Filed 7/18/24 P. v. Jaramillo CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

VINICIO MARCELO JARAMILLO,

Defendant and Appellant.

 B332970

 (Los Angeles County

 Super. Ct. No. BA357891)

APPEAL from an order of the Superior Court of Los Angeles 

County, Michael E. Pastor, Judge. Affirmed.

Mi Kim, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Susan Sullivan Pithey, Assistant Attorney General, 

Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

Defendant and appellant Vinicio Marcelo Jaramillo (defendant), 

appeals from the order denying his petition for vacatur of his attempted 

murder conviction and for resentencing pursuant to Penal Code section 

1172.6 (formerly section 1170.95),

1 entered after an evidentiary hearing 

held pursuant to subdivision (d) of that statute. Defendant contends 

substantial evidence does not support the trial court’s finding he 

directly aided and abetted the attempted murder with intent to kill. 

We disagree and affirm the order.

BACKGROUND

2009 conviction

In 2009, a jury convicted Jaramillo of the attempted murder of 

David Diaz (Diaz) and found the commission of the crime to be willful, 

deliberate, and premeditated. (§§ 664/187, subd. (a); count 1.) The jury

found true the allegation that the crime was committed for the benefit 

of a gang and that a principal intentionally and personally discharged a 

firearm causing great bodily injury, within the meaning of section 

12022.53, subdivisions (b) through (e)(1). Defendant was also convicted 

of carrying a loaded firearm not registered to him in a public place, 

under former section 12031, subdivision (a)(1) (count 2). Defendant 

was sentenced on count 1 to life in prison plus 25 years to life for

firearm enhancements, and to a consecutive term of two years on count 

2. The judgment was affirmed in People v. Jaramillo (May 31, 2011, 

B221863) [nonpub. opn.].

Relevant 2009 trial evidence

Eyewitness testimony

Jessi Hernandez and Manuel Sanchez both testified to the events 

they witnessed on June 8, 2009. Sanchez was driving and Hernandez 

1 All further unattributed code sections are to the Penal Code 

unless otherwise stated. 
3

was in the back seat with her young daughter when a beige Toyota 

Camry cut them off as it came out of a motel parking lot, causing

Sanchez to brake and utter an epithet. Hernandez and Sanchez both 

saw four Hispanic males with shaved heads whom Hernandez said

looked like gang members. The driver turned and looked at Sanchez, 

while the two backseat passengers gave them dirty looks. 

After the Camry made a turn, Sanchez did the same and was 

driving behind it when the Camry stopped and began backing up.

Sanchez too had to back up. When the Camry stopped about two feet in 

front of Sanchez’s car, the front passenger, Henry Lona, got out with a 

gun in his hand, that he pointed at the car parked at the curb trying to 

come out of the parking space but was blocked by Sanchez’s car. Lona

started shooting. Hernandez told Sanchez to get the license plate 

number as she held her daughter and hunkered down. Lona then got 

back in the Camry that drove off and made a right on Avalon Boulevard 

at a speed Hernandez described as “burning rubber.” Sanchez 

described it as being at a normal speed. Hernandez then called 911. 

Diaz, the driver of the targeted car, looked injured to Sanchez. The car 

backed up, hit the parked vehicle behind it and drove off. The car also 

made a right turn on Avalon. Hernandez gave the 911 operator the 

license plate number. 

When Hernandez later spoke to law enforcement, she identified 

Lona as the shooter from a photographic lineup. Sanchez also 

identified a photo of the Camry and a photograph of Lona.

Gang expert testimony

Los Angeles Police Department (LAPD) Officer Jesse 

Drenckhahn, who was assigned to Newton Division Gang Enforcement 

Division, testified as the prosecution’s expert on gang culture. He 

described his education, training, and expertise in that area, as well as 

his experience and contact with gang members. 

Officer Drenckhahn explained that people become gang members 

in different ways. One way is to be “jumped in” meaning initiated into 
4

the gang with a beating by members of the gang for certain period of 

time. Or the prospective member could do what is called “putting in 

work” meaning to commit crimes on behalf of the gang, such as 

assaulting rival gang members or committing shootings, robberies, and 

other crimes. On rare occasions a prospective gang member is “courted 

in” by other members due to the person’s strong association with the 

gang, such as a long family lineage with the gang. 

