P. v. King

Filed 10/19/06 P. v. King CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendants Demarkas S. King, Ralph E. King, and Kenneth McClish not guilty of first degree murder, but guilty of second degree murder in the killing of Allen Qualls (count 1; Pen. Code, § 187, subd. (a); undesignated statutory references are to the Penal Code), and of the attempted murder of Michael Washington (count 2; §§ 664/187, subd. (a)).^[1] The jury also found that Ralph and McClish were felons in possession of a firearm (counts 3 & 4; § 12021, subd. (a)(1)).^[2] The jury further found as to counts 1 and 2 that Demarkas personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), that McClish personally used a firearm (§ 12022.53, subd. (b)), and that all defendants were armed in the commission of the offenses (§ 12022, subd. (a)(1)). The trial court found thereafter that McClish had two prior convictions for serious felonies (§§ 667, subds. (a), (b)-(i)) and had served three prior prison terms (§ 667.5, subd. (b)). All defendants received life terms in state prison.

Ralph and McClish contend there is insufficient evidence to support their convictions on counts 1 and 2. Demarkas contends the trial court misinstructed the jury as to second degree felony murder, the intent required for second degree murder, imminent danger, imperfect self-defense, and aider and abettor liability; McClish raises a separate objection to the instruction on the last point. All defendants join in each others’ contentions so far as applicable to themselves.

Rejecting all of defendants’ contentions, we shall affirm. However, we have detected errors in the abstract of judgment as to McClish and shall remand the matter to the trial court with directions to correct the errors.

FACTS

In August 2003, Demarkas, his wife Tamica, and their small daughter lived on Sky Parkway in Sacramento County. Ralph and McClish lived in separate apartments at 5218 Martin Luther King Boulevard in the City of Sacramento, a bit north of Fruitridge Road; McClish lived with his girlfriend Lisa Knestrict and her aunt Betty Patterson, among others. Ralph’s and McClish’s building was about 600 feet from a Taco Bell at the corner of Martin Luther King Boulevard and Fruitridge Road; an open field separated the two buildings.

On August 17, 2003, sheriff’s deputies came to Demarkas’s apartment in response to a call. Tamica said that Demarkas, who was not there, had been in a fight. Demarkas did not contact the authorities. He later told the police, however, that after he heard banging on his front door and opened it, Michael Washington and others burst in and beat him up, then left.

According to Thomas Ogle, Jr., the 17-year-old stepbrother of Tamica, while visiting the King family in the summer of 2003 he saw Ralph buy a black semiautomatic handgun, then later show it to Demarkas. In a police interview Ogle said the purchase took place the weekend before the charged crimes, but he testified that it might have been around July 4 because he remembered the Kings had had a barbecue.

According to Betty Patterson, on August 19, 2003, she overheard Demarkas and Ralph talking outside Ralph’s building. Demarkas said the police had learned of the assault on him but did nothing. Ralph said he did not want his family treated like that.

On the morning of August 20, 2003, Patterson overheard Demarkas and Ralph talk about getting a gun. Ralph told Demarkas: “We have one gat, and we need another one.” Demarkas said he knew where to get another one. Ralph said he would not let his family be disrespected, and Demarkas’s attackers “didn’t know who they were dealing with.”

Before August 20, 2003, Patterson heard McClish tell boys in the building that he had a gun; the boys later told Patterson they had seen it. McClish’s girlfriend Lisa Knestrict testified that in July 2003 she discovered a black gun under the mattress on McClish’s side of the bed and told him to get rid of it; he said he would.^[3]

At 10:21 p.m. on August 20, 2003, Demarkas called the sheriff’s department from work to report that someone was kicking his apartment door while his wife was at home. The department responded to the call at 10:56 p.m., but found no evidence of a crime and left without filing a report.

According to Patterson, McClish told her on the night of August 20 that Demarkas had called and would come over. Demarkas arrived around 11:00 p.m. and asked Patterson if McClish was home. As Patterson sat on a bench outside, she overheard Demarkas tell Ralph that “the guys were at Taco Bell” and “[w]e need to get over there now.” Demarkas went upstairs and came back down with McClish, who carried a gray sweatshirt rolled up under his arm.^[4] Patterson and Jermal Lee, a teenage resident of the building, saw Demarkas or Ralph walking with McClish at the rear of the building.

At around 11:30 p.m., Michael Washington and Allen Qualls were sitting in a primer-gray 1972 Chevrolet Nova in the Taco Bell drive-through at Martin Luther King Boulevard and Fruitridge Road. Qualls was the driver, Washington the passenger.

Taco Bell employees and customers saw a man walk up to the Nova’s passenger side, appear to speak, then pull out a black long-barreled gun and fire into the car. A second man was standing in the drive-through lane two cars behind the Nova. After pausing and looking back at him, the shooter fired more shots into the Nova. The two men then hopped over a concrete wall behind the restaurant.

Eyewitnesses subsequently identified the shooter in photo line-ups and in court as Demarkas. They could not identify the second man, but described him as a heavy-set Black man around 5 feet 8 or 9 inches tall; two witnesses said he was wearing light or khaki shorts.^[5]

The Nova pulled into a nearby gas station, where Qualls collapsed. Taken to University of California at Davis Medical Center, he was declared dead from a gunshot wound to the abdomen. Washington was operated on for lung damage from a gunshot that struck him in the back and shoulder.

