P. v. Adams

Filed 4/5/18 P. v. Adams CA2/4
Opinion on transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
LEO LLOYD ADAMS,
Defendant and Appellant.
B252187
(Los Angeles County
Super. Ct. No. TA103351)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Larry P. Fidler, Judge. Affirmed.
Stephen Temko, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters,
Assistant Attorney General, Scott A. Taryle and Steven E.
Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________

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Leo Lloyd Adams appeals from a judgment entered after
his jury conviction of two counts of first degree murder and three
counts of attempted murder, as an aider and abettor, with gang
and firearm enhancements. He contends the trial court erred in
not instructing the jury about voluntary manslaughter, based on
imperfect defense of another. He also contends defense counsel
was ineffective for not advising him of his right to testify. We
disagree and affirm.
Following our initial decision in this matter, issued June
15, 2015, the Supreme Court issued its decision in People v. Chiu
(2014) 59 Cal.4th 155, 167 (Chiu), holding that a defendant may
not be convicted of first-degree murder under the natural and
probable causes doctrine. We modified our initial opinion in light
of Chiu in an order dated July 15, 2015, finding that any error
caused by instructing the jury on the natural and probable
consequences doctrine was harmless beyond a reasonable doubt.
On February 28, 2018, following appeal to the Supreme Court
from our modified decision, the court transferred the matter to
this court with directions to vacate our previous decision, which
we now do, and to reconsider the case in light of In re Martinez
(2017) 3 Cal.5th 1216 (Martinez).1
That case held that, where the
jury is given an instruction on the natural and probable
consequences doctrine, a defendant’s first degree murder
conviction requires reversal unless the reviewing court concludes
beyond a reasonable doubt that the jury actually relied on a
legally valid theory. After consideration of Martinez, we conclude
1
The parties had the right to voluntarily brief the issue of
the application of Martinez to this case within 15 days of the
order transferring the cause to this court under California Rules
of Court, rule 8.200(b). They did not do so.

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that any error was harmless beyond a reasonable doubt and
affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 2008, the Grape Street Crips gang was at war with the
East Coast Crips gang. On September 23, 2008, Debruce Smith,
a member of the 89 East Coast Crips, was at the Compton train
station with his girlfriend, Jacqueline Spinks, and his best friend,
Terry Dozier. Two individuals drove up to Smith and told him
that there was a “grapester” behind them and that one of them
“got into it with him, but he ain’t nothing.”
Richard Roberson was a member of the Grape Street Crips.
As he walked past Smith, Smith recognized him as the
“grapester” in question. Smith caught up with Roberson and the
two appeared to argue. Roberson then walked past Spinks,
talking on his cell phone. She overheard him mention the name
Beezy or Breezy and say, “I got into it with a coaster.” When
Spinks asked Smith what had happened, he, too, answered, “I got
into it with him.” Spinks asked Smith to leave, but he refused,
stating, “He wanted to call his people, I’m going to call mine.” He
nevertheless agreed to “walk away,” and they started walking
back.
When Smith’s cousin, Tinnar Wilson, joined them, Smith
was pacing on the platform. Roberson was standing nearby with
two other individuals and was talking on his cell phone. Smith
identified Roberson as a member of an enemy gang and told
Wilson, “This young cat right here is trippin.” As Smith headed
off the platform, Roberson ran after him and made derogatory
statements about Smith and his gang. Wilson offered to “fade,”
or fistfight, Roberson. Roberson responded, “When my homies

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get here, there ain’t going to be no fading.” Smith was on parole
and did not want to fight, but he again refused to leave the area.
At some point, a black Tahoe pulled up to the station, and
three women and appellant’s codefendant Ronald Brim got out.
Minutes later, appellant, a member of the 118th Street Watts
Crips Gang whose nickname was “Beezy,” arrived in a
champagne-colored car. Roberson was overheard saying, “It’s
going down,” and telling Brim, “There goes those niggas there.”
Brim reached in through the front passenger window of
appellant’s car and pulled out an automatic rifle. He said, “You
bitch ass ain’t going to do nothing,” cocked the rifle, and fired at
least 12 shots. Smith and Dozier were shot as they were running
away and died at the scene. Three bystanders at the crowded
station were wounded.
The black Tahoe and a gold-colored car were captured by
surveillance video at the train station. Brim was arrested for
drunk driving, and an officer identified his Tahoe as the one
involved in the shooting. Spinks and another bystander
identified Roberson in a six-pack photographic lineup. Appellant
was arrested in 2010. He owned a gold Pontiac similar to the
champagne-colored car involved in the shooting. Cell phone
records indicated that phones registered to Brim and appellant
were used near the train station at the time of the shooting and
travelled away from the area afterwards. A call from a phone
registered to Brim was placed to appellant’s phone immediately
before the shooting.
Appellant, Roberson, and Brim were charged in a
consolidated information with two counts of first degree murder
(Pen. Code, § 187, subd. (a)) and three counts of willful, deliberate
and premeditated attempted murder (Id., §§ 664, 187, subd. (a)),

