Filed 4/26/13 P. v. Garrett CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                          B240559

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA355963)
         v.

RUSSELL GARRETT,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Monica Bachner, Judge. Affirmed.
         Matthew Alger, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney General, for
Plaintiff and Respondent.
                                    INTRODUCTION
       Defendant and appellant Russell Garrett (defendant) was convicted of murder.
(Pen. Code, §§ 187, subd. (a) and 1891). On appeal, defendant contends that he received
ineffective assistance of counsel when his counsel acquiesced in the trial court‟s answer
to a question posed by the jury. We affirm the judgment.


                         PROCEDURAL BACKGROUND
       Following a trial, the jury found defendant guilty of the willful, deliberate and
premeditated murder in violation of sections 187, subdivision (a) and 189. The jury
found true that in committing the offense defendant personally and intentionally
discharged a handgun causing the victim‟s death within the meaning of section 12022.53,
subdivisions (c) and (d), and that the offense was committed for the benefit of, at the
direction of, and in association with a criminal street gang with the specific intent to
promote further and assist in criminal conduct by gang members in violation of section
186.22, subdivision (b)(1)(C).
       The trial court sentenced defendant to state prison for a term of 50 years to life,
consisting of a term of 25 years to life for first degree murder, plus a consecutive term of
25 years for the personal and intentional discharge of a firearm enhancement in violation
of section 12022.53, subdivision (d).


                                        DISCUSSION


       A.     Background Facts
       Defendant, a member of a gang, exited a car, fired at rival gang members, and a
bullet struck and killed a bystander. The driver of the vehicle testified that she complied
with defendant‟s request for her to stop the car, defendant exited it, and the driver heard
five to ten gunshots.

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


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       The weapon was found. An expert witness testified that the casings and fragments
of the bullet jackets recovered from the crime scene and the bullet recovered from the
victim‟s body were all fired from that weapon.
       The prosecution‟s gang expert testified that the shooting was committed for the
benefit of a criminal street gang. The person in whose house the weapon was found said
that on the day of the shooting defendant asked him to borrow the weapon to “go put in
some work,” and when defendant returned the weapon to him defendant said he had shot
at rival gang members, but missed.
       The trial court instructed the jury with CALCRIM No. 521, stating, inter alia,
“The defendant is guilty of first-degree murder if the People have proved that he acted
willfully, deliberately, and with premeditation. [¶] The defendant acted willfully if he
intended to kill. [¶] The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the consequences, decided to
kill. [¶] The defendant acted with premeditation if he decided to kill before completing
the act that caused death.”
       During jury deliberations, the jury asked the trial court, “In the instruction for First
Degree Murder, what is the meaning of the phrase „knowing the consequences‟? Does
the phrase mean that the defendant knows the consequences of his actions for others, i.e.,
that others may be killed, or that the defendant knows the consequences of his actions for
himself?”
       The trial court stated outside the presence of the jury that it consulted with counsel
about the jury‟s question, and that “[t]here actually is a very specific case that addresses
the question of what happens when the jury asks almost the identical question that this
jury asked. [¶] The case is People vs. Cordero, 216 Cal.App.3d 275, and in that case it
explained that no particular type of consequence is required, but there must be reflection
on a consequence. So I just summarized it. There‟s very specific language in the case
that the court has discussed with counsel, and I was going to use the language right out of
the case, except I‟m going to change the word . . . „slayer,‟ which is the word that was
used in the case, and use the word the „defendant,‟ because they‟re asking about the

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defendant. And, also, I‟m going to take out „he or she.‟ In this case I think I can just use
the word „he.‟ [¶] Does everyone agree?” Defendant‟s counsel and the prosecutor
responded “Yes.”
       The trial court proposed further modifications to the response, and read the
proposed language to defendant‟s counsel and the prosecutor. The trial court again asked
counsel if they had objections, and they responded that they did not.
       The trial court had the bailiff provide the jury with the following answer to its
question, consistent with the response the trial court read to counsel: “When a defendant
chooses killing over another course of action, the results occasioned by that course of
action can be innumerable. The defendant need not have in mind all or any particular
type of consequence, he may reflect on several consequences, but it is not a requirement
that there be reflection about more than one consequence. A finding of deliberation may
be based upon any one consequence.” The trial court had previously advised counsel that
the underscored words in the answer to the jury‟s question were words that were
italicized in People v. Cordero (1989) 216 Cal.App.3d 275.


