P. v. Jenkins

Filed 9/28/06 P. v. Jenkins CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from judgments of the Superior Court of Los Angeles County. Mark S. Arnold, Judge. Modified and affirmed.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Adam D. Jenkins.

Susan Nash, under appointment by the Court of Appeal, for Defendant and Appellant Kevin M. Lewis.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kyle S. Brodie, David E. Madeo, and Viet Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Adam D. Jenkins (Jenkins) and Kevin M. Lewis (Lewis) (collectively defendants) appeal from judgments entered after a jury trial in which both defendants were convicted of first degree murder (Pen. Code, § 187),^[1] and Lewis was further convicted of attempted murder (§§ 664/ 187, subd. (a)) and shooting at an occupied vehicle (§ 246). We reverse the trial court’s action in imposing and staying punishment for the gang allegation on count 1 as to both defendants. We direct the trial court to prepare corrected abstracts of judgment in accordance with the terms of this decision, and to forward copies to the Department of Corrections. We affirm the judgments in all other respects.

CONTENTIONS

Defendants contend that the trial court committed prejudicial error in refusing their requested pinpoint instructions and that the trial court committed sentencing error in imposing and staying the punishment for the gang allegation and lesser firearm allegations. Defendant Lewis further contends that he was convicted based on the insufficiently corroborated evidence of an accomplice in violation of his constitutional rights to due process and a fair trial, and that the trial court’s imposition of the upper term on count 2 violated his Sixth Amendment rights under Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

BACKGROUND

1. The murder of Leonard Gilmore

According to the evidence at trial, the following events took place on the afternoon of September 12, 2002. Around 3:00 p.m., defendants met their friends Sean Johnson (Johnson) and Christopher Baird (Baird) at a restaurant at the intersection of Artesia and Normandie in Gardena. Jenkins, Lewis, Johnson, and Baird were members of the Shotgun Crips gang and the 132nd Street set. Jenkins’s gang moniker was “Psyche” and Lewis’s moniker was “No Good.”

After crossing the street to talk with a girl he recognized, Baird became involved in an altercation with Derrick Starks, whom he erroneously believed to be a member of the rival Rolling 100’s Crips gang. Johnson and Lewis noticed the altercation and also became involved. Starks was eventually knocked to the ground. Johnson, Lewis, and Baird ran back to Jenkins’s car, a white four-door Chevrolet Lumina. Jenkins, Lewis, Johnson, Baird, and their friend Mack got into the car and sped away.

Jenkins drove toward his neighborhood in Gardena. After dropping off Mack at his home, and stopping briefly at Rowley Park, Jenkins drove the car down Western towards 108th Street on the way to the home of a fellow gang member known as “Sweet P.” James Metoyer, a member of the East Coast Crips or the allied 111 Neighborhood Crips, a Rolling 100’s Crips set, was hanging out with his friends in front of an apartment building on 108th Street, near Hobart Boulevard. As Jenkins’s car approached and stopped at the intersection, the occupants of Jenkins’s car exchanged gang signs with Metoyer and his friends. They also exchanged disparaging remarks about each other’s gangs. Jenkins’s car left and then returned, the occupants again yelling gang slogans and throwing gang signs.

After drinking and smoking marijuana for about 30 minutes at the home of Sweet P, it was decided that Jenkins, Lewis, and Johnson would return to shoot some rival gang members at the corner of 108th Street and Western Avenue. Jenkins retrieved a gun from the side panel in his car door. An unidentified Hoover Crips member provided them with another gun from a house located about five houses down from Sweet P’s home. He explained that it only had three shots in it and that the shooter had to hit the hammer back for it to shoot. Jenkins drove off toward Western with Lewis and Johnson.

At 7:09 p.m., at 108th Street and Denker Street, Officer Sofia Mosqueda pulled over Jenkins’s car after noting that the occupants were not wearing seat belts. The officer examined Jenkins’s driver’s license and wrote down his number. She let them go with a warning. At trial, Officer Mosqueda identified Jenkins as the driver and Lewis as the man in the back seat.

