Filed 7/29/16 P. v. Jackson and Berry CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B259877

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. TA127281)
         v.

DUPREE JACKSON and
EWAYNE BERRY,

         Defendants and Appellants.



         APPEALS from judgments of the Superior Court of Los Angeles County. Eleanor
J. Hunter, Judge. Reversed.
         Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant Jackson.
         Matthew Alger, under appointment by the Court of Appeal, for Defendant and
Appellant Berry.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell,
Supervising Deputy Attorney General, and Yun K. Lee, Deputy Attorney General, for
Plaintiff and Respondent.
                                 _________________________________
       Dupree Jackson and Ewayne Berry appeal from the judgments entered following a
jury trial in which they were convicted of second degree murder and conspiracy to
commit murder. Each defendant raises numerous claims of error and joins in his
codefendant’s claims, to the extent applicable. Of pertinence to our disposition, Berry
contends the trial court erroneously admitted (against him) an incriminating message
Jackson sent him through Facebook and erroneously instructed the jury that defendants’
testimony required corroboration and that defendants were accomplices as a matter of
law. We agree the trial court so erred and conclude the errors are prejudicial.
Accordingly, we reverse.
                                     BACKGROUND
       On December 21, 2012,1 Ediberto Genis was fatally shot in the head outside 815
East 113th Street (Stoners house) in Los Angeles. Four juveniles were ultimately arrested
and charged with Genis’s murder and conspiracy to murder: Jackson (aged 17), Berry
(aged 16), Jason Byers (aged 14), and Shannon Hilt (aged 17). Hilt accepted a
prosecution plea offer of eight years in prison. Byers agreed to testify for the prosecution
and accepted an offer of 13 years in prison. Byers was the sole percipient witness to the
crimes who testified.
       Byers testified that he lived in Nickerson Gardens. He had known Jackson all of
his life and they were friends. Byers met Hilt at Locke High School (Locke) and had a
close relationship with both Hilt and Hilt’s sister. Byers knew that both Jackson and Hilt
lived in the vicinity of 113th Street and Belhaven Street. Byers only knew Berry from
seeing him at Locke. They did not attend the school at the same time, but Byers had
visited the Locke campus on occasion while he was in middle school and he had seen
Berry on the Locke campus at that time. He did not know that Berry lived in downtown
Los Angeles.



       1   Undesignated date references pertain to 2012.



                                              2
Background to the shooting
       The Bounty Hunter Bloods gang operates in and around Nickerson Gardens and
has a clique around 113th Street and Belhaven Street known as the Belhaven Bounty
Hunter Bloods (Belhaven gang). A Latino gang called the Mid City Stoners (Stoners)
encroached on the territory claimed by the Belhaven gang and a number of its members
resided at the Stoners house. The Stoners and Belhaven gangs were rivals; their members
crossed out each other’s graffiti and shot each other. Dejuan Becker, also known as
Thugga, survived such a shooting, in which Genis was implicated.
       The residents of the Stoners house also harassed young African-Americans who
walked past their home. Byers testified this was a daily occurrence. The Stoners shouted
racial epithets, shouted insults about the Bounty Hunters, displayed weapons, and
threatened to turn their pit bulls loose on the young people. The Stoners had done this on
December 20.
       On December 21, a group of about 15 African-American students, including Byers
(but not Hilt, Berry, or Jackson2), walked past the Stoners house on their way home from
Locke. Byers denied he was a gang member, but other people in the group were members
of the Belhaven gang. The Stoners verbally harassed the students and some of the
students responded in kind. One of the Stoners lifted a gun that was tucked in his
waistband. Most of the students went home, but some were angry and wanted to fight.
Byers calmed everyone down because the Stoners were armed.
The plan and preparation for the shooting
       Byers went to Jackson’s home, but he was not there. Hilt and his sister came out
and spoke with Byers. Byers testified that he and Hilt had previously discussed the
Stoners’s conduct, and on December 21 they said, in effect, “ ‘enough is enough.’ ”


       2 On cross-examination Byers initially contradicted his direct testimony and stated
that Jackson was part of the group that walked past the Stoners house on December 21.
He subsequently changed his testimony again and said Jackson was not part of the group.



                                            3
Byers later contradicted himself and testified that the Stoners’s conduct was not a big deal
to him or Hilt.
       Jackson walked up and joined Byers, Hilt, and Hilt’s sister. Byers testified both
that he told Jackson and Hilt what had happened and that he did not have to tell Jackson
or Hilt about what had happened because they “already knew.”
       Byers provided contradictory testimony regarding Berry’s arrival on the afternoon
of December 21. He initially testified that Berry approached him, then left, then came
back when Byers was talking to a few other people, but Byers later testified that he first
saw Berry that day when Berry approached as Byers was talking with Jackson and Hilt.
Byers told Berry about what had happened with the Stoners, and Berry said he did not
think that was right and that he also had experienced problems with the Stoners.
       On his own initiative, Byers “borrowed” a bicycle that was lying in the street by
the curb. He rode down the block to see if the Stoners were still outside. Byers returned
to the others and said that people were still in front of the house. Jackson went inside his
house, then returned. Byers dropped the bicycle and the four boys walked a little way to
Oscar Rosales’s house and sat behind a car. Jackson and Hilt worked to clear a jam in a
nine-millimeter semiautomatic handgun. After the jam was cleared, Hilt had the gun.
Byers testified he did not see who provided the gun, but he assumed that Jackson had
done so.
       The Rosales family lived on 113th Street two houses east of Wadsworth. Sandy
Rosales testified that about 2:30 p.m. on December 21, she looked out her window and
saw four African-American teenagers walk up to her father’s car. She told a detective
who interviewed her later the same day that there were six, not four teenagers. Two sat
behind the car and appeared to be putting something into a black semiautomatic handgun.
The rest of the group crossed the street. She recognized one member of the group as
someone who lived in a nearby yellow apartment.
       Sandy alerted her father, Oscar Rosales. He looked out the window and saw four
African-Americans behind his car. He recognized two of them from the neighborhood.