       B.     Analysis
       “To prevail on an ineffective assistance of counsel claim, a defendant must show
that the conduct of his trial counsel about which he complains fell below the standard of
reasonableness and that he was prejudiced by that conduct. [Citations.] Also, despite a
claim of ineffective assistance, if „the record does not show the reason for counsel‟s
challenged actions or omissions, the conviction must be affirmed unless there could be no
satisfactory explanation. [Citation.]‟ [Citation.]” (People v. Espiritu (2011) 199
Cal.App.4th 718, 725-726.)
       Here, it is not below the standard of care for defendant‟s counsel not to object to
the trial court‟s answer to the jury‟s question. The trial court based its response on
People v. Cordero, supra, 216 Cal.App.3d 275, 280. In that case, the jury was instructed
with CALJIC No. 8.20, stating in part: “„The word “deliberate” means formed or arrived
at or determined upon as a result of careful thought and weighing of considerations for

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and against the proposed course of action. . . . [¶] To constitute a deliberate and
premeditated killing, the slayer must weigh and consider the question of killing and the
reasons for and against such a choice and, having in mind the consequences, [he] [she]
decides to and does kill.‟”2 (Id. at p. 280.) During deliberations, the jury asked the
following question: “„In deciding upon a verdict of first degree murder, part of the
definition includes “. . . having in mind the consequences . . .” what exactly does
consequences mean? I.e., consequences: of the act relating to victim, resulting in death
or consequences: relating to defendant personally (i.e., he would face punishment by law
if he killed victim)?‟ (Sic).” (Ibid.)
       On appeal, the defendant in People v. Cordero, supra, 216 Cal.App.3d 275 argued
that the trial court erred in denying his request for an instruction clarifying the nature of
the deliberation required for first degree murder. (Id. at pp. 279-280.) The court
concluded that the jury should have been told to consider whether the defendant
contemplated the consequences of his act—either to himself or to the victim. (Id. at p.
284.) The court explained, “[The defendant] contends, and the Attorney General agrees,
the „consequences‟ to be considered for the element of deliberation in murder may
include those that affect the perpetrator. A first degree murder conviction is proper
although the defendant weighed and considered the consequences only to himself or
herself. For example, a felon in a stolen car who kills a police officer during a routine
traffic stop does so to avoid apprehension. [Citations.] Conversely, convictions have
been upheld where the defendant gave no thought to personal consequences.
[Citations.] [¶] In most instances, however, the „consequences‟ considered cannot be
categorized so easily. Homicides occur in diverse factual settings and the thought
processes invoked by assailants are varied; in many instances an assailant will
contemplate consequences to both the victim and to his or her own future. In other cases,
the deliberation will simply involve consequences to a third party or even an idea or
strongly held principle (e.g., politically or religiously motivated assassinations). [¶] . . .


2
       This instruction is consistent with its counterpart, CALCRIM No. 521.

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[¶] When a slayer chooses killing over another course of action, the results occasioned
by that course of action can be innumerable. The slayer need not have in mind all or any
particular type of consequence; he or she may reflect on several consequences, but it is
not a requirement that there be reflection about more than one consequence. A finding of
deliberation may be based on any one consequence.” (Id. at pp. 280-281, fn. omitted.)
       The trial court here instructed the jury using similar language concerning knowing,
or having in mind, the consequences of a defendant‟s decision to kill with which the jury
in People v. Cordero, supra, 216 Cal.App.3d 275 was instructed. And, the trial court
here based its response to the jury‟s question on that case. The trial court properly
responded to the jury‟s question.
       Defendant contends that his counsel should have objected to the trial court‟s
response to the jury‟s question because the jury‟s question, in part, asked in a
parenthetical whether the phrase “knowing the consequences” means that defendant knew
“that others may be killed,” and that is functionally equivalent to express malice
aforethought set forth in CALCRIM 5203 defined as “unlawfully intend[ing] to kill,” or
implied malice aforethought defined in part as defendant deliberately act[ing] with
conscious disregard for human life.” Defendant argues therefore that “the trial court‟s


3
        The trial court instructed the jury with CALCRIM No. 520, stating, inter alia,
“The defendant is charged in Count one with murder, in violation of Penal Code section
187. To prove that the defendant is guilty of this crime, the People must prove that: [¶]
 1. The defendant committed an act that caused the death of another
person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice
aforethought. There are two kinds of malice aforethought, express malice and implied
malice. Proof of either is sufficient to establish the state of mind required for murder.
 [¶] The defendant acted with express malice if he unlawfully intended to kill. [¶]
The defendant acted with implied malice if: [¶] 1. He intentionally committed an
act; [¶] 2. The natural and probable consequences of the act were dangerous to human
life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND
4. He deliberately acted with conscious disregard for human life. [¶] . . . [¶] [Malice
aforethought] is a mental state that must be formed before the act that causes death is
committed. It does not require deliberation . . . .[¶] . . . [¶] If you decide that the
defendant committed murder, you must then decide whether it is murder of the first or
second degree.”

