Filed 4/15/13 P. v. Tucker CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D060958

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD225855)

MAURICE DAVID TUCKER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael T.

Smyth, Judge. Affirmed.



         A jury convicted Maurice David Tucker of the first degree murder of Stephen

Cleveland (Pen. Code,1 § 187, subd. (a)) and shooting at an inhabited dwelling (§ 246).

It found true allegations that Tucker committed the offenses for the benefit or at the

direction of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)); and

also that he was a principal in the offenses, during which a principal personally used a

1        All statutory references are to the Penal Code.
firearm causing great bodily injury and death (§ 12022.53, subds. (d), (e)(1)). The court

sentenced him to a 50-year-to-life prison term.

       Tucker contends: (1) there is insufficient evidence to corroborate the testimony of

an informant who implicated him in a conspiracy to commit Cleveland's murder; (2) the

trial court prejudicially erred by instructing the jury with CALCRIM No. 315; and (3) his

conviction for shooting at an inhabited dwelling is not supported by substantial evidence.

We reject these contentions and affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

       Tucker, known to others by the moniker Tuck, or Tuck-Bo, is a documented

member of the O'Farrell Park Banksters criminal street gang (the O'Farrell gang), which

is a rival of the Lincoln Park criminal street gang. June 9 is a main "gang holiday" for the

O'Farrell gang and its associated gang, Skyline Piru.

       On June 9, 2007, Stephen Cleveland, a person believed to be a member of the

Lincoln Park gang who associated with known Lincoln Park gang members, was shot

multiple times and killed near his house on 65th Street in San Diego after walking his

girlfriend, Sharnay Robinson, to her car. That night, at about 7:30 or 8:00 o'clock,

Robinson and Cleveland were at the driver's side door of her car parked across the street

from his residence when a dark green SUV drove up and came to a sudden screeching

stop. The driver's window was partially rolled down, and the driver said to Cleveland,

"Yo, what's up?" Cleveland, who seemed confused, responded by asking who the person

was. The driver said, "You know who this be, it's Tookie." Robinson later testified the

                                             2
person could have said "Tuckie" or "2B." The passenger door of the SUV opened and

Cleveland took off running. Robinson saw a person exit the vehicle and start running

after and then shooting at Cleveland. She described the shooter as extremely tall, dark-

skinned, and skinny. Tucker is 6 feet 3 inches tall, and around the time of his trial

weighed 160 pounds.

       Responding police recovered six expended nine-millimeter shell casings from the

west side of the street across from the Cleveland residence, all fired from the same gun.

A cell phone was also found at the scene, and later was determined to belong to Charles

Neal, a member of the Skyline Piru criminal street gang, who also went by the monikers

Choo-Choo, Little U.K. Banty, and 2 B Dat.

       On the night of Cleveland's murder, Neal arrived in a dark SUV to a Travel Inn in

Chula Vista where his then girlfriend Vanity August was staying, and told her he had not

contacted her because he had lost his cell phone. August was watching the news, which

had earlier reported on Cleveland's murder. Neal, who arrived with a man who was not

Tucker, told August to turn the television on to the news and then tried to contact

someone on the other man's phone. Both men were wearing dark clothes. After 20 or 30

minutes, Neal and the other man left in the SUV. Neal and August later dropped the

SUV off in Spring Valley.

       August testified at Tucker's trial that in or about May or June 2007, she, Neal,

Tucker and Marquara Harvey purchased two prepaid phones in San Francisco, and at

Neal's direction used a false name and address, as well as a Louisiana area code. Cell

phone records for the pre-paid phone purchased for Tucker with a Louisiana area code

                                             3
showed that on June 9, 2007, ten calls were made from his phone between 9:12 p.m. and

10:00 p.m., and seven calls were made between 10:08 p.m. and 10:37 p.m. from the

Chula Vista area around the Travel Inn. At 10:57 p.m. and 11:32 p.m., calls were placed

on Tucker's phone from a location closer to his house.