Investigating officers found six spent shells near the drive-through window and a projectile and bullet fragments inside the Nova. Another projectile was removed from Washington during surgery. A ballistics expert opined that the shells and projectiles were fired from the same nine-millimeter gun, at least some while the Nova was moving forward. No weapons or ammunition were found in the Nova.^[6]

Betty Patterson and Jermal Lee, in separate positions outside their building, heard four or five shots from the direction of the Taco Bell. Patterson then saw three people climbing over a fence, heading toward the building from the nearby field. She recognized Ralph and Demarkas; the third, whose face she could not see, was wearing a gray sweatshirt like the one McClish had on when Patterson saw him in his bedroom soon after.

According to Patterson, Ralph took a handgun out of his waistband and unloaded some shells, while saying, “We do this gangsta style.” Ralph then said he was going to have a drink to calm his nerves and headed to his apartment. In subsequent days he repeated that he would not let anyone disrespect his family.

Lee testified, as he had told an investigator for the district attorney’s office, that after hearing shots he saw Ralph and McClish walking from the field toward the building, then saw Ralph unload the gun as he said, “They should not mess with my family.” However, Lee also testified, as he had told McClish’s former attorney, that McClish was with him outside the building when the shots were fired, and it was Ralph and Demarkas whom Lee saw coming toward the building.

After the shooting, Demarkas drove to Oakland, then to San Diego. He crossed the border into Mexico, but was arrested on a murder warrant as he tried to reenter the United States.

In custody, Demarkas was interviewed on videotape on August 28, 2003, by Sheriff’s Detective Charles Husted. Portions of the interview were played for the jury.

During the interview, after claiming ignorance of the crimes, Demarkas admitted he shot Washington (whom he called “Nova Mike”) because he was “fed up” with Washington for threatening him and for assaulting him in his home. He had aimed only at Washington and did not know who else was in the Nova. He had gotten the nine-millimeter handgun from his father’s home after spotting Washington driving past.

After Demarkas testified, the prosecution played other portions of his interview, which implicated the codefendants. Demarkas told Detective Husted that Ralph was standing at the concrete wall separating the Taco Bell from a day care center when Demarkas shot Washington, and McClish (whom Demarkas called “Uncle Ken”) was in the drive-through area at the time. Ralph and McClish were present as Demarkas ran through the field to their building after the shootings; he gave the gun to Ralph en route. Demarkas knew McClish had a sawed-off .22-caliber rifle, but did not know if he had taken it to the Taco Bell.

The prosecution also played portions of a taped interview of Ralph made on August 23, 2003, the date of his arrest. Ralph claimed he was walking across the field trying to catch up to Demarkas when the shots were fired. But later Ralph admitted he had followed Demarkas to the wall behind the Taco Bell, pulled himself up to look over it, and seen Demarkas standing by the Nova. Ralph saw Demarkas extend his arm toward the Nova, then heard three or four shots.

After the interview, Ralph and Detective Husted went to the field and Ralph pointed out where he had climbed the fence. He also pointed out a water pipe he had stood on at the base of the seven-foot-high concrete wall, allowing him to peer over its top.

Demarkas’s defense

Relying mainly on his own and his wife’s testimony, Demarkas tried to prove that he acted alone out of provocation or in defense of himself and others.

Tamica testified that on August 17, 2003, she heard fighting downstairs, then saw Demarkas getting up off the floor as Washington and another man ran out. Demarkas had a black eye and bruises the next day.

On August 20, according to Tamica, she heard banging at her front door and at the back of the apartment. She called Demarkas at his job. He told her to get a gun out from under a couch cushion downstairs; she put it under her pillow in the bedroom. Demarkas returned around 10:30 p.m. with Ralph. The family decided to spend the night at Ralph’s building, where Tamica’s mother also lived.

Tamica testified that as she went up to her mother’s apartment, Demarkas and Ralph stayed downstairs. She heard shots. Demarkas later came into her mother’s apartment and told Tamica: “I just killed them [both].” Demarkas went to Ralph’s apartment, then drove off in Ralph’s Ford. She saw and spoke to him the next day in the Oakland area.^[7]

Demarkas testified that he and Washington had been friends, but in the summer of 2003 Washington inexplicably turned against him. After repeatedly threatening in public to beat him up, Washington came to Demarkas’s home and attacked him when he opened the door. Washington was accompanied by at least two people who forced their way in and joined in the attack. Washington also kicked Demarkas’s six-year-old daughter to the floor. Afterward, Demarkas walked to Ralph’s place and told him he had been attacked by “Nova Mike and his partner.” His eye was swollen and discolored, and his pain forced him to miss a day of work. That day, he retrieved a loaded gun from his father’s place.

On the evening of August 20, hearing at work from Tamica that “those guys came back” and were pounding on the door, Demarkas advised her to get the gun, take it upstairs, and lock the door. He called the police, describing Washington and the Nova; then he called Ralph to get a ride home from work. He reported his prior beating to the officers when he got home and showed them footprints and dents on the door, but they said they could do nothing because the culprits had fled.

After they left, according to Demarkas, he got the gun Tamica had taken upstairs and put it in his pants pocket. He told his family to ride with Ralph to Ralph’s building while he drove there separately. Spotting the Nova in the Taco Bell parking lot, then seeing Washington and others standing near it, Demarkas decided to walk over there armed without telling Ralph.

