Filed 3/4/21 P. v. Cole CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

PETER COLE,

Defendant and Appellant.

 B302161

 (Los Angeles County

 Super. Ct. No. BA464788)

APPEAL from a judgment of the Superior Court of the 

County of Los Angeles, Ronald S. Coen, Judge. Affirmed.

James Koester, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, William H. Shin and Roberta L. 

Davis, Deputy Attorneys General, for Plaintiff and Respondent.
2

I. INTRODUCTION

A jury found defendant Peter Cole guilty of deliberate, 

premeditated attempted murder and found true the allegation 

that he personally used and discharged a firearm causing great 

bodily injury. On appeal, defendant contends that the trial court 

erred by failing to instruct the jury sua sponte on the definition of 

great bodily injury. Defendant also contends that his trial 

counsel rendered ineffective assistance by failing to request a 

pinpoint instruction that advised the jury it could consider 

provocation when determining whether the attempted murder 

was deliberate and premeditated. We affirm.

II. FACTUAL BACKGROUND

On January 9, 2017, at approximately 10:25 p.m., the 

victim, D.H., was outside a liquor store on the corner of Western 

and Vernon Avenues with a fellow Rolling 40s gang member.1 

The liquor store was located in the heart of Rolling 40s gang 

territory.

Defendant was a member of the Black P Stones, a Bloods 

gang and rival of the Rolling 40s, a Crips gang. He had 

numerous gang tattoos on his face and body, including tattoos 

that demonstrated his animosity toward his gang’s rivals. For 

instance, on his left arm, defendant had a tattoo of a gang symbol 

associated with the Rolling 40s that was crossed out, which 

1 The victim admitted that he was a Rolling 40s gang 

member and that he had Rolling 40s tattoos. He did not want to 

testify at trial and was brought to court against his will from 

prison.
3

meant “Kill a 40.” On his right arm, he had a tattoo of a crossedout crab. “Crab” was a derogatory term for a Crip, and, in gang 

culture, the tattoo meant “Killing a Crab” or “Killing a Crip.” On 

that same arm, he had another tattoo that stated, more directly, 

“Fuck Crabs.” On his face, defendant had a tattoo over each 

eyebrow: one stated “Black” with an “x” over the “c” and the 

other stated “Stone.” The “x” over the “c” was a gang symbol for 

“Crip Killer.”

On the night of the shooting, defendant was the rear 

passenger in a Toyota Scion. The driver, A.N., and front 

passenger, C.H., were also Black P Stone members. When the 

Scion drove by the victim’s location on Western, the victim threw 

what appeared to be a derogatory gang sign2 at the Scion.

The Scion turned right onto Vernon and stopped in the 

middle of the street. Defendant got out of the rear passenger 

door carrying a black semi-automatic handgun and walked 

toward the victim. When the victim saw defendant approach, he 

and his companion turned and ran north on Western. Defendant 

shot at the victim as he fled, hitting him in the right side of his 

head and above his right hip.

3

2 The prosecution’s gang expert testified on crossexamination that throwing a gang sign to a rival gang member 

was a provocative act, in the nature of a challenge, towards the 

rival.

3 The victim described his injuries as a “skipped” or 

“skinned” wound to his head and a “through and through” wound 

to his side from which he felt “a little burning.” An officer who 

arrived at the scene observed blood coming from a graze wound to 

the right side of the victim’s head and from a gunshot wound to 

the right side of his hip.
4

The night of the shooting, at approximately 10:25 p.m., two 

Los Angeles Police Officers were parked in an unmarked police 

car on a side street near the intersection of Vernon and Western. 

When they heard four or five gunshots west of their location, they 

drove toward the intersection of Vernon and Western. They 

reached the intersection a few seconds later and were flagged 

down by citizens who reported that a vehicle driving away from 

that location westbound on Vernon had been involved in a 

shooting.

The officers observed that a dark-colored Scion “was the 

only vehicle driving westbound [on Vernon] at the time.” They 

followed the Scion for “a couple of minutes,” and were then joined 

by a patrol vehicle that took over the lead position in what 

became a pursuit. When the pursuit came to an end in Black P 

Stones territory, the officers saw defendant get out of the rear 

passenger door of the Scion. The officers pursued defendant and 

apprehended him. They found a .22 caliber handgun on

defendant’s person and a .22 caliber round in his sock.