       The prosecution put on testimony from Joseph Jamal Brown, a member of the

O'Farrell gang, who was at the time serving a sentence for armed robbery. Before his

testimony, he faced 22 years in prison, but as a result of his cooperation, he was facing

between five and 15 years. Brown testified that Tucker, who he also knew as "Tuck-Bo"

or "Tuck-6," was another member of the O'Farrell gang. He testified that he was with

Tucker and Neal on June 9, 2007, after Brown and Tucker had been at a park to watch a

show, when some Lincoln Park gang members appeared and interrupted the performance.

That evening at Tucker's house, Neal and Tucker talked about going to "ride" on Lincoln,

which meant they were going to do some sort of violence or a shooting. Neal and Tucker

changed into black clothing and left in a green SUV dropped off by a friend of Brown's,

Arrow Morris. Neal had arrived at Tucker's house in an Impala. A couple of days later,

Tucker told Brown that he was driving the SUV on 65th Street with Neal when they saw

Cleveland and backed up the SUV, after which Neal got out and confronted him and they

exchanged words. Tucker told Brown that he (Tucker) got out of the SUV, chased

Cleveland, and shot him in the neck.

       According to Brown, weeks later, Brown visited Tucker at Tucker's house, and at

that time Tucker told Brown that Neal had dropped his cell phone at the scene, and that

police had it. Brown also testified that at some point before Cleveland's murder, Tucker

                                             4
told him that Tucker and Cleveland had exchanged words at a "Lil Wayne" music

concert, and Tucker was "jumped" by a number of Lincoln Park gang members. Tucker

was angry and upset about the incident.

       Robinson testified at Tucker's trial that although she could not identify him in a

photographic lineup after the incident, Neal was the person she saw in the SUV on the

night of Cleveland's murder. She also testified that a few months after Cleveland's death,

she saw Tucker at a party staring at her and felt a "negative vibe," but after she found him

standing in front of her, she danced with him to make it seem as if she did not know him.

She had heard the name Tuck-Bo but had never met Tucker. According to Robinson,

after dancing with Tucker, she got scared and left the party because she knew he was the

man she saw shooting at Cleveland.

       Cleveland's sister testified that in April 2007, she was at a "Lil Wayne" music

concert and witnessed her brother engaged in a "big brawl" with 15 or 20 other African-

American men.

       On the night of June 9, 2007, Prudencio Flores was at his home when he heard a

series of gunshots—two shots, and then a few seconds later, another three—outside his

house. When he went outside, he heard people screaming and found Cleveland's body

facedown inside his garage. At the time, Flores had a metal locker, as well as a mattress

and bedframe, in front of his garage, and he moved them so that paramedics could work

on Cleveland. About a week later, Flores found a bullet hole in the locker and a bullet in

the mattress, which he was cutting up to place in the trash. He testified the locker was

undamaged before the shooting, and he believed the bullet and damage were the result of

                                             5
the shooting. A forensic firearms specialist testified that the six casings found on the

street were nine-millimeter luger caliber, and the bullet found in Flores's mattress was a

nine-millimeter luger caliber missile, though the specialist could not identify it as coming

from the same gun as the other casings because there were not enough markings on it.

Defense Evidence

       A San Diego Police Department detective testified that on or about June 25, 2007,

she received a photograph of Marcus Marshall, Tucker's brother, from Robinson's

mother. The detective testified that Robinson had told her mother that Marshall was the

driver of the SUV on the night of Cleveland's murder.

       Danny Davis, who was incarcerated with Neal at the California Youth Authority,

testified that Neal told him he was not with Tucker when he shot Cleveland.

                                       DISCUSSION

                          I. Corroboration of Brown's Testimony

       Tucker contends his convictions must be reversed as a result of the People's

introduction of Brown's testimony to prove an uncharged conspiracy to commit

Cleveland's murder. He first argues the testimony of Brown, a jailhouse informant, is

inherently unreliable and thus the judgment violates his federal constitutional right to due

process. He further argues his conviction violates state law in that there is insufficient

evidence to corroborate Brown's testimony as required under section 1111.5, which

became effective January 1, 2012. He argues section 1111.5 should apply retroactively to

his conviction, which was not yet final on appeal when the statute became effective.