                                             4
One was Jackson, who lived in a yellow-colored apartment building. Rosales testified he
knew Jackson’s father. The other was Hilt, with whom Rosales had a friendly
relationship. Rosales had also seen Hilt’s father driving a red Infiniti. Rosales testified
adamantly that Hilt was not the person wearing red shorts. However, he had told a
detective on the day of the shooting that the father of the boy in red shorts was the one
who drove a red Infiniti, and a detective testified that Hilt’s father drove a red Infiniti.
Byers testified Hilt was the one who was wearing the red shorts. Rosales explained he
had been confused by the questioning. Rosales did not recall seeing Berry anywhere that
day.
       Rosales asked the group what they were doing. One said they were just playing
and another said he had injured his foot. On December 21, Rosales told the police that he
could see that two of the boys were loading bullets into a black gun. At trial, he testified
it looked like a gun, but he could not see it well enough to be sure.
       Byers testified that Hilt was the only member of the group that spoke to Rosales,
and Hilt told Rosales not to worry because they were not going to do anything to him.
Rosales told the police that the boy who said he had injured his foot put the gun under his
sweater and walked away while the other three remained by Rosales’s car. Rosales then
drove away in his car. At the corner of 113th and Wadsworth the boy in the red shorts
told Rosales not to continue on 113th Street so that nothing would happen to him.
Rosales asked whether they were going to kill someone, and the boy responded that they
were going to shoot “a Mexican guy” who had “come the day before to shoot at them.”
Rosales turned off 113th Street and continued his journey.
       Byers testified that the four boys discussed a plan to take the gun and shoot at
anyone who was in front of the Stoners house. He did not know how Berry was picked to
be the shooter and did not know Berry’s motive for participating. Byers thought the
objective was not to kill anyone, but to merely instill fear in the Stoners or warn them.
Byers initially testified he did not remember who told him to take Berry down the block
by bicycle. After being shown a transcript of his statement to the police, he testified


                                               5
Jackson had told him to do this. On cross-examination, however, Byers testified that no
one told him to do that; he just felt he should do it. Although Byers was younger than the
other three boys, he testified that he was not intimidated by any of them. Byers was a lot
taller and heavier than Berry. Byers got the “borrowed” bicycle and rode down the street
with Berry on the back.
The shooting
       Byers testified he stopped the bicycle at the corner of 113th Street and Wadsworth.
Byers waited at the corner while Berry walked down 113th Street toward the Stoners
house, which Byers estimated to be about 55 feet from the corner. Berry walked past the
Stoners house on the opposite side of the street, then turned around at the corner and
walked up the block in the opposite direction. When he was directly across from the
Stoners house, Berry fired four or five shots while standing on the sidewalk. Berry ran
back toward Byers, they got onto the bicycle, and rode back to where Jackson and Hilt
were waiting, which was more than 100 yards down 113th Street toward Belhaven (east).
Byers noticed that one of Berry’s shoes was missing before Berry got back on the bicycle.
Byers estimated that “a little over an hour” had elapsed between his confrontation with
the Stoners and the shooting.
       Byers testified that Berry threw away his remaining shoe in a trash bin and the
group hid the gun. However, Byers could not pinpoint the location. He testified the gun
was “tucked away” in a yard by a car, but he did not know which of the other three
“tucked it.”
Aftermath
       Los Angeles Police Department officers responding to the scene of the shooting
found Genis lying in the street with an obvious gunshot wound to the head. Officers
recovered three nine-millimeter casings almost directly across the street from Genis’s
body. One was in a driveway and the other two were “by” a tree. Apparently police did
not measure the distance between Genis and the casings, but a detective testifying at trial
estimated the distance as about 75 feet. The same detective agreed it would take both


                                             6
luck and skill to shoot someone in the head from that distance. Police also found a Nike
shoe near a car parked about 16 feet east of the casings.
       At some point not revealed by the appellate record, police served a search warrant
on Facebook. A custodian of records for Facebook testified at trial as follows. On
December 22, someone using the name “Seconnd [sic] toNone” sent a Facebook message
to Facebook user “Gassing Ewaynee,” who had the same user account number as
“Ewayne Escalante.” The message stated, “A Bro where my burner at?” The recipient
did not delete the message. Seconnd toNone and “Young Duke” had the same user
account number, e-mail address (which began “duke.jackson”), and “vanity name,”
meaning it all referred to the same Facebook account. The custodian of records testified
that this user changed his “display name” to Seconnd toNone on December 22. The
witness also testified, however, that on December 12 Seconnd toNone sent a message to
someone else saying, in part, “this Dupree.” The custodian further testified that at some
unspecified time the user known as Ewayne Escalante deleted his Facebook account.
       Prosecution gang expert Officer Francis Coughlin testified that in gang vernacular,
a “burner” means a gun and “gassing” someone means to kill the person. Detective
Nathan Kouri testified that before he arrested Jackson he had examined Young Duke’s
Facebook page and observed photographs of Jackson in which he was making a Bounty
Hunters gang hand sign and/or wearing apparel associated with the Bounty Hunters gang.
Thugga was in some of the photos. During a postarrest search of Jackson’s bedroom
police recovered a periodical on which “Bounty Hunter Bloods” and “Belhaven” had
been written with a marker and a three-ring binder on which “Belhaven Bounty Hunters”
and “Duke” had been written. It also had the letters “MCS” written and crossed out,
signifying that the Mid City Stoners were an enemy.
       Jackson, Byers, and Hilt were arrested in this case on March 5, 2013. Berry was
arrested on March 8, 2013.




                                             7
Gang evidence pertaining to codefendants and crimes
         Coughlin testified that gang members, associates, and “wannabes” “put in work”
for their gang, i.e., they commit crimes. For a serious crime such as murder, however, the
participants would require a high degree of trust in one another arising from knowing one
another well and committing prior crimes together.
         Coughlin opined that Jackson, Hilt, and Byers were all members of the Bounty
Hunters gang. With respect to Jackson, this was based in part on the photographs of him
making the gang’s hand sign and wearing apparel associated with the gang. Coughlin
testified that members of the Bounty Hunters gang generally and Thugga in particular
would not have allowed Jackson to make the gang’s hand signs unless he was willing to
put in work for the gang. None of Jackson’s tattoos (shown in photographs introduced by
the prosecutor) was gang-related. In addition, Coughlin testified Jackson had admitted
membership in the Bounty Hunters gang during a May 2012 police stop and, during
another stop in November 2011, had said he was from the Belhaven Bloods gang.
         Coughlin once stopped Berry on the street, at which time Berry admitted
membership in the Athens Park Bloods gang but said he also hung out with some Bounty
Hunter Bloods. Based upon commission of the crimes in this case and “all intelligence,”
Coughlin opined Berry was a Bounty Hunters member, not an Athens Park member. In
the prosecution’s rebuttal case, Coughlin testified that this “intelligence” consisted of
Berry’s participating in a robbery in the Belhaven area with “Duke” during which they
checked people’s pockets and asked if they were Stoners. In addition, Berry had family
members who were Bounty Hunters. Coughlin conceded that none of Berry’s tattoos
were gang-related and there were no photographs of him making gang signs.
         In response to a lengthy hypothetical question, Coughlin opined that the crimes
were committed for the benefit of, at the direction of, and in association with the Bounty
Hunters gang. He explained, in part, that they had “to retaliate for what happened to
them.”




