People v. Hester CA4/3

FACTS

A detailed recitation of the facts is set forth in the prior opinion in this case. (People v. Hester (G041657, Nov. 30, 2010) [nonpub. opn.].) In sum, Hester was involved in a gang drive-by shooting that resulted in a death. At trial, the court only provided jury instructions as to direct aiding and abetting, and not regarding the natural and probable consequences theory of aiding and abetting liability. The court also did not instruct the jury on felony murder. The sole theories of first degree murder were premeditation and deliberation or shooting a firearm from a motor vehicle, which specifically required the factual finding that Hester “intentionally shot at a person who was outside the vehicle” and “[h]e intended to kill that person.” As relevant to the issues in this appeal, the jury convicted Hester of first degree murder (§ 187, subd. (a), count 1), shooting at an occupied motor vehicle (§ 246, count 2), conspiracy to commit murder (§ 182, subd. (a)(1), count 3), three counts of premeditated and deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a), counts 5, 6, and 7), and street terrorism (§ 186.22, subd. (a), count 9). As to count 1, the jury found true…