                                              6
         The People respond that section 1111.5 does not apply to Brown's testimony

because none of Brown's conversations with Tucker implicate the statute, whose

provisions are assertedly limited to conversations between the defendant and the

informant that occur while both are in custody. The People further argue that even if

section 1111.5 applied, Tucker is not entitled to the benefits of the provision because it is

not retroactive. Finally, the People argue Brown's testimony was adequately

corroborated by Robinson's testimony, as well as by testimony from Neal's girlfriend and

others as to the cell phone purchases and usage.

         Section 1111.5 provides that a judge or jury may not convict a defendant "based

on the uncorroborated testimony of an in-custody informant." (§ 1111.5, subd. (a).) It

defines an " 'in-custody informant' " as "a person, other than a codefendant, percipient

witness, accomplice, or coconspirator, whose testimony is based on statements allegedly

made by the defendant while both the defendant and the informant were held within a

city or county jail, state penal institution, or correctional institution." (§ 1111.5, subd.

(b).)2



2       In full, section 1111.5 provides: "(a) A jury or judge may not convict a defendant,
find a special circumstance true, or use a fact in aggravation based on the uncorroborated
testimony of an in-custody informant. The testimony of an in-custody informant shall be
corroborated by other evidence that connects the defendant with the commission of the
offense, the special circumstance, or the evidence offered in aggravation to which the in-
custody informant testifies. Corroboration is not sufficient if it merely shows the
commission of the offense or the special circumstance or the circumstance in
aggravation. Corroboration of an in-custody informant shall not be provided by the
testimony of another in-custody informant unless the party calling the in-custody
informant as a witness establishes by a preponderance of the evidence that the in-custody
informant has not communicated with another in-custody informant on the subject of the
                                               7
       We need not reach Tucker's arguments as to section 1111.5 or its retroactivity3

because we agree with the People that Brown was not an "in-custody informant" within

the plain meaning of the statute. Our fundamental task is to " ' "determine the

Legislature's intent so as to effectuate the law's purpose." ' [Citation.] ' "If the statute's

text evinces an unmistakable plain meaning, we need go no further." ' " (Pacific

Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 803;

see also People v. Rodriguez (2012) 55 Cal.4th 1125, 1131 [" 'When interpreting statutes,

we begin with the plain, commonsense meaning of the language used by the Legislature.

[Citation.] If the language is unambiguous, the plain meaning controls' "].) Thus, where

the statutory language is clear and unambiguous there is no need for construction, nor is it

necessary to resort to indicia of the intent of the Legislature's intent. (DiCampli-Mintz v.

County of Santa Clara (2012) 55 Cal.4th 983, 992.)

       The provisions of section 1111.5 relevant to the question here need no

construction. Subdivision (b) plainly requires that to qualify as an in-custody informant



testimony. [¶] (b) As used in this section, 'in-custody informant' means a person, other
than a codefendant, percipient witness, accomplice, or coconspirator, whose testimony is
based on statements allegedly made by the defendant while both the defendant and the
informant were held within a city or county jail, state penal institution, or correctional
institution. Nothing in this section limits or changes the requirements for corroboration
of accomplice testimony pursuant to Section 1111."

3      In People v. Gonzalez (2012) 210 Cal.App.4th 724, the Second District, Division
One Court of Appeal held that section 1111.5 does not lessen or mitigate a criminal
penalty for a particular crime, and thus was not an ameliorative law falling within an
exception to the general rule of prospectivity. (Id. at pp. 733-735.) Thus, the court
declined to apply the statute retroactively to a defendant who was convicted and
sentenced before the statute's effective date.
                                               8
within the meaning of the statute, the informant must testify about a defendant's

statements made while both the informant and defendant were incarcerated. Here, Brown

recounted statements made by Tucker on June 9, 2007, and at other times before Tucker

was arrested and charged with Cleveland's murder, and before Tucker's incarceration.

