Filed 4/30/21 P. v. Molina CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID MOLINA,

Defendant and Appellant.

 B295701

 (Los Angeles County

 Super. Ct. No. TA143107)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Teresa P. Magno, Judge. Affirmed as modified.

Stephen M. Vasil, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Michael Katz, Deputy 

Attorneys General, for Plaintiff and Respondent.

* * * * * *
2

A jury convicted David Molina (defendant) of the attempted

premeditated murder of a person he believed to be a rival gang 

member. On appeal, defendant argues that his conviction must 

be reversed because (1) one of the legal theories that supports his 

conviction is invalid, (2) the jury instructions were defective, and 

(3) there was insufficient evidence. His arguments lack merit. 

We therefore affirm, but order that defendant’s date of birth be 

corrected in various court documents.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

At just past noon on a Tuesday in January 2017, defendant, 

Jerome Hooks (Hooks) and Stephen Cuevas (Cuevas) accosted a 

man exiting a liquor store. 

The encounter took place in territory controlled by the 89 

Family Swans street gang. Defendant, Hooks, and Cuevas are all 

members of that gang. Cuevas is defendant’s cousin, and is 

defendant’s protégé in the gang; to reflect this relationship, 

defendant’s moniker is “Big TK Bandit” and Cuevas’s is “Lil TK 

Bandit.” During the incident, Cuevas was wearing a ballcap with 

a logo and in colors associated with the 89 Family Swans gang. 

The incident in January 2017 started when defendant 

spotted a man he believed to be a member of a rival gang (the 7-

Trey Crips) leaving a liquor store located within but at the edge 

of 89 Family Swans territory. Defendant and Hooks started to 

follow the man as he walked down the sidewalk toward his 

parked car. Cuevas joined defendant and Hooks in their 

approach momentarily, but then ducked into the liquor store and 

emerged holding his hand to his waistband and with the hood of 

his hoodie up. 
3

As defendant, Hooks, and Cuevas caught up to the man, 

defendant started talking to the man. At first, the man ignored 

them but eventually turned to face them. 

Defendant then stepped forward and squared off with the 

man as Hooks and Cuevas fanned out on either side of defendant 

in a semicircle around the man. Seconds later, defendant held 

out his arm to point at the man and Cuevas immediately 

thereafter pulled a revolver from his waistband and took aim at 

the man. 

Upon seeing the gun, the man lunged toward Cuevas but 

defendant pulled him away. Cuevas fired a shot but the shot 

missed the man and shattered the glass door of a marijuana 

dispensary behind the melee. The man then grabbed defendant, 

and the two engaged in a pushing and shoving match with the 

man trying to keep defendant as a “shield” between himself and 

Cuevas. 

Hooks then stepped forward and punched the man in the 

face. The man released defendant and then started to run down 

the street. As the man fled, Cuevas fired off a second shot. That 

shot also missed. 

Defendant, Hooks, and Cuevas then ran away. 

The following day, defendant was carrying a gun identical 

in “make and model” to the gun Cuevas used the day before; 

defendant was also with Hooks. 

II. Procedural Background

A. The charge and allegations

The People charged defendant with a single count of willful, 

deliberate, and premeditated attempted murder (Pen. Code, 
4

§§ 187, subd. (a), 664, subd. (a)).1 The People further alleged that 

(1) the crime was committed for the benefit of, at the direction of, 

or in association with a criminal street gang (§ 186.22, subd.

(b)(1)(C)), and (2) a principal in the crime had personally and 

intentionally discharged a firearm (§ 12022.53, subds. (c) & 

(e)(1)). 

B. Evidence at trial

The primary evidence at trial was surveillance video from 

the marijuana dispensary that showed the incident unfold from a

variety of angles. The video had no audio track. An officer who 

had reviewed the video “several times” walked the jury through 

what was on the video, and offered still photographs from the 

video.

A gang expert familiar with the 89 Family Swans gang 

opined on street gang culture. Among other things, the expert 

opined that (1) gangs are territorial and place great “importance” 

on “defend[ing]” their territory “from encroachment” by rival 

gang members; (2) “gangs are all about status and respect”; (3) a 

rival gang member’s presence in another gang’s territory is a 

“sign of disrespect”; (4) when members of rival gangs confront one 

another, there is a “high” “probability [of] violence,” ranging from 

a “physical fight” to gunplay, such that “hav[ing] a gun” is an 

“absolute[] necess[ity]” if gang members are going “to confront a 

rival gang member”; and (5) gang members who are “going out to 

commit a crime together” “know [which of them] has a gun.”