                                              8
Berry’s statement to police
       Detectives interviewed Berry after he was arrested and, ultimately, an audio
recording of his entire statement was introduced at trial. Berry volunteered the
information that he had had two separate Facebook accounts, and that the name on his
second account was Ewayne Escalante. The name on his prior account had been
Mackwaaynee. He had deactivated the Ewayne Escalante account a few days earlier and
the prior account about a year earlier. He explained he had done so at his mother’s
request because she did not like him using “all that internet stuff.”
       Berry had previously lived at 105th and Figueroa and attended Locke, but had
moved downtown and changed schools. In the summer after he moved he suffered
serious injuries when struck by a motorcycle near 113th and Belhaven. He broke both
legs and knees and has a long metal rod in his right leg.
       A number of Berry’s family members were Bounty Hunters, but Berry had begun
associating with Athens Park when he lived in that gang’s area. After that, Bounty
Hunters gave him trouble and he had to fight a few of them when he attended Locke.
       Berry stated that on December 21 he went to the Locke campus with “Baby
Bugsy,” who was also from Athens Park. They were there “all day.” After school let out,
Berry, Baby Bugsy, and others were walking down 113th Street. Berry saw a group of
Bounty Hunters and he also saw and heard a group of “Hispanic dudes” who were in front
of a house yelling “Mid City” and making gang hand signs. Berry kept walking because
“we don’t beef with Mid City” and he did not want to get jumped. At some point, Berry
and Baby Bugsy separated.
       Jason (Byers) and Duke (Jackson) approached in the middle of the street. Jason
was on a bike and Duke was walking. Duke told Berry to go down the street. Berry
complied. When he looked back, the two were proceeding, but Duke was walking at a
faster pace. Before Berry reached the corner, he heard gunshots and ran. He did not see
who was shooting but assumed it was Duke and Jason. Berry volunteered to the police
that he had lost one of his shoes as he ran, “before” he “hit the corner,” then he turned the


                                              9
corner and kept running all the way across Imperial Highway. When he stopped running,
he called his aunt, who lived in the area, and she picked him up. He knew he would not
be getting his lost shoe back, so he threw away its mate.
       When the police pressed Berry for the location of his lost shoe, he said it was
“closer to Wadsworth” than where he encountered Duke and Jason. Kouri had apparently
drawn a map that was not to scale on a tiny piece of paper. Berry apparently pointed at
that paper and said, “I lose my shoes [sic] somewhere right here.” Kouri responded by
saying, “I’m going to write the word shoe right here.” Kouri later falsely told Berry that
they found his shoe in the midst of the casings. Berry responded that that was “crazy”
and denied his shoe was amid the casings. When Kouri referred to his little map and the
position he had written “shoe,” Berry stated that his shoe did not come off “this close to
the corner” and pointed to a “little dot” which was the location where his shoe came off.
At trial, Kouri testified that Berry “then moved the placement of the shoe a little bit
farther west,” closer to the Stoners house.
       Kouri also falsely told Berry that all of the percipient witnesses had independently
identified Berry as the shooter and that the police had home security camera footage of
Berry shooting. Berry said that was “crazy as hell” and urged the police to look at the
video because it would show everything that happened. The police also told Berry they
had obtained his DNA from the shoe and asked him if that was a coincidence. Berry
replied, “No, ’cause that’s my shoe.”
       Berry told the police that prior to December 21 he had seen Jason only three times
in his life, but Berry knew he was from the Bounty Hunters gang. Berry knew Duke,
whom he had met while attending Locke, but he believed Duke held a grudge against him
because he fought with Duke’s brother and argued with Duke’s sister. Berry said he had
met Hilt in the eighth grade and they were friends. Berry was also friendly with Hilt’s
sister and Hilt’s mother knew Berry.




                                              10
Berry’s testimony at trial
       Berry testified at trial that he lived in downtown Los Angeles in December 2012.
He had not attended Locke since April of 2012, but in that interval he twice had visited
his Aunt Jodie, who lived at 109th and Central, which was near Locke and in an area
claimed by the Bounty Hunters gang. When Berry attended Locke he lived near 105th
Street and Figueroa and hung around with members of the Athens Park Bloods gang,
which was a different gang situated around Figueroa and 120th to 127th Streets. The
Athens Park Bloods did not get along with the Bounty Hunters. Berry had at some point
lived in an area claimed by the Bounty Hunters gang, but he had never lived in the
Belhaven area or in Nickerson Gardens and had never “kick[ed] it” with the Bounty
Hunters. He had heard of the Stoners, but was not aware they were active in Locke.
Berry did not claim membership in any gang.
       Berry testified that he was about two years older than Byers, who did not attend
Locke when Berry was there. Berry had seen Byers around and they had mutual friends,
but Berry did not really know Byers. Berry knew Hilt from middle school and Locke, but
claimed he was not close to Hilt. He admitted they sometimes communicated through
Facebook and he referred to Hilt as “bro,” but they “never kicked it.” Berry knew that
Hilt lived at 113th Street and Belhaven, but did not know if he was a Bounty Hunter.
When the motorcycle struck and injured Berry, Hilt’s mother called the police and helped
Berry. Berry knew Jackson from Locke, where they were in the same Spanish class. Due
to a fight Berry had with Jackson’s brother, they did not trust one another and did not talk.
They were, however, friends on Facebook. While Berry was in custody on this case, he
found out that Byers and Hilt had a close relationship.
       Berry testified that Byers’s testimony implicating Berry was a lie. On the day of
the shooting, Berry was on Christmas vacation from school. He went to the Locke
campus sometime in the afternoon to visit with his cousin, who was a football coach
there. Afterward, he was walking to his Aunt Jodie’s house. He and his friend Baby
Bugsy were eastbound on 113th Street, then they separated and Berry continued alone.


                                             11
        As Berry walked toward Wadsworth, Hispanics on the other side of the street were
yelling “Mid Cities.” Berry saw Byers (on a bicycle) and Hilt (on foot) approaching him
from the area of 113th Street and Belhaven. Byers stopped and stood at the corner of
113th Street and Wadsworth, while Hilt continued walking toward Berry. As Hilt walked
past Berry, Hilt said, “Go down the street. Go down the street.” When Hilt was about
three feet past Berry, shots were fired and Berry ran. Berry denied that he was the shooter
and said he did not look to see who was shooting. Berry turned right at Wadsworth,
crossed Imperial Highway, and stopped at an elementary school to call his aunt to pick
him up. Because Berry had a metal rod in his leg and it tended to swell, he fastened the
shoe on that foot loosely. As Berry ran, that shoe came off. He did not go back for it
because he believed the Hispanics who yelled at him would still be outside. Therefore, he
just threw the remaining shoe away.
        When Berry was interrogated by the police, he lied and implicated Jackson
because he wanted to protect Hilt, based on the help Hilt’s mother rendered him. Berry
testified he did not know who changed his Facebook name to Gassing Ewaynee, but he
denied doing so. Until trial, he did not know who had the Facebook name Seconnd
toNone and he did not know why that person sent him the message about a burner.
Therefore, he did not reply to the message.
        Berry testified that Kouri repeatedly told him that his shoe was right in the middle
of the casings, but never showed him the photo of this he claimed to have. Berry recalled
Kouri as a defense witness, and on cross-examination Kouri volunteered that Berry had
acted as if Kouri had not understood him when he first described where he had lost his
shoe.
Jackson’s testimony at trial
        Jackson also testified at trial. “Duke” had been his family nickname since
childhood. As of December of 2012 he had lived at 1111 East 113th Street for two or
three years. The Stoners house is about 25 to 30 houses away. On December 21, Jackson
was in class at Locke until 2:10, then his uncle drove him home. Jackson did not see