Respect is of ultimate importance to gangs and gang members. 

Respect means that the gang will be feared by rivals and members of 

the community, which allows them to engage in criminal activities 

without being reported to the police. Gangs create fear by wearing 

gang-related tattoos, vandalizing and spraying graffiti using the gang’s

name, committing violent crimes in public, displaying gang hand signs, 

approaching confronting people to identify their gang to them and ask 

about their gang associations.

Officer Drenckhahn explained that gangs have internal rules or

codes of conduct. Gang members commonly work as a team. Their 

code requires them to back one another up, and if they do not they face 

discipline by other members. A member should never have contact 

with or assist law enforcement, should back one another up in 

confrontations with rivals, and should actively participate in or 

advance the gang in committing crimes. Discipline for rule breaking 

ranges from a beating to death. Reporting to law enforcement will also 

bring discipline upon rival gang members. 

Officer Drenckhahn testified that the shooting on June 8, 2009, 

was in the territory of the Playboys gang. Officer Drenckhahn was 

acquainted with defendant, having come in contact with him in April 

2009, and was of the opinion defendant, Lona and Diaz were all 

members of the Playboys gang. This opinion was based upon his and 

other law enforcement officers’ contact with them, as well as their

many Playboy gang related tattoos, as depicted in photographs shown 

to the jury. Given a set of hypothetical facts mirroring the shooting in 
5

this case, Officer Drenckhahn’s opinion was with multiple gang 

members acting against one member of their own gang, it was likely to 

be discipline for an offense against the gang or disrespect toward the 

gang.

Investigation

Four spent bullet rounds were found in the street near the 

shooting, and two damaged SUVs were parked nearby, one with a 

bullet hole in the headlight and a round inside. On July 2, 2009,

Detective Douglas Bell visited Diaz’s home and observed Diaz had a 

wound to his left thumb, a bullet wound to his left chest, and a graze 

wound to his forehead. When Detective Bell asked Diaz about the 

events of June 8, he said, “ ‘I didn’t see shit,’ ” and refused to look at 

suspect photographs. Detective Bell made a later attempt to serve a 

subpoena, but Diaz ran into the house, locked himself in, and 

eventually escaped though the back door.

Detective Kevin Raines testified that he was a LAPD gang 

investigator involved in the investigation of the shooting of Diaz on 

June 8, 2009. Detective Raines checked Department of Motor Vehicles

registration records for the license number reported by a witness, and 

found the Camry was registered to defendant’s mother. 

On June 12, 2009, Officer Drenckhahn and his partner, Officer 

Sanchez were patrolling in a marked black-and-white police car, the 

general area of the shooting, within the territory of the Playboys gang. 

They were aware of the June 8 shooting and had been asked to keep an 

eye out for the Camry. Around 9:30 p.m., that night, they saw the 

Camry parked at a curb on East 49th Street with two men and two 

women standing near the trunk, drinking beer and eating pizza. 

Officer Drenckhahn recognized one of them to be defendant. One of the 

women was Lona’s sister Desiree Lona. The officers detained the group

for drinking and violating an injunction. Defendant asked Officer 

Drenckhahn what was wrong and said the car was his mother’s. When 

Officer Drenckhahn started to pat him down, defendant said he had a 
6

gun in his right front pants pocket. A loaded .380 caliber 

semiautomatic handgun was removed from defendant’s pocket.

2 A later

search of the Automated Fingerprint Identification System disclosed no 

firearms registered to defendant. 

Defendant’s police interview

After defendant waived his Miranda rights,

3 Detective Raines 

interviewed him in several sessions. Recordings of the interviews were 

played for the jury, with Detective Raines explaining the meanings of 

certain terms in street slang, such as: “OG,” an older gangster or older

member of the gang; “strap” and “heat,” a gun; “dumped on,” being shot 

or shot at; and a “minute,” a while or longer, even up to a month or two.