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with gang, multiple murder, and firearm enhancement
allegations (Id., §§ 186.22, subd. (b)(1)(C), 190.2, subd. (a)(3),
12022.53, subd. (d)).2 Appellant’s defense at trial was that on
September 23, 2008, he had been at work between 7:00 a.m. and
7:00 p.m. and could not have been at the Compton train station
at about 6:30 p.m. when the shooting occurred.
The jury convicted appellant as charged, found the murders
to be in the first degree, the attempted murders to be willful,
deliberate, and premeditated, and the special allegations to be
true. The trial court denied appellant’s motion for a new trial
and sentenced him to two life sentences without the possibility of
parole, three life sentences with the possibility of parole, and an
additional 125 years.
This appeal followed.
DISCUSSION
I
Appellant argues that the court erred in not instructing the
jury, sua sponte, on voluntary manslaughter based on imperfect
defense of another. His theory is that he rushed to the scene to
aid Roberson, who had called for help.
Even in the absence of a request, the trial court must
instruct on lesser included offenses whenever there is substantial
evidence that the lesser, but not the greater, offense was
committed. (People v. Breverman (1998) 19 Cal.4th 142, 154.)
Voluntary manslaughter based on imperfect self-defense or
defense of another is a lesser offense included in the crime of
2
In a separate count, Brim was charged with possession of
a firearm by a felon. He and appellant were tried before the
same jury. Brim received the death penalty. Roberson, who was
a minor at the time of the shooting, was tried separately.

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murder. (People v. Randle (2005) 35 Cal.4th 987, 997, overruled
on a different ground in People v. Chun (2009) 45 Cal.4th 1172,
1201; People v. Barton (1995) 12 Cal.4th 186, 201.) We
independently review whether the trial court erroneously failed
to instruct on a lesser included offense. (People v. Avila (2009) 46
Cal.4th 680, 705.)
Initially, we disagree with respondent’s suggestion that an
aider and abettor is not entitled to rely on imperfect self-defense
or defense of another. As respondent recognizes, in the aider and
abettor context, the mens rea of each participant in a crime
“‘“float[s] free”’” and is independent of that of any other
participant. (People v. McCoy (2001) 25 Cal.4th 1111, 1119.)
Thus, an aider and abettor may be guilty of a greater or lesser
homicide-related offense than the perpetrator. (Id. at p. 1122;
People v. Nero (2010) 181 Cal.App.4th 504, 507.) It follows that
an aider and abettor may rely on the doctrine of imperfect self-
defense or defense of another to mitigate the mens rea by
negating the malice element of murder. (See People v. Randle,
supra, 35 Cal.4th at pp. 994–995.)
The doctrine of imperfect defense of another requires that
the defendant must have had “an actual but unreasonable belief
he must defend another from imminent danger of death or great
bodily injury.” (People v. Randle, supra, 35 Cal.4th at p. 997.)
For an instruction based on this doctrine, there must be
substantial evidence from which the jury could find the defendant
actually had the requisite belief. (Cf. People v. Oropeza (2007)
151 Cal.App.4th 73, 82 [imperfect self-defense].) When a
defendant does not testify or make out-of-court statements,
substantial evidence of his or her state of mind may be found in
the testimony of other witnesses. (Ibid.)

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Here, no witness testified appellant rushed to help
Roberson because he actually believed him to be in imminent
danger of death or great bodily injury. There was no evidence
that the confrontation between Roberson and Smith was
escalating to a fight at the time Roberson made the phone call.
Nor is there evidence Smith or anyone else was armed and
threatening Roberson. To the contrary, Wilson testified that
Smith did not want to fight. There is no evidence that when
Roberson said he “got into it” with Smith, he meant that he and
Smith had gotten into a physical altercation or that he needed
help because he was in danger. Spinks repeatedly used the
phrase “got into it” to mean “argue.”
The evidence indicates Roberson sought to escalate what
was essentially a verbal confrontation to gun warfare. That is
how Wilson understood Roberson’s statement that when his
“homies” got to the station, there would be no fist fighting.
Smith’s statement that Roberson was “trippin,” and the fact that
Smith, too, considered calling his “homies” also indicate Roberson
was overreacting and attempting to escalate the conflict rather
than asking for help because he was in immediate danger.
Notably, there is no evidence that Smith actually called for
reinforcements or that Roberson sought help because he feared
an escalation of the conflict by Smith.
Since there is no direct evidence of appellant’s state of mind
and the circumstantial evidence indicates Roberson did not seek
help because he was in immediate danger of death or great bodily
injury, it would be speculative to conclude that appellant was
under an actual belief that he needed to bring an assault weapon
to the train station in order to defend Roberson from such danger.
The trial court was not required to present a speculative theory