According to Demarkas, he crossed the field alone, jumped a fence, and climbed a concrete wall at the back of the Taco Bell site. Walking up to the Nova, he called Washington’s name; Washington smirked and turned away. It looked as though he was reaching for something. Stepping back and feeling scared, Demarkas heard a “loud pop,” then “just jumped back and pulled my gun and started firing.” He returned to Ralph’s building the way he had come, dropping his gun as he ran through the field. He saw Ralph walking along Martin Luther King Boulevard.

According to Demarkas, as he returned to the building, Tamica and McClish approached him. He told Tamica and her mother what he had done, then went to Ralph’s apartment and told him. Ralph gave him some clothes and loaned him a car to drive to Oakland. After Tamica visited him there, he drove to Mexico, then was arrested while trying to reenter the United States.^[8]

Ralph’s defense

Ralph did not testify, but tried to prove he did not participate in the crimes and could not have done so.

A chiropractor who treated Ralph for a back injury incurred on July 23, 2003, testified that Ralph had “moderate to severe problems” with movement. (The parties stipulated that Ralph had also undergone back surgery following a workplace injury 20 years before.) The chiropractor conceded, however, that thanks to his treatments Ralph “most likely” could have climbed a five-foot-high fence by August 20, 2003.

Ralph’s girlfriend testified she spent the evening of August 20, 2003, with him, celebrating her birthday and helping him unpack in the new apartment he had just moved into from another one in the building. According to her, he got a phone call and left his apartment around 10:30 p.m., then returned 30 to 45 minutes later; however, she never saw him with a gun that night.

McClish’s defense

McClish also did not testify but tried to refute evidence of his involvement. Othello Chase testified that he had given McClish a .22-caliber sawed-off rifle as collateral for a loan, but reclaimed it three or four weeks before the shootings.^[9] McClish’s brother Rodney testified that, contrary to Betty Patterson’s account, he did not remove a gun from under McClish’s bed on August 25, 2003, and could not have done so because he was in Green Bay, Wisconsin, visiting his children that week; the children’s mother corroborated that testimony.^[10] To rebut Patterson’s claim she saw McClish carrying a wrapped-up sweatshirt on the night of the crimes, he played a portion of a taped interview in which she seemed to say she had merely heard others alleging this.

DISCUSSION

I

Ralph contends he was denied due process of law under the Fourteenth Amendment to the federal Constitution because there is insufficient evidence to support his convictions for the second degree murder of Allen Qualls and the attempted murder of Michael Washington. Citing People v. Young (2005) 34 Cal.4th 1149, 1175 (Young), he states (italics added): “[T]he standard of review requires this Court to resolve all conflicts in the evidence in favor of guilt and then determine if each element has been proven beyond a reasonable doubt. . . . Under this standard, the issue on appeal is whether the prosecution proved beyond a reasonable [doubt] that Ralph King aided and abetted the second degree murder and attempted murder committed by Demarkas when he shot into the occupied vehicle.”

Ralph’s assertion, which does not derive from Young, supra, 34 Cal.4th 1149, misstates the standard of review. This court does not “determine” de novo whether the prosecution proved each element of the offense beyond a reasonable doubt. Under both the federal due process clause and the California Constitution, “the issue on appeal” is simply “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (Young, supra, 34 Cal.4th at p. 1175.) In other words, does substantial evidence support the jury’s finding that the prosecution met its burden? (See, e.g., People v. Maury (2003) 30 Cal.4th 342, 396; People v. Johnson (1980) 26 Cal.3d 557, 576 [both cited in Young, supra, 34 Cal.4th at p. 1175].) We conclude it does.

The prosecutor argued the jury could find Ralph guilty on both counts as an aider and abettor, either because he shared Demarkas’s intent to kill Washington (and, by transferred intent, Qualls) or to shoot at him with conscious disregard for human life, or because he shared Demarkas’s intent to shoot into the Nova to scare or send a message to Washington, or because he conspired with Demarkas and McClish to have Demarkas discharge a firearm at an occupied motor vehicle or with gross negligence. We find substantial evidence supports the first theory, and therefore need not address the others.

Second degree murder can be based on express malice, the intent to kill a human being unlawfully, or implied malice, the intent to commit an act whose natural consequences are dangerous to human life with knowledge of the danger and conscious disregard for human life. (People v. Moon (2005) 37 Cal.4th 1, 29; People v. Frye (1998) 18 Cal.4th 894, 963; People v. Swain (1996) 12 Cal.4th 593, 601.) The trial court so instructed the jury pursuant to CALJIC Nos. 8.11 and 8.31; the court also instructed on transferred intent pursuant to CALJIC No. 8.65.

A person may be a principal in a crime as an aider and abettor even if he did none of the criminal acts, provided he (1) knew of the perpetrator’s unlawful purpose, (2) intended to commit, encourage, or facilitate the commission of the crime, and (3) by act or advice aided, promoted, encouraged, or instigated its commission. (§ 31; People v. McCoy (2001) 25 Cal.4th 1111, 1117; People v. Beeman (1984) 35 Cal.3d 547, 560-561 (Beeman).)

