Filed 10/23/13 P. v. Rios CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
REYES RIOS, JR.,
Defendant and Appellant. B239242
(Los Angeles County Super. Ct. No. NA085730)

APPEAL from a judgment of the Su perior Court of Los Angeles County. Arthur H. Jean, Jr., Judge. Affirmed.

Janet J. Gray, under appointment by th e Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant A ttorney General, Victoria B. Wilson and Roberta L. Davis, Deputy Attorneys Ge neral, for Plaintiff and Respondent.

________________ __________________ _________________2 A jury convicted defendant Reyes Rios, Jr., of three counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664/187, subd. (a)) 1 (counts 1-3); one count of shooting at an inhabited dwellin g (§ 246) (count 4); one count of assault with a semiautomatic firearm (§ 245, subd. (b)) (count 5); and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)) (cou nt 6). In all six c ounts, the jury found
that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)). In counts 1 throu gh 5, the jury found that all of the firearm-use allegations were not true. (§§ 12022.5, 12022.53, subds. (c), (d), (e)(1).)
The trial court found that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), a prior conviction of a serious felony (§ 667, subd. (a)(1)), and had served two prior prison terms resulting from th ree prior convictions (§ 667.5, subd. (b)).
The trial court sentenced defendant to a total of three consecutive life terms plus 37 years and four months in state prison. In counts 1 through 3, the court imposed a
consecutive term of life with a minimum parole eligibility date of 30 years (15 years for the gang enhancement, doubled pursuant to the Three Strikes law), plus five years for the prior serious felony enhancement and one year for the prior pr ison term enhancement. In count 5, the court imposed a consecutive term of 18 years (the upper term of nine years, doubled pursuant to the Three Strikes law). In count 6, the cour t imposed a consecutive term of 16 months (one-third the midterm of 24 months, doubled pu rsuant to the Three Strikes law). The upper term sentence on count 4 was stayed pursuant to section 654. Defendant appeals on the grounds that: (1) there is insu fficient evidence to support his convictions for the attempted murd ers of two of the victims (counts 2 and 3); (2) there is insufficient eviden ce to support his conviction for aiding and abetting the assault with a deadly w eapon charge in count 5; (3) the tr ial court erred when it instructed

1 All further references to statutes are to the Penal Code unless stated otherwise.3 the jury that an aider and abettor is equally guilty, regardless of the extent or manner of participation; (4) the eviden ce was constitutionally insuffici ent to prove defendant had the specific intent to promote, further, or assist gang member criminal conduct; and (5)
the trial court erred when it refused to addr ess the jury’s written request to explain the reasonable doubt instruction, requiring re versal of defendant’s conviction.
FACTS
Prosecution Evidence I. Shooting on Pine Avenue (Counts 1-4) On January 17, 2010, Elizab eth Fuentes was preparing a barbecue in the courtyard of her Pine Avenue apartm ent home in Long Beach. Atte nding the barbecue were her five-year-old grandson, Andrew Navarrete; her son-in-law, Catarino Navarrete; her daughter, Sonia Jarez; and her son, Luis Sa lcido. Salcido was a member of the 18th Street gang and used the m oniker “Solito.” At approxim ately 5:00 p.m., Fuentes was standing outside, and Andrew was right next to her. Salcido and Navarrete stood at the
door to the residence. Salci do had just arrived at the barbec ue by bicycle from his sister’s house, which was just a few blocks away. Fuentes saw a Hispanic man approach and pull out a gun from a distance of 20 to 25 feet fro m her. The man stood out side the courtyard
and shot toward the screen door of Fuente s’s residence, where Navarrete and Salcido were standing. Fuentes grabbed her grandson and put him in back of her. Andrew was not hit, but Fuentes was shot in the stom ach. Bullets broke th e glass windows to Fuentes’s residence, and some bullets struck the inside of the residence, where Jarez and other members of the family were located when the shooting occurred. After firing several shots, the shooter walked back towa rd Pine Avenue. Nava rrete and Salcido did not see the shooter because they were facing the other direction. Fuentes said the man was wearing black or “dark” and had a cap on his head. He was approximately five feet, six inches tall, weighed between 170 and 180 pounds, and had a mustache. Fuentes was hospitalized for two weeks. Navarrete was shot on the right side of his body and in the arm. He was treated and released. Salcido was shot in the lower back4 and spent a week in the hospital. He still had a bullet in his liver that was sometimes painful. Salcido was in custody at the time of tria l. He acknowledged that he had a prior conviction for robbery. Salcido testified th at 18th Street and a ga ng called East Side Longos (ESL) were “not rivals or allies. Th ey are just whatever.” Salcido previously admitted to police that there was an on going rivalry between the two gangs. Jorge Escalera Barajas heard the gunshots that afternoon from his residence near
the intersection of 23rd Street and Pine Ave nue. He looked out the window and saw a
white- or cream-colored car that looked like a Jeep Cherokee with its engine running. He saw a Hispanic man with a hooded sweatshirt r un to the car and get in the passenger side. The vehicle then sped away. Barajas could not see insi de because the vehicle had tinted
windows. II. Shooting on 11th Street (Count 5) On February 11, 2010, Ma rgaret Ellis was at her residence at 11th and Olive Streets in Long Beach when sh e witnessed some shots being fired. As she was looking out her window she saw a Hispanic male sta nding on the corner. He kept looking east toward Myrtle Street and walki ng from the corner to the middle of the street as he did so. She then saw a primer gray old style “Jeep ” drive the wrong way on 11th Street and stop