Because Cuevas was the shooter, the trial court instructed 

the jury that defendant could be convicted of the attempted

premeditated murder on one of two theories: (1) defendant aided 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
5

and abetted Cuevas in the crime of attempted murder (the direct 

aiding and abetting theory), or (2) defendant engaged in the 

crime of “fighting or challenging someone to fight,” Cuevas aided 

and abetted defendant in that fight or challenge, and the

attempted murder committed by Cuevas was a “natural and 

probable consequence” of that fight or challenge (the natural and 

probable consequences theory).

The jury found defendant guilty of attempted premeditated 

murder, and found true the gang and firearm allegations. 

C. Posttrial motions, sentencing and appeal

Defendant moved for a new trial on the ground that Senate 

Bill 1437 (2017-2018 Reg. Sess. (S.B. 1437)) retroactively

abolished liability for attempted murder under a natural and 

probable consequences theory. The trial court denied the motion. 

The trial court sentenced defendant to prison for seven 

years to life. In imposing this sentence, the court struck the gang 

enhancement and imposed but stayed the 20-year firearm 

enhancement. 

Defendant filed this timely appeal. 

DISCUSSION

Defendant raises a plethora of challenges to his conviction, 

and those challenges can be grouped into three buckets—those 

challenging the legal validity of his conviction, those challenging 

the jury instructions, and those challenging the sufficiency of the 

evidence. He also challenges the accuracy of his date of birth 

recorded in several court documents.

I. Legal Validity of the Conviction

Defendant argues that his conviction of attempted 

premeditated murder is legally invalid. He offers a two-step 

argument: (1) the jury instructions precluded the jury from 
6

finding him guilty under a direct aiding and abetting theory, (2) 

he cannot be held liable for attempted premeditated murder on a 

natural and probable consequences theory because of (a) our 

Supreme Court’s decision in People v. Chiu (2014) 59 Cal.4th 155 

(Chiu), superseded by statute as stated in People v. Gentile (2020) 

10 Cal.5th 830, 849, and (b) S.B. 1437. The validity of a legal 

theory of liability as well as jury instructions are questions of law 

we review de novo. (People v. Waidla (2000) 22 Cal.4th 690, 730; 

People v. Mitchell (2019) 7 Cal.5th 561, 579 (Mitchell).)

We reject the first step of defendant’s argument. 

Although the jury was instructed on both the direct aiding 

and abetting theory and the natural and probable consequences 

theory, defendant contends that the instructions precluded the 

jury from finding him guilty on a direct aiding and abetting 

theory because (1) the introductory sentence of the natural and 

probable consequences theory instruction stated, “Before you may 

decide whether the defendant is guilty of attempted murder, you 

must decide whether he is guilty of fighting or challenging 

someone to fight” (italics added), and the seemingly absolute 

nature of this command precluded the jury from also considering 

whether defendant directly aided and abetted Cuevas in 

committing attempted premeditated murder, and (2) the verdict 

form used the words “malice aforethought” when no jury 

instruction used those words. 

Defendant’s arguments lack merit.

To us, the highlighted language rendered the jury 

instructions confusing, not wrong on their face.

2 On the one 

2 We therefore reject the People’s concession that the 

instruction was legally incorrect on the ground that the trial 

court should not have given the CALCRIM 403 instruction in the 
7

hand, the highlighted language seemed to indicate that a finding 

that defendant was guilty of fighting or challenging someone to 

fight—a prerequisite only to the natural and probable 

consequences theory—was something the jury must decide before 

rendering its verdict for attempted murder on any theory. On the 

other hand, the highlighted language was part of the jury 

instruction clearly labeled as defining the “natural and probable 

consequences” theory, which was separate from the instruction 

defining the direct “aiding and abetting” theory. Where, as here, 

the jury instructions “as a whole” are ambiguous, we ask 

“whether there is a ‘“reasonable likelihood that the jury has 

applied the challenged instruction”’” in the way the defendant 

asserts. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 182.) 

