Filed 2/6/13 P. v. Tyler CA3
Received for posting 3/19/13
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C062508

                   Plaintiff and Respondent,                                     (Super. Ct. Nos. 07F01565,
                                                                                         06F06452)
         v.

ZACHARY TYLER,

                   Defendant and Appellant.




         A jury found defendant Zachary Tyler guilty of second degree robbery (Pen.
Code, § 211)1 in case No. 06F06452. In case No. 07F01565, a jury in another trial found
defendant guilty of attempted murder (§§ 664/187, subd. (a)) and second degree robbery
(§ 211) with an enhancement for being armed with a firearm (§ 12022, subd. (a)(1)).




1   Undesignated statutory references are to the Penal Code.

                                                             1
          The trial court imposed a total term of 55 years four months, plus 65 years to life
in case Nos. 07F01565, 06F06452, and 07F01299.2 Defendant contends on appeal that
the prosecutor committed misconduct in the closing argument in case No. 07F01565. We
affirm.
                                FACTUAL BACKGROUND3
                            The Robbery and Attempted Murder
          On the night of January 29, 2007, Barbara Peoples heard gunshots and then
banging at the front of her house. She opened the front door to find a man standing
on the porch and a white Cadillac on her front lawn. The man, Raymond Amayao, fell
onto the front porch and said he had been shot. He was in pain and appeared “quite
apprehensive and afraid.” He said he did not want to die and mentioned that he had
three children. When Peoples called 911, the operator instructed her to ask Amayao
who shot him. Peoples asked Amayao if he knew and he replied “no.”
          Sacramento Police Officer Casey Dionne interviewed Amayao in the ambulance
as he was being transported to the hospital. Amayao said he had parked his car at the
Evergreen Shopping Center off Mack Road when a white 1980‟s Buick with four to six
occupants pulled up next to him. Amayao heard someone yell out to shoot him, and a
man in the driver‟s side rear seat with two- to three-inch dreadlocks and a gold grille
pointed a nickel-plated semiautomatic handgun at him. The man shot at Amayao, hitting
him once in the shoulder and twice in the abdomen. Amayao was evasive with the




2 Defendant filed a separate appeal in case No. 07F01299. (See People v. Tyler (Jan. 26,
2012, C062512) [nonpub. opn.].)
3  Since defendant makes no contentions regarding case No. 06F06452, we dispense with
a recitation of the facts in that case and summarize only the facts established at the trial in
case No. 07F01565.

                                                2
officer, and said he did not know why he was at the Evergreen Shopping Center or where
he was going. He said he did not know why he was shot or who had done this to him.
        On January 31, 1997, Amayao was interviewed at the hospital by Sacramento
Police Officer Kevin Howland. Amayao said he passed a car he described as a 1988 to
1991 white Buick Park Avenue when he pulled into the Evergreen Shopping Center
parking lot. He parked near a liquor store, and one of the Buick‟s occupants called him
over.
        Amayao walked to the car and saw that there were five people in the car, including
three males, one sitting in the driver‟s seat, one in the front passenger seat, and one in the
driver‟s side rear seat. The man behind the driver asked Amayao to help jump-start a car.
Amayao agreed, and followed the Buick in his car.
        The Buick left the shopping center, went down Center Parkway, turned onto a side
street and parked, with Amayao pulling off the road behind the Buick. The man in the
rear driver‟s-side seat who had asked for the jump-start left the Buick and approached
the passenger side of Amayao‟s car. He rested one hand on the roof of Amayao‟s car and
pointed a faded, gold-colored semiautomatic pistol at Amayao with the other hand and
told him to “break yourself,” which Amayao understood to mean he was being robbed.
The man entered Amayao‟s car and Amayao gave the man $24 in cash.
        The man from the front passenger seat then exited the Buick. Shortly after
Amayao gave the money to the robber, someone yelled “shoot him, shoot him.” The
man with the gun then shot Amayao several times. He continued shooting as Amayao
drove away, shooting out the rear window of Amayao‟s car. Amayao continued to drive
until he crashed into a house and asked for help. Amayao thought he could identify the
occupants of the rear seat on the driver‟s side and the front passenger seat of the car.
        On February 8, 2007, Sacramento Police Detective Brian Dedonder interviewed
Amayao at his home. Amayao reiterated that someone from a white Buick called out to
him after he had parked at the Evergreen Shopping Center. A man in the driver‟s-side