                                              12
anything going on when they drove past the Stoners house and did not see Byers or Berry.
Jackson estimated he got home around 2:30 p.m. and he stayed in the house the rest of the
day. His mother left to go Christmas shopping and directed him to baby-sit his three-
year-old nephew, who was sleeping. Jackson ate, watched a movie and some music
videos, then fell asleep. He awakened when his mother came home around 5:00 or 5:30
p.m. He did not hear any shots or other disturbances, but his mother said there were a lot
of police in the street. The next morning she told him she had heard that someone had
been shot. Jackson did not have any problems with the Stoners. He usually got a ride
home from school from his uncle, and on the few occasions he walked he experienced no
problems.
       Jackson testified that, through family members, he associated with members of the
Belhaven Bounty Hunters gang, but he did not do anything for the gang, and none of his
tattoos was gang-related. He denied ever telling a police officer he was a gang member.
He only made gang signs in Facebook photos to get “likes” from girls at Locke, and he
was not proud of the photos. Thugga is Jackson’s older half brother. He initially did not
mention Thugga when the police asked him about his brothers because Thugga had told
him not to let the police know they were related to prevent the police from “com[ing]
down” on Jackson for things Thugga had done.
       Jackson was “somewhat” close to Hilt, who was his neighbor, and he knew that
Hilt was not a gang member. Byers’s testimony that he had known Jackson his whole life
was false. Jackson had seen Byers at school, but Byers was about three years younger
than Jackson. Jackson did not really know Byers and did not know if Byers was a gang
member. Jackson had a strained relationship with Berry, who previously had gotten into a
fight with Jackson’s brother. Jackson and Berry did not speak and held mutual grudges.
Jackson denied participating in a “pocket-checking incident” with Berry and denied that
the four codefendants hung out together.
       Jackson admitted he had sent a Facebook message to Gassing Ewaynee asking
“where my blower,” by which he meant a close female friend of Berry who performed


                                            13
oral sex on Jackson. Jackson had to use code names like “blower” because his girlfriend
sometimes went through his phone. Jackson did not know how “blower” was changed to
“burner,” but he used other people’s phones to access Facebook, and the phone he used to
post that message may have had spell-check. Jackson denied he gave anyone a gun on
December 21.
Jackson’s statement to police
        The prosecutor played only a few brief segments of Jackson’s audio-recorded
statement to the police for impeachment. Jackson told the police he got home early from
school on December 21. Asked for a time, he said, “[A]ll I know is when I made it home,
Maury was on. I got out of school probably around 1:30.” Jackson said that after he got
home, “I never left. I left to go get some weed,”3 then immediately repeated that he never
left.
        When the police asked Jackson whether he remembered a shooting in late
December on the street where he lived, he said he did not.
Verdicts and sentencing
        A single jury convicted defendants of second degree murder and conspiracy to
commit murder. With respect to Berry, the verdict form asked the jury to specify the
degree of murder Berry conspired to commit, and the jury specified second degree
murder. The verdict form for Jackson did not include a request for such a finding. The
jury further found, as to each defendant, that the crimes were committed for the benefit
of, at the direction of, or in association with a criminal street gang, with the specific intent
to promote, further, or assist in criminal conduct by gang members. The jury further
found that Berry personally and intentionally fired a gun, causing death or great bodily
injury. (Pen. Code, § 12022.53, subd. (d).)4 As to both defendants, the jury found that a


        3Jackson testified he already had weed at the house and told that to Kouri to get
the police off his back.
        4   Undesignated statutory references are to the Penal Code.



                                              14
principal personally and intentionally fired a gun, causing death or great bodily injury.
(§ 12022.53, subds. (d)–(e).) The court sentenced each defendant to 40 years to life in
prison for murder and stayed the term on the conspiracy charges pursuant to section 654.
                                       DISCUSSION
1.     Erroneous admission of Jackson’s Facebook message to Berry
       Before the Facebook custodian of records testified, Berry objected to admission of
Jackson’s message about the burner on the ground it was inadmissible hearsay.5 The
prosecutor argued, and the trial court ruled, that it fell within the exception for a
coconspirator’s statement. The prosecutor’s theory was the conspiracy was ongoing at
the time the message was sent because the conspirators had not yet been arrested. Berry
contends the trial court erred by admitting the message against him.
       a.     Pertinent legal principles
       We review any ruling on the admissibility of evidence for abuse of discretion.
(People v. Elliott (2012) 53 Cal.4th 535, 577.)
       In order for a hearsay statement made by an accused’s coconspirator to be
admissible against the accused, there must be independent prima facie evidence of the
existence of a conspiracy and independent evidence of the following three preliminary
facts: “(1) that the declarant was participating in a conspiracy at the time of the
declaration; (2) that the declaration was in furtherance of the objective of that conspiracy;
and (3) that at the time of the declaration the party against whom the evidence is offered
was participating or would later participate in the conspiracy.” (People v. Leach (1975)
15 Cal.3d 419, 431, fn. 10 (Leach); Evid. Code, § 1223.) None of these facts may be
established by means of the statement itself, except insofar as its content reflects upon
whether it was made in furtherance of the conspiracy. (Leach, at p. 431, fn. 10.)



       5
       Berry also mentioned a potential confrontation clause violation, but both
defendants ultimately testified, mooting any such issue.