in front of her door. The male on the corn er walked up to the passenger side of the vehicle and opened the door. When he came out, he had a gun in his hand. The Hispanic man then walk ed back to the intersection as the vehicle drove off. Ellis suddenly heard shooting an d saw the man shooting east on 11th Street. Ellis looked
out the door and saw three Black males walki ng west on 11th Street. The Hispanic man was shooting at them. The three Black men tu rned around and ran. They turned right on Myrtle Street as the Hispanic male was steadily running and shooting at them. The gray vehicle returned and drove past Ellis’s resi dence on 11th Street, stopped at the stop sign, and turned right. Ellis jo tted down the vehicle’s license plate number. She gave the partial plate number 6KM744 to police. Ellis did not recall telling police5 that she saw male Hispanic subjects arguing with three male Black subjects who were walking westbound on 11th Street. III. The Police Investigation Police found seven shell casings and two bul lets at the scene of the Pine Avenue shooting. Police found 10 casings and five bullet fragments at the scene of the shooting at 11th and Myrtle Streets. Tests revealed that all 17 nine-millimeter shell casings were fired from the same gun. The partial license plate number Ellis saw matched the license plate number (6KRM744) of a vehicle registered to defe ndant. Defendant also owned an Isuzu Trooper with the license plate number 6GAC001 . Defendant had twic e brought his Isuzu Trooper to a repair shop run by Jose Luis Cort ez in order to have the vehicle repainted. Cortez knew defendant as “Hyper.” Cortez ’s worker, Jaime Lopez, did the actual painting. The first time Cortez saw the Isuzu it was red or orange. In 2009, the Trooper was painted beige or a cream color. A fe w months later, sometime in 2010, Lopez painted it gray. Because of ongoing investigations being conducted by Detectiv e Hugo Cortes of the Long Beach Police Department, in Ma rch 2010 a wiretap was authorized of telephones belonging to defend ant and other persons who we re members of ESL. On April 15 and 19, 2010, police tried to stim ulate conversation about the shootings among the people who were being tapped. The po lice asked for the assistance of the Press Telegram to disseminate certain information. The first press release contained a partial description of the suspect, a vehicle descripti on, and a sketch of an Isuzu Trooper. The second press release contained a sketch of defendant made from an old booking photograph. Among the recorded conversations wa s one between defendant and Lopez in which they discussed the sanding down and repainting of defendant’s Trooper. 2 The jury

2 Pertinent portions of the re corded conversations are disc ussed within th e opinion.6 heard several conversations between defend ant and Ruhani Bustamante, a fellow ESL
member.
Police discovered defendant’s Isuzu Troo per in Compton and took it to the police tow yard, where it was searched . Defendant’s regi stration was inside. Police found a dismantled nine-millimeter handgu n wrapped in a blue bandana behi nd the interior panels on the rear passenger side. The slide and ma gazine were present but removed from the weapon. A box of nine-millimeter ammun ition was behind the gun. Police found an
insurance card that listed a 1 990 Toyota 4Runner as also be ing registered to defendant.
The 4Runner was never located. IV. Gang Evidence Long Beach Police Officer Ch ris Zamora testified as a ga ng expert. He testified that respect for the gang is ve ry important in the gang culture . When gangs feel respected it may only mean they are fear ed. The gangs main tain their territory by intimidating the community. Officer Zamora had investigated the ESL gang for the bulk of his career. He gave a conservative estimate that th e gang had 900 members. Officer Zamora described the primary activities of ESL, rangi ng from assaults to shootings, and stated
that their rivals include all of the Crips gangs, which are primarily African-American.
Certified court documents and Officer Zamora ’s testimony established that ESL members had committed predicate offenses. Officer Zamora identified defendant and gave his opinion that he was an active member of ESL with the moniker “Big Hyper.”
Officer Zamora stated that Fuentes’s re sidence on Pine Avenue was within ESL’s territory. The scene of the 11t h Street shooting was also with in ESL’s territo ry. In the latter location, the ESL gang was “running up against Insane Crips and Rolling 20’s gang territory.” When given a hypothetical based on the fa cts of the Pine Avenue shooting, Officer
Zamora stated that the shootin g was committed for the benefit of, in association with, and
for the furtherance of ESL. Officer Zamora’s opinion was base d on the fact that a rival gang member was in ESL territory, and territo ry is very important to a gang. Doing a violent act gets rid of the rival or instills fear in him and his gang.7 Based on a hypothetical scenario rooted in the facts of the 11th and Myrtle Streets shooting, Officer Zamora stated that the sh ooting was committed for th e benefit of, at the direction of, and in association with ESL. Of ficer Zamora asserted that the shooting also had its roots in the gangs trying to maintain th eir territory. This kind of crime instills fear in the community. ESL often committed race-based crimes because it scares not only rival gang members but the entir e community, since anyone coul d be shot just because of his or her race. Moreover, the participation of two people in the shooting was common in gang-related shootings. The nonshooter acted as a lookout, getaway driver, and a witness
to the act so that the shooter could later ta ke credit and raise his status in the gang. With regard to count 6, which charged defendant with being a felon in possession of a firearm, the parties stipulated that defendant had a prio r felony conviction.
Defense Evidence
Defendant did not te stify or offer any evidence on his behalf.
