Cook

Defendants Matthew Loren Cook, Anthony Solo-man Lozo, and Darrion Troy Gains appeal from their judgments of conviction finding them guilty of conspiracy to commit assault with a firearm, first degree murder, premeditated and deliberate attempted murder, and first degree burglary arising from the killing of Jimmie Fonseca and the wounding of Carl Kato.

They raise claims of Batson/Wheeler error, insufficiency of the evidence, evidentiary error, prosecutorial and juror misconduct, sentencing error and instructional error.

Relying on People v. Fenenbock (1996) 46 Cal.App.4th 1688 [ 54 Cal.Rptr.2d 608 ], defendants contend the trial court violated their right to notice and due process by instructing the jury that if they had a reasonable doubt that defendant was guilty of conspiracy to commit murder, they could convict him of the lesser included offense of conspiracy to commit assault with a firearm. We disagree.

In the published portion of the opinion we hold the trial court may look to the overt acts pleaded in a charge of conspiracy to determine whether the charged offense includes the lesser included offense. Under the accusatory pleading test for determining lesser…