“The ‘act’ required for aiding and abetting liability need not be a substantial factor in the offense.” (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743 (Swanson.) Nor is advance knowledge required. “‘Aiding and abetting may be committed “on the spur of the moment,” that is, as instantaneously as the criminal act itself. [Citation.]’” (Id. at p. 742, quoting People v. Nguyen (1993) 21 Cal.App.4th 518, 532.)

To determine whether a person acted as an aider and abettor, we may consider, among other factors, “‘presence at the scene of the crime, companionship, and conduct before and after the offense.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).) Whether a person aided and abetted a crime is a question of fact, and we resolve all evidentiary conflicts and reasonable inferences in favor of the judgment. (Ibid.)

Considered most favorably to the judgment, substantial evidence shows Ralph procured the gun used by Demarkas with the intent that Demarkas use it against Washington and his associates. Thomas Ogle told the police that he saw Ralph buy a black semiautomatic handgun, the kind Demarkas used in the crimes, perhaps as close in time to the shootings as the weekend before; he also testified he saw Ralph show it to Demarkas.^[11] Demarkas consistently said he obtained the gun he used from Ralph’s apartment. Demarkas’s wife testified that Ralph told her after the crimes he had handed Demarkas a gun.

Demarkas testified he told Ralph of the August 17 assault by Washington and his “partner” immediately after it happened, and Betty Patterson testified that she heard Ralph tell Demarkas those people “didn’t know who they were dealing with.” Patterson also testified that on the morning of the crimes Ralph told Demarkas they had one gun and needed another. Demarkas’s wife testified that according to Demarkas, Ralph had advised him before the crimes: “You got to do what you got to do.” Drawing all reasonable inferences in favor of the judgment, this is substantial evidence that Ralph instigated and encouraged Demarkas to seek violent revenge against his attackers. Likewise, Ralph’s remark after the shootings as he unloaded the gun -- “We do this gangsta style” -- is consistent with the inference he knew beforehand what crimes “we” had intended to commit. (See Campbell, supra, 25 Cal.App.4th at p. 409.) Furthermore, substantial evidence showed that Ralph accompanied Demarkas and McClish to the Taco Bell (not merely “halfway across the field,” as Ralph asserts) and watched as Demarkas did the crimes. In other words, having instigated and encouraged Demarkas to seek out Washington, Ralph lent his “presence at the scene of the crime” and “companionship” to bolster Demarkas’s resolution in carrying out the crimes. (See Campbell, supra, 25 Cal.App.4th at p. 409.)

Finally, Ralph’s taking of the gun from Demarkas and unloading it after the crime, his repeated statements after the crime that he would not let anyone disrespect his family, and the help he provided Demarkas in making his getaway all constitute “conduct . . . after the offense” (Campbell, supra, 25 Cal.App.4th at p. 409) which the jury could consider in light of all the other evidence as tending to prove Ralph’s liability for aiding and abetting.

Arguing the contrary, Ralph impermissibly reweighs the evidence in his own favor. As to every point we have mentioned, Ralph would have us either reject the strongest evidence against him as incredible or draw the most innocuous possible inferences from it.

Thus, for instance, he asserts: “Ralph may have offered some support to Demarkas five weeks before he was beaten and six weeks before the shooting by buying a gun for him to use, but Ralph told the police that his only intent at any time wanted [sic] to help his son protect his family and stop his son from fighting.” In other words, he first asks us to reject the evidence that he bought the gun far closer in time to the shooting, then asks us to credit his self-serving explanation for his conduct.^[12] Applying substantial-evidence review, we may not do either.

Ralph also asserts: “Demarkas could not have formed his intent to shoot into Washington’s car and his intent to kill Washington until he saw the car in the Taco Bell parking lot. Ralph could not have had knowledge of Demarkas’ criminal purpose until that moment. Ralph engaged in no act of encouragement or support between the time Demarkas exclaimed that Washington’s car was at the Taco Bell and when the shooting occurred.” Demarkas’s exact method of taking his revenge was improvised on the spur of the moment, but the jury could reasonably have concluded that Ralph knew and encouraged Demarkas’s intent to use a gun against Washington at the earliest opportunity, and once it materialized Ralph lent further support and encouragement by accompanying Demarkas to and from the crime scene. The prosecution did not need to prove Ralph and Demarkas had planned for all possible contingencies; it merely needed to prove Ralph intended to and did aid and abet Demarkas whenever the opportunity arose to take Washington lethally by surprise. (Swanson, supra, 114 Cal.App.4th at p. 742.)

Finally, Ralph cites several decisions for their supposed illustrative value. However, since aiding and abetting is a question of fact (Campbell, supra, 25 Cal.App.4th at p. 409), its resolution turns on the facts of the given case, and unrelated cases are of little assistance.

Substantial evidence supports Ralph’s convictions on counts 1 and 2.

II

McClish also contends there is insufficient evidence to support his convictions on counts 1 and 2. He asserts: “The Shooting Was Not The Natural or Probable Consequence of Any Act [McClish] Aided and Abetted or Conspired to Commit, But Was a Spontaneous, Independent Act of Demarkas King.” This argument misses the mark. There is substantial evidence that McClish aided and abetted Demarkas in the crimes he actually committed, as the prosecutor argued. Thus, the “natural or probable consequence” doctrine, though also argued by the prosecutor, is irrelevant on appeal.