We conclude that there is no reasonable likelihood that the jury 

read the highlighted phrase from the natural and probable 

consequences theory instruction to entirely negate the direct 

aiding and abetting theory instruction. The jury was given one 

instruction for each theory, and those theories were clearly 

labeled as distinct. What is more, both the prosecutor and the 

defense attorney repeatedly argued to the jury there were “two” 

“alternative their[ies]” at issue in the case. (Accord, People v. 

Silveria and Travis (2020) 10 Cal.5th 195, 300 [argument of 

counsel may be considered in evaluating whether there was a 

reasonable likelihood of being misled].)

The verdict form’s use of words not in the jury instructions 

is also of no moment because the “‘form of the verdict generally is 

first place. The CALCRIM 403 instruction the court gave is 

appropriate for cases, such as this one, where the so-called 

“target” crime (here, fighting or challenging to fight) is not 

separately charged. (CALCRIM No. 403, Notes.)
8

immaterial, so long as the intention of the jury to convict clearly 

may be seen.’ [Citations.]” (People v. Jackson (2014) 58 Cal.4th 

724, 750.) Here, the jury’s verdict reflected a finding of guilt on 

the crime of attempted premeditated murder as well as on the 

enhancements, findings that the jury reaffirmed when being 

polled. 

We also reject the second step of defendant’s argument, and 

examine each of his proffered arguments separately.

A. Chiu-based argument

In Chiu, supra, 59 Cal.4th 155, our Supreme Court held 

that a defendant cannot be convicted of first degree, premeditated 

murder under a natural and probable consequences theory of 

liability because, in the court’s view, “the legitimate public policy 

considerations of deterrence and culpability would” be better 

served by holding such aiders and abettors liable for, at most, 

second degree murder. (Id. at p. 166; People v. Hardy (2018) 5 

Cal.5th 56, 92-93 (Hardy).) Defendant urges that this same logic 

should apply to the crime of attempted premeditated murder, 

such that his liability as an aider and abettor under a natural 

and probable consequences theory should be capped at attempted 

murder, not attempted premeditated murder. (Accord, People v. 

Mejia (2019) 40 Cal.App.5th 42, 49-50 [so holding].)

Defendant’s argument is inconsistent with our Supreme 

Court’s decision in People v. Favor (2012) 54 Cal.4th 868 (Favor). 

Favor held that a defendant may be convicted of attempted 

premeditated murder based on a jury finding that attempted 

murder was a natural and probable consequence of the 

underlying crime he aided and abetted as long as the jury 

separately finds that the attempted murder was premeditated. 

(Id. at pp. 879-880.) More to the point, Favor remains good law 
9

because Chiu dealt with a different issue—namely, the public 

policy considerations underlying the crime of murder. (Accord, 

People v. Flores (2016) 2 Cal.App.5th 855, 869 [so holding].) Chiu

did not speak to the considerations underlying the crime of 

attempted murder and, to the contrary, went out of its way to 

distinguish and preserve Favor. (Chiu, supra, 59 Cal.4th at p. 

163.) Until our Supreme Court overrules Chiu, we are bound to 

follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 

Cal.2d 450, 455-456.)

B. S.B. 1437-based argument

S.B. 1437 amended the statutes defining murder to prohibit 

a murder conviction based solely upon a natural and probable 

consequences theory of liability. (§§ 188, subd. (a)(3), 189, subd. 

(e).) Defendant urges that S.B. 1437’s prohibition should apply to 

the crime of attempted murder as well, and further contends that 

refusing to do so violates the equal protection of the law. In 

People v. Love (2020) 55 Cal.App.5th 273, review granted Dec. 16,

2020, S265445 (Love), we rejected both of the arguments

defendant now proffers. (Id. at pp. 279, 287-289.) Defendant lays 

out the manifold ways in which he thinks Love is wrongly 

decided. We are not persuaded. Defendant also argues that he is 

making a novel and more as-applied equal protection argument 

not addressed in Love—namely, that (1) the jury was not 

instructed on any lesser included offenses, (2) the jury was 

therefore presented with a choice between convicting him of 

attempted murder and acquitting him, and (3) this all-or-nothing 

choice warrants application of strict scrutiny under equal 

protection (rather than rational basis scrutiny). We are also not 

persuaded by this argument, as our Supreme Court has drawn no 
10

such distinction. (People v. Wilkinson (2004) 33 Cal.4th 821, 837-

838.)