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the jury could not reasonably find to exist. (People v. Oropeza,
supra, 151 Cal.App.4th at p. 78.) No instructional error occurred.
II
Appellant complains of ineffective assistance of counsel
because trial counsel did not advise him of his right to testify and
did not seek clarification whether appellant’s prior conviction of
possession of an assault weapon could be used for impeachment.
The decision whether to testify “is made by the defendant after
consultation with counsel. [Citations.]” (People v. Carter (2005)
36 Cal.4th 1114, 1198.) To establish a denial of the right to
effective assistance of counsel, a defendant must show that his or
her counsel’s performance was deficient and that there was a
reasonable probability of a more favorable result but for the
deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 687,
691–694; People v. Frye (1998) 18 Cal.4th 894, 979.)
Appellant raised the claim of ineffective assistance of
counsel in his motion for a new trial. In a declaration supporting
the motion, appellant stated he wanted to testify but his trial
attorney advised him not to because he would be impeached with
his prior conviction for possessing an assault weapon. According
to appellant, counsel did not advise that the ultimate decision
whether to testify was appellant’s. During the hearing on the
motion, counsel testified that, in his long career as a criminal
defense attorney, his usual practice had been to advise his clients
of their absolute right to testify; even though he did not
specifically recall having done so in appellant’s case, counsel saw
no reason why he would have deviated from that practice. The
trial court found counsel to be credible and the timing of
appellant’s claim to be suspect as it was “hard to believe”

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appellant would not have raised the issue earlier if he really
wanted to testify.
Defendant would have us redetermine issues of credibility,
but we may not interfere with the trial court’s reasonable factual
determinations at the hearing on the motion for a new trial, as
they are supported by substantial evidence. (People v. Delgado
(1993) 5 Cal.4th 312, 329; People v. Rabanales (2008) 168
Cal.App.4th 494, 509.) It was reasonable for the trial court to
infer that, in this case, trial counsel followed his usual practice of
advising his clients of their right to testify. (See People v. Lewis
(1999) 74 Cal.App.4th 662, 668 [usual practice testimony
supports inference of act in conformity on particular occasion].)
It also was reasonable for the trial court to discredit appellant’s
post-trial claim that his attorney prevented him from testifying.
“When the record fails to disclose a timely and adequate demand
to testify, ‘a defendant may not await the outcome of the trial and
then seek reversal based on his claim that despite expressing to
counsel his desire to testify, he was deprived of that opportunity.’
[Citations.]” (People v. Alcala (1992) 4 Cal.4th 742, 805–806.)
Contrary to appellant’s representation on appeal, counsel
recalled advising appellant before trial of his right to a hearing
on whether his possession of assault weapon conviction could be
used to impeach him. By the time the defense presented its case,
there was clear authority that possession of an assault weapon
was a crime of moral turpitude that could be used for
impeachment. (People v. Gabriel (2012) 206 Cal.App.4th 450,
457–458.)
The trial court’s conclusion that counsel’s performance was
not deficient is supported by substantial evidence, as is its
conclusion that appellant’s testimony would not have made a

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more favorable result reasonably probable. Appellant was able to
present his alibi defense through his co-workers and employment
records, and his testimony that he was at work at the time of the
shooting would have been cumulative. Appellant’s claim that he
could have convinced the jury he loaned his phone out is suspect
since it would have been impeached with his prior inconsistent
statement to the investigating officer. We find no ineffective
assistance of counsel under the circumstances.
III
Pursuant to the Supreme Court’s transfer order, we
reconsider our previous opinion filed June 26, 2015, as modified
by an order issued July 15, 2015, in light of that court’s recent
decision in Martinez.
The jury was instructed that it could find appellant guilty
of murder on two theories: as aider and abettor of murder and as
aider and abettor to assault with a firearm where murder was a
natural and probable consequence of the target crime. Under
Chiu, supra, 59 Cal.4th at page 167, “a defendant cannot be
convicted of first degree premeditated murder under the natural
and probable consequences doctrine . . . .” Where, as in this case,
“the jury was instructed on both a direct aiding and abetting
theory and a natural and probable consequences theory[,]” such
error requires reversal unless the reviewing court concludes
beyond a reasonable doubt that the jury actually relied on the
direct aiding and abetting theory in convicting the defendant.
(Martinez, supra, 3 Cal.5th at p. 1218.)
In Chiu, the jury complained about a holdout juror who
appeared to prevent a unanimous verdict on first degree
premeditated murder based on the doctrine of natural and
probable consequences; the jury reached a verdict after the