                                              3
rear seat asked for help jump-starting a car that was parked around the corner. Amayao
agreed and followed the Buick, parking behind it when the Buick pulled over on a nearby
street. The man who asked for the jump-start came up to Amayao‟s car, opened the
passenger door, leaned in, and pointed a gun at Amayao, telling him to “break yourself.”
Amayao then gave the man $24. He believed the man in the front passenger seat got out
of the car, walked behind the robber and told the robber to shoot him. The robber, who
had been calm, got very excited and started shooting at Amayao. The man continued to
shoot at Amayao as he drove off, shooting out the back window of his car.
       This time Amayao described the gun as dark colored and kind of bronze, “like the
kind you see in a western movie.” He thought the shooter touched the roof with his other
hand as he leaned into the car. Amayao identified codefendant Anthony Richard as the
shooter and robber in a photographic lineup. He was unable to identify defendant or
codefendant David Griffin in separate photographic lineups.
       Dedonder asked Amayao why he told the first officer who interviewed him that
the shooting had taken place at the shopping center rather than around the corner.
Amayao responded that he was in pain, just wanted to get to the hospital, and did not
want to talk.
                                The Victim’s Testimony
       Amayao has a 2004 felony conviction for transportation of a controlled substance
from Solano County. At the time of the robbery and shooting here, Amayao lived with
his fiancée and their three children in south Sacramento.
       Amayao testified that he remembered driving his 1991 Cadillac on the day he was
shot, and that the car was damaged during the shooting. He stated that he did not recall
what he was doing the day he was shot, nor did he recall talking to the police at the scene
of the crash or in the ambulance. He identified himself on a security video getting out of
his car, but said he did not remember going to the Evergreen Shopping Center.



                                             4
       Amayao further testified that he could not recall seeing a man from the back seat
of a white Buick pointing a nickel-plated revolver at him. He said he had no memory
of talking to Detective Howland or any details of their conversation. He remembered
talking to a detective at his home; he identified a person in a photographic lineup, but
testified he was not sure that it was the person who shot him.
       Looking at defendants in court, Amayao said he never saw defendant or the
codefendants on the day he was shot. He said he did not remember telling a deputy
district attorney that he was afraid. But he admitted he did not want to come to court and
testify. Amayao lives in Sacramento with his fiancée and their four children, but said he
was not afraid about testifying.
       Former Sacramento County Deputy District Attorney Larenda Delaini was
assigned to the case in July 2007.4 She met with Amayao on July 31, 2007 and August 8,
2007. Amayao was uncooperative during both visits, and made it clear he did not want
to be part of the process. Amayao‟s body language and demeanor at both meetings
indicated he was scared. Amayao did not want to come to court because he did not want
the defendants or their family members to see him. At a third meeting on August 16,
2007, Amayao admitted he was scared for his family, telling Delaini he already had
three children and his fiancée was pregnant.
       Delaini met Amayao again on August 21, 2007. As in every previous meeting,
Amayao said he did not remember the incident. Delaini told Amayao she knew he
remembered the incident and that he was afraid. After telling Amayao he would look
pretty silly if he claimed not to remember after she presented the evidence, Amayao said
he remembered what happened, but was extremely fearful for himself, his fiancée, and



4 Delaini did not participate in defendant‟s trial. The case was taken over by another
deputy when Delaini was transferred to another division. Delaini was employed as a
deputy attorney general at the time of the trial.