                                              15
       Generally, a conspiracy comes to an end when “ ‘the substantive crime for which
the coconspirators are being tried is either attained or defeated.’ ” (People v. Hardy
(1992) 2 Cal.4th 86, 143.) However, a conspiracy may continue until its “primary goal”
has been attained. (Id. at pp. 143–144.) This is not an issue of law, but a question “for
the trier of fact—considering the unique circumstances and the nature and purpose of the
conspiracy of each case—to determine precisely when the conspiracy has ended.
[Citations.] Particular circumstances may well disclose a situation where the conspiracy
will be deemed to have extended beyond the substantive crime to activities contemplated
and undertaken by the conspirators in pursuance of the objectives of the conspiracy.”
(People v. Saling (1972) 7 Cal.3d 844, 852 (Saling).) There must, however, be
independent evidence that the conspiracy was still operative at the time of a
coconspirator’s statement, notwithstanding the accomplishment of the primary objective.
(Leach, supra, 15 Cal.3d at pp. 432–433 [no evidence supported conclusion that
objectives of conspiracy to murder included collection of insurance proceeds].)
       “Generally the conspiracy comes to an end with the performance, or failure to
effect the contemplated act, and the concealment is a mere incident thereof which is not a
new conspiracy so as to toll the running of the statute of limitations, or permit the post-
offense declarations of one conspirator to be used against another.” (People v. Hardeman
(1966) 244 Cal.App.2d 1, 19–20 (Hardeman).) “In Krulewitch v. United States [(1949)]
336 U.S. 440, the Supreme Court rejected, as a further breach of the general rule against
the admission of hearsay evidence, the government’s argument that ‘even after the central
criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase
of the conspiracy always survives, the phase which has concealment as its sole
objective.’ ” (Saling, supra, 7 Cal.3d at p. 853.) Saling adopted the Krulewitch rule.
(Leach, supra, 15 Cal.3d at p. 431.)
       b.     The trial court erred by admitting the message as to Berry.
       The prosecutor, trial court, and Attorney General failed to cite any authority for the
proposed new rule that a conspiracy continues until the conspirators have been arrested.


                                             16
Such a rule, of course, does not exist and is contrary to established law that in general a
conspiracy ends when the substantive crime is either committed or defeated.
       The conspiracy here was expressly charged as one to commit murder. The
Facebook message in issue was sent a day after the contemplated act of murder. Pursuant
to Saling, Leach, and Hardeman, we do not infer there was an implicit, ongoing
conspiracy to conceal evidence and escape arrest, and there is no independent evidence in
the record that the conspiracy was still operative when Jackson sent the message. To the
extent evidence in the record may support a finding that the conspiracy included hiding
the gun, that evidence also shows that that objective was achieved on the day of the
murder when, according to Byers, the coconspirators “tucked” the gun in someone’s yard.
Accordingly, we conclude the message was not admissible under the exception for
statements of a coconspirator. Moreover, had there been independent supporting
evidence in the record, the trial court was required to allow the jury to determine whether
the conspiracy continued, not decide the issue as a matter of law.
       The Attorney General does not even argue that the coconspirator statement
exception applies. Instead, citing People v. Jurado (2006) 38 Cal.4th 72, she argues that
the message was not hearsay “because it was a request (question) that did not assert the
truth of any fact.” The Attorney General attempts to extend Jurado far beyond its facts,
so as to obliterate the category of implied hearsay. In Jurado, a witness testified that one
of the accomplices asked him for a “ ‘gat.’ ” (Id. at p. 117.) The Supreme Court ruled
that this statement requesting a gun was not hearsay: “The request for the gun, by itself,
was not hearsay, however, because an out-of-court statement is hearsay only when it is
‘offered to prove the truth of the matter stated.’ (Evid. Code, § 1200.) Because a request,
by itself, does not assert the truth of any fact, it cannot be offered to prove the truth of the
matter stated.” (Ibid.) Of course, Jackson’s message consisted of a question, not a
request.
       More important, either questions or requests can constitute implied hearsay. While
“[r]equests and words of direction generally do not constitute hearsay,” “these statements


                                               17
reasonably can be viewed as implied hearsay. ‘[E]vidence of an express statement of a
declarant is . . . hearsay evidence if such evidence is offered to prove—not the truth of the
matter that is stated in such statement expressly—but the truth of a matter that is stated in
such statement by implication.’ [Citation.] ‘While the ultimate fact the statement is
offered to prove is not the matter stated, the truth of the implied statement is a necessary
part of the inferential reasoning process.’ [Citation.] ‘An implied statement may be
inferred from an express statement whenever it is reasonable to conclude: (1) that
declarant in fact intended to make such implied statement, or (2) that a recipient of
declarant’s express statement would reasonably believe that declarant intended by his
express statement to make the implied statement.’ ” (People v. Garcia (2008) 168
Cal.App.4th 261, 289.) The prosecutor clearly offered Jackson’s message to prove the
truth of the statement implicit in his question, i.e., Berry knew where Jackson’s gun was,
either because he had it or had recently had it in his possession, which was in turn
relevant to support the prosecution’s theory that Berry shot Genis. Indeed, absent this
implicit statement Jackson’s message had little or no relevance.
       The Attorney General next argues the message was not hearsay because it was
admissible to show its effect upon Berry, i.e., causing him to delete his Facebook account
after Jackson’s arrest. This assumes Berry knew of Jackson’s arrest, which had not been
shown. In addition, the prosecutor never mentioned this rationale and did not seek to
admit the message for this limited purpose. The court did not agree to admit it for a
limited purpose, and, crucially, the jury was not told it was admitted for a limited purpose.
       Next, the Attorney General argues the message was a party admission. As to
Jackson, this is correct (Evid. Code, § 1220), but the message was not admitted as to
Jackson only, but as to both defendants. As to Berry, who is challenging its admission,
the statement clearly was not “offered against the declarant,” and therefore does not
constitute a party admission.




                                             18
       Finally, the Attorney General seemingly argues that admission of the message did
not violate Berry’s confrontation rights because Jackson testified. The lack of a
confrontation violation, however, does not supplant the rules of evidence.
       For all of these reasons, we conclude the trial court erred by admitting Jackson’s
Facebook message against Berry. We defer consideration of the prejudicial effect of this
error until after addressing two claims of instructional error.
2.     Erroneous accomplice instructions
       The trial court instructed the jury that Byers, Berry, and Jackson were accomplices
as a matter of law (CALCRIM No. 3356) and that “[e]xcept for the testimony of Jason
Byers [and] defendants Berry and Jackson, which requires supporting evidence, the
testimony of only one witness can prove any fact. Before you conclude that the testimony
of one witness proves a fact, you should carefully review all the evidence.” (CALCRIM
No. 301.) The court also failed to instruct the jury on the definition of “accomplice.”


       6  As given, CALCRIM No. 335 stated: “If the crimes charged were committed,
then Jason Byers, defendanst [sic] Ewayne Berry and Dupree Jackson were accomplices
to those crimes. [¶] You may not convict a defendant based on the statement or
testimony of an accomplice alone. You may use the statement or testimony of an
accomplice to convict the defendant only if: [¶] 1. The accomplice’s statement or
testimony is supported by other evidence that you believe; [¶] 2. That supporting
evidence is independent of the accomplice’s statement or testimony; [¶] AND [¶]
3. That supporting evidence tends to connect the defendant to the commission of the
crimes. [¶] Supporting evidence, however, may be slight. It does not need to be enough,
by itself, to prove that the defendant is guilty of the charged crime, and it does not need to
support every fact mentioned by the accomplice in the statement or about which the
witness testified. On the other hand, it is not enough if the supporting evidence merely
shows that a crime was committed or the circumstances of its commission. The
supporting evidence must tend to connect the defendant to the commission of the crime.
[¶] The evidence needed to support the statement or testimony of one accomplice cannot
be provided by the statement or testimony of another accomplice. [¶] Any statement or
testimony of an accomplice that tends to incriminate the defendant should be viewed with
caution. You may not, however, arbitrarily disregard it. You should give that statement
or testimony the weight you think it deserves after examining it with care and caution and
in the light of all the other evidence.”