At dusk, Jenkins’s car again encountered Metoyer, standing on a side street near 108th Street, talking to a friend in his car. Jenkins stopped the car, and Lewis took out a gun and pointed it at Metoyer. Metoyer heard the gun “clicking” as if it would not fire, and the shooter banged it on something. The gun did not fire any shots. Metoyer ran up a hill until he got home. Jenkins sped away, but eventually returned to the same side street where they had seen Metoyer. Here, they encountered 14-year-old Leonard Gilmore, riding his bicycle. Somebody in the car said, “There goes one right there.” Jenkins approached, with Gilmore on the passenger side of the car. Johnson testified that Jenkins extended his arm across Johnson and fired five or six times out the front passenger window at Gilmore, and that Lewis also shot three times at Gilmore from the back seat. Gilmore fell over, and Jenkins drove off. Gilmore, who was not a gang member, was taken to a hospital and died five hours later due to a gunshot wound to the back of his head.

According to Johnson, as they drove away, Jenkins and Lewis both said, “I got him,” and “I seen it.” They went to the house of Rodney Willis, or “Smiley,” another gang member. Johnson exited the car with one of the guns and knocked. After Willis’s father said he was not there, Johnson waited for him to close the door then tried to hide the gun in the bushes. Willis’s father opened the door and said he was calling the police. Johnson grabbed the gun and returned to the car.

Jenkins drove around the corner, stopped, and knocked at the house of Steven Turner. Jenkins asked Turner to give him and his friends a ride back to Western and 108th Street because he was out of gas. Johnson stated that they wanted to return to the area and see if anyone had been shot. Turner drove Jenkins, Lewis, and Johnson in his Ford Crown Victoria to the shooting area. They saw police around the area and believed that they had been successful. Turner then drove to 107th Street, near Sweet P’s house, and Jenkins, Lewis and Johnson got out. Baird was still at the house. They all discussed the shooting for about 20 minutes. Then, all of them except Sweet P left. They eventually picked up Jenkins’s car and went home.

2. The shooting of Johnson

Johnson testified that, two days after Gilmore’s shooting, Johnson passed an alley off 141st Place and saw some rival Blood gang members. He and a fellow gang member, Junior, went to Junior’s house to get a gun. They returned to the alley, and a car with other Shotgun Crips waited across the alley. Junior shot at the Bloods, and Johnson and Junior ran toward another alley. As he ran, Johnson was shot in the back. He made it to the car and went to a hospital.

While Johnson was in the hospital, Jenkins and Lewis visited him together. They both told him that he should not say anything if the police questioned him. Lewis also said that he was the one who accidentally shot him in the back. He told Johnson he did not mean to shoot him and apologized. During the visit Jenkins and Lewis also discussed with Johnson the shooting of Leonard Gilmore. They told Johnson that the person they shot at 108th and Western was not a gang member but a 13-year-old innocent person.

3. The police investigation of Leonard Gilmore’s murder

On September 19, 2002, Officer Brian Juckett saw Willis, or “Smiley,” at Rowley Park with two other men. Knowing that Willis had a misdemeanor warrant out for his arrest, Officer Juckett and his partner approached the men. Officer Juckett recovered a blue steel Smith and Wesson .38-caliber revolver from Willis, which Johnson later identified as looking like the one that Jenkins had when he shot Gilmore.^[2]

An expended bullet was recovered from Gilmore’s body. An expended bullet was also recovered from Gilmore’s mother’s bedroom, just behind where Gilmore was shot. Both of these bullets were fired from the same firearm. Analysts were unable to match or exclude the bullets as being fired from the revolver recovered from Willis. A bullet was recovered from Johnson after he was shot. Two bullets were also recovered from a yucca tree outside of Gilmore’s home where he was shot. These three bullets were positively matched to the Smith and Wesson .38-caliber revolver recovered from Willis.

On January 16, 2003, Detective Brian Steinwand, the investigating officer, interviewed Johnson. Johnson initially denied involvement in Gilmore’s shooting and said that he did not know anything, indicating that snitches can get killed. He was arrested on an unrelated warrant. Later that day, he indicated that he wanted to talk about the shooting, and gave Detective Steinwand some but not all of the information that he knew. After being released, he associated somewhat with the Shotgun Crips, but he did not want to be a gang member anymore because they had killed an innocent person.

On March 4, 2003, Johnson spoke with Detective Steinwand again in a videotaped interview. Johnson told the detective that Jenkins and Lewis committed the murder, and he then took the police to the various sites of the crime. While they were out, Jenkins pointed out Turner’s Crown Victoria.^[3]

On February 9, 2003, Metoyer identified Jenkins and Lewis in six-pack photographic lineups as two of the men in the car on September 12, 2002. He was shown five six-packs of photographs and given the standard admonition. Metoyer also identified Jenkins’s white car as similar to the one in which he had seen the shooter.