                                               5
their children. Amayao said he was trying to move his family from where they presently
lived to get away from it all. After he was shown a video of him parking at the Evergreen
Shopping Center, Amayao smiled and said, “I‟ll tell you.” Amayao was still scared, but
more open after that. He denied that the incident was a drug deal gone bad.
                                      Other Evidence
       Surveillance videos from the Evergreen Shopping Center on the night of the
incident showed two men getting out of a car and entering the liquor store. After
they were in the store for some time, they left the liquor store and got back into the
car. The parties stipulated that defendant and codefendant Anthony Richard were the
individuals depicted in the video. From the video, Detective Dedonder determined
defendant and Richard were riding in a white Buick, which was registered to Dewayne
Knorr. Defendant was the driver of the Buick.
       Defendant‟s ex-girlfriend, Barbara Knorr, confirmed the Buick in the video was
hers, although it was registered to her father, Dewayne Knorr. She allowed defendant to
drive the car, and he was driving it on January 29, 2007.
       Richard was arrested on February 13, 2007, after an officer saw him leaving a
local apartment. Officers searching the apartment found a loaded .22-caliber revolver
and a sock containing eleven .357-caliber bullets. Officers contacted a man at the
residence who claimed to be Mark Butler, but they later determined he was codefendant
David Griffin, Richard‟s half brother.
       Amayao told Detective Dedonder that the seized .22-caliber revolver depicted
in a photograph was the same color as the gun used to shoot him, but he was not certain
it was the same gun. A bullet fragment was extracted from the tire of Amayao‟s car.
The fragment was from a .22-caliber bullet, which could have been discharged from the
.22-caliber firearm found in Richard‟s apartment. Knorr had seen codefendants Richard
and Griffin with the firearm.



                                              6
       A latent print from the top left of the rear passenger door of Amayao‟s car was
matched to codefendant Griffin.
       Gunshot residue particles found on the interior front passenger seat of Amayao‟s
car, near the driver‟s seat, indicated that a gun had been discharged into the vicinity
of where those particles were found. Two of the three components of gunshot residue
were found on Amayao‟s hand. Those particles could have been the result of Amayao
moving his hand in a defensive posture at the time he was shot. Or the particles could
have gotten on his hand by touching his gunshot wounds. There were a number of things
that could explain the presence of those particles on Amayao‟s hands, including the
possibility that Amayao fired a gun.
                                       DISCUSSION
       Defendant asserts various statements from the prosecutor during closing argument
were prejudicial misconduct. Anticipating that we will find the contention forfeited
because trial counsel did not object to the alleged misconduct, defendant also contends
the failure to object to the statements was ineffective assistance of counsel. We disagree
with both contentions.
                                       I. Forfeiture
       Defendant asserts misconduct in three portions of the prosecutor‟s closing
argument: (1) the prosecutor‟s statements that it is common for witnesses and victims to
recant and that CALCRIM No. 318 was created for such situations, (2) that Amayao
could not leave the state or change his identity after the trial, and (3) defendant would be
guilty even if Amayao was trying to buy drugs from the defendants.
       A prosecutor‟s conduct violates the federal Constitution when it is so egregious it
renders the trial unfair and constitutes a denial of due process. (People v. Gionis (1995)
9 Cal.4th 1196, 1214.) Under California law, conduct by a prosecutor that does not
render a trial unfair is nevertheless misconduct if it involves the use of deceptive or
reprehensible methods in an attempt to persuade the court or jury. (People v. Espinoza