DISCUSSION I. Sufficiency of the Ev idence in Counts 2 and 3 A. Defendant’s Argument Defendant argues that there is insufficient evidence he intended to aid and abet the attempted murders of Fuentes and Navarrete, si nce there is no evidence that he shared the concurrent intent necessary to find him guilty under the “k ill zone” theory. Defendant argues that the error is not only one of state law, but also a denial of due process under
the United States Constitution. B. Relevant Authority “In assessing a claim of insu fficiency of eviden ce, the reviewing court’s task is to review the whole record in the light most fa vorable to the judgment to determine whether
it discloses substantial evidence —that is, evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defe ndant guilty beyond a reasonable doubt.” ( People v. Rodriguez (1999) 20 Cal.4th 1, 11 .) “The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” ( Ibid .) “The federal standard of review is to the same effect: Under8 principles of federal due process, review for sufficiency of evid ence entails not the determination whether the reviewing court itsel f believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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.” ( Ibid .; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Under the kill zone theory, “a shooter ma y be convicted of multiple counts of attempted murder . . . where the evidence esta blishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable d oubt that the shooter
intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. [Citation.]” ( People v. Smith (2005) 37 Cal.4th 733, 745-746.) The culpability for the attemp ted murders of any within the kill zone is based on a theory of concurrent intent rath er than transferred intent. ( People v. Bland (2002) 28 Cal.4th 313, 331 ( Bland ).) “The conclusion that transfe rred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them.” ( Id . at p. 329.) C. Evidence Sufficient According to defendant, the prosecution was required to establish that defendant
aided and abetted the shooter’s concurrent inte nt to create a kill zone around every person who was near the intended target. And, si nce the kill zone theo ry relies on a legal
fiction—that the shooter’s ma lice would be inferred by reas on of shooting into an area occupied by more than the target—it is difficult to im agine under the circumstances of the case, how such an intent could be found. Defendant asserts that there was simply no evidence that defendant, acting as an aider and abettor, inte nded to aid and abet the attempted murder of vic tims within the kill zone.9 The elements of attempted murder are sp ecific intent to kill and a direct but ineffectual act toward accomplis hing the intended killing. ( People v. Smith , supra , 37 Cal.4th at p. 739.) The kill zone instruction relates only to the intent element, which is the only element defendant disputes. ( People v. McCloud (2012) 211 Cal.App.4th 788, 804.) “One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. Absent such direct evidence, the intent obviously must be derived from all th e circumstances of the attempt, including the putative killer’s actions and words.” ( People v. Lashley (1991) 1 Cal.App.4th 938, 945- 946.) As for aiding and abetting liability, the jury was instructed that it had to find that defendant acted with knowledg e of the unlawful purpose of the perpetrator and with the intent or purpose of committing or encour aging or facilitating the commission of the crime, and that by act or advice he aide d promoted, encouraged, or instigated the
commission of the crime. The jury was also instructed that a person who aids and abets the crime need not be present at the scene of the crime, a lthough this is a factor to consider in determining if a defendant aide d and abetted. (CALJIC No. 3.01.) (See People v. Campbell (1994) 25 Cal.App. 4th 402, 409.) Other factors include the defendant’s companionship or relationship wi th the perpetrator and his conduct before and after the offense. ( Ibid .) In determining the sufficiency of the ev idence, each case must turn on its own particular facts. ( People v. Smith , supra , 37 Cal.4th at p. 745.) In the instant case, the
circumstantial evidence of the shooter’s intent clearly showed an intent to kill everyone in the vicinity of the intended target, Salci do. The shooter shot a semiautomatic weapon at least seven times into a family group consis ting of three adults and a child. All of them were in a relatively confined space in the courtyard of an apartment building. The shooter actually struck all thre e adults, even though they were in different places within the area of the courtyard. This is a clear indication that the shoo ter shot wildly and sprayed the family members with bullets. Concurrent intent exists “‘when the nature and scope of the attack, while directed at a primar y victim, are such that we can conclude the10 perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.” ( Bland , supra , 28 Cal.4th at p. 329.) “ ‘[T]the trier of fact may reasonably infer from the method employed an in tent to kill others concurrent with the intent to kill the primary victim. . . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended th at harm to all who ar e in the anticipated zone.’” ( Id . at p. 330.) The jury could reasonably infer that defendant waited in his vehicle with the engine running after having supplied the weap on and thereby shared the intent of the
actual shooter. Thus defendant was present at the scene of the crime, even though his presence was not required in order for him to be an aider and abettor. Defendant’s wiretapped conversations with a fellow gang member showed that the shooting was a gang “job,” and thus defendant shared comp anionship with the shooter, another factor supporting a shared intent. Defendant took the shooter to the scene, and, after the shooting, the perpetrator ran to the Troope r and defendant sped away, which are also factors in support of a finding that de fendant was an aider and abettor. (See People v. Campbell , supra , 25 Cal.App.4th at p. 409.) Defe ndant’s recorded conversation with Bustamante showed that the gun used in th e shooting actually belo nged to defendant.
