SEE DISSENTING OPINION

Filed 12/29/20 P. v. Simon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TRUMAN DARNELL SIMON,

Defendant and Appellant.

F078189

(Super. Ct. No. RF007944A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Gregory A. 

Pulskamp, Judge.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and 

Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooTruman Darnell Simon was involved in altercation at a bar. After the altercation 

he, along with two other men, confronted the victim regarding the events at the bar. 

During the confrontation, one of the men accompanying Simon produced a firearm and 
2.

threatened the victim’s life. Simon was convicted of aiding and abetting assault with a 

firearm and criminal threats. 

Simon now argues the evidence was insufficient to sustain the convictions. We 

agree. The evidence failed to sufficiently prove he knew of and intended to assist the 

gunman’s crimes. The judgment is reversed.

BACKGROUND

Charges

The Kern County District Attorney charged Simon with two crimes: Assault with 

a firearm (Pen. Code,

1 § 245, subd. (a)(2)) and criminal threats (§ 422). The charges 

included three enhancement allegations: A prior strike conviction (§§ 667, subds. (b)-(i) 

& 1170.12, subds. (c)-(j)), a prior serious felony conviction (§ 667, subd. (a)), and a prior 

prison commitment (§ 667.5, subd. (b)). 

Trial Evidence

Simon, his brother Royontae Elliot, and Isaachar Ray were involved in a physical 

altercation with other people at a bar after midnight. A police officer patrolling the area 

noticed the fight and detained the three men. The officer pat-searched them for weapons

but found none. The men were ultimately released. 

Around an hour later, Simon and two males started “banging” on the front door to 

a residence “within walking distance” of the bar. The eventual victim answered the door 

and saw three men standing in a “half circle.” The trio started yelling at the victim; 

Simon was the most vocal. It was clear the trio was looking for someone other than the 

victim but still wanted to know if he was “connected” to the incident at the bar. 

“Almost right away,” the man in the back brandished a firearm, pointed it at the 

victim, and asked him if he was ready to die. The conversation continued for “about ten 

minutes” before the commotion awakened the victim’s mother. She confronted the trio, 

1 Undesignated statutory references are to the Penal Code.
3.

asked why “they” had a “gun,” and told them to leave. As the trio complied by 

dispersing, Simon apologized. 

Nearly 20 minutes later, law enforcement detained Simon and Ray near Elliot’s 

apartment. The apartment is down the street and visible from the victim’s house. 

Afterwards, Elliot was detained in the same location. The victim’s mother identified the 

three men as the same men she confronted outside her home. 

Law enforcement subsequently searched Elliot’s apartment “for ... anything that 

would indicate that a possible firearm could have been” present. The search was 

fruitless. 

Verdict and Sentence

Simon and Elliot were tried as direct aiders and abettors. Ray was the alleged

gunman. Elliot and Ray were acquitted but Simon was convicted of both crimes. The 

court found his prior conviction allegations true. He was sentenced to serve 11 years in 

state prison. 

DISCUSSION

Simon claims his convictions are supported by insufficient evidence. As noted, he 

was tried as a direct aider and abettor.2 After carefully reviewing the record, we 

conclude the evidence is insufficient to prove he aided and abetted the alleged crimes.

“When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 

2 There are two distinct forms of aiding and abetting liability. One, a person is 

liable for aiding and abetting intended crimes. Two, a person is liable for aiding and 

abetting intended crimes and any other reasonably foreseeable crimes. (People v. Chiu 

(2014) 59 Cal.4th 155, 158.) The latter theory was not presented to the jury and is not at 

issue.
4.

defendant guilty beyond a reasonable doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 

27.) “We presume in support of the judgment the existence of every fact the trier of fact 

reasonably could infer from the evidence.” (Ibid.) “We cannot, however, go beyond 

reasonable inferences into the realm of speculation, conjecture, surmise, or guesswork.” 

(People v. Perez (2017) 18 Cal.App.5th 598, 607.)

