Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 08CF1856, John Conley, Judge.
Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
The trial court did not err in answering questions posed by the jury during its deliberations, nor did defense counsel provide ineffective assistance by not requesting different responses. We affirm.
I
FACTS
A jury found defendant Michael Rivera Dedgado not guilty of three counts of attempted murder and not guilty of three counts of attempted voluntary manslaughter. The jury found him guilty of assault with a firearm and found it to be true he personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a). The court sentenced defendant to eight years in state prison.
Fight at The Block
On January 9, 2008, police responded to The Block, an outdoor mall, in Orange where there was “a fight involving 15 males.” Simon Son said he and others in a restaurant sang “Happy Birthday” and “people” started calling them insulting names. Defendant was in the group calling out the jeers; someone in Son’s group responded with a profanity.
About 20 minutes later, Son’s group left the restaurant. As they walked toward the parking lot, one of Son’s friends “started getting into a fight” with one of defendant’s friends. Then defendant and another of Son’s friends “started getting into a fight with each other.” The crowd pulled the two apart, and, according to Son, “Then right away like Delgado got up and he just cheap-shotted him on the side.” Son’s friend’s “legs just buckled and he fell, ” and defendant “started running away.” Son ran after defendant and “hit him in the face.” According to Son, “Mr. Oregel was behind [defendant] and he tried to hit [Son].” Gomez Oregel was defendant’s codefendant in trial. Son tried to hit Oregel and missed. Shortly thereafter, Son and his friends ran to their cars because they “didn’t want to get in trouble.”
Two Days Later
On January 11, 2008, at 10:15 p.m., Son was at the Bishop Manor Apartments in Santa Ana with some friends. Defendant and Oregel approached him. Defendant “grabbed [Son] by the left side of [his] shoulder and he told [Son], Remember me? Remember me?” Defendant’s left hand was at Son’s shoulder holding his shirt and “he had a gun in the right hand and he was pointing it at [Son’s] face.”
Son tried to run back toward the apartments when he felt “somebody stab [him] in [his] back.” He did not see who stabbed him. Son continued trying to run toward the apartments “and Mr. Oregel was in front of [Son] trying to block [his] way. He swung his knife in front of [Son’s] face. That’s when [Son] put [his] hand up and [he] got stabbed in the hand.” Son ran past Oregel, into a friend’s apartment.
Chitra Choeum was with Son’s group on January 11 when four people approached. He turned to see who they were when he “got punched in the face and stabbed.” Choeum stumbled backwards and “saw another guy just jumping towards Simon with a gun.” The person with the handgun wore a black hoodie. When Choeum saw the gun, he ran to his house. Choeum was taken to the hospital by ambulance where staples were placed in an abdominal wound. He was not able to identify the person who stabbed him or the person with the gun.
Rithya Chan was also with the group outside the apartments He saw three or four dark figures by the pool, and thought they were friends. Chan described what happened: “And next thing you know I hear people screaming and, you know, like saying oh, he has a gun. And I see a figure approaching me.” Chan was stabbed in the neck.
Kim Leng Ngau was with the group, too. He heard screaming and yelling. He ran toward the pool area “because they were going to fight and I got to be there for my friends, right?” Ngau stated: “I saw a guy standing right here between these trees, walking backward holding a gun.” The person holding the gun had a bruised nose. He was “like six-one or six-two.”
Kuntha Luk was at the scene as well when he saw a black truck pull up to the area and noticed “like a couple guys jumping out of the truck.” They wore hoodies and spoke Spanish. “[A] tall guy in a hoodie pulled out a gun and just said remember me?” to Son. Luk saw Son start to run and Luk ran too.
Darann Heng was also there. He described what happened: “Well, we were all hanging out, and then I was like who are these people? Like two guys were walking up to us. One was short. Other one was taller. The shorter one had black eyes and bruises. And then - and they came to the - they walk passed us a little and then into this little alley. And then they stopped and came back....” Heng heard a gun cocked or chamber being loaded, and everyone started running. He saw something shiny and “it looked like a pistol.” Heng ran too. The taller person held the gun. The shorter one had a knife in his hand. Defendant is taller than Oregel.
Questions From the Jury
Defendant’s appeal is centered around the trial court’s response to two questions submitted by the jury during deliberations: “Question 1 - If we find one defendant not guilty of a count can we still find the other defendant guilty of aiding and abetting someone else not charged on the same count. [¶] Question 2 - If we use aiding and abetting to determine someone’s guilt of a crime do they have to be formally charged with aiding and abetting.”