The fact that Salcido arrived at the barb ecue only minutes before the volley of shots began indicates that defendant and the shoote r either followed Salcido as he cycled the few blocks to his mother’s house, or they were lying in wait. In any event, the shooter
and the driver knew that there were likely to be other people in the courtyard that Salcido had just entered. It was an apartment build ing, and any number of residents could have
been in the line of fire. Defe ndant evinced no surp rise when Bustamante read to him that there was a $10,000 reward for information l eading to the arrest an d conviction of this person responsible for the shooting that in jured a woman and two men.” Defendant merely replies, “Yeah.” In the instant case, the f act that defendant as an aider and abettor supplied the transportation and the weapon and waited while the shooter entered th e courtyard of an11 apartment building occupied by multiple families with the intent to kill, clearly shows his
concurrent intent with the sh ooter. The “‘nature and scope of the attack’” supports the
conclusion that the shooter in tended to kill Salcido and anyone who was near him. ( Bland , supra , 28 Cal.4th at pp. 329-331.) The jury reasonably arrived at the inference
that defendant shared the shoo ter’s intent to kill anyone and everyone in the zone. Defendant was properly convicted of the a ttempted murders of Fuentes and Navarrete. II. Sufficiency of th e Evidence in Count 5 A. Defendant’s Argument
Defendant contends there is insufficient evidence that he aided or abetted the assault with a deadly weapon in count 5, which took pla ce at 11th and Myrtle Streets. He asserts that he was not placed at the scene, and the wiretapped calls did not evidence his knowledge of the incident, let alone his co mplicity with its commi ssion. Even though a vehicle registered to defendant was placed at the scene, this is insu fficient evidence that he was driving the car or was otherwise aware of the crime. B. Relevant Authority The standard of review for insufficiency of the evidence and the elements of aider and abettor liability are discussed in the first portion of this opinion. C. Evidence Sufficient Margaret Ellis testified that she saw a Hi spanic male standing on the corner and looking around. She saw a gray vehicle, whic h looked like an older Jeep, pull up in front of her house, and the man from th e corner walked up to the passenger side of the Jeep and opened the door. He then came out of th e Jeep with a gun in his hand. Suddenly, shots rang out and she saw the man shooting eas tward on 11th Street while the man in the Jeep drove off. Ellis saw that the Hispan ic male was shooting at three Black men. When the Jeep came back, Ellis saw and recorded its license plate number. The number she gave the police was a partial num ber, i.e., 6KM744. The license plate was
later connected to defendant. The title to tw o automobiles found at defendant’s residence
showed that he owned vehicles with licen se plate numbers 6GAC001 (an Isuzu) and 6KRM744 (a Toyota).12 After police arranged to have informati on printed in the newspaper about the two cases with a description and sketches of the suspect and the vehicle, defendant and Ruhani Bustamante had a telephone conversati on. Contrary to defendant’s assertion, their conversation clearly implic ates defendant in the 11th a nd Myrtle Streets shooting.
Bustamante informs defendant that his “Jeeps” was sketched in the paper along with “a picture that looks like you in a sketch fool.” Bustamante reads the newspaper report to defendant. The report connected the vehicle and the susp ect to both the Pine Avenue and the 11th Street shootings. Bustamante says , “Anyways fool it shows, it shows your
vehicle fool.” Defendant asks what color the car is in the drawing, and Bustamante says it is white because it is just a drawing. Bustamante tells defe ndant to “just get rid of it.”
Defendant asks if the 11th an d Myrtle was part of it, and Bustamante says it was and asks, “ Did you throw, did yo u tell anyone about that ?” When he asks if defendant told a specific person (the Paisa) defendant replies, “ No that dude don’t know .” Bustamante tells defendant to just get rid of his car and shave off his mustache and his head hair. Bustamante later says “they are linking that on e up to the one on Myrtle fool that is why I’m telling you fool they are on to everybody , fool. . . .” During one of their several conversations in which they speculate about wh o is talking, Bustaman te says, “It could be
that little fucken hina that liv es there. She probably saw th e license plate to the ranfla (car). What it looks like, remember? Sh e was looking out the window?” Defendant responds, “Yeah.”
Bustamante then tells defendant to take his old nine-millimeter gun away from whoever has it. He specifies that it is th e gun they used at the 2200 block with “the eighteen streeters.” He says that “they” went on to use it at the Myrtle Street shooting,
and Bustamante scolded defenda nt for not having cut it up as he had been told to do. Again contrary to defendant’s assertion, this exchange does not indicate that defendant was not involved in the 11th and Myrtle Stre ets shooting, but only that Bustamante was not aware of which gun the shoot er used in that shooting. With respect to defendant’s vehicle, anot her caller tells defendant that “they said
that white over there with th e lady over there on Pine” and “o ver here primered with the13 Blacks.” Defendant later calls someone to se e if they have the newspaper for the 17th because “they say . . . the Trooper is coming up on it.” Defendant tried to have his car repainted after the sketch of the car and the suspect appeared in the newspaper. Defendant actually asked Lopez to sand his car down to get ri d of all of the white and gray paint and to go back to the red so that one could neve r tell that it was anything but red. He also told Lopez to ta ke off the tire in the rear, the pa rt that held the tire, and to cover up the holes where it was attached. De fendant changed his appearance to appear
different than the sketch.