Viewed most favorably to the judgment, the evidence that McClish knew Demarkas intended to shoot Washington (whether with intent to kill or conscious disregard for Washington’s life) and facilitated that crime, thus also facilitating the murder of Qualls by means of transferred intent, includes the following:

McClish was with Demarkas in the Taco Bell drive-through, by inference to support and encourage him in the crimes. Eyewitnesses described a second man who resembled McClish but no one else connected to the case, and Demarkas told Tamica and Detective Husted that McClish accompanied him there. After Demarkas fired the shots, McClish joined him in making the getaway.

Circumstantial evidence showed McClish was armed with a firearm at the Taco Bell. Demarkas told Tamica that McClish also had a gun that night. Betty Patterson observed McClish carrying a rolled-up sweatshirt under his arm as he and Demarkas went toward the Taco Bell. McClish kept a gun under his mattress, which was removed after the crimes and before his arrest. Demarkas looked back at the second man in the drive-through (McClish) after firing the first shot into the Nova and before firing the remaining shots.

Circumstantial evidence also showed McClish knew of Demarkas’s intent before they went to the Taco Bell. Their close relationship (McClish was “Uncle Ken” to Demarkas) made it likely that whatever Demarkas told Ralph was also communicated to McClish, who lived in the same building. On the night of the crimes, Demarkas went to McClish’s apartment and entered his bedroom, even though told McClish was asleep. Afterward, McClish came downstairs with Demarkas, holding the rolled-up gray sweatshirt, and headed toward the Taco Bell with Demarkas. The jury could reasonably have inferred McClish would have done so only if Demarkas had said he would need armed backup there.

McClish asserts correctly there was no direct evidence of a discussion between himself and either codefendant before the crimes that would prove he knew of Demarkas’s intent to shoot into the Nova. However, proof of criminal intent may and must often be circumstantial, as here. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1130; People v. Benavides (2005) 35 Cal.4th 69, 97.)

McClish asserts that even if he knowingly aided and abetted the shooting of Washington, there was no evidence he did so as to Qualls because Demarkas “acted impulsively and on his own when he shot Qualls.” This argument overlooks the principle of transferred intent, under which Demarkas’s intent in attempting to murder Washington necessarily applies to his murder of Qualls. (People v. Scott (1996) 14 Cal.4th 544, 546, 550-551 (Scott).) If McClish knowingly aided and abetted Demarkas’s attempt to kill Washington, he knowingly aided and abetted the murder of Qualls.

Like Ralph (see part I above), McClish relies mainly on extended discussions of unrelated cases. For the reason already given above, we decline to consider these cases.

III

Defendants contend their convictions for attempted murder (count 2) must be reversed because the jury was wrongly instructed implied malice could suffice for attempted murder. We disagree.

The trial court instructed on attempted murder with CALJIC No. 8.66 as follows: “Defendants are accused in Count 2 of having committed the crime of attempted murder, in violation of Section[s] 664 and 187 of the Penal Code. Every person who attempts to murder another human being is guilty of violation [of] Penal Code Section[s] 664 and 187. Murder is the unlawful killing of a human being with malice aforethought. In order to prove attempted murder, each of the following elements must be proved: One, A direct but ineffectual act was done by one person towards killing another human being and; Two, The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. In determining whether or not such an act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. . . . . . . [A]cts of a person who intended to kill another person will constitute an attempt where those acts clearly indicate a certain unambiguous intent to kill.” (Italics added.)

The trial court also instructed with CALJIC No. 3.31 as follows: “In the crimes charged in Counts 1 and 2 and the lesser crimes within Counts 1 and 2 or the specific intent to commit the underlying felony crimes for second degree felony murder or the crime of conspiracy to commit murder and the allegation of personal use of a firearm, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of [the] perpetrator. Unless this specific intent exists, the crime or allegations to which it relates is not committed or is not true. The specific intent required is included in the definition of crimes or allegations setforth [sic] elsewhere in these instructions.” (Italics added.)

In addition, the trial court instructed with CALJIC No. 2.02 as follows: “The specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendants guilty of the crimes charged in Counts One and Two, and the lesser crimes within Counts One and Two, or the specific intent to commit the underlying felony crimes for second degree felony murder, or the crime of conspiracy to commit murder and the allegation of personal use of a firearm to be true, unless the proved circumstances are not only, one, consistent with the theory that the defendant had the required specific intent or mental state, but two, cannot be reconciled with any other rational conclusion. Also, if the evidence as to specific intent or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (Italics added.)

Defendants cannot and do not contend these instructions were incorrect. (Cf. People v. Guerra (1985) 40 Cal.3d 377, 386; CALJIC (2006) Use Note to No. 8.66, p. 400 [recommending these instructions be given together.) They maintain, however, that the jury could have been confused because: (1) Before giving CALJIC No. 8.66, the trial court had instructed that the malice aforethought required for murder may be either express or implied (CALJIC Nos. 8.10, 8.11). (2) Before giving CALJIC No. 8.66, the trial court also gave CALJIC No. 8.50, which explains that malice distinguishes murder from manslaughter. (3) The trial court also instructed the jury to consider the instructions as a whole and not to consider the order in which they were given (CALJIC No. 1.01). We are not persuaded.

As defendants concede, we must presume the jury understood and correctly applied the instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Defendants’ claim it could not have done so is speculation.

