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PEOPLE v. SMITH

No. B129442.

94 Cal.Rptr.2d 700 (2000)

79 Cal.App.4th 1136

The PEOPLE, Plaintiff and Respondent, v. Donte Osbon SMITH et al., Defendants and Appellants.

Court of Appeals of California, Second District, Division Five.

Review Granted June 14, 2000.

Attorney(s) appearing for the Case

Matthew D. Alger, Fresno, and Peter A. Leeming, under appointments by the Court of Appeal, for Defendants and Appellants.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Suzann E. Papagoda and Kent J. Bullard, Deputy Attorneys General, for Plaintiff and Respondent.

Certified for Partial Publication.*

TURNER, P.J.

Defendants, Donte Osbon Smith and Jack Loney, appeal from their convictions for second degree murder. (Pen. Code,1 § 187, subd. (a).) They were both found to have been armed with a firearm in the commission of the murder. (§ 12022, subd. (a)(1).) Defendants argue that the trial court improperly refused to instruct the

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