“To prove that a defendant is an [aider and abettor] the prosecution must show that 

the defendant acted ‘with knowledge of the criminal purpose of the perpetrator and with 

an intent or purpose either of committing, or of encouraging or facilitating commission 

of, the offense.’ ” (People v. Gomez (2018) 6 Cal.5th 243, 279.) “ ‘When the offense 

charged is a specific intent crime, the accomplice must “share the specific intent of the 

perpetrator”; this occurs when the accomplice “knows the full extent of the perpetrator’s 

criminal purpose and gives aid or encouragement with the intent or purpose of facilitating 

the perpetrator’s commission of the crime.” ’ ” (People v. McCoy (2001) 25 Cal.4th 

1111, 1118.)

The evidence here is insufficient to prove Simon was an aider and abettor for two 

independent reasons: (1) there is no evidence he shared the gunman’s criminal purpose, 

and (2) there is no evidence he intended to aid and abet any crimes.

The prosecution’s inability to definitively prove the gunman’s identity and to 

locate the brandished firearm are fatal defects in the evidence. Without this evidence, 

Simon’s relationship to the gunman is unknown. The lone reasonable inference the 

evidence permits is that their relationship was amicable due to the simple fact they were 

together. Simply knowing a person does not impute knowledge of that person’s criminal 

purpose. Without establishing a more definitive relationship, inferring Simon was aware 

of and shared the gunman’s criminal purpose is not reasonably possible.3 Guilt by mere 

association is not guilt beyond a reasonable doubt. 

3

In contrast, for example, two individuals with a proven history of repeatedly 

committing specific crimes together, utilizing a common plan or scheme, and which 
5.

Simon is likewise not linked to the firearm. There is no evidence he owned the 

firearm or possessed it at some point prior to or after the crimes. His awareness of the 

firearm is a prerequisite necessary to reasonably infer he shared the gunman’s criminal 

purpose. But inferring his knowledge of its presence in this case invites unwarranted 

speculation.

Indeed, the record discloses no evidence Simon was aware of the firearm while the 

crimes were committed. The testimony indicates the gunman was behind Simon without 

any further detail. There is no evidence the firearm was visible to Simon. And the threat 

itself did not reference the firearm.4 Consequently, inferring his knowledge of the 

firearm’s presence is unreasonable. Without that inference, proving the shared criminal 

purpose element is not possible.5

Similarly missing is any evidence consistent with a criminal intent. There is no 

evidence Simon personally committed any crimes at the victim’s house. His presence 

alone does not prove aiding and abetting. (People v. Nguyen (2015) 61 Cal.4th 1015, 

1055; see People v. Lewis (2001) 26 Cal.4th 334, 369 [evidence of presence and 

“intimate knowledge” of crimes alone cannot distinguish an accomplice from a mere 

crimes exhibit distinctive or hallmark features might well permit the inferences necessary 

to prove aiding and abetting a crime. (E.g. People v. Letner and Tobin (2010) 50 Cal.4th 

99, 152 [“prosecution’s argument ... that it was probable [defendants] acted in concert[] 

because they had a history of doing so ... was a proper argument based upon reasonable 

inferences”].) No such evidence is presented here.

4 There is evidence the victim’s mother confronted the group about the firearm. 

But at that point the gunman was “just holding” the firearm and the assault was already 

complete. Knowledge of the firearm after the crimes were complete, without more, does 

not alter the analysis.

5 Because the evidence does not prove Simon shared the gunman’s criminal 

purpose, it necessarily cannot prove his intent to commit the crimes. An individual 

cannot intend to aid and abet another person’s crime without first knowing what crime 

that person intends to commit. We nonetheless separately examine the evidence relating 

to intent to aid and abet.
6.

eyewitness because it is insubstantial and speculative].) Neither can his “failure to take 

action to prevent a crime ....”

6

 (People v. Lara (2017) 9 Cal.App.5th 296, 322.)