The court had instructed the jury with CALCRIM Nos. 400 and 401 regarding the general principles of aiding and abetting. Regarding the enhancement for personal use of a firearm, the court instructed with a modified version of CALCRIM No. 3146.
The court and counsel discussed how to respond to the jury’s questions. The court began: “Pursuant to our agreement, the court had the clerk call you up with the following draft response to question 1: If you find one defendant not guilty of a count, you can find the other defendant aided and abetted someone else who was the perpetrator. This is true even if the perpetrator is not charged in this case. See CALCRIM 400 and 401 on pages 34 and 35 for the definitions of perpetrator and aiding and abetting. [¶] And for a response to question 2, the court’s draft was: If the jury finds that a person aided and abetted a particular crime, he does not have to be formally charged with aiding and abetting. And as indicated in CALCRIM 400 on page 34, quote a person is equally guilty of the crime, whether he committed it personally or aided and abetted the perpetrator who committed it, close quotes. No separate charge of aiding and abetting is necessary.”
The court then conducted a lengthy hearing regarding responding to the questions. Ultimately, an agreement was reached, and the court responded to the jury as follows: “Question 1: The answer to question 1 is yes. [¶] Question 2: The answer to question 2 is no. [¶] Do the above responses answer your questions?” The response was delivered to the jury at 1:57 p.m. At 3:02 p.m., the jury announced it had a verdict.
II
DISCUSSION
Defendant contends the court’s answers to the jury’s questions “allowed the jurors to unlawfully find the enhancement vicariously true, ” thereby violating defendant’s rights to due process and trial by jury. He also contends his rights were violated because he was denied effective assistance of counsel “because defense counsel failed to object to the trial court’s answer and/or seek an added sentence that told the jurors they could not apply the theory of aiding and abetting to find the section 12022.5 enhancement true.”
Defendant agreed with the responses the court gave to the jury’s questions. Under these circumstances, he has not preserved these issues for appeal. (People v. Jennings (2010) 50 Cal.4th 616, 683; People v. Boyette (2002) 29 Cal.4th 381, 430.) “The court has a primary duty to help the jury understand the legal principles it is asked to apply. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250- 251.) This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citations.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Here the court fulfilled its duty by clearly and correctly instructing the jury. The instructions informed the jury that an aiding and abetting theory applied to crimes. Nothing in the instructions suggested the theory applied to the enhancement: “If you find the defendant Delgado guilty of the crime charged in Count 4 (assault with a firearm) you must then decide whether, for that crime, the People have proved the additional allegation that the defendant personally used a firearm during the commission of that crime. You must decide whether the People have proved this allegation for that crime and return a separate finding for that crime. [¶]... [¶] Someone personally uses a firearm if he intentionally does any of the following: [¶] 1. Displays the weapon in a menacing manner; [¶] 2. Hits someone with the weapon; [¶] OR [¶] 3. Fires the weapon. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” (CALCRIM No. 3146.)
When considering how to respond to the jury’s questions, the court carefully and deliberately attempted to craft an appropriate response. When counsel disagreed, the court conducted a lengthy hearing and considered all counsel’s input before the court and counsel agreed on the responses sent to the jury. The court exercised its discretion in deciding how to respond. Under the state of affairs in this record, we cannot conclude the court abused its discretion.
The evidence overwhelmingly supports the jury’s conclusion defendant personally used a firearm. Even if the court erred in its response to the jury, and we do not find that to be the case, any error was harmless. (Chapman v. California (1967) 361 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant speculates the jury mistakenly applied the instructions, and that, had defense counsel urged different responses to the jury’s questions, the result would have been different. Jurors are presumed to be intelligent people capable of understanding and correlating jury instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.) We presume they followed the law. (People v. Cain (1995) 10 Cal.4th 1, 34.)
In Strickland v. Washington (1984) 466 U.S. 668, the United States Supreme Court established a rule to analyze ineffective assistance of counsel claims: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) The defendant must demonstrate “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at 695.)
Defendant has not shown the result would have been different had defense counsel requested further clarification or had the court answered the jury’s questions in a different way. In fact, defendant has not even shown this record supports his speculation the jury’s questions concerned him rather than his codefendant. We cannot conclude defendant received ineffective assistance of counsel.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., ARONSON, J.