Later defendant tells Bustamante that he threw the “juguete,” or the toy, in the ocean personally. He then sa ys he disassembled it into different pieces and threw it in several places. He tells someone else he threw the “slingshot” in the water. On June 3, 2010, Detective Sorenson s earched defendant’s Isuzu Trooper in the city tow yard and found parts of a disasse mbled nine-millimeter handgun wrapped in a blue bandana behind the interior panels in the cargo area of the car. The magazine was
out and the slide was removed. There wa s a box of nine-millimete r ammunition behind the gun. Troy Ward, a firearms ex aminer, examined seven cartridge cases from the Pine Street shooting and 10 fired ni ne-millimeter cartridge cases w ith respect to the 11th and Myrtle Streets shooting. The 10 cartridge cases were all fired by one firearm, and the seven cartridges were also fired from one fi rearm. A comparison of the cartridges
revealed that all 17 were fired from the same gun. That gun was the disassembled gun
found in defenda nt’s Isuzu. Finally, there was expert evidence that all of the Crips gangs, which are primarily African-American gangs, are direct rivals of ESL, defendant’s gang, and have been for several decades. The area of 11th and Myrtle Streets is one where their territories “butt up against each other.” “‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which mu st be convinced of14 the defendant’s guilt beyond a reasonable doubt . If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a cont rary finding does not warrant a reversal of the judgment.’ [Citation.]” ( People v. Perez (1992) 2 Cal.4th 1117, 1124.) Given the
abundance of circumstantial evidence and the incriminating statements discussed ante , we conclude the evidence was sufficient to support defendant’s conviction as an aider and abettor of the shooting on 11th and Myrtle Streets. III. Aiding and Abetting Instruction A. Defendant’s Argument
Defendant contends the tria l court erred by instructing the jury with CALJIC No. 3.00, which contained language stating that e ach principal, regardless of the extent or manner of participation, is equally guilty. He argues that the trial court had the duty to instruct the jury that he coul d be guilty of a lesser offense than the actual perpetrator. If the trial court had no such sua sponte duty, defense counsel was inef fective in failing to request a proper instruction. B. Proceedings Below
The trial court instructed the jury with CALJ IC No. 3.00 that “Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of particip ation is equally guilty. Principals include: Those who directly and activel y commit the act constituting th e crime, or those who aid
and abet the commission of the crime.” C. Relevant Authority Generally, an aider and abetto r is guilty of the crime he or she intended to aid and abet. ( People v. McCoy (2001) 25 Cal.4th 1111, 1117 ( McCoy ).) “If the mens rea of the aider and abettor is more culp able than the actual perpetra tor’s, the aider and abettor may be guilty of a more serious crime than the actual perpetrator.” ( Id . at p. 1120.) Conversely, if the aider and abettor’s mens re a is less culpable, the aider and abettor may be guilty of a lesser crime. ( People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164 ( Samaniego ).)15 Purportedly erroneous instructions are revi ewed in the context of the entire charge to determine whether it is reasonably likel y the jury misconstrued or misapplied the challenged instruction in a manner th at violates the Constitution. ( People v. Frye (1998) 18 Cal.4th 894, 957, disappr oved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22; People v. Holt (1997) 15 Cal.4th 619, 677.)
D. No Error We first agree with respondent that defendant has forfeited this claim. A party may not complain on appeal that an instruc tion correct in law and responsive to the evidence was too general or incomplete unle ss the party has requested modification or amplification. ( People v. Lee (2011) 51 Cal.4th 620, 638.)
In Samaniego , this court considered whether a challenge to CALCRIM No. 400— the CALCRIM instruction corresponding to CA LJIC No. 3.00—had been forfeited by the defendant’s failure to object to the instruction below. ( Samaniego , supra , 172 Cal.App.4th at pp. 1162-11 63.) We determined that, since CALCRIM No. 400 is generally an accurate statement of law, the defendant was obliged to request modification or clarification and, having failed to do so, forfeited his challenge to the instruction. ( Id

. at p. 1163) In the instant case, defendant failed to ob ject to CALJIC No. 3.00 or to request clarifying or amplifying langua ge, and we do not be lieve defendant’s substantial rights would be affected by a forfeiture . CALJIC No. 3.00 is a correct statement of the law that instructs the jury that an aide r and abettor is as guilty as a principal in the offense the perpetrator commits. Because defendant did not ask the cour t to correct or clarify an otherwise accurate statement of general legal ru les, he cannot complain on appeal that the reading of the instruction wa s error, and he has therefore forfeited his claim on appeal. ( People v. Lee , supra , 51 Cal.4th at p. 638.) Defendant also argues that any forfeiture of his claim was due to his counsel’s
failure and that this failure constitutes ineffec tive assistance of counsel. The burden is on
defendant to establish ineffe ctive assistance by a preponderance of the evidence. ( People
v. Ledesma (1987) 43 Cal.3d 171, 21 8.) There are two elemen ts to an ineffective16 assistance claim. “[A] defend ant seeking relief on the basis of ineffective assistance must
show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a
more favorable determination wo uld have resulted in the abse nce of counsel’s failings.” ( People v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. Washington (1984) 466 U.S. 668.) A reviewing court “need not de termine whether counsel’s performance was deficient before examining the prejudice su ffered by the defendant as a result of the alleged deficiencies.” ( Strickland , at p. 697.) In the instant case, even if the claim were not forfeited we would find it meritless. Therefore, defendant suffered no prejudice from co unsel’s failure to object. As we