And neither Brown nor Tucker were incarcerated at the time Tucker made the alleged

incriminating statements. In short, Brown's testimony was not "based on statements

allegedly made by [Tucker] while both [Tucker] and [Brown] were held within a city or

county jail, state penal institution, or correctional institution." (§ 1111.5, subd. (b).)

Accordingly, section 1111.5 does not apply to Brown's testimony.

       Tucker nevertheless maintains that Brown's testimony is inherently unreliable,

resulting in a violation of his federal constitutional due process rights. His argument,

however, is supported only by its own premise: Tucker argues Brown's testimony is

"unreliable because the testimony of an in-custody informant who barters his testimony

to the government in exchange for his freedom is inherently unreliable." We reject the

contention.

       Tucker's argument rests on a grand jury report as well as a law review article that

was quoted by the Ninth Circuit in Maxwell v. Roe (9th Cir. 2010) 628 F.3d 486. In

Maxwell, the court held the defendant's federal constitutional due process rights were

violated where an established jail house informant witness (one of the "most infamous

jailhouse informants in Los Angeles history") with a "long and public history of

dishonesty" (id. at pp. 498, 513) "was the 'make-or-break witness' for the State." (Id. at

pp. 507-508.) It was undisputed that the informant perjured himself multiple times at the

                                               9
defendant's murder trial, including lying about the defendant's confession. (Id. at pp. 501,

505-506.) Rejecting as objectively unreasonable the state court's finding that the

informant truthfully testified at the defendant's trial, the Ninth Circuit concluded that the

informant's testimony was in fact false. (Id. at pp. 503-507.) It held a defendant's

conviction on the basis of uncorrected false material evidence would be a violation of a

defendant's right to due process under the Fourteenth Amendment. (Id. at p. 506.) In that

particular case, the Ninth Circuit held the informant's testimony, which purported to

recount the defendant's confession to ten murders and was the "centerpiece" of the

prosecution's case otherwise consisting of only circumstantial evidence, prejudiced the

defendant and entitled him to habeas relief. (Id. at pp. 506-508.)

       The circumstances here are entirely unlike those compelling habeas relief in

Maxwell v. Roe, supra, 628 F.3d 486. First, Robinson, whose testimony was credited by

the jury despite its weaknesses,4 identified both Neal and Tucker as the men involved in

Cleveland's shooting. Second, Brown's account was corroborated in many respects not

only by Robinson, but also by the forensic evidence concerning the cell phone usage, and


4      In connection with his claim of instructional error, Tucker recites what he
characterizes as numerous weaknesses and inconsistencies in Robinson's testimony. He
points out Robinson told police on the night of the shooting that she did not see any
passengers in the SUV; she told police five days after the shooting that she did not see the
shooter's face; she picked out someone other than Neal from a photographic lineup
including Neal shown to her after the shooting, and could not identify Tucker in a
photographic lineup; she did not tell police she had believed Tucker was the shooter after
the party at which she danced with him; she never told officers she would recognize the
shooter in a live lineup; and she sent police a picture of another person, Marcus Marshall,
and told them in July 2007 she was "hundred percent positive" he was the driver on the
night of Cleveland's death. Tucker points out that a homicide detective described the
lighting conditions at the scene as "extremely poor" and that the street was "very dark."
                                              10
by Cleveland's sister, who saw the fight that occurred at the music concert recounted by

Brown. Corroborating evidence "may be circumstantial or slight and entitled to little

consideration when standing alone" and it "need not by itself establish every element of

the crime, but it must, without aid from [Brown's] testimony, tend to connect the

defendant with the crime." (People v. McDermott (2002) 28 Cal.4th 946, 985-986

[involving accomplice testimony].) Finally, Brown is not the sort of experienced

jailhouse informant warned against by the Maxwell court, that is, one who employs a

pattern method of gathering information and claims another prisoner has confessed to

him.5

                           II. Instruction with CALCRIM No. 315

        Tucker contends the trial court prejudicially erred by instructing the jury with

CALCRIM No. 315, pertaining to eyewitness identification, and listing as a factor for the

jury to consider: "How certain was the witness when he or she made an identification."6