Detective Raines began the interview by asking defendant if he 

wanted to talk about what happened Monday at 51st Street and Avalon

Boulevard involving his mother’s car.4 Defendant claimed his mother 

drove the car that day and said, “ ‘I don’t even know, sir.’ ” When 

Detective Raines told defendant that one of his “homies” was shot on 

51st Street and Avalon Boulevard, defendant asked, “One of my 

homies?” and “He got shot?” Detective Raines told defendant witnesses 

had come forward and described what happened. After lengthy,

unsuccessful attempts to persuade defendant to tell him about the 

shooting, Detective Raines asked defendant his reason for being out 

there, and what he said about “him and the other homies.” Defendant 

said the preceding day “ ‘he was ... talking shit ... with our other 

homies, you know, and I don’t know what happened.’ ”

2 The parties stipulated the gun was tested, compared to the 

bullets found at the scene of the shooing and found not to be the 

firearm that fired those bullets. 

3 See Miranda v. Arizona (1966) 384 U.S. 436, 444–445.

4 We summarize only such portions of the interview (which takes 

approximately 80 pages of transcript) as may be relevant to our 

discussion.
7

Defendant later explained his group was going to the liquor store 

and he started “talking shit” to defendant’s other homie, who got mad. 

Defendant’s “ ‘other homie got out of the [Camry] and he started 

talking with this fool [who was on the phone in his parked car] and 

then that fool got shot, you know.’ ” Defendant claimed not to have 

heard what they were talking about, just the shots. His reaction was 

“What the fuck?” and “Who got shot?” He also claimed to not know why 

his homie did it and that he did not back the car up after it was 

stopped. Defendant admitted to knowing his homie carried a .38 

handgun that defendant had seen in his pocket. When asked whether 

defendant saw the .38 handgun while driving on 51st Street, defendant 

said, “ ‘No, because I seen like – you know. When somebody stands up 

[inintelligible.]’ ” Lona showed it to him and defendant said, “ ‘[W]hy 

are you bringing that shit?’ ” Defendant resisted naming the shooter 

but finally told Detective Raines that his homie was called “ ‘Little 

Lazy.’ ” Defendant claimed to not know his real name, so Detective 

Raines showed him a photo lineup from which defendant identified the 

shooter. 

Defendant’s testimony

Relevant direct examination

Defendant testified at trial through an interpreter. He claimed to 

have asked for an interpreter for his interview, but Detective Raines 

refused, saying he spoke English well and did not need an interpreter. 

Defendant lived in this country about 13 years, having arrived when he 

was 11 or 12 years old. He attended school only one year in the seventh

grade. Defendant testified he became a member of the Playboys gang 

when he was beaten into the gang at the age of 15, and had been a 

member for about 10 years. He chose Little Sleepy as his gang 

nickname. He had been arrested several times for “ ‘tagging’ ” but had 

never been in jail. He claimed not to have sold drugs, as the gang did 

not require it. He also claimed never to have attempted to or murdered 

anyone.
8

Defendant testified he did not know Diaz would be shot and 

would not have gone along if he had known. Earlier that day, 

defendant went to a hotel to visit another gang member and was 

surprised to see Lona there, along with about five others, just hanging 

out. After about 20 minutes Lona asked for a ride to the store and back 

to buy beer. The store was about five minutes away.

On the way to the liquor store they saw Diaz park his car and 

Lona told defendant to stop because he had to talk to Diaz. Defendant 

claimed he backed up the car, trying to get out of the way of the cars 

behind him. Lona got out, left the door half open, and defendant heard 

shots. Defendant had been trying to make a call and thought someone 

was shooting at them. Lona returned to the car seconds later.

Defendant heard Diaz’s car hit the car behind him, turned, and saw it 

was Diaz with a hole in the windshield. Lona put his gun between his 

legs and told defendant to step on it. Defendant claimed this was the 

first time he saw Lona with a gun. He drove three to five minutes back 

to the motel. During the drive, defendant and the other passengers 

asked Lona why he had done that. Lona told them not to say anything 

to anyone about what had just happened. 

Defendant claimed no knowledge of Lona and Diaz having had 

problems in the past. He explained Diaz was an older gangster, and 

defendant used the term “talking shit’” with Detective Raines because 

Diaz had been in an argument with some of the lesser gang members

two weeks before the shooting. Defendant admitted to have been there,

but claimed not to have understood the argument. He knew Lona was 

a dangerous person and one of the back seat passengers was even more 

dangerous and “ ‘in no way’ ” did he have any idea when Lona told him 

to stop the car that Lona would try to kill Diaz.