observed in Samaniego , an instruction such as CALJIC No. 3.00 may have the potential to mislead the jury in certain cases. ( Samaniego , supra , 172 Cal.App.4th at p. 1165.) We noted that the Supreme Court in McCoy , supra , 25 Cal.4th at page 1122, concluded that an aider and abettor could be guilty of a grea ter offense than the di rect perpetrator, and
we determined that McCoy ’s reasoning led inexorably to the further conclusion that an aider and abettor’s guilt may also be less than the perpetrator’s, if the aider and abettor has a less culpable mental state. ( Samaniego , supra , 172 Cal.App.4th at p. 1164; see also People v. Woods (1992) 8 Cal.App.4th 1570, 1577 ( Woods ).) Nevertheless, we stated that the “equally guilty” language was “genera lly correct in all but the most exceptional circumstances,” although in Samaniego we found it misleading. ( Samaniego , at p. 1165;
cf. People v. Nero (2010) 181 Cal.Ap p.4th 504, 518 ( Nero ) [the instruction can be misleading even in unexcep tional circumstances].) Here, even if the jury believed someone else was the shooter and defendant was an aider and abettor, it necessarily found the fo llowing regarding defendant in order to find that he aided and abetted the attempted murder s: defendant knew th e shooter intended to murder or attempt to murder the victims; defendant intended to commit, encourage, or
facilitate the commission of murder and atte mpted murder; and defe ndant did something that in fact aided, promoted , encouraged, or instigated the commission of murder and attempted murder (CALJIC No. 3.01). Thus, the jury necessa rily found that defendant17 must have intended that the victims be killed, which means he shared the intent to kill
them. “Absent some circumstance ne gating malice one cannot knowingly and intentionally help another commit an unla wful killing without acting with malice.” ( McCoy , supra , 25 Cal.4th at p. 1123.) Moreover, “[ i]t would be virtually impossible for a person to know of another’s intent to mu rder and decide to aid in accomplishing the crime without at least a brief period of deliber ation and premeditation, which is all that is required” for first degree murder, and for the premeditated attempted mu rder in this case. ( Samaniego , supra , 172 Cal.App.4th at p. 1166.) Moreover, e ven if the trial court erred in inst ructing the jury with CALJIC No. 3.00, any such error was harmless. We review instructional error w ith respect to CALJIC No. 3.00 using the harm less error test under Chapman v. California (1967) 386 U.S. 18, 24. (See Samaniego , supra , 172 Cal.App.4th at p. 1165.) Under that test, we find the error harmless if we determine beyond a re asonable doubt that th e jury verdict would
have been the same absent the error. ( Ibid .) Instructing the jury that principals are “equally guilty” amounts to reversible error when the trial court precludes the jury fro m making appropriate findings under other instructions. ( Samaniego , supra , 172 Cal.App.4th at pp. 1165 -1166 [no reversible error where the jury made appropriate findings under other instructions].) In the instant case,
the court’s additional instructions correctly a nd specifically described the mental state necessary to find defendant guilty under an aiding and abetting theory. As noted, the trial court instructed w ith CALJIC No. 3.01, which defines the elements of aiding and abetting. 3 CALJIC No. 3.01 provided a detailed explanation of

3 CALJIC No. 3.01, as read to defendant’s jury, states: “A person aids and abets the commission of a crime when he or she: [¶] (1) With know ledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpos e of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice, aids, promotes, encourages or instigates the commission of th e crime. [¶] A person who aids and abets the commission of a crime need not be presen t at the scene of the crime. [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime18 the principles underlying an aiding and abetti ng theory in contrast to CALJIC No. 3.00, which was merely a brief introduction of genera l principles to apply when more than one person is involved in committing a crime. We see no reasonable possibility that the jury
failed to understand that CALJ IC Nos. 3.00 and 3.01, when read together, required the jury members to evaluate defendant’s personal mental state as separate from the mental
state of the shooter in order to determine his culpability, es pecially since defendant was
tried alone. The jury was also instruct ed that its sole duty was to decide whether the People have proved the guilt of the defendant on trial. (CALJI C No. 2.11.5.) The jury was
directed to consider the instructions as a whole and each in light of all the others. (CALJIC No. 1.01.) The trial c ourt instructed the jury in te rms of CALJIC No. 3.31, that there must be a union of act and specific inte nt. The jury was separately instructed on attempted murder as a violation of se ctions 664 and 187 (CALJIC No. 8.66). The court
also instructed with CA LJIC No. 8.67, defining “w illful,” “deliberate,” and “premeditated” attempted murde r. The totality of the court’s instructions ensured that the jury found the requisite mental state to convict defendant of premeditated attempted
murder. Moreover, unlike the cases of Nero and Woods , the jury had no queries in regard to these instructions. Specifi cally, the jurors did not ask th e trial court whether the jury
could convict defendant of a le sser included offense. (Cf. Nero , supra , 181 Cal.App.4th 504, 509-510 [prejudicial error for court to inform jury that aider and abettor and perpetrator are “equally guilty ” when jury asked whether it could convict aider and abettor of lesser offense]; Woods , supra , 8 Cal.App.4th at p. 1579 [jury asked trial court
if an aider and abettor coul d be found guilty of second degree murder if the actual perpetrator is guilty of first degree murder].) There is no indication that the jury was misled by CALJIC No. 3.00.