5       The Maxwell court wrote: "As our own Judge Stephen Trott has explained in a
law review article on the topic: 'The most dangerous informer of all is the jailhouse
snitch who claims another prisoner has confessed to him. The snitch now stands ready to
testify in return for some consideration in his own case. Sometimes these snitches tell the
truth, but more often they invent testimony and stray details out of the air.' " (Maxwell v.
Roe, supra, 628 F.3d at p. 505.)

6       The court instructed with CALCRIM No. 315 as follows: "You have heard
eyewitness testimony identifying the defendant. As with other witnesses, you must
decide whether an eyewitness gave truthful and accurate testimony. In evaluating
identification testimony, consider the following questions: Did the witness know or have
contact with the defendant before the event; how well could the witness see the
perpetrator; what were the circumstances affecting the witness's ability to observe, such
as lighting, weather conditions, obstructions, distance, and duration of observation; how
closely was the witness paying attention; was the witness under stress when he or she
                                              11
He maintains the instruction "erroneously informed the jurors that the degree of certainty

claimed by an eyewitness at trial was a relevant factor to consider in assessing the

accuracy of that eyewitness's identification testimony" and lacks scientific support.

Pointing out the weaknesses in Robinson's testimony, Tucker further argues the

instruction unfairly encouraged jurors to accept Robinson's in-court identification of

Tucker, and gave her account an "unwarranted aura of veracity and accuracy . . . ." He

argues the " 'certainty factor' should be applied, if at all, only to that certainty

demonstrated by a witness during the initial, out-of-court identification procedure."

According to Tucker, the error requires reversal of the judgment.7

       Several courts, including the California Supreme Court, have addressed the

predecessor to CALCRIM No. 315's eyewitness identification instruction, CALJIC No.




made the observation; did the witness give a description and how does that description
compare to the defendant; how much time passed between the event and the time when
the witness identified the defendant; was the witness able to pick the perpetrator out of a
group; did the witness ever fail to identify the defendant; did the witness ever change his
or her mind about the identification; how certain was the witness when he or she made an
identification; are the witness and the defendant of different races; was the witness able to
identify the defendant in a photographic or physical lineup; were there any other
circumstances affecting the witness's ability to make an accurate identification?"

7      Tucker's counsel expressed no objection to the court's use of CALCRIM No. 315.
Thus, assuming no forfeiture, Tucker's argument would have required the trial court to
eliminate sua sponte the "witness certainty" language from the instruction. But the court
in People v. Ward (2005) 36 Cal.4th 186, 213 expressly held there is no such obligation,
and we are bound by the decisions of our state's Supreme Court. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.)

                                               12
2.92.8 (People v. Ward, supra, 36 Cal.4th at p. 213 [no sua sponte obligation to modify

the witness certainty language of CALJIC No. 2.92]; People v. Johnson (1992) 3 Cal.4th

1183, 1231-1232 [holding the "trial court did not err . . . in instructing the jury on the

'certainty' factor" where an expert testified without contradiction that a witness's

confidence in an identification does not correlate with the accuracy of that identification];

People v. Wright (1988) 45 Cal.3d 1126, 1141, 1143 [holding CALJIC No. 2.92 "will

usually provide sufficient guidance on eyewitness identification factors" and it is

generally proper for a court to give CALJIC No. 2.92 after providing defense counsel an

opportunity to suggest additional factors; disagreeing with dissent's suggestion that

instruction was deficient for failing to explain the effects of the enumerated factors];

People v. Sullivan (2007) 151 Cal.App.4th 524, 561-562 [holding trial court had no duty