II. Instructional Error

To convict a defendant of a crime under a natural and 

probable consequences theory, the People must prove (1) the 

defendant either (a) aided and abetted a second person in 

committing a predicate offense, or (b) with a second person’s aid 

himself perpetrated the predicate offense, (2) the second person 

committed the charged crime, and (3) the charged crime “was a 

natural and probable consequence of the [predicate offense].” 

(People v. Prettyman (1996) 14 Cal.4th 248, 261-262 (Prettyman), 

superseded by statute as stated in People v. Lopez (2019) 38 

Cal.App.5th 1087, 1103, review granted Nov. 13, 2019, S258175

(Lopez); People v. Olguin (1994) 31 Cal.App.4th 1355, 1367, 1375 

(Olguin).) Defendant argues that the pattern CALCRIM 

instruction on the natural and probable consequences theory

given in this case is incorrect because (1) it did not require the 

jury to find that the crime that must be the natural and probable 

consequence of the predicate offense of “fighting or challenging 

someone to fight” was attempted premeditated murder (as it only 

required attempted murder to be the consequence), and (2) it did 

not require the jury to find that defendant had intended for 

Cuevas to aid and abet him in the fight or challenge to fight that 

defendant actually perpetrated as the predicate offense. As noted 

above, we independently review claims of instructional error. 

(Mitchell, supra, 7 Cal.5th at p. 579.)

A. Attempted murder versus attempted 

premeditated murder

As noted above, our Supreme Court in Favor, supra, 54 

Cal.4th 868 held that a defendant may be convicted of attempted 

premeditated murder as long as the jury finds that (1) attempted 
11

murder is a natural and probable consequence of the predicate 

offense, and (2) the perpetrator of the attempted murder acted 

with premeditation. (Id. at pp. 879-880.) Favor rejected the 

position—advanced by defendant now—that the jury must find 

that attempted premeditated murder is a natural and probable 

consequence of the predicate offense. (Ibid.) Defendant urges 

that Favor’s rule has been superseded by Chiu and by the United 

States Supreme Court’s decision in Alleyne v. United States

(2013) 570 U.S. 99 (Alleyne). We have previously explained why 

Chiu did not disturb Favor. 

Neither did Alleyne. Alleyne held that a jury must find, 

beyond a reasonable doubt, any facts that increase a sentence 

whether those facts define the elements or penalties for that 

crime. (Alleyne, supra, 570 U.S. at pp. 111-112.) To be sure, the 

finding that an attempted murder is premeditated triggers a 

higher sentence for the crime of attempted murder. (§ 664, subd. 

(a); People v. Banks (2014) 59 Cal.4th 1113, 1152 [“The willful, 

deliberate, and premeditated nature of an attempted murder is 

‘“the functional equivalent of an element”’ of the offense insofar 

as it increases the punishment for an attempted murder”], 

overruled in part on other grounds as stated in People v. Scott

(2015) 61 Cal.4th 363, 391; People v. Seel (2004) 34 Cal.4th 535, 

548.) But the fact that the jury must find that the attempted 

murder in this case was premeditated—which the jury in this 

case did—does not speak to whether the jury must also find that 

a natural and probable consequence of the predicate offense is 

attempted premeditated murder rather than attempted murder. 

Favor found no need for this additional finding, and Favor was 

handed down 12 years after the principle that animates Alleyne

was first recognized in Apprendi v. New Jersey (2000) 530 U.S. 
12

466. Admittedly, the Courts of Appeal have split over whether 

Alleyne undermines Favor (compare People v. Gallardo (2017) 18 

Cal.App.5th 51, 82-85 [Favor remains good law] with People v. 

Dennis (2020) 47 Cal.App.5th 838, 852 [Alleyne undermines 

Favor]), and our Supreme Court has granted review to consider 

the issue in Lopez, supra, 38 Cal.App.5th 1087, review granted

Nov. 13, 2019, S258175. In the meantime, however, Favor

remains good law.

