People v. Barba CA2/1

BACKGROUND

On October 25, 1998, Barba, a member of the Knock Knock Boys street gang and his confederate Oscar Macias shot at five rival gang members and killed two of them. (People v. Barba (May 8, 2001, B140807) [nonpub. opn.] (Barba I).) Barba was driving when Macias, Barba’s passenger, shot seven or eight times into the Honda carrying the rival gang members. (Ibid.) At Barba’s and Macias’s joint trial, the trial court instructed the jury on aiding and abetting liability. The instruction required that the aider and abettor act “with knowledge of the unlawful purpose of the perpetrator” and “with the intent or purpose of committing or encouraging or facilitating the commission of the crime.” The murder special circumstance instruction provided in pertinent part: “If you find that a defendant was not the actual killer of a human being, you cannot find the special circumstance of Shooting from a Motor Vehicle with the Intent to Inflict Death to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such

2 defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of…