8       CALJIC No. 2.92 provided: "Eyewitness testimony has been received in this trial
for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. In
determining the weight to be given eyewitness identification testimony, you should
consider the believability of the eyewitness as well as other factors which bear upon the
accuracy of the witness' identification of the defendant, including, but not limited to, any
of the following: [¶] [The opportunity of the witness to observe the alleged criminal act
and the perpetrator of the act;] [¶] [The stress, if any, to which the witness was subjected
at the time of the observation;] [¶] [The witness' ability, following the observation, to
provide a description of the perpetrator of the act;] [¶] [The extent to which the
defendant either fits or does not fit the description of the perpetrator previously given by
the witness;] [¶] [The cross-racial [or ethnic] nature of the identification;] [¶] [The
witness' capacity to make an identification;] [¶] [Evidence relating to the witness' ability
to identify other alleged perpetrators of the criminal act;] [¶] [Whether the witness was
able to identify the alleged perpetrator in a photographic or physical lineup;] [¶] [The
period of time between the alleged criminal act and the witness' identification;] [¶]
[Whether the witness had prior contacts with the alleged perpetrator;] [¶] [The extent to
which the witness is either certain or uncertain of the identification;] [¶] [Whether the
witness' identification is in fact the product of [his] [her] own recollection;] [¶] [;] and
[¶] Any other evidence relating to the witness' ability to make an identification."
                                             13
to give or modify CALJIC No. 2.92 on its own motion and rejecting challenge to

eyewitness certainty factor based on Wright and Johnson]; People v. Gaglione (1994) 26

Cal.App.4th 1291, 1302-1303 [rejecting challenge to eyewitness certainty factor

enumerated in CALJIC No. 2.92 based on high court's approval in Wright and Johnson],

disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452.)

       In People v. Wright, supra, 45 Cal.3d at p. 1141, the court expressly approved a

version of CALJIC No. 2.92 that told the jury to consider the degree of certainty in

assessing the reliability of eyewitness identification evidence. (Accord, People v.

Johnson, supra, 3 Cal.4th at pp. 1231-1232.) It held that any explanation of the effect of

any particular factor "is best left to argument by counsel, cross-examination of the

eyewitnesses, and expert testimony where appropriate." (People v. Wright, at p. 1143.)

Tucker seeks to distinguish Wright, arguing that it did not examine any one of the

specific factors in the instruction, and did not express an opinion as to whether the

"certainty factor" was relevant. But the majority in Wright disagreed with the dissenting

justices' reasoning (id. at p. 1141), which expressly pointed out the weaknesses of the

certainty factor. (People v. Wright, 45 Cal.3d at p. 1159 ["The average juror doubtless

takes it as confirming the widespread lay belief that the more certain an eyewitness is of

his identification, the more likely the identification is correct. Yet that belief is

apparently mistaken . . . [T]he majority of recent studies have found no statistically

significant correlation between confidence and accuracy, and in a number of instances the

correlation is negative . . . ."] (dis. opn. of Mosk, J.).) We will adhere to the California

Supreme Court precedent upholding the use of CALJIC No. 2.92, which compels us to

                                              14
reject Tucker's challenge to CALCRIM No. 315. (See Auto Equity Sales, Inc. v. Superior

Court, supra, 57 Cal.2d at p. 455.)

       Finally, even if we were to conclude the jury's consideration of a certainty factor is

erroneous, its inclusion in CALCRIM No. 315 would not require reversal, whether under

the state or federal constitutional standard of error. (See Chapman v. California (1967)

386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) The factor is phrased in a

neutral manner (see People v. Johnson, supra, 3 Cal.4th at p. 1234), and it applies not

only when a witness is certain of his or her identification, but also when he or she is not

certain. As the People point out, the factor is one of many nonexclusive factors that the

jury was told it could consider in determining eyewitness reliability; the jurors were not

obligated to base their verdict on that or any other particular factor or give Robinson's

identification any particular weight. Importantly, Brown's testimony, and other evidence

corroborating his story, provides an independent basis for the jury's verdicts. Further,

Tucker's counsel thoroughly cross-examined Robinson regarding the poor lighting

conditions at the scene, her varying statements to police, her inconsistent identification of

others in three different photographic lineups, and her erroneous belief that Marshall was

the driver of the SUV on the night of Cleveland's murder. In closing argument, defense

counsel extensively argued the weaknesses and unreliability in Robinson's eyewitness

accounts and pretrial identifications. We cannot say under either prejudice standard a

result more favorable to Tucker would have resulted had the certainty factor been omitted

from CALCRIM No. 315. (See People v. Ward, supra, 36 Cal.4th at pp. 213-214.)



