People v. Cummings CA2/5

I. BACKGROUND

In 1998, the Los Angeles County District Attorney charged defendant with murder, attempted murder, shooting at an occupied motor vehicle (Pen. Code,1 § 246), and permitting another to shoot from a vehicle (former § 12034, subd. (b)) in connection with a September 1997 gang-related drive-by shooting. A co-defendant, Samont Lamont Winn (Winn), was a member of the same criminal street gang as defendant and charged with murdering the same victim. The information alleged the victim’s murder was perpetrated by means of discharging a firearm from a motor vehicle with intent to inflict

1 Undesignated statutory references are to the Penal Code.

2 death, a special circumstance that would call for at least a life without parole sentence if found true. (§ 190.2, subd. (a)(21).) According to the evidence presented at trial, defendant was driving a vehicle when Winn, a passenger in the car, spotted the murder victim in another car and believed he was a member of a rival gang. Winn told defendant he was “gonna get him [i.e., the victim]” and “gonna do him,” and as defendant later drove alongside the victim’s car, Winn fired five to seven gunshots into the other car, killing the…