People v. Coley CA1/5

I. BACKGROUND

A. Underlying Facts Emmanuel Hernandez and Yusef Hussein were walking along the highway on the evening of January 28, 2009, when shots rang out from a car. Hernandez suffered a fatal wound in the back of his neck, and Hussein jumped over a guardrail and avoided being shot. The source of the gunshots was a car occupied by appellant, Shane Peters, Richard Eads and Francisco Soto. The prosecution’s theory at trial was that appellant was the driver of the car and Peters was the shooter. Eads and Soto gave state’s evidence against appellant and Peters in return for a charge of accessory after the fact. B. Trial Appellant and Peters were jointly charged with first degree murder with special circumstances and with attempted murder, along with various firearm and gang enhancements. (§§ 187, 189, 187/664, 186.22, subd. (b)(1); 12022.53, subds. (d) & (e)(1).) The jury was instructed on first degree murder based on theories of premeditation and deliberation and shooting a firearm from a motor vehicle, second degree murder based on either express or implied malice, and attempted murder, both with and without premeditation. (CALCRIM Nos. 520, 521, 600, 601.) They were given…