People v. Wagner CA6

I. BACKGROUND

A. Factual Summary2 The underlying facts are not relevant to the issue on appeal, so we summarize them briefly. On May 22, 1997, Wagner, Ayana Green, and a third person drove around San Jose. After Green received a page, they stopped at a gas station where she used the telephone. During the call, she motioned for Wagner to join her, which he did. Wagner and Green returned to the car and Wagner drove the group to King and McKee. After cruising the area, Wagner stopped the car. Green got out and shot Harry Garrett, who was standing on the sidewalk. Meanwhile, Wagner drove around the corner, parked, and left the car running. Green ran back to the car and got in; Wagner drove away. Both Green and Wagner told the third person not to say anything about the shooting. B. Procedural History3 Wagner and Green were charged with Garrett’s murder, among other offenses. The information alleged that Green personally used a handgun during the commission of the murder. Wagner and Green were jointly tried on the murder count, which was severed from the other counts. The jury convicted them both of first degree murder and found true the allegation that Green personally…