Following the shooting, the victim continued northbound on 

Western to a shop nearby. Once inside, he sat down, saw blood, 

and realized that he had been shot. Someone in the shop called 

911.

Police officers responded to the 911 call and observed 

paramedics treating the victim, who was then transported to a 

hospital. The uncooperative victim would not identify his shooter 

to police, but told them that he heard six gunshots, had pain in 

his head, and felt light-headed.4

4 Photographs taken of the victim while he was in the 

hospital depicted him grimacing in apparent pain, with a 

bleeding head wound that covered half of his face in blood, and a 
5

During an interview by Los Angeles Police Department 

Detective Richard Campos the day after the shooting,5 defendant 

admitted that he shot the victim, whom he knew from jail. In 

describing his prior interaction with the victim, defendant 

explained, “I beat him up in jail.” According to defendant, on the 

evening of the shooting, he “got into an argument with [his] 

girl[friend],” and he called his “brother,” C.H., to pick him up. 

C.H. arrived in a Scion driven by A.N. and picked up defendant. 

As they drove, defendant was “doing coke” and “smoking weed” in 

the back seat. Defendant was “flamed up because [his] 

girl[friend]” “kicked [him] out” and he did not “know where [he 

was] going to lay [his] head.”

Defendant went to visit another female friend, who lived on 

Van Ness. He then wanted to return to his neighborhood and 

told his companions not to drive “through the enemies,” i.e., rival 

gang territory, because he was on drugs and “wasn’t thinking 

straight all the way.” He was “chillin” in the back seat when his 

companions proceeded toward Vernon and Western, in Rolling 

40s gang territory. Defendant admitted that they drove past an 

unmarked police car in that vicinity but believed that it “was long 

gone” by the time of the shooting.

As the Scion turned from Western onto Vernon, defendant 

heard the victim make a derogatory comment about the Black P 

bullet wound above his right hip that punctured the skin and 

caused some bleeding.

At trial, the victim testified that defendant was not the 

shooter.

5 A video recording of the interview was played for the jury 

and a transcription of the interview was marked as Exhibit 43.
6

Stones. The Scion’s driver stopped the car, defendant “just 

bounced out,” and he started shooting until the gun’s clip was 

empty. Defendant claimed that the shooting was not planned; 

“[i]t just happened.” Defendant also admitted that the gun was 

his.

III. PROCEDURAL BACKGROUND

In an information, the Los Angeles County District 

Attorney charged defendant in count 1 with attempted murder in 

violation of Penal Code6 sections 664 and 187, subdivision (a).

7 

The District Attorney alleged that the attempted murder was 

committed willfully, deliberately, and with premeditation within 

the meaning of section 664, subdivision (a). The District 

Attorney also alleged, among other firearm enhancements, that 

in the commission of count 1 defendant personally and 

intentionally discharged a handgun, causing great bodily injury 

to the victim within the meaning of section 12022.53, 

subdivision (d). And, the District Attorney alleged as to all 

counts that they were committed for the benefit of, at the 

direction of, or in association with a criminal street gang with the 

specific intent to promote, further, or assist in criminal conduct 

by gang members within the meaning of section 186.22, 

subdivision (b)(1)(C).

6 All further statutory references are to the Penal Code.

7 Defendant was also charged in counts 2 and 3 with second 

degree robbery in violation of section 211 based on an incident 

against two other victims two days prior to the attempted 

murder.
7

The jury found defendant guilty on count 18 and found true 

the allegation that the attempted murder was committed 

willfully, deliberately, and with premeditation. In addition, the 

jury found true the allegation that defendant personally and 

intentionally discharged a handgun causing great bodily injury to 

the victim.9

The trial court sentenced defendant on count 1 to life, with

a minimum parole eligibility term of 15 years, plus an additional 

25-years-to-life term based on the true finding under section 

12022.53, subdivision (d).