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holdout juror was replaced. (Chiu, supra, 59 Cal.4th at p. 168.)
On that record, the court could not conclude beyond a reasonable
doubt that the jury based its verdict on the theory that defendant
directly aided and abetted the murder. (Ibid.) Similarly, in
Martinez, the court could not, on the record presented, “rule out a
reasonable possibility that the jury relied on the invalid natural
and probable consequences theory in convicting Martinez of first
degree murder.” (Martinez, supra, 3 Cal.5th at p. 1226.)
Reasonable doubt was raised by the fact that the prosecutor
argued the natural and probable consequences theory to the jury
at length during closing argument and rebuttal, and that no
other aspects of the verdict indicated the jury had relied on a
valid legal theory. (Id. at pp. 1226-1227.)
In contrast, on this record, there is no indication that the
jury based its verdict on the natural and probable consequences
doctrine; to the contrary, another instruction and the prosecutor’s
closing argument directed the jury to find appellant aided and
abetted murder with the intent to kill. The jury was instructed
with CALCRIM 702 that the special circumstance allegation of
multiple murder (Pen. Code, § 190.2, subd. (a)(3)) required the
prosecution to prove beyond a reasonable doubt that appellant
acted with “the intent to kill.” In closing argument, the
prosecutor focused on the fact that appellant brought a “loaded
and already cocked” assault rifle “ready to be fired” in what he
knew was “a gang fight.” She argued this fact showed appellant
directly aided and abetted the murders and had the specific
intent to kill. Although the prosecutor addressed the natural and
probable consequences doctrine, she strongly suggested that
bringing a loaded gun was inconsistent with lack of knowledge
that the gun would be used to kill.

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The jury found the multiple murder allegation to be true,
which means that, as instructed, it must have found appellant
acted with intent to kill. (People v. Murtishaw (1989) 48 Cal.3d
1001, 1044 [jurors are presumed to follow court instructions].)
Because aider and abettor liability under the natural and
probable consequences doctrine does not require an intent to kill
(Chiu, supra, 59 Cal.4th at p. 165), the jury’s finding of such an
intent shows it did not rely on the natural and probable
consequences doctrine to find appellant guilty of murder.
Further, factors such as planning, motive, and the manner
of killing are relevant to the inference that a murder was a result
of ‘“preexisting reflection and weighing of considerations rather
than mere unconsidered or rash impulse.’ [Citation.]” (People v.
Cole (2004) 33 Cal.4th 1158, 1224.) That appellant brought a
loaded rifle, engaged and ready to fire, which Brim immediately
fired at an unarmed rival gang member as a result of an ongoing
gang war, shows appellant had given advance consideration to
the possibility the rifle would be used to commit murder and had
planned accordingly with a gang-related motive in mind. (See,
e.g., People v. Lee (2011) 51 Cal.4th 620, 636 [bringing loaded gun
shows consideration of possibility of violence]; People v. Miranda
(1987) 44 Cal.3d 57, 87, disapproved on another ground in People
v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4 [bringing loaded gun
to kill unarmed victim reasonably suggests advance consideration
of murder].)
The record shows Brim and appellant showed up at the
scene within minutes of each other after Roberson called for
reinforcement; they appeared to be acting in concert, with Brim
purposefully retrieving from appellant’s car the loaded rifle
appellant had brought and immediately firing it; and they fled

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the scene after the shooting. (See People v. Campbell (1994) 25
Cal.App.4th 402, 409 [presence at crime scene, companionship,
and conduct before and after crime, including flight from scene,
relevant to shared common purpose].)
Under the circumstances, the instructional error was
harmless beyond a reasonable doubt.3
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P.J.
We concur:
WILLHITE, J. MANELLA, J.
3
In his rehearing petition (filed July 2, 2015) appellant also
argued that the instruction on the natural and probable
consequences doctrine permitted the jury to convict him of first
degree attempted murder based on its reasonable foreseeability
and without proof of intent to kill or premeditation and
deliberation. As we stated in our earlier modification order, his
contentions are contrary to the holdings in People v. Favor (2012)
54 Cal.4th 868 and People v. Medina (2009) 46 Cal.4th 913, which
the Supreme Court left undisturbed in Chiu, supra, 59 Cal.4th at
pages 161-163. As we stated, we were required to reject these
contentions under principles of stare decisis. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) That
conclusion is not disturbed by Martinez.

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