The record does, of course, establish Simon went to the victim’s house for a 

purpose related to the incident at the bar. And the jury could reasonably believe he had 

an amicable relationship with the gunman. But confronting a person, even while angry, 

is not inherently criminal. Simon’s decision to go to the victim’s house for a 

confrontational purpose is unquestionably distinct from deciding to go there with a 

specific criminal purpose intent on committing crimes. Without evidence connecting him 

to the gunman or the firearm it is impossible to infer, beyond a reasonable doubt, the 

requisite intent to aid and abet necessary to prove the crimes.7

In sum, there is no reasonable, credible, and solid evidence Simon shared the 

gunman’s criminal purpose, knew of the firearm’s presence, or intended to aid and abet 

any crime. Concluding otherwise would require conjecture and speculation. 

Accordingly, the evidence was insufficient to prove the crimes.

6 The People argue “[t]here was no evidence that [Simon] objected or tried to 

distance himself from the group after the gunman pulled out the firearm and threatened” 

the victim. A similar argument was advanced in the trial court. As mentioned, there is 

no evidence Simon was aware of the firearm before the assault was complete. Neither is 

there evidence he could prevent the threat. Although the record discloses the threat was 

made “more than once” there is no further explanation. Uttering the threat completed the 

crime. To conclude Simon had the opportunity to prevent either crime but actively chose 

not to would require engaging in impermissible conjecture.

7 We note that flight from the crime scene is also relevant to determining an 

alleged aider and abettor’s guilt. (In re Gary F. (2014) 226 Cal.App.4th 1076, 1080.) 

Here, Simon did not flee. Rather, he left the crime scene—while apologizing—at the 

victim’s mother’s request. And he did nothing to conceal his participation in a crime 

which would suggest a guilty conscience. As far as the record reveals, he was entirely 

cooperative with law enforcement during his detention, identification, and arrest. This 

conduct is not consistent with aiding and abetting a crime. (See id. at p. 1081 [relevant 

factors include “ ‘conduct before and after the offense’ ”].)
7.

DISPOSITION

The judgment is reversed. Upon remand the trial court is directed to vacate the 

convictions and enter a judgment of acquittal on each count.

SNAUFFER, J.

I CONCUR:

SMITH, J.
POOCHIGIAN, Acting P.J., Dissenting.

I respectfully dissent from the majority opinion’s reversal of the judgment. It is a 

close question, but I agree there is insufficient evidence Simon knew one of his 

companions possessed a gun and aimed it at Hernandez. While Simon’s conviction in 

count 2 for criminal threats is not supported by substantial evidence, I would reduce his 

conviction in count 1 for assault with a deadly weapon to the lesser included offense of 

simple assault, because there is substantial evidence to support Simon’s conviction as an 

aider and abettor of assault.

“A ‘person aids and abets the commission of a crime when he or she, acting with 

(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of 

committing, encouraging, or facilitating the commission of the offense, (3) by act or 

advice aids, promotes, encourages or instigates, the commission of the crime.’ 

[Citation.]” (People v. Marshall (1997) 15 Cal.4th 1, 40; People v. Nguyen (2015) 61 

Cal.4th 1015, 1054.) In determining the requisite intent, “ ‘[e]vidence of a defendant’s 

state of mind is almost inevitably circumstantial, but circumstantial evidence is as 

sufficient as direct evidence to support a conviction.’ [Citation.]” (Nguyen, at p. 1055.)

“[I]n general neither presence at the scene of a crime nor knowledge of, but failure 

to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] 

However, ‘[a]mong the factors which may be considered in making the determination of 

aiding and abetting are: presence at the scene of the crime, companionship, and conduct 

before and after the offense.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 

402, 409; People v. Nguyen, supra, 61 Cal.4th at p. 1054.) Whether defendant aided and 

abetted the crime is a question of fact, and on appeal all conflicts in the evidence and

reasonable inferences must be resolved in favor of the judgment. (People v. Frandsen

(2019) 33 Cal.App.5th 1126, 1147–1148.)