IV. DISCUSSION

A. Duty to Instruct on Meaning of Great Bodily Injury

Defendant contends that the term great bodily injury, as 

used in section 12022.53, subdivision (d), had a technical 

meaning particular to the law which should have been explained 

to the jury as part of the court’s instruction on the elements of 

that firearm enhancement. Because the court failed to define the 

term for the jury, using the definition in section 12022.7, 

subdivision (f) or an equivalent,

10 defendant concludes that the 

prosecution was relieved of its burden of proving each element of 

8 The jury also found defendant guilty on counts 2 and 3.

9 The jury also found true the other firearm allegations and 

the gang allegations.

10 Section 12022.7, subdivision (f) provides: “As used in this 

section, ‘great bodily injury’ means a significant or substantial 

physical injury.”
8

the section 12022.53, subdivision (d) enhancement, including that 

the victim suffered the requisite great bodily injury.

1. Background

On the section 12022.53, subdivision (d) enhancement, the 

trial court instructed the jury using a modified form of the 

CALJIC No. 17.19.5 pattern instruction,

11 but in doing so, the 

court did not give the bracketed definition of the term “great 

bodily injury” that is included in the pattern instruction. 

Defendant, however, did not request that the definition be 

included in the court’s instruction or otherwise suggest that the 

term “great bodily injury” had a technical legal meaning that 

must be explained to the jury.

2. Analysis

“In a criminal case, a trial court has a duty to instruct the 

jury on ‘“‘“the general principles of law relevant to the issues 

raised by the evidence.”’”’ (People v. Kimble (1988) 44 Cal.3d 480, 

503 . . . .) The ‘general principles of law governing the case’ are 

11 The CALJIC No. 17.19.5 pattern instruction provides, in 

pertinent part: “If you find the defendant[s] guilty of [one or 

more of] the crime[s] thus charged, you must determine whether 

the defendant[s] intentionally and personally discharged a 

firearm [and [proximately] caused [great bodily injury] [or] 

[death] to a person] [other than an accomplice] in the commission 

of [that] [those] [felony] [felonies]. [¶] . . . [¶] [The term ‘great 

bodily injury’ means a significant or substantial physical injury. 

Minor, trivial or moderate injuries do not constitute great bodily 

injury.]” (Italics added.)
9

those principles connected with the evidence and which are 

necessary for the jury’s understanding of the case. (Ibid.; People 

v. Wickersham (1982) 32 Cal.3d 307, 323 . . . .) As to pertinent 

matters falling outside the definition of a ‘general principle of law 

governing the case,’ it is ‘defendant’s obligation to request any 

clarifying or amplifying instruction.’ (People v. Kimble, supra, 44 

Cal.3d at p. 503.)” (People v. Estrada (1995) 11 Cal.4th 568, 574 

(Estrada).) And, although the court must define technical terms 

that have meanings peculiar to the law, there is no duty to 

amplify or clarify commonly understood words used in jury 

instructions. (Ibid. [“When a word or phrase ‘“is commonly 

understood by those familiar with the English language and is 

not used in a technical sense peculiar to the law, the court is not 

required to give an instruction as to its meaning in the absence of 

a request.”’ [Citations.] A word or phrase having a technical, 

legal meaning requiring clarification by the court is one that has 

a definition that differs from its nonlegal meaning. [Citation.]”].)

On the issue of whether the term “great bodily injury” has 

acquired a technical, legal meaning, our Supreme Court in People 

v. Escobar (1992) 3 Cal.4th 740 (Escobar) has observed: “‘The 

term “great bodily injury” has been used in the law of California 

for over a century without further definition and the courts have 

consistently held that it is not a technical term that requires 

further elaboration. [Citations.].’” (Id. at p. 750, fn. 3, quoting 

People v. La Fargue (1983) 147 Cal.App.3d 878, 886–887.)