Defendants also rely on People v. Lee (1987) 43 Cal.3d 666 (Lee), which held it is error to instruct on implied malice as to attempted murder. (Id. at p. 670.) Lee does not aid defendants. There, attempted murder was the only crime of homicide charged; thus, implied malice should not have been mentioned. (Id. at pp. 668, 670-671.) Here, because murder was also charged, the trial court had to instruct on implied malice as to that count. But it did not make the mistake of the trial court in Lee: as noted, it correctly instructed that for attempted murder the specific intent to kill was required.

Defendants have not shown error on this point.

IV

Defendants contend the trial court misinstructed the jury on second degree felony murder as to count 1. We conclude any error was harmless beyond a reasonable doubt.

Over objection, the trial court instructed the jury pursuant to CALJIC No. 8.32 on second degree felony murder as a possible basis for a second degree murder verdict on count 1, along with express malice (CALJIC No. 8.11) and implied malice (CALJIC No. 8.31). The instruction stated the predicate felonies for second degree felony murder were (1) discharging a firearm at an occupied motor vehicle or (2) grossly negligent discharge of a firearm. The court also instructed on the elements of these offenses.

Defendants assert it was error to instruct on felony murder because both alleged predicate offenses necessarily merged with the homicide. (See People v. Randle (2005) 35 Cal.4th 987; People v. Robertson (2004) 34 Cal.4th 156; People v. Ireland (1969) 70 Cal.2d 522 [disapproved in part, People v. Hansen (1994) 9 Cal.4th 300, 314].) We need not decide this point because the jury clearly did not rely on felony murder to reach its verdicts on count 1.

As shown in part III above, the jury’s convictions on count 2 (attempted murder of Washington) must have been based on a finding of express malice; i.e., a specific intent to kill. This is inconsistent with merely shooting into a motor vehicle or the negligent discharge of a firearm. Under the doctrine of transferred intent, on which the jury was instructed, defendants’ intent toward Washington was “transferred” to Qualls, the victim in count 1.

In Scott, supra, 14 Cal.4th 544, as here, the defendants attempted to murder one victim but instead murdered another, unintended victim. (Id. at p. 547.) As the court explained: “[A]pplication of the transferred intent doctrine is [not] under these circumstances foreclosed by the prosecutor having charged defendants with attempted murder of the intended victim. Contrary to what its name implies, the transferred intent doctrine does not refer to any actual intent that is capable of being ‘used up’ once it is employed to convict a defendant of a specific intent crime against the intended victim. . . . Rather, as applied here, it connotes a policy -- that a defendant who shoots at an intended victim with intent to kill but misses and hits a bystander instead should be subject to the same criminal liability that would have been imposed had he hit his intended mark.” (Id. at pp. 550-551.) Under that “policy,” defendants’ specific intent to kill Washington properly subjected them to the same criminal liability for the killing of Qualls, based on the same “transferred” intent.

Moreover, the jury could not conceivably have found defendants had different intents as to the two victims. Demarkas shot both in the same rapid sequence of events. Only chance distinguished one crime from the other. It is likely beyond a reasonable doubt that, having found the specific intent to kill as to Washington, the jury accepted the prosecutor’s theory of transferred intent as to Qualls.

Even assuming it was error to instruct on second degree felony murder, the error was harmless.

V

Defendants contend the trial court erred in instructing the jury on imminent danger in connection with imperfect self-defense. There was no error.

The trial court instructed pursuant to CALJIC No. 5.17: “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury kills unlawfully, but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter. As used in this instruction, an imminent peril or danger means one that is apparent, present, immediate and must be instantly dealt with or must so appear at the time to the slayer. However, this principle is not available and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force[,] attack[,] or pursuit. This principle applies equally to a person who kills in purported self-defense or purported defense of another.”

At the prosecutor’s request, the trial court also instructed over objection: “Fear of future harm no matter how great the fear and no matter how great the likelihood of the harm will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. The peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.” This language correctly states the law; it comes directly from In re Christian S. (1994) 7 Cal.4th 768, 783. (See also People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269.)

Defendants complain this instruction was superfluous because CALJIC No. 5.17 fully covered the subject, and to give it “unduly emphasized this point and in doing so suggested that the jury look with some skepticism at whether this element existed.” We disagree. The additional instruction correctly stated the law and clarified the point at issue. (See People v. Freeman (1994) 8 Cal.4th 450, 505 [no error in giving correct but overlapping instructions].)

So far as defendants assert the instruction conflicts with CALJIC No. 5.17, we reject the assertion. Defendants claim the instruction’s phrase “from appearances” wrongly sets up an objective standard for judging the imminence of peril. However, the preceding sentence states: “The peril must appear to the defendant as immediate [etc.].” There is no conflict with CALJIC No. 5.17.

Defendants have shown no error on this point.

VI

Defendants separately contend that CALJIC No. 5.17 is legally erroneous because it makes imperfect self-defense available only to persons who have committed no wrongdoing. This claim lacks merit.