does not amount to aiding and abetting. [¶ ] Mere knowledge th at a crime is being committed and the failure to prevent it doe s not amount to aiding and abetting.”19 Finally, as discussed ante , the evidence adduced at tria l in support of an attempted murder conviction against defendant was str ong and showed that he and an accomplice planned to kill Salcido and anyone else in the line of fire. Ther e is no indication or suggestion that when the shooter fired into the courtyard, he and the waiting getaway driver (who also supplied the gun) harbored di fferent mental states. The jury found the gang allegations true, i.e., that the attempte d murders and assault were committed “for the benefit of, at the direction of, or in association with any crim inal street gang,” within the meaning of section 186.22, subdivision (b)(1), a nd with the “specific intent to promote, further, or assist in any cr iminal conduct by gang member s” within the meaning of section 186.22, subdivision (b)(1). Th ere was overwhelming evidence of the gang allegations, and evidence of those allegations showed that the attempted murders and
assault were committed with the required specific intent. (See Samaniego , supra , 172 Cal.App.4th at p. 1165 [true finding on multip le murder special ci rcumstance showed defendants had the specific intent to kill].) Accordingly, even if the trial court had not instructed the ju ry with CALJIC No. 3.00, it is beyond a reasonable doubt that th e jury would have convicted defendant of attempted murder as an aider and abettor. Tr ial counsel was not ineffective for failing to object to the reading of CALJIC No. 3.00, since the instructi on is a correct statement of law and there were no grounds for finding de fendant guilty of a lesser crime, and the reading of the instruction di d not prejudice defendant. De fendant’s argument is without
merit. IV. Sufficiency of the Ev idence of Gang Allegation A. Defendant’s Argument According to defendant, th e prosecutor failed to presen t substantial evidence to support the gang allegations that the char ged crimes were part of a gang-related enterprise and committed with the intent to benefit a gang. The evidence presented was mere unsubstantiated, specula tive opinion of an expert w ho relied on the often-used generality that an assault benefits the gang to establish territo ry and intimidate the20 neighborhood. Defendant asserts that his gang enhancements be stricken, requiring
remand of the associated sentences. B. Relevant Authority To subject a defendant to the conseque nces of section 186.22, the prosecution must prove that the crimes for which the defendant was convicted were “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1); see also People v. Gardeley (1996) 14 Cal.4th 605, 616-617; People v. Villalobos (2006) 145 Cal.App.4th 310, 322 .) Not all crimes committed by gang members fall within the purview of section 186.22, subdivision (b). (See People v.
Ochoa (2009) 179 Cal.App.4th 650, 661-663 & fn. 7; People v. Ramon (2009) 175 Cal.App.4th 843, 853; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.) A trier of fact may rely on expert test imony about gang culture and habits to reach a finding on a gang allegation. ( In re Frank S ., supra , 141 Cal.App.4th at p. 1196; People v. Ferraez (2003) 112 Cal.App.4th 925, 9 30.) However, a gang expert’s testimony alone is insufficient to fi nd an offense gang related. ( People v. Ochoa , supra , 179 Cal.App.4th at p. 657; Ferraez , at p. 931.) “‘[T]he re cord must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a crimin al street gang.’ [Citation.]” ( Ochoa , at p. 657.) C. Evidence Sufficient We believe the testimony offered by th e gang expert in conjunction with defendant’s revealing telephone calls and th e circumstances surrounding the shootings provide ample evidence to show the instant crimes were committed for the benefit of a criminal street gang. Officer Zamora testified that fear, which gang members consider to be respect, is important to gangs because it helps them ma intain their territory. Among ESL’s rivals were the 18th Street gang and any African- American Crips gang. ESL claimed central21 Long Beach, east of the 710 freeway, as its main territory. Fuente s’s residence on Pine Avenue was within ESL’s territory. Her son, a member of ESL’s rival gang, was visiting her when the shooting occurred. The scene of the 11th Stre et shooting was also within ESL’s territory, and it bordered the territory of rival African-American gangs. AfricanAmerican males were the shooter’s targets. Officer Zamora was of the opinion that defendant was a member of ESL because of defendant’s gang tattoos and his admiss ion of membership to officers, including Officer Zamora. When read a hypothetical question based on the facts of the Pine Avenue shooting, Officer Zamo ra stated that the shooting was committed for the benefit of, in association with, and fo r the furtherance of ESL. This was due to the importance territory holds in gang culture. ESL took violent action against a rival gang member in its territory so as to instill fear in both th e rival gang and the community. Although that rival gang member (Salcido) testified at trial that 18th Street and ESL were “not rivals or allies. They are just whatev er,” the record shows he had previously admitted to police that there was an ongoing riva lry between the two gangs. When given another hypothetical based on the facts of the 11th and Myrtle Streets shooting, Officer Zamora asserted that the shooting was committed fo r the benefit of, at the direction of, and in association with ES L. This opinion was also rooted in the importance of territory in gang culture. Offi cer Zamora explained that it was irrelevant if the African-American victims were actually me mbers of a rival gang, since their race and presence in ESL territory qualified them as ES L targets. The shooting instilled fear in the community and in rival African-American gangs. The area in which the shooting
occurred was at the border where the ESL te rritory meets the Afri can-American gangs’ territory. The fact that two people par ticipated in the shooting was common in gangrelated shootings, because the nonshooter coul d act as a lookout, the getaway driver, and
a witness to the act so the shoo ter could later take credit and ra ise his status in the gang.
Defendant’s conversations with Bustam ante confirm that the shootings were
committed at a minimum in associati on with ESL gang members. (See People v.
