Opinion
No. H041739.
11-03-2017
THE PEOPLE, Plaintiff and Respondent, v. VINCENT PETTIE et al., Defendants and Appellants.
[Modification of opinion (16 Cal.App.5th 23, ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT. — IT IS ORDERED that the opinion filed herein on October 10, 2017, be modified as follows:
1. The sentence beginning with "The parties do not address the applicable standard of prejudice" on page 37 [16 Cal.App.5th 60, advance report, 2d par., lines 1-2] shall be deleted and replaced with the following sentence:The parties did not address the applicable standard of prejudice in their briefing.2. The paragraph beginning "Applying this standard," on page 38 and continuing onto page 39 [16 Cal.App.5th 60, advance report, last par., continuing to page 61] shall be deleted and replaced with the following two paragraphs:In a petition for rehearing, the Attorney General contends the failure to give the instruction would constitute an error of state law only, such that the proper standard for prejudice is supplied by People v. Watson (1956) 46 Cal.2d 818 (Watson) [reversal required only if it is reasonably probable the defendant would have enjoyed a more favorable result in the absence of the error]. For this proposition, the Attorney General cites People v. Perry (1979) 100 Cal.App.3d 251 (Perry). (See also People v. Northrop (1982) 132 Cal.App.3d 1027 [citing Perry], disapproved on other grounds in People v. Smith (1984) 35 Cal.3d 798 [201 Cal.Rptr. 311, 678 P.2d 886].) The Attorney General also contends a defendant's presence can constitute aiding and abetting provided the defendant is present "for the purpose of assisting the crime." (People v. Boyd, supra, 222 Cal.App.3d at p. 556.) But the trial court gave no such instruction here; nor is this language consistent with CALCRIM No. 401 (requiring the jury to find the defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime).
[16 Cal.App.5th 692c]
As to prejudice, although the court in Perry cited the California Constitution, the court did not analyze the issue and did not clearly state the standard. But we need not decide which standard applies. Assuming Watson controls, we conclude it is reasonably probable Pettie would have enjoyed a more favorable result had the court given the instruction. As set forth above, the evidence of his participation in the assault, although sufficient to sustain the convictions, was not strong. Given the prosecution's arguments, the jury's findings may have hinged on the inference that Pettie's status as a Norteño gang member motivated him to aid and abet the attack. Although such an inference would have been reasonable, the evidence to support it — consisting solely of the gang expert's testimony that gang members are obligated to participate in a gang-related assault — did not compel such a finding. We conclude this error requires reversal of Pettie's convictions on counts 1 through 5. The result would be the same under the standard set forth in Prettyman.
Respondent's petition for rehearing is denied.
There is no change in the judgment.