B. “Reciprocity of intent”

Although, in the typical case, a defendant convicted of a 

charged crime under a natural and probable consequences theory 

aids and abets a second person in committing a predicate offense 

and the second person thereafter commits the charged crime (e.g.,

Prettyman, supra, 14 Cal.4th at pp. 261-262), a defendant can 

also be convicted under this theory if he is the one who actually 

perpetrates the predicate offense, is aided and abetted in that 

offense by a second person, and the second person thereafter 

commits the charged crime (e.g., Olguin, supra, 31 Cal.App.4th at 

pp. 1367, 1375; People v. Culuko (2000) 78 Cal.App.4th 307, 329-

330 (Culuko)). This case involves the latter scenario because 

defendant was the person who perpetrated the predicate offense 

of fighting the victim or challenging the victim to fight; Cuevas 

aided and abetted him in that fight or challenge; and Cuevas 

thereafter committed an attempted premeditated murder.

Defendant urges that, in this scenario, the People must 

prove an additional element—namely, that the defendant agreed 

to allow the second person to participate in the predicate offense. 

There must be, in defendant’s words, a “reciprocity of intent”: 

The second person must intend to aid and abet the defendant in 

perpetrating the predicate offense, so the defendant must be 
13

shown to reciprocally intend the second person to aid and abet 

him. For support, defendant draws upon principles of agency and 

language found in People v. Kauffman (1907) 152 Cal. 331 

(Kauffman).

This argument is foreclosed by precedent. 

The agency principles and language from Kauffman delimit 

the liability of coconspirators by shielding them from the acts of a 

coconspirator that are the “fresh and independent product of the 

mind of one of the confederates outside of, or foreign to, the 

common design.” (Kauffman, supra, 152 Cal. at p. 334.) In 

People v. Smith (2014) 60 Cal.4th 603 (Smith), however, our 

Supreme Court held that this limitation on conspirator liability 

did not apply to the liability of aiders and abettors under a 

natural and probable consequences theory. (Id. at pp. 615-617.) 

Unlike coconspirators who merely “agree to commit a crime,” 

aiders and abettors have mutually participated in the predicate 

offense (ibid.); their mutual participation as “principals” in the 

predicate offense functions as the “‘equivalent to manifesting 

consent to liability’” to all of the crimes that naturally and 

probably flow from that predicate offense. (People v. Luparello

(1986) 187 Cal.App.3d 410, 439; Olguin, supra, 31 Cal.App.4th at 

p. 1376; see People v. Morante (1999) 20 Cal.4th 403, 433 [“Aiding 

and abetting does not require participation in an agreement to 

commit an offense, but merely assistance in committing the 

offense”].) There is accordingly no need to have a further 

showing of consent or agreement. What protects a defendant 

from liability for wholly unexpected acts of a coparticipant is not

a showing that he agreed to let the coparticipant aid him in 

committing the predicate offense, but instead that wholly 

unexpected acts are unlikely to be a “natural and probable 
14

consequence” of their mutual criminal activity. (Smith, at p. 

617.) Defendant urges that no case has specifically rejected his 

theory, but this ignores that Smith and other cases all rest on a 

principle that, as explained above, is irreconcilable with 

defendant’s theory and could not stand if that theory were the 

law. (Accord, Smith, at pp. 609-617 [defendant who started gang 

fight liable for shooting by gang rivals, without a showing that

defendant consented to the rivals’ participation in the gang fight]; 

Olguin, at pp. 1375-1376 [defendant who started fight liable for 

shooting by coparticipant, without a showing that defendant 

consented to coparticipant’s assistance with the fight]; Culuko,

supra, 78 Cal.App.4th at pp. 329-330 [defendant who abused

victim liable for murder by second person, without a showing that 

defendant consented to that person’s assistance with the abuse].)

III. Sufficiency of the Evidence

As noted above, defendant’s conviction for attempted 

premeditated murder rests on one of two theories: (1) defendant 

aided and abetted Cuevas in the crime of attempted murder, or 

(2) defendant committed the crime of fighting or attempting to 

fight with Cuevas’s aid, Cuevas committed the crime of 

attempted premeditated murder, and attempted murder is a 

natural and probable consequence of the crime of fighting or 

attempting to fight on the facts of this case. Because, as we have 

held, both theories are valid, the jury need not unanimously 

agree on the theory of liability underlying the conviction. (Smith,

supra, 60 Cal.4th at p. 618.) In determining whether there is 

sufficient evidence under each theory, we ask whether the record, 

as a whole and viewed in the light most favorable to the verdict, 

contains “‘“substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable 
15

trier of fact could find the defendant guilty beyond a reasonable

doubt.” [Citation.]’” (People v. Dalton (2019) 7 Cal.5th 166, 243.)