                                              7
(1992) 3 Cal.4th 806, 820.) To preserve a claim of prosecutorial misconduct for
appellate review, a defendant must timely object and request an admonition, unless an
admonition would be futile. (People v. McKinzie (2012) 54 Cal.4th 1302, 1358.)
       Defendant did not object to the prosecutor‟s arguments he now claims were
improper, and there is no indication his objections would have been futile. Thus,
defendant‟s misconduct contentions are forfeited.
                          II. Ineffective Assistance of Counsel
       A conviction will not be reversed based on a claim of ineffective assistance of
counsel unless the defendant establishes that (1) counsel‟s performance was below an
objective standard of reasonableness under prevailing professional norms, and (2) the
deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S.
668, 687-689, 691-692, 693-694 [80 L.Ed.2d 674] (Strickland); People v. Ledesma
(1987) 43 Cal.3d 171, 216-217 (Ledesma).) “ „Surmounting Strickland’s high bar is
never an easy task.‟ ” (Harrington v. Richter (2011)     U.S.    ,   [178 L.Ed.2d 624,
642, quoting Padilla v. Kentucky (2010) 559 U.S.       [176 L.Ed.2d 284, 297].)
       To show prejudice, defendant must show a reasonable probability that he would
have received a more favorable result had counsel‟s performance not been deficient.
(Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, supra, 466 U.S. at p. 694; accord, Ledesma, supra, 43 Cal.3d at
p. 218.)
                     A. Argument about the Victim’s Recantation
       While discussing Amayao‟s conduct and testimony, the prosecutor made the
following statements:
       “What [Amayao] did was self-preservation. He told us that without telling us.
His demeanor in court. His previous statements regarding his concern and the fact
that we know he was nearly killed the last time he saw these people tells us that.

                                             8
        “There is nothing different than what Mr. Amayao did than many other things we
maybe experienced in our own lives. For example, a woman who is abused by her
husband suffers a bruise. Tells the neighbor, oh, no, he didn‟t hit me. I ran into the
cupboard. Self-preservation.
        “Mr. Amayao, Raymond Amayao is looking out for his self [sic] and his family
and he couldn‟t do it here in court.
        “Thank goodness we have other evidence in that he talked to detectives when he
felt safe before he felt what he felt when he sat in that chair.
        “Now, let‟s move on to the facts of this case. Now, there‟s a special jury
instruction for situations exactly like what happened with Mr. Amayao in this particular
case. And that‟s because unfortunately or fortunately depending on your viewpoint what
happened here, I don‟t remember, different stories, refusal to admit things, unwillingness
to talk about things; it’s pretty common.
        “It’s pretty common for any number of reasons. One of which is the reason we
talked about here. Fear, and survival, and self-preservation.
        “What does the law say about this? This is CALCRIM instruction 318 and when
you go back in the jury room you‟re going to have a copy of this and you can take a look
at it. You heard evidence[,] statements that a witness made prior to trial and here I‟m
talking only about Mr. Amayao. You heard several different statements that he made
prior to trial.
        “What do you do with that information? What is useful for you to do? What does
the law allow you to do?
        “You can use it two ways. The statement, the out of court statement.
        “Number one; to evaluate whether the witness‟s testimony in court is believable.
Now, Mr. Amayao‟s testimony in court that he doesn‟t remember[,] that part‟s not
believable. Most of the other things he told us when he gave his answer[,] that is
believable. And we‟ll go into that later on.

                                               9
       “But the second thing here is key. What is the other way that you can use those
statements in [sic]?
       “As evidence that the information in those statements is true. There is nothing
wrong with you basing a verdict in this case or any other case based on belief beyond a
reasonable doubt in the prior statements of Mr. Amayao.
       “It makes no difference whatsoever so long as you believe those prior statements
what he does here in court [sic].
       “This jury instruction tells you about that. And it’s exactly for scenarios like this
because it is not uncommon for witnesses and for victims to do what Mr. Amayao did or
to give statements in court that are different for any motivation than the ones they gave
outside of court. That is what you have to focus on.” (Italics added.)
       Defendant asserts the italicized portions of the argument quoted above improperly
vouched for Amayao and relied on facts outside the record -- that it is common for
witnesses and victims to recant at trial.
       It is misconduct for a prosecutor to argue evidence outside the record. (People v.
Frye (1998) 18 Cal.4th 894, 976 (Frye), disapproved on other grounds in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) However, “ „a prosecutor is given wide
latitude during argument. . . . It is . . . clear that counsel during summation may state
matters not in evidence, but which are common knowledge or are illustrations drawn
from common experience . . . .‟ [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522,
567.) The reviewing court must consider the alleged misconduct in the context of the
prosecutor‟s entire argument (People v. Dennis (1998) 17 Cal.4th 468, 522) and may not
“ „lightly infer‟ that the jury drew the most damaging rather than the least damaging
meaning from [those] statements” (Frye, supra, 18 Cal.4th at p. 970). We also keep in
mind that the failure to object to argument “seldom establishes counsel‟s incompetence.
[Citations.]” (People v. Ghent (1987) 43 Cal.3d 739, 772.)