4. The attempted murder of Donald Bell

Sometime in 2002, Donald Bell was driving his burgundy Chevrolet Caprice near 141st Place and Ardath Street. He saw Lewis standing on the side of the street and stopped. Bell rolled down his window and asked, “What’s happening?” Lewis asked, “Where are you from?” Bell said, “All right,” and started to drive away. He heard something hit his car and stopped. Bell and Lewis then engaged in a fist fight. Eventually, they stopped, and Bell drove off. Over the next six months, Bell saw Lewis almost every day on the same corner, and their animosity continued. Lewis accused Bell of being a Blood gang member, which Bell was not. Bell learned that Lewis’s moniker was “No Good.”

On January 7, 2003, Bell and his friend Andre Moore got into his car, which was parked in front of their apartment on 141st Place. As Bell drove towards a dead-end in order to turn around, he saw two bicycles coming towards him. Lewis rode the first bicycle. As they passed each other, Bell looked at Lewis. Bell turned around and drove behind Lewis on his bicycle. Lewis rode in the middle of the street, causing Bell to slow down. At Ardath Street, Lewis pulled off to the side.

As Bell passed, Lewis pulled out a black handgun and pointed it at Bell. Lewis fired three or four shots, striking the driver’s side window, the dashboard, and the rear left door. Bell drove to his godfather’s apartment, and the police were called. Neither Bell nor Moore was injured. Bell told the police that night that Lewis had shot at him. Bell identified Lewis in a six-pack photographic lineup. Bell also identified Lewis at trial as the shooter and stated that he had no doubt that Lewis was the one who shot at him. Moore also identified Lewis as the shooter on the night of the shooting and in a six-pack photographic lineup.

5. The trial

Jenkins and Lewis were charged in a second amended information by the Los Angeles County District Attorney with the murder of Leonard Gilmore, in violation of section 187, subdivision (a) (count 1). Lewis was also charged in the same information with the attempted murders of Donald Bell and Andre Moore, in violation of sections 664/187, subdivision (a) (counts 2 and 3), and shooting at an occupied vehicle, in violation of section 246 (count 4). It was further alleged as to count 1 that defendants discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1). It was alleged as to counts 2, 3, and 4 that Lewis discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), and (e)(1). It was further alleged that defendants committed the offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A).

Defendants were tried before separate juries in a single trial. Jenkins was found guilty of first degree murder on count 1. The gang allegation and the principal armed allegations pursuant to section 12022.53, subdivisions (b), (c), (d), and (e)(1), were found true, while the personal use firearm allegations pursuant to section 12022.53, subdivisions (b) and (d), were found not true. Jenkins was sentenced to a total term of 50 years to life in state prison, which consisted of 25 years to life for the base offense plus 25 years to life for the section 12022.53, subdivisions (d) and (e)(1) enhancement. The remaining firearm enhancements and the gang enhancement were imposed and stayed pursuant to section 654.

Lewis was found guilty of first degree murder on count 1 and also found guilty on counts 2 and 4. Lewis was found not guilty on count 3. The gang allegation and the principal armed allegations pursuant to sections 12022.53, subdivisions (b), (c), (d), and (e)(1), were found true, while the personal use firearm allegations pursuant to section 12022.53, subdivisions (b) and (d), were found not true. The personal use firearm allegations as to count 2 pursuant to section 12022.53, subdivisions (b) and (c), were found true. Lewis was sentenced to a total term of 89 years to life in state prison. Lewis received 25 years to life for the base offense on count 1, plus 25 years to life for the section 12022.53, subdivisions (d) and (e)(1), enhancement. He also received the upper term of 9 years on count 2 plus 20 years for the section 12022.53, subdivision (c) enhancement, and 10 years for the section 186.22, subdivision (b)(1)(A) enhancement. The court imposed and stayed a five-year sentence on count 4 pursuant to section 654.

Each defendant filed a notice of appeal.

DISCUSSION

I. Accomplice corroboration as to Lewis’s murder conviction

Lewis contends that his conviction for the murder of Leonard Gilmore was based upon the insufficiently corroborated testimony of Johnson, who was an accomplice to the crime. Because the corroborating evidence was insufficient as a matter of law, he argues, his murder conviction should be reversed and dismissed.

