People v. Harris CA2/4

INTRODUCTION

Shortly after appellant Bernard Jerome Harris asked two men whether they belonged to a rival gang, which was believed to be responsible for an earlier assault on Harris’s fellow gang member Richard Theus, Theus opened fire on the two men and a third who had joined them, killing one. During opening statement at Harris and Theus’s trial, the prosecutor briefly mentioned that a former codefendant had pled guilty. The jury received instructions on a “direct” aiding and abetting theory and the natural and probable consequences doctrine, and convicted Harris of one count of murder and two counts of attempted murder. We affirmed in an unpublished opinion. (People v. Theus (May 18, 2011) 2011 Cal.App.Unpub. LEXIS 3728 (Theus).) In concluding that Harris was not prejudiced by the prosecutor’s fleeting mention of his former codefendant’s guilty plea, we stated that his conduct before the shooting, viewed in the context of his alleged gang motive, “independently established” his “participation and intent to aid the shooting.” (Id. at *17- *19.) We did not mention that the jury had been instructed on the natural and probable consequences doctrine.

2 After the enactment of…