                                             10
       The prosecutor began her remarks on this issue by suggesting that what Amayao
did on the witness stand was no different than “many other things we maybe experienced
in our own lives.” The prosecutor went on to argue what has come to be common
knowledge. It is an unfortunate reality for many people in many neighborhoods that
cooperating with the police and providing testimony about violent crime in court
engenders feelings of fear and trepidation. It is not inaccurate to say that refusing to
cooperate is seen as a way of surviving. Indeed, avoiding the perception of being a
“snitch,” a “rat” or a “tattle-tale” is not new. Feigning lack of memory, changing one‟s
story, refusing to admit what was said before, and being uncooperative are common
stratagems employed to avoid pointing the finger, not just in trials but in many other
aspects of life, including incidents that occur between children in the home and in the
school setting. The prosecutor simply pointed out what is common knowledge.
       Moreover, defendant was not prejudiced by this argument. The reference to
victims generally recanting was made in the context of a larger and more specific
argument that Amayao‟s testimony should not be believed because it was a product of his
fear for himself and his family. The prosecutor‟s comment about CALCRIM No. 318
was nothing more than an argument that that instruction applied to Amayao‟s statements
as it would apply in any situation where a person recanted an earlier statement.
       Defendant asserts the evidence does not support an argument that Amayao
believed he would face repercussions if he testified truthfully at trial. He argues Amayao
specifically testified he was not scared, and his statements to Delaini do not support an
inference that he was afraid of reprisal if he told the truth on the stand. Defendant claims
Amayao could have been reluctant to testify because the defendants were angry at him
for falsely implicating them in his statements to the police. Finally, defendant speculates
Amayao‟s desire not to be involved in the case could be rooted in the realization that the
law enforcement officials would be unhappy with him when he revealed at trial “that he
had incorrectly implicated the defendants.”

                                              11
        We disagree. While defendant‟s interpretation of the evidence is possible, albeit
highly unlikely, the evidence strongly supports an inference that Amayao was afraid of
testifying out of fear of reprisal. Amayao told Delaini in multiple interviews he did not
remember what happened. When he finally admitted remembering the events, Amayao
said he was afraid for himself and his family. Delaini also testified that Amayao‟s
conduct and body language showed he was afraid during their conversations.
        The prosecutor‟s argument makes the entirely plausible inference that Amayao‟s
trial testimony, where he could not recall the incidents was, like his refusal to remember
the incident when being interviewed by Delaini, a product of fear which should not be
believed. This argument was based on the evidence and was proper.
        Trial counsel need not raise futile objections to forestall ineffective assistance
claims. (Frye, supra, 18 Cal.4th at p. 985.) Since the prosecutor‟s argument was not
misconduct, the failure to object was not ineffective assistance.
                          B. Argument about the Victim’s Fear
        In addressing Amayao‟s credibility, the prosecutor made the following argument:
        “[Amayao] told Larenda Delaini I‟m trying to move my family out of the area.
I‟m trying. Well, he told us here in court we still live here.
        “When he gets off the witness stand and he walks out of that courtroom he goes
home to this area. He doesn’t get to fly out to another state to go assume another
identity. He lives with people looking at his face knowing his name and living in this
town.
        “What is worse for him than what‟s already happened. Something happening to
his family.
        “And that was what Raymond Amayao was concerned with. And that is self-
preservation. He came in here and he told us without telling us I can‟t do this, I‟m not
willing to do this because of what has already happened and what he fears in the future.