                                             15
    III. Sufficiency of Evidence of Conviction for Shooting at an Inhabited Dwelling

       Tucker contends his conviction for shooting at an inhabited dwelling must be

reversed because, for two reasons, the evidence is insufficient. First, Tucker argues

because the sole theory of his liability was as an uncharged coconspirator in a murder,

and there was no allegation that the shooting was a "natural and probable" consequence

of murder generally or this murder particularly, there is no "legal predicate" for his

conviction. Second, Tucker argues that assuming the government had alleged a

conspiracy to shoot at an inhabited dwelling house, there was no evidence of such a

conspiracy, nor was there evidence to support a finding that any of the shots fired at

Cleveland hit any house. More specifically, Tucker maintains that all of the shots were

fired toward Cleveland, who had taken off running, and that after the initial shots were

fired at him, there was no evidence that any additional shots were fired, and no evidence

tying the bullet found in Flores's mattress to the shooting.

       When presented with a challenge to the sufficiency of the evidence, we "review

the whole record in the light most favorable to the judgment below to determine whether

it discloses substantial evidence—that is, evidence which is reasonable, credible, and of

solid value—such that a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We "must accept

logical inferences that the jury might have drawn from the circumstantial evidence."

(People v. Maury (2003) 30 Cal.4th 342, 396.) The conviction shall stand

" 'unless it appears "that upon no hypothesis whatever is there sufficient substantial

evidence to support [the conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 508.)

                                             16
       Section 246 makes it a felony to "maliciously and willfully discharge a firearm at

an inhabited dwelling house . . . ." Shooting at an inhabited dwelling house is a general

intent crime, the elements of which are (1) acting willfully and maliciously, and (2)

shooting at an inhabited house. (People v. Ramirez (2009) 45 Cal.4th 980, 985 & fn. 6;

People v. Overman (2005) 126 Cal.App.4th 1344, 1356.) As with all general intent

crimes, the question is whether the defendant intended to do the proscribed act, not

whether the defendant had the "specific intent to achieve a particular result (e.g., strike an

inhabited or occupied target, kill or injure)." (Overman, at p. 1357.) Accordingly,

"section 246 is not limited to shooting directly at an inhabited or occupied target. Rather,

it proscribes shooting either directly at or in close proximity to an inhabited or occupied

target under circumstances showing a conscious disregard for the probability that one or

more bullets will strike the target or persons in or around it." (Id. at pp. 1355-1356; see

also Ramirez, at p. 990 [section 246 offense "requires that an inhabited dwelling or other

specified object be within the defendant's firing range"].) The statute does not require

that the house actually be hit by gunshot. (Overman, 126 Cal.App.4th at pp. 1353, 1362

[substantial evidence supported the section 246 instruction even when there was no

evidence that the building was hit].)9



9      Thus, in People v. Chavira (1970) 3 Cal.App.3d 988, the defendant and his
associates fired several shots at persons "congregated in front of, and on the driveway
leading to" an inhabited dwelling. (Id. at p. 993.) The defendant argued that the
evidence was insufficient to support his section 246 conviction because he did not fire
directly at the dwelling, but only at the persons gathered outside of it. (Chavira, 3
Cal.App.3d at p. 992.) The court held that when the shooters fired a "fusillade of shots
directed primarily at persons standing close to a dwelling," the jury was "entitled to
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       According to Robinson, the shooter, who she later identified as Tucker, got out of

the Suburban and started shooting at Cleveland, letting off "about four or five rounds,"

from a point directly behind that vehicle. The shooter then "took off" after Cleveland up

the street. The shots happened "[w]hen [the shooter] stood there." However, Flores

heard shooting outside his house, and a bullet of the same type and caliber was found in

the locker that had been in front of Flores's garage where Cleveland collapsed. Flores

testified the locker had been undamaged before the shooting.

