Virgen

INTRODUCTION

Francisco Munoz Virgen and two codefendants were charged with murder and assault with a semiautomatic firearm. At the first trial, the jury hung on the murder and assault charges as to all three defendants. After the court declared a mistrial, Virgen and the first codefendant were retried, while the second codefendant reached a plea agreement with the People. At the second trial, the second codefendant testified for the prosecution. He presented testimony that is consistent with a theory that he, Virgen, and the first codefendant engaged in an uncharged conspiracy to assault the murder victim and that during the assault, the first codefendant shot and killed the victim. The court instructed on aiding and abetting principles and an uncharged conspiracy to commit assault. Relevant to this appeal, the court used the final paragraph of CALCRIM No. 400, which told the jury that in some circumstances, a defendant may be convicted of crimes other than the one he intended to commit, so long as the other crimes occurred during the commission of the first crime. The court also used CALCRIM No. 416 to instruct the jury that it could find “[a] member of a conspiracy [is]…