A decade before the Supreme Court’s observation in 

Escobar, supra, 3 Cal.4th 740, the court in People v. Kimbrel

(1981) 120 Cal.App.3d 869 (Kimbrel), expressly rejected the 

notion that the term great bodily injury had a technical legal

meaning that required a clarifying definition. In that case, the 
10

defendant appealed from his conviction for assault with a deadly 

weapon in violation of section 245, subdivision (a). (Kimbrel, 

supra, 120 Cal.App.3d at p. 870.) Because the trial court 

instructed the jury that a “‘deadly weapon’” was “‘any object, 

instrument, or weapon which is used in such a manner as to be 

capable of producing, and likely to produce, death or great bodily 

injury,’” the defendant contended that the court erred in not 

defining “‘great bodily injury’” sua sponte. (Ibid.) According to 

the defendant, the term “‘great bodily injury’” had acquired “a 

restrictive technical legal meaning of which the jury was not 

apprised,” and therefore “either the omitted [former] CALJIC 

[No. 9.0312] definition or a definition modeled on former [ ]

section 12022.7[13] should have been given.” (Kimbrel, supra, 120 

Cal.App.3d at p. 872.)

The court in Kimbrel, supra, 120 Cal.App.3d 869, rejected 

the assertion that the term great bodily injury required the 

further definition suggested by the defendant. According to the 

court, “[t]he substitution of ‘significant’ or ‘substantial’ for ‘great,’

12 According to the court in Kimbrel, supra, 120 Cal.App.3d 

869, former CALJIC No. 903 “define[d] great bodily injury as a 

‘significant or substantial bodily injury or damage; it does not 

refer to trivial or insignificant injury or moderate harm.’” (Id. at 

p. 873, fn. omitted.)

13 The court in Kimbrel, supra, 120 Cal.App.3d 869 explained 

that former section 12022.7 defined “great bodily injury” by using 

examples “representing generalized instances of great bodily 

injury” that were included within that term. (Id. at p. 874–875.) 

But, as noted in Kimbrel, section 12022.7 was thereafter modified 

to define great bodily injury simply as “‘a significant or 

substantial physical injury.’” (Id. at p. 873, fn. 2.)
11

in the context of bodily injury, makes no gains on meaning” and 

“the attempted negative definition of great bodily injury as ‘not 

[referring] to trivial or insignificant injury or moderate harm’” 

was misleading because “[n]ot every nontrivial or insignificant or 

nonmoderate injury is ‘great.’” (Id. at pp. 873–874.)

The court in Kimbrel, supra, 120 Cal.App.3d 869 therefore 

concluded: “We are persuaded by the long acceptance of ‘great 

bodily injury’ as a term commonly understandable to jurors that 

it has not acquired a technical legal definition requiring in the 

absence of special circumstances a clarifying instruction.” (Id. at 

p. 876.)

Given the Supreme Court’s observation in Escobar, supra, 3 

Cal.4th 740—that great bodily injury is not a technical term 

requiring further elaboration—and the long-standing holding in 

Kimbrel, supra, 120 Cal.App.3d 869 to that same effect, we 

conclude that the trial court did not have a sua sponte duty to 

define that term further as now suggested by defendant. If, as 

defendant contends, a further definition was required in this case 

due to the lack of evidence regarding the severity of the victim’s 

wounds,14 it was incumbent upon his trial counsel to request a 

14 Although he concedes in a footnote that a “through and 

through” gunshot wound may constitute great bodily injury, 

citing People v. Le (2006) 137 Cal.App.4th 54, 59–60, defendant 

nevertheless maintains that case is distinguishable because there 

is no evidence that the victim here was disabled following his 

injury. We are not persuaded that the evidence showing the 

severity of the victim’s wounds was insubstantial. The photos of 

the victim’s head and side graphically depict the nature and 

severity of the wounds. And, the victim testified that he was 

bleeding, his head hurt, his side burned, and he felt light-headed. 

Given that evidence, there is no reasonable likelihood that the 
12

clarification or amplification of the term specifically tailored to 

the facts of this case. His failure to do so therefore forfeited the 

contention on appeal. (People v. Nguyen (2015) 61 Cal.4th 1015, 

1051 [“‘When, as here, a phrase “is commonly understood by 

those familiar with the English language and is not used in a 

technical sense peculiar to the law,”’” and the “defendant 

believe[s] the instruction [is] incomplete or misleading, he ‘ha[s]

the obligation to request clarifying language’”].)

In his opening brief, defendant cites to, but does not 

address, the Supreme Court’s observations in Escobar, supra, 3 

Cal.4th 740, and does not mention Kimbrel, supra, 120 

Cal.App.4th 869.