“Although it is the duty of the jury to acquit a defendant if it finds that 

circumstantial evidence is susceptible of two interpretations, one of which suggests guilt 
2

and the other innocence [citations], it is the jury, not the appellate court which must be 

convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances 

reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the 

circumstances might also be reasonably reconciled with a contrary finding does not 

warrant a reversal of the judgment.” ’ [Citations.]” (People v. Bean (1988) 46 Cal.3d 

919, 932–933; People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

First, the jury’s not guilty verdicts for Ray and Elliot do not undermine Simon’s 

conviction as an aider and abettor. “[F]or a defendant to be found guilty under an aiding

and abetting theory, someone other than the defendant must be proven to have attempted 

or committed a crime; i.e., absent proof of a predicate offense, conviction on an aiding

and abetting theory cannot be sustained.” (People v. Perez (2005) 35 Cal.4th 1219, 

1225.) Hernandez consistently testified Simon was one of the men who confronted him 

at his house, Simon primarily did the yelling and shouting at him, and that Simon was not 

the man who pulled the gun and threatened him. By finding Simon guilty of the charged 

felony offenses of assault with a firearm and criminal threats, the jury necessarily found 

that the incident at Hernandez’s house occurred, Simon was there with another man who 

threatened Hernandez, and Simon aided and abetted the gunman’s repeated threats to kill 

him.

By finding Elliot and Ray not guilty, however, the jury found there was 

insufficient evidence to prove they were the two suspects who were with Simon that 

night. The record strongly implies the jury questioned the credibility of Ms. Ochoa’s 

identifications of the two men because she incorrectly recounted the circumstances of the 

infield show ups and failed to tell officers that her daughter was also present and saw the 

suspects. More importantly, Hernandez refused to participate in the infield show ups. At 

trial, he positively identified Simon and explained their past acquaintance but, when 

asked if he recognized anyone in the courtroom who was the gunman, he said no. 
3

Hernandez further testified he was “skeptical” whether Ray or Elliot came to his house 

with Simon that night.

There is, however, overwhelming evidence that Simon was one of the men who 

confronted Hernandez. Hernandez had previously met Simon, and thought everything 

would be okay when he opened the door because he immediately recognized him. Simon 

arrived at Hernandez’s front door at 3:00 a.m. with two men and accused Hernandez of 

being involved in a fight at a bar. There is undisputed evidence that Simon was also at 

the nearby bar about an hour earlier and was involved in an altercation that started 

because he was talking to the wife of a Hispanic male. Simon was briefly detained and 

released, but his cousin was arrested for intoxication and taken to the police department.

Hernandez testified the three men were standing close together on the small front 

porch “like in a half circle” or a “little arc.” Defendant stood on the right, the gunman 

was in “the middle in the back,” and the third man was on the left side.

The three men were yelling and screaming at him, but Simon “was doing most of 

the talking for them. He was like, oh, they were at the bar, there was a bar fight, they 

went to jail or something. They were looking for some guy, which I do not remember the 

name, but they did say the name and somehow they were trying to connect me to 

everything which did not make any sense.” The man with the gun pointed the weapon at 

Hernandez’s chest “and said ‘Are you ready to die?’ ”

The entirety of the record shows that Simon knew the two other men and intended 

to join them to angrily confront and threaten Hernandez based on their mistaken belief 

that he was somehow involved in the bar altercation. While all three men were shouting 

at Hernandez when he opened the front door, Simon did most of the yelling about the bar 

fight and someone getting arrested. In addition, the men knew Hernandez’s name. Since 

Hernandez only knew Simon, it is reasonable to infer that Simon led his companions to 

Hernandez’s house and told them his name.
4

The three men stood close together in a half circle in front of the door. Simon 

stood next to the gunman as the gunman repeatedly asked Hernandez whether he wanted 

to die that night. It was reasonable for the jury to find that Simon heard the man who was 

standing next to him repeatedly threaten Hernandez’s life. It was also reasonable to find 

that Simon shared the direct perpetrator’s intent since Simon’s conduct was the reason for 

the bar fight, he led the men to Hernandez’s house, and he was the person who was 

primarily accusing Hernandez of complicity in the bar fight.