       The trial court instructed the jury with CALCRIM No. 417, which informed it that

a conspirator "is . . . criminally responsible for any act of any member of the conspiracy

if that act is done to further the conspiracy and that act is a natural and probable

consequence of the common plan or design of the conspiracy." The court instructed the

jury that to convict Tucker of the offense of shooting at an inhabited dwelling, the

prosecution had to prove Tucker conspired to commit the target offense of murder, and a

member of the conspiracy committed shooting at an inhabited building to further the

conspiracy; and the shooting was a natural and probable consequence of the common

plan or design of the crime that the defendant conspired to commit.

       We reject defendant's arguments as to any uncharged conspiracy. It is " 'long and

firmly established that an uncharged conspiracy may properly be used to prove criminal

liability for acts of a coconspirator. [Citations.] "Failure to charge conspiracy as a


conclude that [the defendants] were aware of the probability that some shots would hit
the building and that they were consciously indifferent to that result," and thus they had
an intent sufficient to satisfy section 246. (Chavira, at p. 993.)

                                              18
separate offense does not preclude the People from proving that those substantive

offenses which are charged were committed in furtherance of a criminal conspiracy

[citation]; nor, it follows, does it preclude the giving of jury instructions based on a

conspiracy theory [citations]." ' " (People v. Valdez (2012) 55 Cal.4th 82, 150.)

       " ' "The general rule is well settled that where several parties conspire or combine

together to commit any unlawful act, each is criminally responsible for the acts of his

associates or confederates committed in furtherance of any prosecution of the common

design for which they combine. . . . Each is responsible for everything done by his

confederates, which follows incidentally in the execution of the common design as one of

its probable and natural consequences, even though it was not intended as a part of the

original design or common plan. Nevertheless the act must be the ordinary and probable

effect of the wrongful act specifically agreed on, so that the connection between them

may be reasonably apparent, and not a fresh and independent product of the mind of one

of the confederates outside of, or foreign to, the common design." ' " (People v.

Prettyman (1996) 14 Cal.4th 248, 260-261.) " 'Whether the act committed was the

natural and probable consequence of the act encouraged and the extent of defendant's

knowledge are questions of fact for the jury.' " (People v. Durham (1969) 70 Cal.2d 171,

181, italics omitted; see also People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)

       Here, the evidence amply supports Tucker's conviction. Robinson ultimately

identified Tucker as the shooter, which was consistent with Brown's account. Brown

testified to Neal and Tucker's planning and preparation for retaliation against Lincoln

Park, including dressing in dark clothing and arranging for the vehicle, and described

                                              19
Tucker's admission to Cleveland's shooting. Despite the forensic examiner's inability to

pinpoint the bullet found in Flores's mattress to the same gun, that bullet nevertheless was

of the same caliber, and that evidence plus Flores's testimony permitted the jury to

rationally infer that the bullet was from Cleveland's shooting. The mattress and damaged

locker were in front of Flores's garage. Under the circumstances, the jury was entitled to

conclude that a reasonable person in Tucker's position, who planned to commit a murder

with a firearm, would know or should know that shooting at another person running in a

residential neighborhood could result in shots fired at or in close proximity to houses, and

thus was a reasonably foreseeable consequence of the conspiracy to murder Cleveland.

In other words, the evidence showed Tucker was shooting either directly at Flores's house

or in such close proximity to it that he exhibited a conscious disregard for the probability

that a bullet would strike the house and its inhabitants.




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                                 DISPOSITION

     The judgment is affirmed.




                                               O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


HALLER, J.




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