photographs of appellant’s and King’s
gang tattoos, gang clothing, and gang hand signs, Montiglio
opined that both men were members of PDL at the time of the
Laguan murder. In addition, Montiglio opined that Brandi and
Vaughns were associates of PDL, based on photographs of them
flashing gang hand signs. Scudder also appeared in many of
these pictures.
       When presented with a hypothetical scenario based on the
facts of the Laguan murder, Montiglio opined that the murder
was committed for the benefit of, and in association with, the
PDL gang.
                         DISCUSSION
I.   The Trial Court’s Response to the Jury Question
     During Deliberations
      In both trials, the court instructed the jury with CALCRIM
No. 401, which provides 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:
      “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




                               11
       “4. The defendant’s words or conduct did in fact aid and
abet the perpetrator’s commission of the crime.”
       In both trials, the jury asked at what point the commission
of the crime ended for purposes of aiding and abetting liability.
Despite the similarity of the juries’ questions, however, the trial
court responded differently in each case.11 Appellant contends
that the court abused its discretion in responding to the jury
question in the second trial, because it led the jury to convict
appellant of murder based on a legally invalid theory. We agree.
       A.    Relevant proceedings
             1.     The jury question and the trial court’s response
                    in the first trial
       Appellant’s first trial resulted in an acquittal on the charge
of first degree murder, and the jury deadlocked as to second
degree murder. Shortly after deliberations in the first trial had
commenced, the jury submitted its first question:
       “When did the actual crime addressed end? Do the actions
at Brandi’s house after the murder, securing safe passage, and
retrieving the weapon, constitute the timeframe of the crime? We
need more insight on this and the laws of aiding and abetting.”
       The trial court responded in writing:
       “Please see jury instruction [CALCRIM No.] 401, #3.
       “The defendant’s intent to aid and abet must be formed
prior to or during the commission of the crime.


      11 Judge Michael D. Carter presided over both trials, and
the prosecutor in both trials was Deputy District Attorney Stefan
Mrakich. Appellant was represented by a different attorney in
each trial.




                                 12
       “The crime of Assault is completed when the shooting has
completed.
       “However, among the factors which may be considered in
making the determination of aiding and abetting are: presence
at the scene of the crime, companionship, and conduct before and
after the offense.”12
             2.    The jury question and the trial court’s response
                   in the second trial
       During deliberations in the second trial, the jury submitted
a question which raised exactly the same issue as the jury’s
question in the first trial:
       “Are the events that take place after the crime considered
part of the committing? For example the alleged disposal of the
weapon and securing the ride home? (In the case of
aiding/abetting) When does the crime end? After the last shot or
when safe harbor occurs?”
       Before discussing the question with the parties, the trial
court requested clarification of the question from the jury:



      12When deliberations resumed on the next court date, the
jury submitted Question No. 3, which again sought clarification
as to when the crime ended. The wording of Question No. 3
varied only slightly from Question No. 1:
       “When did the actual crime addressed end? Due [sic] the
actions at Brandi’s house after the murder constitute the timeline
of the crime? We need clarification on this in regards to aiding
and abetting.”
      The trial court gave the identical written response it had
given to Question No. 1.




                                13
       “The jury is asking to define the word ‘committing’. [¶]
Which particular instruction or instructions is the jury referring
to when asking about the word ‘committing’?” The jury
responded, “[CALCRIM No.] 401—in particular, part 3.”
       In the discussion with counsel that followed, the trial court
treated the jury’s question as two separate queries: one seeking
guidance as to whether the jury could consider evidence of
defendant’s conduct after the shooting in determining guilt based
on aiding and abetting, and the other about the point at which
the crime ends. After conferring with the parties, the trial court
provided a written response to the jury’s question, which omitted
any guidance about when the commission of the crime came to an
end: “Factors relevant to the determination of whether
defendant is guilty of aiding and abetting include but are not
limited to presence at the scene of the crime, companionship, and
conduct before and after the offense.” Later that day the jury
reached its verdict convicting appellant of second degree murder
and finding the gang and firearm allegations true.
       B.    Appellant did not forfeit the issue
       Respondent asserts that after consultation with the court,
defense counsel approved the court’s proposed response to the
jury’s question, and thereby forfeited any challenge to the court’s
reply. However, the record reveals a spirited discussion between
the court and parties during which defense counsel
unsuccessfully argued that the thrust of the jury’s question
required guidance on the distinction between the different mental
states involved in aiding and abetting versus accessory-after-the-
fact. Counsel’s ultimate acquiescence in the trial court’s
interpretation of the jury’s question did not forfeit appellant’s
challenge to the court’s response to the jury.