                                              12
       “That does not make him untrustworthy and that doesn‟t make what he has
already told us and which is corroborated by a lot of other evidence that we‟ll get to later
untruthful or bothersome in any event. It makes him a human being who cares about his
family.
       “Bottom line. You don‟t have to like what Raymond Amayao did. Would it have
been easier if he came in and repeated verbatim what he had told the detectives? Maybe.
Maybe not.”
       Defendant contends the italicized portion of the argument is an improper appeal to
the jury‟s prejudice and passions by urging them to imagine the victim‟s suffering, and
was unsworn testimony about defendant‟s future dangerousness.
       Again, we disagree. This argument was made just before the passage regarding
Amayao‟s recanting, which we discussed in Part II.A. of the Discussion, ante. The
prosecutor was not asking the jury to convict defendant because Amayao has suffered
or defendant presents some future danger. Placed in its proper context, the passage is
part of a larger argument that Amayao recanted out of understandable fear, which
makes his trial testimony not credible, but does not diminish the credibility of his
pretrial statements. The reference to “people looking at his face knowing his name and
living in this town” was not directed at defendant and did not imply defendant‟s future
dangerousness. Amayao had told Delaini he was concerned that defendants and their
family members would see him if he testified. The prosecutor‟s comment was likely
understood to relate to Amayao‟s fear that his face would become known to whomever
was in the courtroom, including the defendants‟ families, and that he would inevitably
have to return to his neighborhood known as a person who had cooperated with the
authorities and pointed the finger at defendants in court.
       Evidence a witness is afraid to testify is relevant to the credibility of that witness
and is therefore admissible. (Evid.Code, § 780; People v. Warren (1988) 45 Cal.3d 471,
481.) Testimony a witness is fearful of retaliation also relates to that witness‟s credibility

                                              13
and is admissible. (People v. Malone (1988) 47 Cal.3d 1, 30.) Since such evidence is
clearly admissible under Evidence Code section 780, argument based on the evidence,
like the prosecutor‟s argument here, is proper.
       Again, since the prosecutor‟s argument was not misconduct, the failure to object
was not ineffective assistance.
                          C. Purported Misstatement of Law
       During the defense closing arguments, counsel for defendant and codefendants
argued Amayao was not credible because he lied to the officers about why he was at
the shopping center and lied at trial about being unable to remember the details of the
incident. Counsel suggested Amayao‟s actual purpose at the shopping center was to buy
illegal drugs.
       The prosecutor responded to these arguments on rebuttal, stating:
       “Think about it. When you‟re Raymond Amayao you‟re bleeding and you‟re
thinking of your children and you‟re trying to live, and officers asking you why you went
to a liquor store which has nothing to do with why you got shot other than everything
kind of started there, is that important or relevant to you? Of course not.
       “What if he gives a detailed statement about [sic]? The detailed statement from
Officer Dionne about the car. About the description of the person that shot him. All of
those things are important and relevant. Him saying I don‟t know what I was doing there,
I don‟t know where I was going, none of that makes a bit of difference.
       “Because you know what, it doesn‟t matter when you look at this or any other case
what Raymond Amayao was doing.
       “Doesn’t matter. I will tell you we would still be here -- everyone will tell you
this, we would still be here in this case if Mr Amayao was shot and Mr Amayao was
attempting to be murdered by these guys, they took his money if he did agree to go
around the corner and buy dope. Let’s just put it out there; right.