A. Standard of Review

In evaluating whether substantial evidence existed to support Lewis’s murder conviction, we must determine whether the evidence, considered as a whole, was sufficient to permit a reasonable trier of fact to conclude beyond a reasonable doubt that the crime was committed as charged. (People v. Farnam (2002) 28 Cal.4th 107, 142-143.) In making this determination, we must view the evidence in the light most favorable to the People and presume every fact in support of the judgment that the jury could have reasonably deduced from the evidence. (Ibid.) In evaluating the sufficiency of corroborating evidence, we must “view the evidence in a light most favorable to the verdict and must uphold the trial court’s disposition if, on the basis of the evidence presented, the jury’s determination is reasonable. [Citation.]” (People v. Garrison (1989) 47 Cal.3d 746, 774.)

B. Applicable law

Section 1111 specifies that the testimony of an accomplice must “be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” Thus, in deciding whether the corroborating evidence is sufficient, we must determine whether the prosecution has produced independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. (People v. Martinez (1982) 132 Cal.App.3d 119, 132.)

“[I]t is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The evidence must connect the defendant with the crime, not simply with its perpetrators. [Citations.]” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543-1544.) However, the corroborating evidence need not by itself establish every element of the crime. (People v. McDermott (2002) 28 Cal.4th 946, 986 (McDermott).) In determining whether the People have shown adequate corroboration, courts consider the combined and cumulative weight of the corroborating evidence. (People v. Trujillo (1948) 32 Cal.2d 105, 110-111.)

In addition to physical evidence, an accomplice’s statements may be corroborated by evidence connecting the defendant to a weapon similar to that used in the crime. (See, e.g., People v. Trujillo, supra, 32 Cal.2d at p. 111; People v. Barillas (1996) 49 Cal.App.4th 1012, 1021; People v. Medina (1974) 41 Cal.App.3d 438, 466.) Evidence of the “relationship, conduct, and activities” of the defendant and the accomplice may also provide corroboration. (See People v. Cooks (1983) 141 Cal.App.3d 224, 313; People v. Ross (1941) 46 Cal.App.2d 385, 395.) Eyewitness corroboration is unnecessary. (People v. Miranda (1987) 44 Cal.3d 57, 100, abrogated on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)

The jury found that it was not proved beyond a reasonable doubt that Lewis personally used a firearm to shoot Gilmore. Thus, Lewis was convicted on an aiding and abetting theory, as a willing participant in the shooting murder of Gilmore. Under an aiding and abetting theory, the People had to establish that appellant acted (1) with knowledge of the unlawful purpose of the perpetrator; (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the offense; and (3) by act or evidence aided, promoted, encouraged, or instigated the commission of the crime. (CALJIC No. 3.01; People v. Beeman (1984) 35 Cal.3d 547, 561.) Therefore, we must determine whether, without the aid of Johnson’s testimony, the prosecution produced sufficient independent evidence tending to show that Lewis aided, promoted, encouraged, or instigated the crime with knowledge of the wrongful purpose of the perpetrator and an intent to commit, encourage, or facilitate the crime.

C. The corroborating evidence

Many of the events which took place on September 12, 2002, both before and after the murder of Leonard Gilmore, were established by witnesses other than Johnson. The beating of Derrick Starks was corroborated by the testimony of Starks himself; the testimony of Kathey Dread, a motorist who witnessed the altercation from her car; the testimony of Officer Ryan Sproles, who arrived at the scene of the beating shortly after it occurred; and the testimony of Christopher Baird. The taunts of Lewis, Jenkins, and Johnson, all Shotgun Crips members, in a rival gang’s territory was corroborated by Metoyer’s testimony and statements to police. Lewis’s presence in Jenkins’s car was independently established by Baird, who testified that Jenkins, Lewis, and Johnson left Sweet P’s home together in Jenkins’s car prior to the murder on the evening of September 12, 2002. Lewis’s presence in Jenkins’s car just before the shooting was corroborated by Officer Mosqueda’s testimony of her stop of the car for a seat belt violation and her notes indicating that she examined Jenkins’s license. The attempted murder of Metoyer was also corroborated by Metoyer’s testimony and statements to police, and Metoyer identified Lewis as one of the men in the car.^[4] Turner’s testimony corroborated Johnson’s testimony that Johnson, Lewis, and Jenkins were given a ride to view the murder scene after the shooting. Baird corroborated the fact that Jenkins, Lewis, and Johnson returned to Sweet P’s residence in a different vehicle. The firearm examiner provided further corroborative evidence. He testified that two bullets fired at Gilmore were fired from the gun Johnson identified as resembling the one Jenkins used. He further testified that two other bullets fired at Gilmore might have been fired from the same gun.