There is insufficient evidence, however, that Simon knew one of his compatriots 

had a gun, intended to use the gun, or that he actually saw the man pull the gun and aim it 

at Hernandez. The verbal threats were consistent with Simon’s conduct in leading the 

men to Hernandez’s house, and his angry demeanor in accusing Hernandez of somehow 

being involved in the bar fight that resulted in their cousin’s arrest. Hernandez testified 

the gunman stood in the middle, between Simon and the third man, but the gunman was 

slightly behind both of them. Based on their positions, Simon certainly must have heard 

the gunman threaten to kill Hernandez, but there is no direct or circumstantial evidence 

that Simon knew he pulled the gun or saw it aimed at Hernandez as the verbal threats 

were made.

Simon was convicted of count 2, criminal threats in violation of Penal Code 

section 422,1 which requires proof that the threat “was ‘on its face and under the 

circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and 

specific as to convey to the person threatened, a gravity of purpose and an immediate 

prospect of execution of the threat.’ ” (People v. Toledo (2001) 26 Cal.4th 221, 227–

228.) Since there is insufficient evidence Simon knew his companion had a gun, Simon’s 

conviction as an aider and abettor of criminal threats must be reversed as there is no 

1 All further statutory references are to the Penal Code unless otherwise stated.
5

evidence that the gunman’s threats against Hernandez had the immediate prospect of 

execution of the threat.

Simon was also convicted of count 1, assault with a firearm, in violation of section 

245, subdivision (a)(2). “An assault is ‘an unlawful attempt, coupled with a present 

ability, to commit a violent injury on the person of another.’ (§ 240.)” (People v. 

Murray (2008) 167 Cal.App.4th 1133, 1139.) An assault is aggravated when committed 

with a firearm. (§ 245, subd. (a)(2); People v. Milward (2011) 52 Cal.4th 580, 585; In re 

Jonathan R. (2016) 3 Cal.App.5th 963, 970; People v. Cook (2001) 91 Cal.App.4th 910, 

920; People v. Fuller (1975) 53 Cal.App.3d 417, 421–422.)

Given the insufficiency of the evidence regarding Simon’s knowledge and intent 

regarding the firearm, his conviction as an aider and abettor of count 1 must also be 

reversed. However, the California Supreme Court has “long recognized that under ... 

sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient 

evidence supports the conviction for a greater offense may, in lieu of granting a new trial, 

modify the judgment of conviction to reflect a conviction for a lesser included offense.”

(People v. Navarro (2007) 40 Cal.4th 668, 671, fn. omitted; People v. Bailey (2012) 54 

Cal.4th 740, 748.)

Simple assault (§ 240) is a lesser included offense of an aggravated assault or 

assault with a firearm. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747–748; 

People v. Beasley (2003) 105 Cal.App.4th 1078, 1086, 1088.) While there is insufficient 

evidence of assault with a firearm, there is overwhelming evidence that Simon was an 

aider and abettor to simple assault. Simon led his two companions to Hernandez’s house 

because he believed Hernandez had been involved in the bar fight. They banged on the 

front door at 3:00 a.m. and initiated an angry confrontation. Simon did most of the 

yelling and shouting, and, while he may not have known about or seen the gun, he was 

standing next to and slightly in front of the man who repeatedly yelled at Hernandez 
6

about whether he wanted to die. There is substantial evidence to find that Simon aided 

and abetted the direct perpetrator’s repeatedly stated intent to harm Hernandez based on 

their mistaken belief he had been involved in the bar fight.

POOCHIGIAN, Acting P.J.