15 In his reply brief, defendant attempts to 

jury would have returned a different finding on the great bodily 

injury enhancement if it had been instructed with the definition 

urged by defendant.

15 The cases cited in defendant’s opening brief are inapposite. 

For instance, he cites People v. Clark (1997) 55 Cal.App.4th 709 

(Clark) as holding that a court’s “failure to define great bodily 

injury was error.” In Clark, the court concluded that the trial 

court erred in failing to deliver “CALJIC No. 17.20 or any 

equivalent instruction setting forth the elements of infliction of 

great bodily injury for purposes of [ ] section 12022.7.” (Clark, 

supra, 55 Cal.App.4th at pp. 713–714, fn. omitted and italics 

added.) It did not hold that the trial court erred in failing to 

define “great bodily injury” and indeed the court, in defining 

assault with a deadly weapon by means of force likely to produce 

great bodily harm, instructed the jury that “‘[g]reat bodily injury

refers to significant or substantial bodily injury or damage; it 

does not refer to trivial or insignificant injury or moderate 

harm,’” which is almost identical to the instruction that 

defendant contends on appeal the trial court was required to 

deliver. (Clark, supra, 55 Cal.App.4th at p. 714.)
13

distinguish these cases as arising in different contexts, such that 

they are not persuasive authority for the issue on appeal. But 

there is nothing about the context of either case that suggests 

those courts were interpreting the term great bodily injury in a 

manner that differed significantly from its use in this case.

B. Ineffective Assistance of Counsel

On the attempted murder charge, defendant contends that 

he received ineffective legal assistance because his trial counsel 

failed to request a pinpoint instruction, similar to CALJIC No. 

8.73, advising the jury that it could consider provocation when 

determining whether he acted with deliberation and 

premeditation. According to defendant, because his trial counsel 

apparently was unaware that evidence of provocation could 

negate an inference that he acted with deliberation and 

premeditation, his failure to request an instruction on that issue 

fell below the objective standard of reasonableness under 

prevailing professional norms.

1. Background

At trial, the prosecution introduced the video of defendant’s 

interview with Detective Campos during which defendant 

claimed that he was angry the night of the shooting because he 

had a fight with his girlfriend and that he was also using drugs. 

Defendant further maintained that the shooting was not planned, 

asserting instead that it “just happened” when he heard the 

victim’s derogatory remark about the Black P Stones. And, his 

trial counsel elicited testimony from the gang expert confirming 
14

that a derogatory hand gesture, like the one the victim threw at 

the Scion that night, would have been a provocative act, in the 

nature of a challenge, to the rival gang members in that vehicle.

During the jury instruction conference held prior to the 

close of testimony, defense counsel requested, in connection with 

the attempted murder count, a lesser included instruction on 

attempted voluntary manslaughter based on the evidence of 

“heat of passion.” The trial court tentatively denied the request, 

pending the completion of testimony.

After the close of evidence, defense counsel renewed his 

request for a lesser included instruction on attempted voluntary 

manslaughter. According to defense counsel, the gang expert’s 

completed testimony about the derogatory comment and hand 

gesture made by the victim supported an inference that 

defendant was provoked to act, such that he could not have 

formed the specific intent to kill necessary for attempted murder. 

The trial court, however, disagreed that the expert’s testimony 

supported a lesser included instruction on attempted 

manslaughter. Specifically, the court concluded that “[t]here is 

insufficient evidence of adequate provocation warranting 

attempted voluntary manslaughter.” It therefore denied the 

renewed request.

2. Analysis

“A criminal defendant’s federal and state constitutional 

rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, 

§ 15) include the right to effective legal assistance. When 

challenging a conviction on grounds of ineffective assistance, the 

defendant must demonstrate counsel’s inadequacy. To satisfy 
15

this burden, the defendant must first show counsel’s performance 

was deficient, in that it fell below an objective standard of 

reasonableness under prevailing professional norms. Second, the 

defendant must show resulting prejudice, i.e., a reasonable 

probability that, but for counsel’s deficient performance, the 

outcome of the proceeding would have been different . . . . On 

direct appeal, a conviction will be reversed for ineffective

assistance only if (1) the record affirmatively discloses counsel 

had no rational tactical purpose for the challenged act or 

omission, (2) counsel was asked for a reason and failed to provide 

one, or (3) there simply could be no satisfactory explanation. All 

other claims of ineffective assistance are more appropriately 

resolved in a habeas corpus proceeding. [Citations.]” (People v. 