D. The corroborating evidence was sufficient to support Lewis’s murder conviction

The evidence set forth above is sufficient to corroborate Johnson’s testimony and statements to police. McDermott, supra, 28 Cal.4th at pages 985-986, is instructive. In McDermott, the defendant had hired three men to kill the man with whom she shared her home so that she could obtain sole ownership of the house they co-owned and collect $100,000 under an insurance policy she had on the victim’s life. The defendant argued that she was entitled to a judgment of acquittal because the only evidence linking her to the crimes was the uncorroborated testimony of the three accomplices who carried out the crime. (Id. at p. 985.) To corroborate the accomplice testimony, the prosecution presented independent evidence that the defendant had a financial motive to kill the victim. The prosecution also presented independent evidence that the defendant was present in the house when the victim was killed and that, although the victim was stabbed 44 times, the defendant only received superficial wounds. This evidence cast doubt on the defense claim that the defendant was a victim of a residential robbery. Further, the independent evidence showed that one of the admitted killers was the defendant’s coworker and personal friend. The Supreme Court determined that, considered together, this evidence was sufficient to corroborate the accomplice testimony. (Id. at p. 986.)

The independent evidence corroborating Johnson’s testimony regarding Lewis’s participation in the murder of Leonard Gilmore is more substantial than the corroborating evidence that was presented in McDermott. The evidence set forth above shows that the following facts were all independently corroborated: Lewis had been involved in a fight with a believed rival gang member a few hours earlier and, while fleeing the scene in Jenkins’s car, defendants came across a group of rival gang members and exchanged signs and insults with them; later, Lewis, Jenkins, and Johnson left Sweet P’s home together in Jenkins’s car; Lewis was present in Jenkins’s car during Officer Mosqueda’s traffic stop at 7:09 p.m. on the same evening; Lewis was present in Jenkins’s car when Metoyer was fired upon from Jenkins’s car moments before Gilmore’s murder; and Lewis, Jenkins and Johnson were driven back to the shooting scene and later to Sweet P’s home in Turner’s car.

Lewis acknowledges that the events surrounding Gilmore’s murder were sufficiently corroborated. However, he argues that the jury could not reasonably have found that, absent Johnson’s testimony, appellant did anything other than sit in the car after unsuccessfully trying to shoot Metoyer. Lewis relies heavily on People v. Braun (1939) 31 Cal.App.2d 593 (Braun) in arguing that there was insufficient evidence to corroborate Johnson’s testimony. Braun involved an appeal from a conviction of murder and attempted murder committed during the course of the robbery of a café. The defendant, who was convicted on an aiding and abetting theory, challenged his conviction on the ground that there was a complete lack of any corroboration of the testimony of an accomplice. (Id. at pp. 596-597.) The Court of Appeal, Second Appellate District, reversed the defendant’s conviction because the corroborating evidence established only that the defendant was present in the café at the time of the robbery and homicide and that the defendant had associated with the perpetrators of the crime. (Id. at p. 601.)

As set forth above, here there was substantially more corroborating evidence against Lewis. A jury could reasonably infer from the various gang altercations that had occurred earlier in the day, as well as the failed attempt to murder Metoyer, that Lewis intended to kill or aid in the killing of a rival gang member. Lewis’s presence in Jenkins’s car during the attempted murder of Metoyer, and Turner’s statements regarding Lewis’s presence during the subsequent return to the scene of the crime, permit an inference of participation and knowledge of the killer’s intent. Unlike the defendant in Braun, Lewis was not merely present at a public café. He was present in a vehicle, the occupants of which were gang associates who possessed guns, while driving in rival gang territory after the attempted murder of a rival gang member. Thus the corroborating testimony, considered together, permitted the jury to infer motive, knowledge of Jenkins’s intent, and participation in the crime.