A. Natural and probable consequences theory

As set forth above, to prove a defendant guilty of a crime 

under the theory that the crime was the natural and probable 

consequence of a predicate offense, the People must establish 

that (1) the defendant either (a) aided and abetted a second 

person in committing a predicate offense, or (b) with a second 

person’s aid himself perpetrated the predicate offense, (2) the 

second person committed the charged crime, and (3) the charged 

crime “was a natural and probable consequence of the [predicate 

offense].” (Prettyman, supra, 14 Cal.4th at pp. 261-262; Olguin, 

supra, 31 Cal.App.4th at pp. 1367, 1375; Hardy, supra, 5 Cal.5th 

at p. 92.) The charged crime is a natural and probable 

consequence of the predicate offense if a reasonable person in 

defendant’s circumstances would recognize that the charged 

crime was a reasonably foreseeable consequence of the predicate 

offense. (Chiu, supra, 59 Cal.4th at p. 165; People v. Medina

(2009) 46 Cal.4th 913, 920 (Medina).) To be a reasonably 

foreseeable consequence, the charged crime need only be a 

“‘“possible consequence”’”—not a “‘“strong[ly] probab[le]”’” one. 

(Medina, at p. 920.) 

Substantial evidence supports defendant’s conviction of 

attempted premeditated murder on a natural and probable 

consequences theory. As seen in the surveillance video, 

defendant followed the victim, started talking with him and 

squared off against him as Hooks and Cuevas fanned out beside 

defendant to cut off the victim’s possible routes of escape; this 

constituted a challenge to a fight, which satisfied the 

requirement that defendant actually perpetrated the predicate 
16

offense of challenging the victim to a fight.3 Cuevas committed 

the charged crime of attempted premeditated murder by shooting 

at the victim twice as a part of coordinated attack to challenge a 

person perceived to be a rival gang member. And the charged 

crime of attempted murder was a natural and probable 

consequence of the gang-related turf challenge that defendant

initiated with the victim. The gang expert opined that there is a 

“high” “probability of violence” that such confrontations will 

result in a fight or in gunfire. And it is well within a jury’s 

province to find that a reasonable person would foresee that

attempted murder is a natural and probable consequence of a 

gang-related assault or fistfight. (E.g., Medina, supra, 46 Cal.4th 

at p. 922 [so holding]; Olguin, supra, 31 Cal.App.4th at p. 1376 

[same]; People v. Godinez (1992) 2 Cal.App.4th 492, 499-500 

[same]; People v. Montano (1979) 96 Cal.App.3d 221, 226-227 

[same]; see generally People v. Ayala (2010) 181 Cal.App.4th 

1440, 1449-1450 [collecting cases].)

Defendant argues that there was insufficient evidence that 

he challenged the victim to a fight because the sole evidence of 

the challenge was the body language depicted in the surveillance 

video; defendant’s body language did not definitively indicate any 

challenge or intention to fight; and the victim’s failure to fight 

back shows that the victim had not been challenged to fight. To 

be sure, the video did not have an audio track. But the video 

itself plainly shows defendant, Hooks, and Cuevas following the 

victim down the sidewalk; shows defendant walking toward the 

victim; and shows defendant, Hooks, and Cuevas walking up to 

3 Whether defendant also aided and abetted Hooks or Cuevas 

in that challenge is irrelevant because, as noted above, it is not 

necessary.
17

the victim and fanning around him. It was also undisputed that 

the encounter took place in 89 Family Swans gang territory; that 

defendant, Hooks, and Cuevas were 89 Family Swans members; 

and that defendant believed the victim to be a member of a rival 

gang. Although the jury could have viewed defendant’s 

aggressive approach to the victim as an overeager desire to 

engage in a discourse on the weather or a variety of other topics, 

the jury also could have viewed the body language of defendants 

and his cohorts as a challenge to fight prompted by gang rivalry. 

We reject defendant’s implicit entreaty to reweigh the evidence. 