                                14
       The trial court and defense counsel fundamentally
disagreed over the focus of the jury’s inquiry. Defense counsel
took issue with the court’s interpretation of the question as a
request for guidance as to whether the jury could consider
evidence of defendant’s conduct after the shooting in determining
his intent. Focusing on the jury’s question about what acts are
part of the commission of the offense, counsel argued that aiding
and abetting requires proof of a different mental state than that
required for liability as an accessory. Specifically, knowing of the
perpetrator’s unlawful purpose, the aider and abettor
“ ‘specifically intends to, and does in fact, aid, facilitate, promote,
encourage or instigate the perpetrator’s commission of that
crime.’ ” (Italics added.)
       The trial court countered that the thrust of the question
was whether the jury could consider the events that occurred
after the shooting in determining whether the defendant
intended to aid and abet the crime. Thus rejecting defense
counsel’s analysis and accepting the prosecutor’s proposal,13 the
court announced that it would answer the jury by quoting from
the case law, and offered the parties an opportunity to present
further argument to the jury.



      13The prosecutor urged the court to respond to the jury’s
question with the following quote from People v. Singleton (1987)
196 Cal.App.3d 488, 492: “ ‘Factors relevant to a determination
of whether defendant was guilty of aiding and abetting include[:]
presence at the scene of the crime, companionship, [and] conduct
before and after the offense.’ ” (See also People v. Chagolla (1983)
144 Cal.App.3d 422, 429.)




                                  15
        On this record, we must reject respondent’s forfeiture
argument. “ ‘An attorney who submits to the authority of an
erroneous, adverse ruling after making appropriate objections or
motions, does not waive the error in the ruling by proceeding in
accordance therewith and endeavoring to make the best of a bad
situation for which he was not responsible.’ ” (People v. Calio
(1986) 42 Cal.3d 639, 643; State Compensation Ins. Fund v.
Superior Court (2010) 184 Cal.App.4th 1124, 1129 [“the law is
clear that ‘[p]arties do not waive error by “acquiescence” when
they object to trial court error and then take “defensive” action to
lessen the impact’ ”].) By acquiescing in the trial court’s
interpretation of the jury’s question after arguing for a different
analysis and response, defense counsel did not forfeit an
appellate challenge to the response the court gave.
        C.    The trial court abused its discretion in its
              response to the jury’s question
        As in appellant’s first trial, the jury in this case asked
whether the commission of the crime included events that
occurred after the shooting (i.e., disposal of the weapon and
securing the ride). Specifically, for purposes of determining
appellant’s liability as an aider and abettor, the jury asked the
court: “When does the crime end? After the last shot or when
safe harbor occurs?” However, in contrast to appellant’s first
trial, in the second trial the trial court did not answer this
question. Instead, based on the jury’s reference to paragraph
no. 3 of CALCRIM No. 401,14 the court responded to a different


      14 Paragraph no. 3 of CALCRIM No. 401 requires the jury
to find that, “[b]efore or during the commission of the crime,” the