Relevant cross-examination

When the prosecutor asked why defendant in his interview with 

Detective Raines referred to Diaz as “ ‘the fool ’” and Lona as “ ‘my 

homie,’ ” defendant blamed it on his poor understanding of English and 
9

his nervousness in the interview. Defendant said he did not know what 

he was saying.

Defendant did admit knowing the Playboys committed crimes 

such as selling drugs, fighting rival gangs, tagging walls and violent 

assaultive crimes, including murder, but denied ever being involved in 

a shooting or engaging in any violent crimes. Defendant denied ever 

having seen any Playboy gang member committing crimes, other than 

tagging and selling drugs, before this one. He said he knew about the 

violent crimes because he heard others talk about them, adding they 

did not talk to him about them. 

Defendant admitted he purchased the gun found by Officer 

Drenckhahn on the street about one week earlier, from an unknown 

person he met through “Dopey,” a Playboys member. Defendant said 

he was going to register the gun, because he was afraid Lona would 

harm him and his family. Defendant explained he was not afraid of 

Lona’s sister as she was not a violent person. He did find it strange she 

told him her brother was looking for him. He was stopped as he was 

passing by, the group suggested they get pizza, which they did. He was 

afraid but felt he was being pressured to stay. He did not think it 

seemed strange until they told him to stay. 

When asked about Diaz’s argument with lesser gang members, 

defendant denied he understood what they were arguing about, 

explaining he did not hear and did not want to get involved as it was 

none of his business. He claimed not to know who started it and Lona 

did not say anything about the dispute, as Lona did not know about it.

Defendant acknowledged telling Detective Raines that Diaz was 

“talking shit” with others the day before and that he also told Detective 

Raines Diaz was “punking the youngsters,” but then testified the 

argument occurred two weeks before the shooting and claimed he did 

not remember which homie got mad or who Diaz was “punking.”

Defendant testified that all but one of the people at the motel 

were gang members and he knew only their nicknames. He found it 
10

strange that Lona was there because defendant had never before seen 

him there. When Lona asked defendant to take him to buy beer,

“Temper,” the violent one, and “Smurf” went with them. Defendant 

then admitted he had seen and heard about Playboy members 

committing violent crimes. He explained that before June 8 he had not 

seen the violent crimes, but now he was afraid of them because he 

knew they could kill. 

Regarding the events surrounding the shooting, defendant

testified when he stopped the car, Lona got out, leaving the car door 

half open. Defendant then heard about five or six shots. Defendant 

claimed he tried to cover himself because he thought someone was 

shooting at them. Defendant explained he stopped the car because 

Lona said he wanted to see “ ‘what’s up this fool,’ ” meaning he wanted 

to talk to him. Defendant admitted having told Detective Raines that 

Lona got out of the car and started talking and explained he only 

thought he was going to talk to him, but he did not. Defendant also 

explained when he told Detective Raines that his “homie got out of the 

car and went to shake his hand,” he had thought that was what Lona 

was going to do. Defendant claimed it was after the shooting when he 

saw Lona with a gun and asked, “Why are you bringing this shit?”

Defendant attributed conflicts between what he told Detective 

Raines and his testimony to not being able to use an interpreter during 

the police interview. At the end of the interview Detective Raines 

offered to have defendant write his statement in Spanish, but 

defendant wrote it in English. He explained he was nervous and “[i]t 

was what I could do at that moment.” 

Defendant admitted to having lied in the interview by relating 

facts about his mother’s car and the shooting. He also lied when he 

said, “ ‘I don’t even know who capped this fool,’ ” and when he denied

the others got back in the car. Defendant explained he did not intend

to say anything about the case because he felt intimidated and afraid

and thought Lona’s sister was in the building.
11

Petition for resentencing

In 2022, after defendant filed a petition for vacatur and 

resentencing pursuant to section 1172.6, the trial court issued an order 

to show cause and scheduled an evidentiary hearing that was held

August 7, 2023. (See § 1172.6, subds. (c) & (d).) Prior to the hearing 

the parties agreed to the admission of the transcripts of defendant’s 

2009 trial testimony and police interview. The trial court reviewed all 

documents, heard the arguments of counsel, and denied the petition on 

August 7, 2023. 

Defendant filed a timely notice of appeal from the order of denial.

DISCUSSION

Defendant contends substantial evidence did not support the trial 

court’s finding of the specific intent required to convict him of 

attempted murder.