Morales (2003) 112 Cal.App.4th 1176, 1198 [“The crucial element . . . requires that the22 crime be committed (1) for the bene fit of, (2) at the direction of, or (3) in association with a gang.”].) Bustamante, in referring to defendant’s nine-millimeter weapon, states,
“You hear me the one that we used at the 2200 block right th ere fool the with the eighteen streeter’s, remember?” He later asks defendan t if he doesn’t remember the job that they did “over there with the eighteen str eeters, dude.” Bustamante then states that the police are linking the Pine Street incident to “the one on Myrtle fool that is why I’m telling you fool they are on to everybody fool.” They both suspect that someone they call “el pinche guero” is the only one that knows about the “job,” and Bustamante says that they need to “invite him somewhere” and “take him down.” Bustamante scolds defendant because the gun used at the Pine Street shooting was given to someone who used it at the 2200 block of Myrtle Street, and Bustamante had told defendant to cut up the gun. These conversations and the circum stances of the shootings clearly support the inference that the shootings were committed by defendant w ith other gang members. Accordingly, we conclude the eviden ce was sufficient to support the gang allegations. V. Jury Query Regarding Reasonable Doubt Instruction A. Defendant’s Argument
Defendant contends the tria l court committed reversible error when it refused to provide further clarification regarding the reasonable doubt instruction, CALJIC No. 2.90. According to defendant, the error affe cted defendant’s constitutional rights to due process and was not harmless beyond a reasonable doubt. B. Proceedings Below The court instructed the jury on reasona ble doubt pursuant to CALJIC No. 2.90 as
follows: “A defendant in a criminal action is presumed to be innocent until the contrary is proved. And in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This pr esumption places upon th e People the burden of proving him guilty beyond a reasonable doubt. R easonable doubt is defined as follows: It is not a mere possible doubt b ecause everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which after the23 entire comparison and consideration of all of the evidence leaves the minds of the jurors in that condition that they cannot say they f eel an abiding convicti on of the truth of the charge.” At the end of opening argument, the pros ecutor told the jury it was his burden to prove the charges beyond a reasonable doubt , and he again read the reasonable doubt instruction to the jury . The jury began deliberating in the afternoon of November 1, 2011, and resumed deliberations at 9:30 a.m. th e next day. At 10:10 a.m., the jury sent questions to the trial court, including the following: “Can you redefine reasonable doubt?” After discussing the questions with th e parties, the trial court responded “No” to the reasonable doubt query. The court told the jury that counsel had approved the responses. The court added, “It is one of those things that ca nnot be defined any further.” At 10:25 a.m., the jury announ ced it had reached verdicts. C. Relevant Authority The federal Constitution does not require a trial court to define reasonable doubt. ( People v. Aranda (2012) 55 Cal.4th 342, 374 ( Aranda ).) The failure to do so is, however, error under state law. ( Id . at pp. 350, 374.) Pursuant to section 1138, the trial cour t must provide information requested by a jury concerning any point of law. ( People v. Beardslee (1991) 53 Cal.3d 68, 97.) The
trial court has the discretion to determine what additional explanations or definitions are needed to satisfy the jury’s request for information if the instructions given are full and complete. ( Ibid .) D. No Abuse of Discretion
We first observe that defendant has forfe ited this claim. Th e California Supreme Court, in People v. Rodrigues (1994) 8 Cal.4th 1060, held that a defendant who believes that an instruction is unclear has a duty to re quest clarifying language. Failure to request such clarification bars appellate review of the issue. ( Id . at p. 1192; see also People v. Kelly (1992) 1 Cal.4th 495, 535-536 [trial court not required to modify accepted standard
instructions without re quest by party ].)24 In any event, we conclude that the tria l court properly resp onded to the jury’s inquiry. When standard jury instructions are adequate, a trial court does not abuse its discretion by declining to elaborate on them. ( People v. Garceau (1993) 6 Cal.4th 140, 191.) Moreover, CALJIC No. 2.90 has been re cognized as “‘the best available definition of the standard of proof beyo nd a reasonable doubt.’” ( Garceau , at p. 193.) Furthermore, it has been held that va rying from the standard is a “‘perilous exercise.’” ( People v. Freeman (1994) 8 Cal.4th 450, 503-504.) Prejudicial error has
sometimes been found when a trial court has made misguided attempts to expand on the standard definition. (See, e.g., People v. Johnson (2004) 115 Cal.App.4th 1169, 1172 [reversal required where trial court said, “pe ople planning vacations or scheduling flights engage in a deliberative process to the dept h required of jurors[,] or that such people finalize their plans only after persuading themse lves that they have an abiding conviction of the wisdom of the endeavor”].) Even pa raphrasing the standard jury instruction on reasonable doubt can be dangerous. (See, e.g., People v. Johnson (2004) 119 Cal.App.4th 976, 985; People v. Garcia (1975) 54 Cal.App.3d 61, [citing cases with examples of “innovative ‘reasonable doubt’ in structions” held to be erroneous] and noting that “Well intentioned efforts to ‘cla rify’ and ‘explain’ [the accepted definition]
have had the result of creati ng confusion and uncertainty, and have repeatedly been struck down by the courts of revi ew of this state.”].) It is certain that reversal is required when any modification to the instruction results in a reasonable likelihood that a juror understood the modified langua ge to lessen the prosecution’s burden of proof. (See
Victor v. Nebraska (1994) 511 U.S. 1, 5 [reasonable do ubt jury instruction cannot suggest a higher degree of doubt that is required for acquittal]; People v. Mayo (2006) 140 Cal.App.4th 535, 542 [“an instru ction that lowers the People’s burden of proof or detracts from the heavy burden suggested by use of the term ‘reasonable doubt’ is federal constitutional error requiring re versal per se . . .”].) Because the standard jury instruction was clearly adequate, there was no abuse of discretion, and the trial court wisely chos e to refrain from ente ring these dangerous waters. Moreover, any error in this re gard was harmless under any standard. ( Chapman25 v. California , supra , 386 U.S. 18 [harmless be yond a reasonable doubt]; People v.
Watson , supra , 46 Cal.2d at p. 836 [reasonable proba bility the error did not affect the outcome].) The jury found “n ot true” the firearm allegations, including the allegation that a principal used a firearm, which indica tes that the jury members gave defendant the benefit of any doubt they might have harbored . Moreover, as we have concluded, there was overwhelming evidence of defendant’s participation in both shootings and his possession of a firearm. There was also strong evidence in support of the gang enhancements, as explained in the previous sec tion. In light of this evidence, any error
was harmless.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

BOREN, P.J.
We concur:

ASHMANN-GERST, J.

CHAVEZ, J.