Mai (2013) 57 Cal.4th 986, 1009.)

Based on the record before us, we cannot conclude that 

there was no satisfactory explanation for counsel’s failure to 

request a pinpoint instruction advising the jury that it could 

consider the evidence of provocation on the issue of 

premeditation. Indeed, the decision on which jury instructions to 

request is an inherently tactical choice to be made by counsel. 

(People v. Padilla (2002) 98 Cal.App.4th 127, 137.) Here, the trial 

court instructed the jury on general principals of law, including 

attempted murder (CALJIC No. 8.66) and premeditation and 

deliberation (CALJIC No. 8.67). Defendant does not claim that 

the instructions given were incorrect or misleading. Thus, 

counsel could have reasonably concluded that the instructions, 

which correctly stated the law, were adequate to address the 

issue of defendant’s intent, namely, that he acted without 

premeditation and deliberation.
16

Counsel also may have reasonably refrained from 

requesting an instruction on provocation because it was 

inconsistent with defendant’s trial strategy, which was to argue 

that the prosecution failed to prove the charges beyond a 

reasonable doubt. During closing argument, counsel did not 

argue that defendant acted without premeditation or deliberation 

because he had been provoked, but instead highlighted the weak 

eyewitness testimony linking him to the crime by pointing out 

that two of the officers who participated in his arrest claimed 

that the person who fled from the Scion was wearing a white 

shirt when defendant wore a black shirt at the time of his arrest. 

Counsel also noted that the victim testified defendant was not 

the shooter.

In addition, counsel may have reasonably concluded that 

the evidence of provocation was relatively weak, such that a jury 

instruction on provocation to negate premeditation and 

deliberation was not warranted. Defendant’s claim of 

provocation relied heavily on defendant’s statement to the police 

that he had fought with his girlfriend and that the shooting 

occurred after the victim made a derogatory statement about the 

Black P Stones. (See People v. Enraca (2012) 53 Cal.4th 735, 759 

[“we have rejected arguments that insults or gang-related 

challenges would induce sufficient provocation in an ordinary

person to merit an instruction on voluntary manslaughter”].) Yet 

in that same statement to the police, defendant admitted to being 

the shooter, admitted that he was armed with a gun when he 

went into rival gang territory, and said that he had been “chillin” 

before the shooting. Thus, counsel may have reasonably decided 

not to pursue a defense that necessarily relied on defendant’s 

incriminating statements. (People v. Olivas (2016) 248 
17

Cal.App.4th 758, 770–772 [defense counsel may have had a 

tactical reason for and did not provide ineffective assistance by 

failing to request a pinpoint instruction that was inconsistent 

with defendant’s primary defense].)16

Finally, even if we were to assume that trial counsel erred 

in failing to request a pinpoint instruction on provocation, we 

would conclude that defendant was not prejudiced by his 

counsel’s assumed error. The evidence of premeditation and 

deliberation was strong. As we discuss above, defendant 

admitted to the police that he was armed with a gun when he 

went into rival gang territory with two fellow gang members. He 

also admitted that he was “chillin” before the shooting and that 

he believed the unmarked police car that he had observed had 

left the scene before the shooting. Further, defendant’s

numerous face and body tattoos demonstrated his allegiance to 

the Black P Stones and his animosity toward, and desire to kill,

Rolling 40s gang members. By contrast, and as we discuss above, 

the evidence of provocation was comparatively weak. Thus, we 

find no reasonable probability that defendant would have 

obtained a more favorable result had counsel requested a 

pinpoint instruction.

16 We reject defendant’s assertion that trial counsel was 

unaware evidence of provocation could be considered by the jury 

when weighing the issue of premeditation. Nothing in the record

supports this assertion and it is contrary to the presumption that 

counsel acted within the wide range of professional norms.
18

V. DISPOSITION

The judgment of conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.