Defendants see a clash between the teaching of CALJIC No. 5.17 that a defendant may not claim imperfect self-defense if “by his unlawful or wrongful conduct [he] created the circumstances which legally justified his adversary’s [response]” and the following footnote from In re Christian S., supra, 7 Cal.4th 768: “It is well established that the ordinary self-defense doctrine . . . may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citation.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense.” (Id. at p. 773, fn. 1; italics added.) Defendants read this footnote to mean that only a heightened level of wrongdoing deprives a defendant of imperfect self-defense, not merely “unlawful or wrongful conduct“ as stated in CALJIC No. 5.17. Defendants are wrong.

The quoted footnote does not purport to list all the kinds of wrongdoing that would bar imperfect self-defense; on the contrary, it uses the expressions “e.g.” and “[f]or example.” It does plainly say, however, that any wrongdoing that creates the circumstances that legally justify the adversary’s response will bar imperfect self-defense. That is exactly what CALJIC No. 5.17 says. The instruction correctly states the law.

The trial court did not err by instructing with CALJIC No. 5.17.

VI

Finally, McClish and Ralph contend that CALJIC No. 3.01, given by the trial court, misstates the law on aiding and abetting liability. We disagree.

Section 31 provides in part that “[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.” CALJIC No. 3.01 states in part: “A person aids and abets the commission of a crime when he or she: One, with knowledge of the unlawful purpose of the perpetrator, and Two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and Three, by act or advice aids, promotes, encourages or instigates the commission of the crime.” (Italics added.)

Defendants assert that the disjunctive “or” in the last clause erroneously relieved the prosecution of the burden of proving they both aided and abetted Demarkas’s acts. They rely on the following language from People v. Elliott (1993) 14 Cal.App.4th 1633 (Elliott): “The word ‘aids’ means ‘to assist; to supplement the efforts of another,’ while the word ‘abet’ means merely to incite or encourage. (People v. Bond (1910) 13 Cal.App. 175, 185 [], italics added.) . . . . . . . . . See also [] Beeman, supra, 35 Cal.3d at page 556, stating that ‘aider and abettor’ liability requires that one aid and (not ‘or’) abet -- thus highlighting the fact that the two words have a distinct and separate meaning.” (Elliott, supra, 14 Cal.App.4th at p. 1641 & fn. 8.) Defendants’ argument, including its reliance on Elliott, is not new and has been rejected by more than one appellate court.

In Campbell, supra, 25 Cal.App.4th 402, the court responded to this exact argument as follows:

“We first note that section 31 was enacted in 1872. Yet, despite the simple logic of [defendant]’s claim, he cites, and our research has revealed, no case holding, or even suggesting, that ‘aid and abet’ requires separate findings concerning two distinct types of acts (assisting and encouraging) before a jury may properly convict a defendant as an aider and abettor. On the contrary, according to our Supreme Court, ‘”[t]o be an abettor the accused must have instigated or advised the commission of the crime or been present for the purpose of assisting in its commission.”’ [Citations.] ‘”[T]he test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.”’ [Citations; fn. omitted.]” (Campbell, supra, 25 Cal.App.4th at p. 411.)

“Defendant’s reliance on [] Elliott, supra, 14 Cal.App.4th 1633 is misplaced. The issue there was whether the court erred in refusing to give a defense ‘lesser related’ instruction on accessory liability. (Id. at p. 1639; see People v. Geiger (1984) 35 Cal.3d 510 [] [overruled, People v. Birks (1998) 19 Cal.4th 108).] Section 32 defines an accessory as one ‘who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof . . . .’ On appeal, the court in Elliott found no error because there was no evidence that the defendant harbored, concealed, or aided the perpetrators. . . .

“The Elliott court did not purport to construe section 31 or the phrase ‘aid and abet.’ Moreover, although Elliott and the cases cited therein recognize a distinction between the terms ‘aid’ and ‘abet,’ they do not suggest that the phrase ‘aid and abet’ in section 32 requires separate findings that one assisted and encouraged the perpetrator of a crime.” (Campbell, supra, 25 Cal.App.4th at pp. 411-412; brackets added.)

“In explaining [the meaning of “aid and abet”], courts have long noted a distinction between the terms ‘aid’ and ‘abet.’ [Citation.] What they considered to be legally significant, however, was not . . . the difference in specific conduct signified by each term but rather the difference in mental state implied by each term. . . .

“This focus on mental state instead of conduct in explaining culpability under a theory of aiding and abetting reflects judicial awareness of the fundamental principle that criminal liability does not arise from conduct alone but rather from conduct accompanied by a guilty state of mind, that is, ‘a union, or joint operation of act and intent . . . .’ (§ 20, italics added; see People v. Hernandez (1964) 61 Cal.2d 529, 532 [].) As a theory of liability, aiding and abetting must be consistent with this principle. [Citation.] To this end, the term ‘abet’ in the phrase ‘aid and abet’ serves to supply the mental element necessary to justify the imposition of criminal liability. [Citation.] . . . ‘Aid’ requires some conduct by which one becomes ‘concerned in the commission of a crime’ (§ 31), whether it be to aid (i.e., assist or supplement), promote, encourage, or instigate. [Citation.] ‘Abet,’ on the other hand, requires that this conduct be accompanied by the requisite criminal state of mind, i.e., knowledge of the perpetrator’s unlawful purpose and with the intent that it be facilitated. [Citation].” (Campbell, supra, 25 Cal.App.4th at pp. 412-414; brackets added.)