                                 16
question that the jury had not asked: what factors may the jury
consider in determining whether the defendant is guilty of aiding
and abetting? While the court’s response to that question was
technically a correct statement of the law, as a response to the
jury’s specific request for clarification as to what acts can be
considered to be part of the commission of the crime, the answer
did not correctly instruct the jury on the point of law that was the
subject of the query.
       “An appellate court applies the abuse of discretion standard
of review to any decision by a trial court to instruct, or not to
instruct, in its exercise of its supervision over a deliberating
jury.” (People v. Waidla (2000) 22 Cal.4th 690, 745–746.)
However, “[w]e review de novo the legal accuracy of any
supplemental instructions provided.” (People v. Franklin (2018)
21 Cal.App.5th 881, 887, fn. omitted; People v. Posey (2004) 32
Cal.4th 193, 218.) Under the circumstances here, we conclude
the trial court’s response misdirected the jury on the law and
thus constituted an abuse of discretion.
       “The court has a primary duty to help the jury understand
the legal principles it is asked to apply.” (People v. Beardslee
(1991) 53 Cal.3d 68, 97 (Beardslee).) During jury deliberations
“when the jury ‘desire[s] to be informed on any point of law
arising in the case . . . the information required must be given.’ ”
(People v. Brooks (2017) 3 Cal.5th 1, 97, quoting § 1138.)
“However, ‘[w]here the original instructions are themselves full
and complete, the court has discretion under section 1138 to


defendant formed the intent to commit and “aid and abet the
perpetrator in committing the crime.”




                                17
determine what additional explanations are sufficient to satisfy
the jury’s request for information.’ ” (Ibid.) Although the trial
court need not always elaborate on the standard instructions, the
trial court nevertheless has “a ‘ “mandatory” duty to clear up any
instructional confusion expressed by the jury.’ (People v.
Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on
another ground.)” (People v. Loza (2012) 207 Cal.App.4th 332,
355; see also People v. Boyce (2014) 59 Cal.4th 672, 699.) This
means that a trial court’s response to a jury question can be
erroneous even if it does not technically misstate the law. (See
People v. Nero (2010) 181 Cal.App.4th 504, 518 [trial court
misinstructed the jury by rereading two instructions in response
to jury’s questions which had demonstrated confusion and
specifically sought clarification of those instructions]; People v.
Solis (2001) 90 Cal.App.4th 1002, 1015 [“ ‘[a] definition of a
commonly used term may nevertheless be required if the jury
exhibits confusion over the term’s meaning’ ”].)
       Our Supreme Court has declared that “if a defendant’s
liability for an offense is predicated upon the theory that he or
she aided and abetted the perpetrator, the defendant’s intent to
encourage or facilitate the actions of the perpetrator ‘must be
formed prior to or during “commission” of that offense.’ ” (People
v. Montoya (1994) 7 Cal.4th 1027, 1039.) “Because the aider and
abettor is subject to the same criminal liability and the same
potential punishment as the perpetrator, it is essential to
distinguish the act and intent that constitute ‘aiding and
abetting’ the commission of a crime, from conduct that will incur
the lesser liability of an ‘accessory’ to the crime—defined as
conduct by one who, ‘after a felony has been committed, . . . aids a
principal in such felony, with the intent that said principal may




                                 18
avoid or escape from arrest, trial, conviction or punishment,
having knowledge that said principal has committed such felony
or has been charged with such felony.’ ” (Ibid.)
        Here, the jury was instructed under the natural and
probable consequences doctrine: in order to find appellant guilty
of murder, the jury first had to decide whether appellant
perpetrated or aided and abetted an assault with a firearm, a
simple assault, or a battery, and then if murder was a natural
and probable consequence of that crime. (CALCRIM No. 403.)
Significantly, none of these crimes continues until the
perpetrator reaches a place of temporary safety. Rather, an
assault is complete once the violence that would complete the
battery is commenced. (People v. Colantuono (1994) 7 Cal.4th
206, 216 [“An assault is an incipient or inchoate battery; a
battery is a consummated assault”]; People v. Yslas (1865) 27 Cal.
630, 633; see also People v. Chance (2008) 44 Cal.4th 1164, 1170
[“ ‘[a]n assault occurs whenever “ ‘[t]he next movement would, at
least to all appearance, complete the battery’ ” ’ ”].) A battery is
complete when the “willful and unlawful use of force or violence”
occurs (§ 242), and a “ ‘murder ends with the death of the
victim.’ ” (People v. Celis (2006) 141 Cal.App.4th 466, 471; People
v. Esquivel (1994) 28 Cal.App.4th 1386, 1397.)
        The jury’s question in this case leaves no room for doubt as
to the source of the jury’s confusion: if appellant could be guilty
of the murder only if he formed the intent to commit or aid and
abet the crime before or during its commission, the jury needed to
know how long the commission of the crime continued—until the
last shot was fired, or when the perpetrator had reached a place
of safety? None of the instructions given addressed this point.
But by purporting to answer this question by telling the jury to