I. Senate Bill No. 1437

Effective January 1, 2019, the Legislature passed Senate Bill 

No. 1437, which amended the laws pertaining to felony murder and 

murder under the natural and probable consequences doctrine, “to 

ensure that murder liability is not imposed on a person who is not the 

actual killer, did not act with the intent to kill, or was not a major 

participant in the underlying felony who acted with reckless 

indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The 

statute bars murder liability under the natural and probable 

consequences doctrine (People v. Gentile (2020) 10 Cal.5th 830, 846)

and this bar has been extended to attempted murder convictions. 

(People v. Coley (2022) 77 Cal.App.5th 539, 548.) Section 1172.6 

provides a procedure for those convicted of attempted murder under the 

natural and probable consequences doctrine to seek retroactive relief if 

they could not now be convicted under the amended laws. (§ 1172.6, 

subd. (a); see People v. Lewis (2021) 11 Cal.5th 952, 957.) 
12

Although an aider and abettor can no longer be convicted of 

attempted murder under the natural and probable consequences 

doctrine, the amended law does not bar the conviction of one who 

directly aids and abets attempted murder. (People v. Coley, supra, 77 

Cal.App.5th at p. 548.) “Attempted murder requires the specific intent 

to kill and the commission of a direct but ineffectual act toward 

accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 

613, 623.) To be guilty of attempted murder as a direct aider and 

abettor a person must share the perpetrator’s intent to kill. (Id. at 

p. 624, citing People v. McCoy (2001) 25 Cal.4th 1111, 1118.) At the 

evidentiary hearing conducted pursuant to section 1172.6, subdivision 

(d), “the burden of proof shall be on the prosecution to prove, beyond a 

reasonable doubt, . . . that the petitioner is ineligible for resentencing.” 

(§ 1172.6, subd. (d)(3); see id., subd. (c).) 

II. Standard of review

The jury here was instructed that a defendant could be convicted 

of attempted murder either pursuant to the natural and probable 

consequences doctrine or as a direct aider and abettor. The prosecutor 

argued both theories at trial. At the section 1172.6 evidentiary 

hearing, the prosecution was therefore required to prove beyond a 

reasonable doubt defendant was a direct aider and abettor who shared 

the perpetrator’s intent to kill Diaz.

The trial court sits as an independent fact finder. (People v. 

Vargas (2022) 84 Cal.App.5th 943, 951) and must “ ‘review all the 

relevant evidence, evaluate and resolve contradictions, and make 

determinations as to credibility, all under the reasonable doubt 

standard . . . .’ ” (People v. Oliver (2023) 90 Cal.App.5th 466, 480, 

quoting People v. Clements (2022) 75 Cal.App.5th 276, 298). On appeal 

from the denial of a petition after hearing, our task is to determine 

whether any rational trier of fact could have made the same 

determination beyond a reasonable doubt. (People v. Vargas, at p. 951.) 
13

We apply the substantial evidence standard of review. (See 

People v. Sifuentes (2022) 83 Cal.App.5th 217, 233–234.) Under the 

usual substantial evidence standard, “we must view the evidence in the 

light most favorable to the People and must presume in support of the 

judgment the existence of every fact the trier could reasonably deduce 

from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “The 

standard is deferential, but the evidence in support of the judgment 

must be reasonable, credible, and of solid value; ‘a mere possibility’ or 

‘[s]peculation is not substantial evidence’ [citation].” (People v. Brooks

(2017) 3 Cal.5th 1, 120.) We defer to the trial court’s resolution of 

conflicts and credibility determinations. (People v. Clements, supra, 75 

Cal.App.5th at p. 298.) “The same standard applies when the 

conviction rests primarily on circumstantial evidence.” (People v. Kraft

(2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical 

inferences that the [trier of fact] might have drawn from the 

circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) 

Reversal on a substantial evidence ground “is unwarranted unless it 

appears ‘that upon no hypothesis whatever is there sufficient 

substantial evidence to support [the conclusion of the trier of fact].’ ” 

(People v. Bolin (1998) 18 Cal.4th 297, 331.) 

“[W]hen a criminal defendant claims on appeal that his 

conviction was based on insufficient evidence of one or more of the 

elements of the crime of which he was convicted, we must begin with 

the presumption that the evidence of those elements was sufficient, and 

the defendant bears the burden of convincing us otherwise.” (People v. 

Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “[T]he defendant must 

present his case to us consistently with the substantial evidence 

standard of review. . . . If the defendant fails to present us with all the 

relevant evidence, or fails to present that evidence in the light most 

favorable to the People, then he cannot carry his burden of showing the 

evidence was insufficient because support for the [ruling] may lie in the 

evidence he ignores.” (Id. at p. 1574.)
14

Defendant has failed to carry his burden here. He recites the 

rule that the evidence must be summarized in the light most favorable 

to the ruling, but he has argued the opposite, omitting most of his 

interview with Detective Raines as well as his cross-examination

testimony, and ignoring his own admissions. Nevertheless, we have 

reviewed the trial transcripts and summarized the relevant evidence in 

the light most favorable to the ruling, and we discuss defendant’s 

contentions.

5

III. Premeditation and deliberation

Defendant contends the prosecution was required to prove not 

only that he harbored an intent to kill when he aided and abetted the 

attempted murder, but also that he personally premeditated and 

deliberated the attempted murder. We disagree. Although the trial 

court found defendant personally premeditated and deliberated his 

intent to kill, the court was not required to do so. “ ‘[W]illful, 

deliberate, and premeditated’ does not establish a greater degree of 

attempted murder but, rather, sets forth a penalty provision 

prescribing an increased sentence (a greater base term) to be imposed 

upon a defendant’s conviction of attempted murder when the additional 

specified circumstances are found true by the trier of fact.” (People v. 

Bright (1996) 12 Cal.4th 652, 669, disapproved on another ground in 

People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) If such a special 

allegation is found true due to the mental state of the perpetrator, 

additional punishment may be imposed upon an aider and abettor who 

5 Defendant complains in his reply brief that the People rely on the 

factual summary in the appellate opinion in People v. Jaramillo, supra, 

B221863, contrary to what is permitted by section 1172.6, subdivision 

(d)(3). The People also incorporated by reference the factual summary

in the prosecution’s reply to the petition below. We have not considered 

the facts contained in the People’s brief on appeal, but instead rely on 

our own independent review.
15

acted with an intent to kill, but who did not personally deliberate and

premeditate. (People v. Lee, supra, 31 Cal.4th at pp. 624–625.) There 

is thus no separate offense of premeditated and deliberated attempted 

murder. Only where the prosecution fails to sustain its burden of proof

as to the underlying prior offense, here attempted murder, that special

allegations and enhancements attached to the conviction are vacated. 

(See § 1172.6, subd. (d)(3).)

As defendant concedes, Lona’s shooting Diaz several times at 

close range showed Lona intended to kill (see People v. Smith (2005) 37 

Cal.4th 733, 742) and defendant does not dispute it supported an 

inference that Lona’s intent was premeditated and deliberated, citing 

People v. Marks (2003) 31 Cal.4th 197, 230 (“a close-range shooting 

without any provocation . . . or evidence of struggle . . . demonstrates 

premeditation and deliberation”). The attempted murder committed by 

Lona was therefore a premeditated and deliberated crime, regardless of 

whether defendant personally premeditated and deliberated. (See 

People v. Lee, supra, 31 Cal.4th at pp. 624–625.) As such, we need not 

address defendant’s lengthy analysis of selected evidence under the 

factors which may support a finding of premeditation and deliberation, 

as discussed in People v. Anderson (1968) 70 Cal.2d 15.

We thus turn to defendant’s claim that his attempted murder 

conviction must be vacated because no substantial evidence supported 

a finding he shared Lona’s intent when he facilitated Lona’s attempt to 

kill Diaz. 

IV. Intent to kill

The trial court found defendant remained guilty of attempted 

murder as a direct aider and abettor. 

A direct aider and abettor of attempted murder is one who 

encourages or assists the direct perpetrator sharing his intent to kill 

and intending to facilitate the killing. (People v. Lee, supra, 31 Cal.4th 

at p. 624.) “ ‘[I]t is well settled that intent to kill or express malice, the 

mental state required to convict a defendant of attempted murder, 
16

may . . . be inferred from the defendant’s acts and the circumstances of 

the crime.’ ” (People v. Avila (2009) 46 Cal.4th 680, 701.)