Lewis argues that the People attempted to fill the “evidentiary gap” in the corroborative testimony with the following evidence: the shooting of Johnson by Lewis, showing that Lewis had access to a gun available generally to Shotgun Crips members; tape-recorded calls made by Lewis, showing Lewis’s efforts to influence and/or discourage the testimony of the witnesses coming to court; and the testimony of a gang expert, who informed the jury about gang culture. Lewis argues that this evidence was insufficient to corroborate Johnson’s testimony.

While the evidence described by Lewis, standing alone, may have been insufficient to corroborate Johnson’s testimony, ample other evidence showed Lewis’s active participation in the murder. As set forth above, the evidence corroborating Lewis’s participation in the events of September 12, 2002, both prior to, and subsequent to, the murder was sufficient to support the jury’s conclusion that Lewis encouraged or aided the crime with knowledge and intent. The expert testimony regarding gang activity and recorded telephone conversations showing that Lewis tried to influence witness testimony provided additional corroboration, which the jury was entitled to consider in combination with all other corroborating evidence. (People v. Trujillo, supra, 32 Cal.2d at pp. 110-111.)

The corroborating evidence need not establish every element of the offense. (McDermott, supra, 28 Cal.4th at p. 985.) It need only connect the defendant to the commission of the offense. (Ibid.) As set forth above, the evidence presented in corroboration of Johnson’s testimony was sufficient to permit a reasonable trier of fact to conclude beyond a reasonable doubt that the crime was committed as charged. We therefore affirm Lewis’s murder conviction.

II. The requested pinpoint instruction

Lewis requested that the trial court give the jury a pinpoint instruction explaining why the testimony of an accomplice should be viewed with caution. Lewis contends that Johnson had every reason to exaggerate or fictionalize Lewis’s role. Not only did Johnson admit to lying repeatedly to the police until getting an immunity deal, he also admitted to participating in various crimes. Further, Lewis points out that it is reasonable to assume that Johnson harbored resentment and a hostile attitude towards Lewis given Johnson’s testimony that Lewis shot him in the back.

Jenkins specifically joined in Lewis’s request for the pinpoint instruction. The trial court refused to give the requested instruction. Defendants claim that the trial court’s refusal to give the requested pinpoint instruction constitutes reversible error.

A. Standard of review

The trial court’s refusal to give a pinpoint instruction is evaluated under the reasonable probability standard set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Earp (1999) 20 Cal.4th 826, 887.) Under that standard, reversal is required if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the purported error. (People v. Watson, at p. 836.)

B. The trial court’s refusal to give the pinpoint instruction was not error

Section 1111 prohibits conviction upon the testimony of an accomplice unless it is corroborated by evidence that tends to connect a defendant with the commission of the crime. A trial court has a sua sponte obligation to give instructions concerning accomplice testimony whenever there is testimony sufficient to warrant the conclusion that a witness implicating a defendant was an accomplice. (People v. Zapien (1993) 4 Cal.4th 929, 982.) The trial court must ordinarily instruct the jury sua sponte with CALJIC No. 3.18, which directs the jury to view the testimony of an accomplice with caution, when out-of-court statements by accomplices to police are admitted into evidence. (People v. Carter (2003) 30 Cal.4th 1166, 1223.)

Both Jenkins’s jury and Lewis’s jury were instructed that, if the crime of murder was committed by anyone, Johnson was an accomplice as a matter of law. Both Jenkins’s jury and Lewis’s jury were also instructed with CALJIC No. 3.18.^[5]

Relying on the concurring opinion in People v. Guiuan (1998) 18 Cal.4th 558 (Guiuan), defendants contend that CALJIC No. 3.18 is insufficient because it fails to explain why the accomplice testimony should be viewed with caution. In Guiuan, Justice Kennard suggested in her concurring opinion that jurors would be better able to apply CALJIC No. 3.18 if they knew the reasons behind it. (Guiuan, supra, at pp. 570-571 (conc. opn. of Kennard, J.) [“Unlike the majority, I would advise jurors of the reasons why accomplice testimony should be viewed skeptically, because jurors will understand the warning better, and will be less apt to give accomplice testimony either more or less weight than it deserves, if they understand the reasons why accomplice testimony may be inherently suspect”].) Acknowledging that the majority did not adopt Justice Kennard’s proposed language for purposes of sua sponte instructions, defendants argue that Guiuan did not resolve the question of whether the language should be inserted upon request of a party. Defendants assert that because jurors may not fully understand the force of the pressure on an accomplice to lie, their proposed instruction, which explained that “an accomplice’s testimony may be strongly influenced by the hope or expectation that the prosecution will reward testimony that supports the prosecution’s case by granting the accomplice immunity or leniency,” should have been given.^[6]