                                              19
       Defendants contend that these instructions misstated the law and violated due
process by depriving them of the presumption of innocence and of a fair trial, and
impairing their right to present a defense.
       a.     Pertinent legal principles
       A trial court in a criminal case is required—with or without a request—to give
correct jury instructions on the general principles of law relevant to issues raised by the
evidence, including the elements of an offense. (People v. Acosta (2014) 226
Cal.App.4th 108, 118.) We independently assess whether instructions correctly state the
law. (People v. Posey (2004) 32 Cal.4th 193, 218.) Purportedly erroneous instructions
are reviewed in the context of the entire charge to determine whether it is reasonably
likely the jury misconstrued or misapplied the challenged instruction. (People v. Wallace
(2008) 44 Cal.4th 1032, 1075.) In addition, we presume that the jury followed the court’s
instructions. (People v. Williams (2010) 49 Cal.4th 405, 469.)
       “Whether a person is an accomplice is a question of fact for the jury unless there is
no dispute as to either the facts or the inferences to be drawn therefrom.” (People v.
Fauber (1992) 2 Cal.4th 792, 834 (Fauber).) The testimony of an accomplice inculpating
a defendant must be corroborated by other evidence connecting the accused with the
commission of the crime. (§ 1111.) Where there is substantial evidence that a witness is
an accomplice, the trial court must instruct sua sponte on the corroboration requirement.
(People v. Lewis (2001) 26 Cal.4th 334, 369 (Lewis).) In addition, the jury must be told
that an accomplice’s statement or testimony that tends to incriminate a defendant should
be viewed with caution. (People v. Guiuan (1998) 18 Cal.4th 558, 564 (Guiuan).)
       The required corroborative evidence need not corroborate every fact to which the
accomplice testified, but is sufficient if, without assistance of the accomplice testimony,
“ ‘it tends to connect the defendant with the crime in such a way as to satisfy the jury that
the accomplice is telling the truth.’ ” (Lewis, supra, 26 Cal.4th at p. 370.) It must relate
to some act or fact that is an element of the crime, but it need not establish every element.
(People v. Williams (1997) 16 Cal.4th 635, 680–681.) It may be slight, entirely


                                              20
circumstantial, and entitled to little consideration when standing alone. (Id. at p. 681;
Lewis, at p. 370.) A defendant’s own statements and admissions may provide the
required corroboration. (Williams, at p. 680.) However, corroborating evidence may not
be supplied by, or require “ ‘aid or assistance’ ” from the testimony of another
accomplice. (People v. Davis (2005) 36 Cal.4th 510, 543.) Evidence of mere presence
and opportunity is never sufficient corroboration (People v. Hathcock (1973) 8 Cal.3d
599, 618 (Hathcock)), and evidence simply connecting the defendant with the accomplice
is insufficient. (People v. Robinson (1964) 61 Cal.2d 373, 399.) Evidence that merely
casts “ ‘ “ ‘a grave suspicion upon the accused’ ” ’ ” is also insufficient. (Ibid.)
       b.     The trial court misinstructed the jury.
       The problem with the version of CALCRIM No. 301 given here is that defendants
both gave self-exculpatory testimony, which is not subject to the rule of corroboration.
(§ 1111; Guiuan, supra, 18 Cal.4th at p. 569 [addressing related instruction to view
accomplice’s testimony with caution]; People v. Fowler (1987) 196 Cal.App.3d 79, 87
[same, in context of testifying codefendants].) Indeed, neither defendant’s testimony
tended to incriminate the other.7 As given, the instruction imposed a corroboration
requirement upon all of defendants’ testimony. This effectively placed a burden upon
defendants to introduce corroborating evidence in order to even have the jury consider
their self-exculpatory testimony, and thus violated defendants’ federal constitutional
rights to present a defense, to testify in their own defense, and to due process by reducing
the prosecutor’s burden of proof. (Cool v. United States (1972) 409 U.S. 100, 104; Rock
v. Arkansas (1987) 483 U.S. 44, 49–52; People v. Gutierrez (2009) 45 Cal.4th 789, 821;
People v. Turner (1990) 50 Cal.3d 668, 697 [defendant’s uncorroborated exculpatory



       7Berry’s statement to police tended to implicate Jackson by placing him at the
scene of the shooting. To that extent, Berry’s statement was subject to the corroboration
requirement. CALCRIM No. 335, but not CALCRIM No. 301, included extrajudicial
statements within the corroboration requirement.



                                              21
testimony entitled to same treatment as uncorroborated testimony of prosecution
witness].)
       The trial court compounded the error by instructing the jury that defendants were
accomplices as a matter of law. (CALCRIM No. 335.) While Byers’s testimony certainly
provided support for the proposition that defendants were accomplices, the evidence and
inferences to be drawn from the evidence were far from undisputed. Berry and Jackson
denied playing any role in the crimes, and, as an accomplice, Byers’s testimony both
required corroboration and was to be viewed with caution. If the jury accepted Berry’s
testimony, he was not an accomplice to the crimes, and if it accepted Jackson’s testimony,
he was not an accomplice. The trial court’s erroneous choice of CALCRIM No. 335
instead of CALCRIM No. 334, which directs the jury to determine whether a witness was
an accomplice, improperly removed the determination of accomplice status from the jury.
(People v. Johnson (2016) 243 Cal.App.4th 1247, 1271 (Johnson).) This was a serious
error because informing the jury that defendants were accomplices as a matter of law was
completely irreconcilable with each defendant’s defense testimony that he did not play
any role in the shooting. By giving CALCRIM No. 335, the trial court effectively
negated each defendant’s defense.
3.     Prejudicial effect of errors
       Although most instructional errors are reviewed as errors of state law, the errors
committed here violated defendants’ federal constitutional rights to due process, to
present a defense, and to testify. Accordingly, we must evaluate the error under the
standard of Chapman v. California (1967) 386 U.S. 18, 24: the Attorney General has the
burden of proving beyond a reasonable doubt that the error did not contribute to the
verdict.
       The Attorney General has not met her burden. First, with respect to CALCRIM
No. 301, she argues that “it is possible that the jury . . . followed the court’s oral
instruction and did not require supporting evidence for appellants’ testimony.” When the
court read the instructions to the jury, it stated, “Except for the testimony of Jason Byers,