                                19
consider appellant’s conduct after the offense, the court
essentially told the jury that the commission of the crime was
still ongoing when appellant and King reached Brandi’s
apartment, and thus included appellant’s acts of disposing of the
gun and securing a ride home. As a response to the question the
jury actually asked, this answer was wrong: it failed to clarify for
the jury that, for purposes of determining when appellant formed
his intent, the crime was complete when the last shots were fired,
and it authorized a conviction for murder even if the jury found
appellant formed the requisite intent and rendered aid only after
the commission of the crime. (See People v. Loza, supra, 207
Cal.App.4th at p. 355.) By failing to answer directly the jury’s
question about how long the commission of the crime continued,
the court improperly burdened the jury with the responsibility for
deciding a question of law that was the court’s duty to answer.
(See In re Richardson (2011) 196 Cal.App.4th 647, 652 [question
of what constitutes great bodily injury under the Three Strikes
law is a question of law for the court, not the jury, to decide];
Sparf v. United States (1895) 156 U.S. 51, 78 [“under the
Constitution of the United States, juries in criminal cases have
not the right to decide any question of law”].) The response here
violated the trial court’s mandatory duty to help the jury
understand the legal principles involved in the case. (Beardslee,
supra, 53 Cal.3d at p. 97; People v. Moore (1996) 44 Cal.App.4th
1323, 1332.)
       D.    The erroneous instruction was prejudicial
       A violation of section 1138 warrants reversal only upon a
showing of prejudice. (Beardslee, supra, 53 Cal.3d at p. 97.) The
parties disagree regarding the applicable standard for assessing
prejudice. In general, a trial court’s failure to adequately answer




                                20
a jury’s question during deliberations is subject to prejudice
analysis under People v. Watson (1956) 46 Cal.2d 818, 836
(Watson). (People v. Roberts (1992) 2 Cal.4th 271, 326.) “That
standard requires us to evaluate whether the defendant has
demonstrated that it is ‘ “reasonably probable that a result more
favorable to the appealing party would have been reached in the
absence of the error.” ’ ” (People v. Gonzalez (2018) 5 Cal.5th 186,
195.) In this context our Supreme Court has made clear that a
reasonable probability “ ‘ “ ‘does not mean more likely than not,
but merely a reasonable chance, more than an abstract
possibility.’ ” ’ ” (People v. Wilkins (2013) 56 Cal.4th 333, 351;
People v. Eid (2010) 187 Cal.App.4th 859, 882.)
       On the other hand, “[a]n instruction that omits or
misdescribes an element of a charged offense violates the right to
jury trial guaranteed by our federal Constitution, and the effect
of this violation is measured against the harmless error test of
Chapman v. California (1967) 386 U.S. 18, 24.” (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1165; People v. Nero,
supra, 181 Cal.App.4th at pp. 518–519.) Under the Chapman
standard, we determine “whether beyond a reasonable doubt the
jury verdict would have been the same absent the error.” (People
v. Nero, supra, at p. 519; People v. Gonzalez, supra, 5 Cal.5th at
p. 196.)
       Here, we find the trial court’s erroneous response to the
jury’s inquiry about the duration of the crime for purposes of
aider and abettor liability was prejudicial under either the
Chapman or Watson standard.
       Respondent asserts that the error was harmless because
“overwhelming and credible evidence showed that appellant
knew that King intended to commit a crime that night.” This