Defendants cite People v. Saille (1991) 54 Cal.3d 1103, 1119 for the proposition that a defendant is entitled to pinpoint instructions that relate particular facts to a legal issue in the case or pinpoint the crux of a defendant’s case. However, “‘a trial court need not give a pinpoint instruction if it . . . merely duplicates other instructions.’” (People v. Coffman (2004) 34 Cal.4th 1, 99.) The trial court is under no obligation to instruct the jury in a manner requested by the defendant when instructions given adequately cover the issue. (People v. Cox (1991) 53 Cal.3d 618, 674.) The Supreme Court specifically endorsed the language of CALJIC No. 3.18 as adequately covering the issue of accomplice testimony, finding that CALJIC No. 3.18 “casts doubt on the veracity of an accomplice who has an obvious motive to testify falsely, while reducing the burden on the trial court.” (Guiuan, supra, 18 Cal.4th at p. 569.) The majority opinion effectively rejected the alternate instruction proposed in the concurrence. We therefore conclude that the trial court’s failure to give the requested pinpoint instruction was not error.

C. It is not reasonably probable that the omission of the requested pinpoint instruction affected the verdict

As set forth above, even if the trial court had erred in failing to give defendants’ pinpoint instruction, reversal is required only if it is reasonably probable that the refusal affected the verdict. (People v. Hughes (2002) 27 Cal.4th 287, 363.)

Both defendants contend that there was a reasonable probability of a different verdict if the proposed pinpoint instruction had been given. Jenkins contends that it is reasonably probable that a jury could have acquitted him if it believed that he did not intend that the gunman (Johnson or Lewis) shoot this particular victim.^[7] Jenkins further contends that Johnson was the only witness who testified in persuasive detail that Jenkins approved of the shooting. Lewis contends that it is reasonably probable that the jury would have acquitted him because Johnson’s testimony provided the only basis for the jury to find that Lewis was involved in the Gilmore shooting by testifying (1) that Lewis fired shots at Gilmore, and (2) that Lewis and Jenkins both claimed to have “got him” after firing at Gilmore.

We disagree with the defendants’ contentions regarding the possible harm caused by the omission of the requested instruction. As set forth above in section I, ante, there was ample evidence corroborating Johnson’s testimony. In addition, Lewis’s counsel specifically explained to the jury why Johnson’s testimony should be viewed “with distrust.” Finally, the jury was properly instructed with the standard accomplice instructions. Other than the concurring opinion on Guiuan, defendants point to no authority for their position that an instruction regarding the rationale behind CALJIC No. 3.18 would have caused the jury to view the evidence differently than it did. Pursuant to CALJIC No. 3.18, the jury was instructed to view Johnson’s testimony with caution. The reasons for such caution were clearly ascertainable from the facts before the jury, which included Johnson’s admissions that he was involved in the events of September 12, 2002, that he initially lied to police about the events of the day until he was given immunity, that he had previously engaged in criminal acts, and that he was shot by defendant Lewis. We must assume that the jury considered this evidence and obeyed the directive of CALJIC No. 3.18. (People v. Tarantino (1955) 45 Cal.2d 590, 597.)

Because it is not reasonably probable that the omission of the requested pinpoint instruction affected the verdict, we affirm the trial court’s refusal to give it to the jury.

III. The gang enhancement and lesser firearm enhancements

On count 1, defendants were each found guilty of first degree murder. The gang allegation pursuant to section 186.22, subdivision (b)(1)(A), and principal firearm allegations pursuant to section 12022.53, subdivisions (b), (c), (d), and (e)(1) were found true. Personal use firearm allegations pursuant to section 12022.53, subdivisions (b) and (c) were found not true.

On count 1, the trial court sentenced appellants each to 25 years to life for the base count, plus 25 years to life for the section 12022.53, subdivisions (d) and (e)(1) enhancement. The gang enhancement and the remaining firearm enhancements, pursuant to section 12022.53, subdivisions (b) and (c), were imposed and stayed pursuant to section 654.

Both defendants contend that the trial court erred when it imposed and stayed the gang enhancement under section 186.22, subdivision (b)(1)(A), and the lesser firearm enhancements under section 12022.53, subdivisions (b) and (c), as to each of them.