                                               22
which requires supporting evidence . . . .” The written instructions, however, included
both defendants’ names in CALCRIM No. 301, as set forth above. The Attorney
General’s argument is pure speculation, and, while the Supreme Court made such a
statement in People v. Wilson (2008) 44 Cal.4th 758, 804, cited by the Attorney General,
it did not rest its decision on such speculation, but instead concluded that an error in the
written instruction on torture was harmless because, given the evidence at trial, it would
have been impossible for the jury to have found that the defendant did not intend to
torture the victim. (Ibid.) Moreover, as the Attorney General concedes, where the oral
and written instructions differ, we presume the jury followed the written instructions.
(People v. Mills (2010) 48 Cal.4th 158, 201.)
       Next, the Attorney General argues that CALCRIM No. 301 told “jurors to view a
single witness’s testimony with caution when used to prove a fact,” but since defendants
“did not need to ‘prove any fact’ with their self-exculpatory testimony,” and jurors were
repeatedly instructed that the prosecution carried the burden of proof, “instructing the
jurors that appellants’ testimony required supporting evidence to prove a fact was
immaterial.” We reject this construction. First, CALCRIM No. 301 did not tell jurors to
view a single witness’s testimony with caution. It did, however, expressly tell jurors that
the testimony of Berry and Jackson required “supporting evidence,” i.e., corroboration.
Notwithstanding instruction upon the burden of proof and other instructions, reasonable
jurors reading the version of CALCRIM No. 301 given here could only conclude that
defendants’ testimony had to be corroborated before it could be used to prove any fact.
That is what the instruction says, and it is not reasonably likely that jurors engaged in the
complex interpretation urged by the Attorney General.
       Next, the Attorney General argues the error in CALCRIM No. 301 was harmless
because defendants’ testimony was corroborated. She argues that, as to Jackson, “Berry’s
testimony that he ran into Byers and Hilt—not appellant Jackson—right before the
shooting and that Hilt told him to go down the street” supported Jackson’s testimony.
Indeed, it did. However, jurors were instructed, in accordance with the law, that “[t]he


                                              23
evidence needed to support the statement or testimony of one accomplice cannot be
provided by the statement or testimony of another accomplice.” (CALCRIM No. 335.)
Thus, presuming that jurors followed the instructions, they could not have considered
Berry’s testimony as corroboration for Jackson’s testimony. The same problem
undermines the Attorney General’s argument that testimony by accomplice Byers to the
effect that Byers and Hilt were present and involved in the shooting provided support for
Berry’s testimony.
       With respect to CALCRIM No. 335, the Attorney General argues that instructing
the jury that defendants were accomplices if the charged crimes were committed was
harmless because the jury was repeatedly instructed on the prosecution’s burden of proof,
which did not include proving that defendants were accomplices, just that they were
guilty of murder and conspiracy to murder. However, the prosecution relied upon a
theory that defendants were accomplices (as conspirators or aiders and abettors), and
instruction upon the prosecutor’s burden of proof did not counteract the clear statement in
CALCRIM No. 335 that “[i]f the crimes charged were committed,” defendants were
accomplices to those crimes. Thus, if the jury found anyone committed the charged
crimes, whether it was Byers and Hilt, Byers and Jackson, or Byers and Berry, under the
terms of CALCRIM No. 335, which we presume the jurors followed, both defendants
were accomplices to those crimes, meaning, at a minimum, that their self-exculpatory
testimony required corroboration.
       Because someone—assisted by Byers—clearly shot Genis, it was clear, at a
minimum, that a homicide was committed. The jury clearly found that the homicide was
murder and that there was a conspiracy to commit murder. Given the absence of any
instruction defining “accomplice” for the jury, it is unclear whether the jury would have
understood that accomplices are persons subject to prosecution for the same offense,
which is a technical, legal meaning that differs from its significantly broader ordinary
meaning of “one associated with another esp[ecially] in wrongdoing.” (Merriam-
Webster’s Collegiate Dict. (10th ed. 1999) p. 7.) It is clear, however, that jurors would


                                             24
reasonably construe CALCRIM No. 335 and its statement that defendants and Byers were
accomplices to mean that defendants were somehow associated with or involved in the
crimes, which inherently impaired the presumption of innocence and negated the
defendants’ testimony that they were not involved. Other instructions informed jurors
that defendants could be found guilty based upon aiding and abetting or conspiracy
theories. Jurors may have correctly assumed that an aider and abettor or conspirator was
an “accomplice.” We need not speculate, however, because the Attorney General bears
the burden of proving that the error was harmless beyond a reasonable doubt, and, given
the very uncertainty of how the jury would have understood the effect upon defendants’
liability of the court’s instruction that they were accomplices, the Attorney General has
failed to carry her burden.
       With respect to CALCRIM No. 335, the Attorney General also relies upon
Johnson, supra, 243 Cal.App.4th 1247. There, the appellate court concluded the trial
court erred by giving CALCRIM No. 335, but in light of the evidence, the error was
harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, i.e., the
defendants were required to demonstrate a reasonable probability that the jury would have
found that they were not accomplices if the court had used the proper instruction,
CALCRIM No. 334. (Johnson, at p. 1271.) Here, because the instructional errors
impaired defendants’ constitutional rights, we apply the Chapman standard, which is not
only more exacting, but places the burden upon the Attorney General to demonstrate
harmlessness, not upon the defendants to demonstrate prejudice.
       Moreover, in Johnson, there was only one erroneous accomplice instruction,
whereas here the court erroneously informed the jury that each defendant’s testimony
required corroboration, thereby creating a significant obstacle to the jury’s consideration
and possible acceptance of defendants’ testimony. As an aspect of its prejudice analysis,
the Johnson court noted that nothing in CALCRIM No. 335 or the record directed the jury
to view the defendants’ “testimony under anything other than the usual rules for
evaluating a witness’s credibility.” (Johnson, supra, 243 Cal.App.4th at p. 1275.)


                                             25
       A number of other factors also distinguish Johnson from the present case. In
Johnson, a group of four men arrived together at a lakeside campground. Two or three of
them immediately jumped out of the car and attacked people, while defendant Johnson
got out, grabbed his wife, who had been staying at the campground with the victims, and
attempted to drag her into the attackers’ car. At the conclusion of the attack, all four men
fled together in the car. A number of people at the campsite, including the surviving
victim, knew Johnson and one or more of the other attackers. The surviving victim,
Johnson’s wife, and other percipient witnesses to the attack testified at trial regarding the
homicide, attempted homicide, and the role played by each man in the group of attackers.
In addition, in the weeks preceding the attack, Johnson had threatened to kill his wife and
the attempted homicide victim. (Johnson, supra, 243 Cal.App.4th at pp. 1252–1255.)
       Each defendant in Johnson made extrajudicial admissions. Johnson admitted
driving the others to the lake and knowing they planned to rob someone when they
arrived at the lake. Thornton admitted that he was involved in a plan to rob people at the
lake. Both defendants testified at their trial. Thornton testified that he and Johnson
remained in or at the car during the attacks and claimed he knew of no criminal plan.
Johnson testified he agreed to give the other three men a ride to the lake, knowing they
intended “‘to do something,’” and that in route he heard talk about robbing someone and
he “might have heard about” a gun. (Johnson, supra, 243 Cal.App.4th at pp. 1255–1265.)
       Thus, in Johnson, the defendants’ guilt did not rest solely or even principally on
the testimony or extrajudicial admissions of an accomplice, let alone an accomplice who
accepted a prosecution plea agreement in exchange for his testimony. The testimony of
the percipient witnesses, as well as the defendants’ admissions formed the bulk of the
prosecution’s case against them. As the appellate court concluded, “there was
overwhelming evidence that both Johnson and Thornton” knew the other two men
intended to attempt to rob people at the lake and intentionally facilitated that attempt. In
light of that “overwhelming evidence,” the “defendants’ testimony that they did not