At the hearing on the petition defendant objected to the 

consideration of any gang expert opinion. On appeal, defendant argues 

the gang expert’s opinion does not supply substantial evidence of intent 

to kill because gang membership alone is insufficient proof of intent or 

aiding and abetting. (See e.g. People v. Guillen (2014) 227 Cal.App.4th 

934, 992, and cases cited therein.)

A gang expert may not give an opinion on the defendant’s state of 

mind or whether he committed the crime (People v. Vang (2011) 52 

Cal.4th 1038, 1047–1048), but “[t]he People are generally entitled to 

introduce evidence of a defendant’s gang affiliation and activity if it is 

relevant to the charged offense. [Citation.] ‘Evidence of the 

defendant’s gang affiliation — including evidence of the gang’s 

territory, membership, signs, symbols, beliefs and practices, criminal 

enterprises, rivalries, and the like — can help prove identity, motive, 

modus operandi, specific intent, means of applying force or fear, or 

other issues pertinent to guilt of the charged crime.’ ” (People v. 

Chhoun (2021) 11 Cal.5th 1, 31.) Expert opinion is ordinarily 

admissible for such purposes if “guided by hypothetical questions ...

‘ “rooted in facts shown by the evidence.” ’ ” (People v. Renteria (2022) 

13 Cal.5th 951, 967.)

Gang evidence can thus provide evidence of motive and of intent 

to kill. (See People v. Chhoun, supra, 11 Cal.5th at pp. 31–33.) And 

“evidence of motive is often probative of intent to kill.” (People v. 

Smith, supra, 37 Cal.4th at p. 741.) Moreover, despite defendant’s 

suggestion to the contrary, proof of intent and aiding and abetting was 

not solely dependent upon defendant’s gang membership, and the 

expert did not give his opinion as to whether defendant facilitated the 

crime or intended to kill. 

Officer Drenckhahn testified that respect is of ultimate 

importance to gang members, and that gangs have internal codes of 
17

conduct. Discipline for a member who fails to comply may range from a 

beating to death. Officer Drenckhahn expressed his opinion based 

upon hypothetical facts that an assault by multiple gang members 

against one member of their own gang is likely to be meant as 

discipline motivated by an offense against the gang or disrespect 

toward the gang. 

Defendant, Lona, the two backseat passengers during the 

shooting, and Diaz were all members of the Playboys gang. Sometime 

before the shooting Diaz, an older Playboys member, and some younger 

members engaged in an argument during which Diaz was “punking the 

youngsters.”

6 Defendant told Detective Raines the argument occurred 

the day before the shooting but testified that it had been two weeks 

before the shooting. Defendant said Diaz was “ ‘talking shit with our 

other homies,’ ” and defendant denied knowing or understanding what 

the argument was about, though he was present during the argument. 

The trial court was not required to believe defendant and was entitled 

to reject all or part of the testimony (see People v. Hamlin (2009) 170 

Cal.App.4th 1412, 1463). The trial court did not believe him. The court 

found defendant was “ ‘aware of the underlying circumstances 

involving the beef’ ” and Diaz, providing evidence of motive to seek 

revenge for Diaz’s disrespect.

7 The trial court was justified in making 

6 Defendant was approximately 26 years old at the time of trial.

7 Defendant contends the argument between Diaz and the younger 

gang members cannot suggest a motive because it was trivial and he 

and Diaz shook hands afterward. Defendant also notes his statement 

to Detective Raines that Lona “shoot for no reason another homeboy 

from the same hood.” It is not for an appellate court to overrule a trial 

court’s credibility determination. (People v. Hamlin, supra, 170 

Cal.App.4th at p. 1463.) Furthermore, “the judgment is not subject to 

reversal on appeal simply because the prosecution relied heavily on 

circumstantial evidence and because conflicting inferences on matters 

bearing on guilt could be drawn at trial.” (People v. Millwee (1998) 18 

Cal.4th 96, 132.)
18

its credibility determinations against defendant, as defendant gave 

many clearly conflicting and evasive answers to both Detective Raines 

in his interview and in his trial testimony. He also admitted he lied in 

some parts. “[A] witness knowingly false in one part of his testimony is 

to be distrusted in the whole.” (People v. Cook (1978) 22 Cal.3d 67, 86.)