                                             14
       “Let’s just say for some reason, and I’m not suggesting that this is the case.
Please understand that. If Mr. Amayao made an arrangement to go buy drugs from
someone and that’s why he went around the corner and everything else in his statement
is accurate, Anthony Richard gets out, he’s got the gun, he says break yourself, he gives
him $24[,] Raymond Amayao gets shot, we’re still here in court.
       “They’re still guilty of the crime. They’re’ still guilty of the crime. The status
of the victim whether they‟re sympathetic, whether they‟re a good Samaritan, whether
they‟re not a nice person, whether they have a felony conviction, none of that matters to
ending up here in court.
       “Victims are victims. Prosecution doesn‟t pick victims. Judges don‟t pick the
victims. You know who picks the victims? The defendants. They picked Mr. Amayao.
It is their choice why he ended up here in this courtroom. And even if he did anything
other than what he said, which is go to the liquor store, none of that makes a difference.
       “He makes an agreement to go around the corner and buy God knows what from
these guys, a gun, drugs, fill in the blank, none of it matters because it doesn‟t make them
innocent.
       “They would still sit here and they would still be guilty even if that were the case.
None of that matters. . . .”
       Defendant contends the italicized portion of this passage improperly stated the law
regarding his liability as an aider and abettor. A person aids and abets the commission of
a crime when he or she, with knowledge of the unlawful purpose of the perpetrator, and
with the intent or purpose of committing, facilitating or encouraging commission of the
crime, by act or advice, aids, promotes, encourages or instigates the commission of the
crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) Defendant argues that if he
drove the Buick around the corner to facilitate a drug deal, without more evidence, he
would have lacked the knowledge of the robbery and attempted murder necessary to be
liable as an aider and abettor. From this, defendant concludes the prosecutor misstated

                                             15
the law because defendant could not be guilty if Amayao went around the corner to buy
drugs.
         Defendant‟s contention rests on a fact not found in the prosecutor‟s hypothetical --
that defendant drove the Buick around the corner intending to facilitate a drug deal
without knowledge the others intended to rob Amayao. The prosecutor did not say that.
Her argument does not assume any facts other than that Amayao may have gone around
the corner to buy contraband.
         Thus, the conclusion that follows from defendant‟s misreading of the prosecutor‟s
argument -- that he cannot be liable as an aider and abettor if Amayao intended to buy
drugs that night -- is wrong. If defendant drove the car around the block, knowing the
codefendants offered drugs to Amayao and planned to rob him once Amayao followed
them around the corner, defendant would be guilty as an aider and abettor even if
Amayao intended to buy drugs from them.
         In context, the prosecutor‟s argument was likely understood as an assertion that it
did not matter what Amayao was doing when he was robbed, shot and seriously wounded
-- he was still victimized. Defendant has not shown a reasonable likelihood that the jury
construed or applied the prosecutor‟s comments in the way he suggests. (People v. Ayala
(2000) 23 Cal.4th 225, 284.)
         Indeed, in her opening argument, the prosecutor accurately discussed what the
prosecution had to prove to establish aider and abettor liability. The prosecutor told the
jury, “The aider and abettor has to know of the perpetrator‟s intent. Their unlawful
purpose. And the aider and abettor has to specifically intend to do something to help
him. . . facilitate the crime one way or the other.” Later, in discussing the second and
third element of aiding and abetting, the prosecutor told the jury, “The defendants Griffin
and Tyler . . . knew that Anthony Richard intended to commit the crime. They knew it.
That‟s the second element. [¶] Before or during the crime Griffin and Tyler intended to



                                              16
aid and abet Richard in committing the crime. They did something to help with the
knowledge of what was going on.”
       Having earlier told the jury defendant had to have knowledge of his codefendant‟s
unlawful purpose, we do not see how the jury could have understood the prosecutor to
later say defendant would be guilty even if he unwittingly drove the car around the corner
not knowing his passengers intended to rob the victim.
       Since the prosecutor correctly stated the law, counsel did not provide ineffective
assistance by failing to object. (See Frye, supra, 18 Cal.4th at p. 985.)
                                      DISPOSITION
       The judgment is affirmed.




                                                                MURRAY                  , J.



We concur:



              ROBIE                  , Acting P. J.



              BUTZ                    , J.




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