                                             26
intend to facilitate the robbery was simply not credible.” (Johnson, supra, 243
Cal.App.4th at p. 1273.)
       Here, there were no testifying percipient witnesses other than Byers. Byers was an
accomplice in the crimes whose testimony the jury was properly told should be viewed
cautiously. Parts of his testimony were self-contradictory and other parts were rather
implausible. For example, Byers initially testified that Berry approached him about 30
minutes after the school group passed the Stoners house, they talked, then Berry left, then
returned while Byers was talking to Jackson and Hilt, and at that time Byers told Berry
about what had happened. On cross-examination, however, Byers repeatedly testified that
the first time he saw Berry that day was when Berry approached while Byers was talking
to Jackson and Hilt. Similarly, Byers initially testified that when the incident with the
Stoners occurred, he had not yet met up with Jackson, but on cross-examination he
testified that Jackson was part of the group that had walked past the Stoners house that
day with Byers and suffered abuse. When asked about and shown his contradictory
police statement, Byers testified Jackson was not part of the group. Byers also testified
that the plan to attack the Mid City Stoners house was discussed, but he did not know
who picked Berry to be the shooter. Similarly, he testified he did not recall who, among
them, told him to take the shooter to the Stoners house using the bicycle Byers had
conveniently found lying next to the curb. After being shown a transcript of his recorded
statement to the police, he testified it was Jackson. Later, on cross-examination, Byers
testified no one told him to do that, he just felt he should do it. Byers also testified that
“we hid” the gun but did not know who did so or where.
       Byers also had an obvious motive to fabricate, in that he had been facing an
indeterminate term of 25-years-to-life but was given a 13-year sentence in exchange for
his testimony against Berry and Jackson. In addition, Hilt was his friend, and he therefore
had a motive to shift blame from Hilt to defendants. Notably, Byers testified that he and
Hilt had previously discussed the offensive conduct of the Mid City Stoners and, on
December 21 they said, in effect, “enough is enough.” In addition, Rosales’s testimony


                                              27
tended to implicate Hilt as the shooter because he testified that the boy in the red shorts
(Hilt) was at the corner of 113th Street and Wadsworth and warned him not to continue
on 113th Street. The corner of Wadsworth and 113th Street was the location where Byers
testified Berry got off the bicycle and Byers waited for him to commit the shooting.
According to Byers, Hilt and Jackson had waited more than 100 yards farther east on
113th Street, toward Belhaven.
       Berry’s motive for participating—especially as the actual shooter—was also
subject to doubt, since he did not live in that neighborhood and, as far as the evidence
reveals, never lived in that neighborhood and only visited it occasionally. He therefore
would not have walked past the Stoners house and suffered their abuse. He associated
with a different gang that was not on friendly terms with the Bounty Hunters gang that
claimed the neighborhood and was engaged in conflict with the Stoners. And, of course
both Berry and Jackson testified and told the police that they were not participants in the
shooting or a plan to shoot anyone. The prosecution’s case was therefore far weaker than
in Johnson, and it rested almost entirely on Byers’s testimony.
       Apart from Byers’s testimony, the prosecution’s case against Berry consisted of
the presence of his shoe and purported inconsistencies between his testimony and his
statement to the police, most notably about the location of his shoe. Berry explained why
he lost his shoe and was present in the neighborhood, and it is unclear from the record
that Berry actually changed the location of the shoe, as opposed to Kouri mismarking a
tiny, not-to-scale map. It simply cannot be said on this record that there was no
reasonable doubt that Berry was an accomplice in the crimes, so as to render the error in
instructing with CALCRIM No. 335 harmless beyond a reasonable doubt. Moreover, the
effect of giving CALCRIM No. 335 was exacerbated by the trial court’s other errors of
erroneously telling the jury that each defendant’s testimony required “supporting
evidence” and improper admission of highly prejudicial and inadmissible hearsay that the
prosecution utilized as an assertion by Jackson that Berry was the shooter.




                                             28
       As to Jackson, the prosecution’s case apart from Byers’s testimony was stronger,
in that Rosales identified Jackson as a member of the group of four behind Rosales’s car,
although, as previously described, his testimony was somewhat confusing, in that he
seemingly mixed up several of the boys. Moreover, Rosales did not identify Jackson as
one of the two who appeared to be loading a gun. Berry implicated Jackson in his police
statement, but explained at trial that this was to protect Hilt. In addition, Berry’s
statement implicating Jackson had to be viewed with caution because Berry was an
accomplice. The most damning evidence against Jackson was his own Facebook
message, for which his explanation at trial was not persuasive. While this evidence
creates a suspicion that Jackson was an accomplice, the evidence simply was not
undisputed. Moreover, as with Berry, the prejudicial effect of giving CALCRIM No. 335
was exacerbated by the trial court telling the jury that each defendant’s testimony required
“supporting evidence,” thereby virtually guaranteeing that the jury disregarded Jackson’s
testimony.
       On the whole, we cannot say that the evidence against either defendant was so
strong, persuasive, or one-sided as to permit this court to conclude that there is no
reasonable possibility that the errors might have contributed to the verdicts. (People v.
Aranda (2012) 55 Cal.4th 342, 367.) We therefore conclude that the Attorney General
failed to meet her burden of proving harmlessness beyond a reasonable doubt, and we
reverse the convictions.
       Given our disposition, we need not address any other issues raised on appeal, but
we briefly note that if defendants are retried on the conspiracy charge, the trial court
should not ask the jury to determine the degree of the murder they conspired to commit
because every conspiracy to commit murder is necessarily conspiracy to commit
premeditated and deliberated first degree murder. (People v. Cortez (1998) 18 Cal.4th
1223, 1237–1238.)




                                              29
                                    DISPOSITION
      The judgments are reversed.
      NOT TO BE PUBLISHED.


                                             LUI, J.
We concur:


      ROTHSCHILD, P. J.


      CHANEY, J.




                                        30