“Turning to the challenged instruction [CALJIC No. 3.01], we do not find that . . . it permits the jury to convict one as a principal if it finds that he or she aided or abetted the commission of a crime. Rather we conclude that the instruction correctly explains the conduct and mental state necessary to convict one as a principal under the theory of aiding and abetting codified in section 31.

“Our conclusion comes as no surprise, for the instruction repeats verbatim language that the Supreme Court itself proposed for an instruction in [] Beeman, supra, 35 Cal.3d at page 561, and which the court reiterates when stating the basis for liability as an aider and abettor. [Citation.]” (Campbell, supra, 25 Cal.App.4th at p. 414, italics and brackets added.)

In People v. Booth (1996) 48 Cal.App.4th 1247, 1254-1256 (Booth), the court confronted the very same argument and extensively restated the holding and reasoning of Campbell, supra, to reject it.

Undeterred, defendants recycle the Elliott, supra, 14 Cal.App.4th 1633, argument yet again. Defendants acknowledge Campbell, supra, 25 Cal.App.4th 402, and Booth, supra, 48 Cal.App.4th 1247, but urge us to reject them because they supposedly ignored California Supreme Court decisions dating back to 1898 that held it was error “to instruct a jury that one may be found guilty as a principal if one aided or abetted.” (Beeman, supra, 35 Cal.3d at p. 556, italics added.) On the contrary, as should be clear from our extended quotation, they did not ignore those decisions -- they explained them with a logic defendants cannot answer. Finding Campbell and Booth persuasive, we shall follow them.

The trial court did not err by instructing the jury with CALJIC No. 3.01.

VII

We have detected errors in the abstract of judgment as to defendant McClish. It shows erroneously that he was convicted on count 4 under section 12022, subdivision (a)(1), rather than section 12021, subdivision (a)(1). It also shows erroneously that the jury found enhancements true as to counts 1 and 2 under section 12022.53, subdivision (d), rather than section 12022.53, subdivision (b). We shall direct the trial court to prepare a corrected abstract of judgment reflecting that McClish’s conviction on count 4 was under section 12021, subdivision (a)(1), and the enhancements on counts 1 and 2 were under section 12022.53, subdivision (b).

DISPOSITION

The judgments are affirmed. The matter is remanded to the trial court with directions to prepare a corrected abstract of judgment as described in part VII of the Discussion and to furnish a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.

SIMS , J.

We concur:

SCOTLAND , P.J.

BUTZ , J.

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^[1] To avoid confusion, we refer to Demarkas King and Ralph King (son and father respectively) by their first names.

^[2] At trial, the parties stipulated that both defendants were convicted felons.

^[3] McClish was arrested on August 26, 2003. He told Knestrict before his arrest that his brother Rick had removed the gun from the apartment, but Knestrict was not sure whether McClish said so before or after the date of the crimes.

Patterson told the police that she saw McClish’s brothers remove a gun from under his mattress on August 25. At trial, however, she testified she heard this had happened but did not see it.

^[4] Knestrict fell asleep that night at 9:30 p.m. She heard someone come to the door asking for McClish, who left the bedroom. McClish told her later it was Demarkas who had come to the door.

^[5] The police later found khaki shorts and a gray sweatshirt in McClish’s bedroom. At the time of the crimes, McClish, who stood 5 feet 9 inches tall, weighed 225 pounds.

^[6] The police found baggies of marijuana in a paper bag in the car and $700 in cash on Washington. The prosecutor suggested Washington had been planning to sell marijuana at the Taco Bell.

^[7] On cross-examination, Tamica said she saw Demarkas look toward the Taco Bell as he was driving to Ralph’s building. When they reached the building, he said to her: “Them niggas’ [sic] are at Taco Bell.” Ralph told her after the fact that he had handed Demarkas a gun. Demarkas admitted after the fact he had fired into the Nova “to kill them.”

In Oakland he told her McClish had accompanied him to the Taco Bell. Ralph had joined them en route; though he could not climb over the wall, he got in position to see over it. Ralph had instigated Demarkas’s actions, saying, “You got to do what you got to do.” Both Demarkas and McClish had had guns that night.

^[8] On cross-examination, Demarkas denied that Ralph and McClish had gone with him to the Taco Bell, that Ralph had given him a gun and encouraged him to shoot Washington, that he had called McClish and gone to his apartment that night, that he had asked McClish to come as a back-up, and that he had given the gun to Ralph after the shootings. He also denied that he had told Detective Husted anything different. He admitted, however, that he had lied to Husted on a number of points. He also admitted he did not see a gun inside the Nova at the time of the shootings, and shot at the car as it was moving.

^[9] Chase also testified, however, that he gave the gun to McClish 45 days before the shooting and McClish had it for about a month and a half.

^[10] On cross-examination, the prosecutor played the tape of a jail phone call McClish placed to his mother and Lisa Knestrict on August 26, 2003, in which Knestrict says Rodney is “right here.” Rodney claimed “right here” meant in Green Bay on a three-way connection.

^[11] It is true, as Ralph notes, that Ogle also said it might have been on the weekend of July 4, 2003. However, the jury could reasonably have found Ogle’s earlier statement to the police more credible than his vague trial testimony on this point.

^[12] Similarly, Ralph cites his claim to the police that he thought Demarkas merely intended to fight Washington with his fists as if we were required to believe it, even though the jury could not have done so.