                                 21
argument is beside the point. While the defendant’s knowledge of
the perpetrator’s intent to commit the crime is one of the
elements of aiding and abetting (CALCRIM No. 401 ¶ 2), the
jury’s question made plain it was focused on a different element:
the formation of intent before or during the commission of the
crime to aid and abet the perpetrator in committing the crime.
(CALCRIM No. 401 ¶ 3.) As the trial court noted, the jury could
not even reach the issue of appellant’s intent unless it first found
he had knowledge of King’s intent to commit a crime.
       In this regard, we reiterate that appellant’s burden here is
to demonstrate a reasonable probability that a more favorable
result would have been reached in the absence of the error
(People v. Gonzalez, supra, 5 Cal.5th at p. 195), not that his
conviction was based on insufficient evidence. (In re Martinez
(2017) 3 Cal.5th 1216, 1224.) Indeed, where the court errs in
instructing the jury “on correct and incorrect theories of liability,
the presumption is that the error affected the judgment: ‘ “Jurors
are not generally equipped to determine whether a particular
theory of conviction submitted to them is contrary to law—
whether, for example, the action . . . fails to come within the
statutory definition of the crime. When, therefore, jurors have
been left the option of relying upon a legally inadequate theory,
there is no reason to think that their own intelligence and
expertise will save them from that error.” ’ (People v Guiton
(1993) 4 Cal.4th 1116, 1125, quoting Griffin v. United States
(1991) 502 U.S. 46, 59.)” (In re Martinez, supra, 3 Cal.5th at
p. 1224.)
       The Attorney General also contends that the prosecutor’s
argument to the jury correctly enforced the idea that the jury
could consider appellant’s conduct after the shooting to determine




                                 22
his intent to aid and abet before the crime. “They both fled
together after the crime. They both disposed of the weapon after
the crime, and [appellant] secured safe passage. You can look at
the conduct before, during, and after to get to [appellant’s] intent;
and the evidence is overwhelming that at a minimum he
intended to aid and abet an assault.” However, this argument,
focusing on appellant’s conduct after the crime, did not answer
the jury’s question about when commission of the crime ended.
Because the court’s response informed the jury the crime
continued beyond the shooting, the prosecutor’s argument could
not render the court’s subsequent misdirection on this critical
issue harmless.
      We cannot ignore the fact that when the court correctly
responded to the jury’s question in the first trial—“The crime of
assault is completed when the shooting has completed”—the
result was a hung jury and a mistrial. In the second trial, where
the court purported to answer the same question—“When does
the crime end?”—with reference to appellant’s conduct after the
shooting, the result was a conviction for second degree murder
based on aiding and abetting. Clearly the result of the first trial
was more favorable to appellant than the result on retrial.
(People v. Soojian (2010) 190 Cal.App.4th 491, 520 [“under the
Watson standard a hung jury is considered a more favorable
result than a guilty verdict”].) This disparity of outcomes
strongly suggests that the court’s instructional error in the
second trial was prejudicial. (People v. Ogunmola (1985) 39
Cal.3d 120, 124–125 [while such a different result is “far from
conclusive, it is a great deal more probative and convincing than
the usual tools given to appellate courts on the issue of
prejudice”]; see also People v. Soojian, supra, at p. 520 and cases




                                 23
cited therein [“Other cases have found it persuasive that the first
trial ended in a hung jury when deciding whether the error that
occurred in the retrial was prejudicial”].)
       Finally, “if jury instructions are important in general, there
is no category of instructional error more prejudicial than when
the trial judge makes a mistake in responding to a jury’s inquiry
during deliberations.” (People v. Thompkins (1987) 195
Cal.App.3d 244, 252–253.) And where that mistake misdirects a
jury on the law allowing it to convict on an invalid theory,
reversal is required. (People v. Chiu (2014) 59 Cal.4th 155, 167;
People v. Chun (2009) 45 Cal.4th 1172, 1201.) Here, because the
trial court’s instruction allowed the jury to convict appellant for
second degree murder even if it found he formed the requisite
intent after the commission of the crime, the erroneous response
to the jury’s inquiry was prejudicial, requiring reversal.
                            DISPOSITION
       The judgment is reversed.
       CERTIFIED FOR PUBLICATION.


                                      LUI, P. J.
We concur:




      ASHMANN-GERST, J.




      HOFFSTADT, J.




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