A. The gang enhancements

The People concede that the gang enhancement in count 1 should be stricken for each defendant. Section 12022.53, subdivision (e)(2), provides that a gang enhancement under section 186.22 “shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.” Here, both defendants were found not to have personally used or discharged a firearm in count 1. The enhancements should therefore be stricken.

B. The principal firearm enhancements

Although the People concede that the firearm enhancements imposed pursuant to section 12022.53, subdivisions (b) and (c), should be stricken, we follow People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte), which held that “section 12022.53 operates to require the trial court to add the applicable enhancement for each firearm discharge and use allegation under that section found true and then to stay the execution of all such enhancements except for the one which provides the longest imprisonment term. [Citation.]” (Id. at p. 713.) We therefore conclude that the trial court properly imposed and stayed the firearm enhancements under section 12022.53, subdivisions (b) and (c).

IV. Lewis’s upper term sentence on count 2 does not violate Blakely

Lewis’s contention that Blakely renders the imposition of the upper term as to count 2 unconstitutional is without merit. Defendants’ contention was rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black), which concluded that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) We are bound by this decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)^[8]

We conclude that Lewis’s upper term sentence on count 2 does not violate Blakely because Lewis’s argument raises no issue not resolved by the Supreme Court in Black.

DISPOSITION

As to both defendants, the gang enhancement on count 1 is stricken. As modified, the judgments are affirmed. The trial court is directed to prepare corrected abstracts of judgment and to forward copies thereof to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

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^[1] All further references are to the Penal Code unless otherwise noted.

^[2] While it is unclear from the record how Willis obtained the gun, Johnson testified that the same gun was passed around within their gang. He further testified that there are certain people within the gang that hold guns, and that he had seen “Smiley” with the gun on other occasions.

^[3] Johnson testified at trial under a grant of immunity from prosecution based on his statements.

^[4] Metoyer, who went to the scene of Gilmore’s shooting after hearing the gunfire, testified that he believed Gilmore was shot because he was wearing a hooded sweatshirt similar to Metoyer’s, so that the defendants thought they had come upon their original target again.

^[5] CALJIC No. 3.18 states: “To the extent that an accomplice gives testimony that tends to incriminate [the] defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case.”

^[6] The proposed pinpoint instruction read in full: “In deciding whether to believe testimony given by an accomplice, you should use greater care and caution than you do when deciding whether to believe testimony given by an ordinary witness. Because an accomplice is also subject to prosecution for the same offense, an accomplice’s testimony may be strongly influenced by the hope or expectation that the prosecution will reward testimony that supports the prosecution’s case by granting the accomplice immunity or leniency. For this reason, you should view with distrust accomplice testimony that supports the prosecution’s case. Whether or not the accomplice testimony supports the prosecution’s case, you should bear in mind the accomplice’s interest in minimizing the seriousness of the crime and the significance of the accomplice’s own role in its commission, the fact that the accomplice’s participation in the crime may show the accomplice to be an untrustworthy person, and an accomplice’s particular ability, because of inside knowledge about the details of the crime, to construct plausible falsehoods about it. In giving you this warning about accomplice testimony, I do not mean to suggest that you must or should disbelieve the accomplice testimony that you heard at this trial. Rather, you should give the accomplice testimony whatever weight you decide it deserves after considering all the evidence in the case.” Because the majority in Guiuan rejected the use of the term “distrust,” defendants suggest that the trial court should have replaced this word with the term “care and caution.”

^[7] Jenkins cites United States v. Andrews (9th Cir. 1996) 75 F.3d 552 as support for the proposition that he must have had the requisite intent. The issue before us is not whether or not intent was required, but whether there was a reasonable probability that the trial court’s failure to give the requested pinpoint instruction caused harm. In any event, Andrews is distinguishable. There, the court held that there was no circumstantial evidence in the record from which a rational jury could infer the defendant’s intent to aid and abet the murders in question. (Id. at pp. 555-556.) As discussed in section I, ante, here there is sufficient circumstantial evidence separate from Johnson’s testimony from which a jury could infer the defendants’ intent to kill a rival gang member.

^[8] The United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub nomine Cunningham v. California (Feb. 21, 2006, No. 05-6551) __ U.S. __, on the issue of whether Blakely applies to California’s determinate sentencing law.