“Evidence of motive aside, it is well settled that intent to kill or 

express malice, the mental state required to convict a defendant of 

attempted murder, may in many cases be inferred from the defendant’s 

acts and the circumstances of the crime. [Citation.] ‘There is rarely 

direct evidence of a defendant’s intent. Such intent must usually be 

derived from all the circumstances of the attempt, including the 

defendant’s actions.’ ” (People v. Smith, supra, 37 Cal.4th at p. 741.)

On June 8, 2009, either one day or two weeks after Diaz had 

disrespected younger members of his gang, defendant joined a 

gathering of Playboys gang members in a motel room and was there 

just 20 minutes before leaving with Lona and “Temper,” both of whom 

defendant knew to be particularly violent members of his violent gang, 

and one other person, “Smurf.” As the trial court found, defendant 

knew that Lona was armed with a firearm. Defendant admitted he 

knew Lona carried a handgun and that he had seen the gun in Lona’s

pocket while Lona was standing, before they got into the car. When 

Lona showed the gun to him defendant claimed he said, “ ‘[W]hy are 

you bringing that shit?’ ” Defendant did not state the response, but he 

nevertheless drove Lona and the other gang members to Diaz’s 

location. When they located Diaz in his parked car, defendant backed 

up close to Diaz’s car. Although defendant claimed he backed up 

intending to allow cars behind him to pass, he in fact blocked the car 

behind him, preventing the two witnesses from passing the Camry

without backing up, which in turn prevented Diaz from moving his car

until the shooting was over and the Camry left the scene. In sum, 

defendant met with a group of fellow gang members after Diaz had 

disrespected them or other fellow gang members, and then knowing 
19

that Lona was armed, defendant drove him and two others until Diaz 

was spotted. Defendant then stopped and backed up the car,

preventing Diaz’s escape, waiting until Lona with his gun, got out of 

the car and back in again. Defendant then drove Lona away from the 

scene.

Defendant suggests because neither Lona, Diaz, nor the two 

other gang members offered statements or gave testimony to contradict 

his own, the only evidence of his state of mind is his version of the 

events. Again, the trial court did not have to believe him. “Direct 

evidence of the mental state of the accused is rarely available except 

through his or her testimony. The trier of fact is and must be free to 

disbelieve the testimony and to infer that the truth is otherwise when 

such an inference is supported by circumstantial evidence regarding 

the actions of the accused. Thus, an act which has the effect of giving 

aid and encouragement, and which is done with knowledge of the 

criminal purpose of the person aided, may indicate that the actor 

intended to assist in fulfillment of the known criminal purpose.”

(People v. Beeman (1984) 35 Cal.3d 547, 558–559.)

As the trial court found here, defendant was “ ‘not simply driving 

by a location where Mr. Diaz is located. [Defendant] engages in very 

specific conduct with his vehicle . . . : pulling up, cutting off, and, in 

fact, engaging in conduct so forceful and aggressive that there’s an 

entirely innocent car full of people which has to take evasive action to 

avoid being hit because of [defendant’s] decision to stop and then back 

into the area of the other vehicle, and that demonstrates a very 

deliberate course of conduct on the part of [defendant], not just to scare 

and intimidate, but actually set the scene to provide [Lona] with the 

opportunity to do something further.’ ”

The most reasonable inference is that “something further” was 

Lona’s intent to shoot Diaz at close range, and defendant concedes that 

the evidence established that Lona intended to kill Diaz. Defendant’s 

conduct showed he knew Lona’s purpose when, knowing Lona was 
20

armed, he drove him and their two fellow gang members close to Diaz 

and facilitated Lona’s purpose by trapping him. 

We conclude that substantial evidence supported the trial court’s 

finding that defendant was a direct aider and abettor who shared the 

actual killer’s intent to kill, such that any rational trier of fact could 

have made the same determination beyond a reasonable doubt. (People 

v. Vargas, supra, at p. 951.) One who directly aids and abets attempted 

murder may still be convicted after the amendments to sections 188 

and 189. (People v. Coley, supra, 77 Cal.App.5th at p. 548.) Thus 

defendant is ineligible for relief under section 1172.6.

DISPOSITION

The order of August 7, 2023 denying defendant’s section 1172.6 

petition is affirmed. 

NOT TO BE PUBLISHED.

_______________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

______________________________

HOFFSTADT, J.