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answer to the jury‟s question did not sufficiently distinguish between the malice
aforethought required for murder and the deliberation required for a murder that is of the
first degree. The trial court‟s answer that „a finding of deliberation may be based on any
one consequence would have led the jury to believe that malice aforethought would
suffice for deliberation.”
       The performance of defendant‟s counsel was not inadequate because the trial
court‟s answer to the jury‟s question would not have led the jury reasonably to believe
that malice aforethought is sufficient to establish the deliberation required for murder of
the first degree. The jury had been instructed with CALCRIM 520, regarding murder
generally, and 521 regarding first degree murder. The jury‟s question specifically
referenced “the instruction for First Degree Murder,” CALCRIM 521, not any other jury
instruction. The jury could not reasonably believe, based on the trial court‟s response to
its question, that malice aforethought is sufficient to establish the deliberation required
for murder of the first degree because the phrase “malice aforethought” is not contained
in CALCRIM 521 defining first degree murder. That phrase is contained in CALCRIM
520 that defines murder generally and requires that if the jury decides that defendant
committed murder it “must then decide whether it is murder in the first or second
degree.” CALCRIM 520 provides that to constitute murder the defendant must have
acted with “a state of mind called malice aforethought.”
       The jury‟s question concerned “the meaning of the phrase „knowing the
consequences‟” of a defendant‟s decision to kill, and not the difference between first
degree murder and murder generally. In addition, defendant‟s act of killing with a
“malice aforethought” state of mind cannot reasonably be construed to be one of the
“consequences” of that killing. The court in People v. Cordero, supra, 216 Cal.App.3d
275 explained, “The „consequences‟ contemplated in CALJIC No. 8.20 are those flowing
from the act of killing . . . . Nowhere does the law require [that a defendant‟s] reflection
[required for first degree murder] specifically to concern the consequences to the killer,
the victim, or any other particular thing. The killer need only reflect on some
consequence of the act about to be committed.” (Id. at p. 282.)

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       In addition, as noted above, for there to be ineffective assistance of counsel, the
record must show the reason for the challenged actions or omissions of defendant‟s
counsel, unless there could be no satisfactory explanation. (People v. Espiritu, supra,
199 Cal.App.4th at pp. 725-726.) The record does not show that there is no satisfactory
explanation for his counsel‟s failure to object the trial court‟s response to the jury‟s
question. There was no reasonable basis upon which to object. The trial court‟s response
was proper and the jury reasonably would not have been misled.
       The record also does not reflect the reason defendant‟s counsel failed to object to
the trial court‟s response to the question posed by the jury. Defendant refers to a
declaration of his counsel contained in his petition for writ of habeas corpus, case number
B245488, filed on December 6, 2012, that purportedly states why she did not object to
the trial court‟s response to the jury‟s question. On January 22, 2013, we denied
defendant‟s request to consolidate that petition with this appeal, and the petition will be
considered separately from this appeal. We do not consider defendant counsel‟s
declaration contained in his petition. “„A fundamental principle of appellate practice is
that an appellant „“must affirmatively show error by an adequate record. . . . Error is
never presumed. . . . “A judgment or order of the lower court is presumed correct.”‟”‟”
(Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)
       We reject defendant‟s contention that he received ineffective assistance of
counsel. The trial court based its response the jury‟s question on People v. Cordero,
supra, 216 Cal.App.3d 275, its answer would not have led the jury reasonably to believe
that malice aforethought is sufficient to establish the deliberation required for murder of
the first degree, the record does not reflect the reason defendant‟s counsel failed to object
to the trial court‟s response to the question posed by the jury, and defendant has failed to
show that there could be no satisfactory explanation for his counsel‟s failure to object. If
there is additional material outside the record in this case related to ineffective assistance
of counsel, it will be considered in connection with the habeas corpus petition.
       Even assuming defendant received ineffective assistance of counsel when his
counsel acquiesced in the trial court‟s answer to a question posed by the jury because the

                                              8
jury was lead to believe that malice aforethought was sufficient for deliberation,
defendant did not show that he was prejudiced. To establish a claim for ineffective
assistance of counsel, defendant “„“must . . . show prejudice flowing from counsel‟s
performance or lack thereof. [Citations.] Prejudice is shown when there is a „reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.‟”‟ [Citations.]” (In re Thomas (2006) 37 Cal.4th
1249, 1256.)
       Regardless of defendant‟s failure to object to the trial court‟s answer to the jury‟s
question, the jury could reasonably infer that defendant deliberated by weighing the
considerations for and against his choice, including the consequences of his actions on
others or himself, and knowing the consequences, decided to kill. The driver of the
vehicle testified that while driving defendant requested that she stop her car. The driver
complied, at which point defendant exited the car and the driver then heard five to ten
gunshots. The person in whose house the weapon was found said that on the day of the
shooting defendant asked him to borrow the gun to “go put in some work.” Later,
defendant told him that defendant had shot at rival gang members, but missed.




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



                                                 MOSK, J.


We concur:



             ARMSTRONG, Acting P. J.



             O‟NEILL, J. *




*
        Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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