(People v. Armstrong (2016) 1 Cal.5th 432, 451.) The victim’s 

failure to fight back does not show a lack of a challenge so much 

as it shows a wise choice to try to avoid a confrontation or to 

escape rather than to engage the three people surrounding him in 

a fight he might not survive. And although there is sufficient 

evidence to support guilt on this theory without the lay opinion of 

the witness who watched the video repeatedly, that witness’s

opinions make the evidence of guilt even stronger and were 

properly before the jury as an appropriate lay opinion of a person 

who has greater familiarity with the video and who is offering an 

opinion regarding the gestalt of what the video depicted. (People 

v. Son (2020) 56 Cal.App.5th 689, 696-698 [witness who watched 

a video many times may offer lay opinion testimony about the 

“obscure details in the video” she observed].)4

4 Defendant contends that the witness’s testimony was 

“speculative” because the witness told the jury about aspects of 

the video footage that the monitor in the courtroom did not 

clearly depict due to its larger pixels. This contention ignores the 

witness’s further explanation that he did, in fact, see the aspects

to which he testified on the smaller, higher-resolution screen he 
18

B. Direct aiding and abetting theory

To prove defendant guilty of attempted premeditated 

murder on a direct aiding and abetting theory, the People have to 

prove (1) defendant knew of Cuevas’s unlawful purpose to commit 

attempted murder, (2) defendant, by his act or advice, aided, 

promoted, encouraged or instigated Cuevas’s commission of 

attempted murder, and (3) defendant acted with the intent to 

commit, encourage or facilitate Cuevas’s commission of attempted 

murder—that is, with the intent to kill. (People v. McCoy (2001) 

25 Cal.4th 1111, 1118; Prettyman, supra, 14 Cal.4th at p. 259; 

People v. Beeman (1984) 35 Cal.3d 547, 561; People v. Lee (2003) 

31 Cal.4th 613, 624.) Evidence of a defendant’s knowledge and 

intent (the first and third elements) is “‘almost inevitably 

circumstantial.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055

(Nguyen).) Evidence “relevant” to whether a defendant has aided 

and abetted the perpetrator (the second element) includes 

“‘presence at the scene of the crime, companionship, and conduct 

before and after the offense.’ [Citation.]” (Id. at p. 1054.)

Substantial evidence supports the defendant’s conviction of 

attempted premeditated murder under a direct aiding and 

abetting theory. Defendant’s knowledge of Cuevas’s purpose to 

commit murder, defendant’s aid in that purpose, and defendant’s 

intent to kill can be inferred from the coordinated manner in 

which defendant, Hooks, and Cuevas accosted the victim; 

defendant’s role in instigating the confrontation; and defendant’s 

role in directing Cuevas, given that Cuevas pulled out the gun 

moments after defendant pointed at the victim. Such “concerted 

action reasonably implies a common purpose.” (People v. 

used to study the video, and ignores that the jury was given a 

laptop with which to view the video on a smaller screen.
19

Campbell (1994) 25 Cal.App.4th 402, 409-410; accord, People v. 

Hill (1998) 17 Cal.4th 800, 851-852 [concerted action implies 

knowledge and intent]; People v. McDaniels (1980) 107 

Cal.App.3d 898, 903-904 [same].) Defendant’s knowledge and 

intent are further cemented by defendant’s belief that the victim 

was a rival gang member, the victim’s presence in 89 Family 

Swan territory, and the expert testimony that gang members will 

confront trespassing rival gang members and that such 

confrontations typically lead to violence.

Defendant challenges this conclusion with what boil down 

to four arguments.

First, he argues that the video showed Hooks and Cuevas 

crossing the street to meet up with defendant before the three of 

them moved in tandem to follow and accost the victim. Because 

the video captures the moment when all three 89 Family Swan 

members met up that day, defendant reasons that their meeting 

must have been serendipitous “happenstance.” Whether they 

met up mere seconds or long hours before starting their assault 

on the victim, the coordinated manner in which they stalked and 

accosted their victim provides substantial evidence to support the 

jury’s finding that they acted in concert and that defendant 

accordingly knew of and shared Cuevas’s intent to kill. The cases 

defendant cites are inapposite. (People v. Tabizon (1958) 166 

Cal.App.2d 271, 272-274 [presence in room containing narcotics 

does not constitute sufficient evidence of dominion or control]; In 

re Elisabeth H. (1971) 20 Cal.App.3d 323, 330-331 [same].)

Second, defendant asserts that there was insufficient 

evidence to show he was aware Cuevas had a gun, and thus 

insufficient evidence that defendant knew of Cuevas’s plan or 

that he intended to kill. This assertion lacks merit factually and 
20

legally. Factually, Cuevas drew the gun from his waistband 

immediately after defendant pointed at the victim; from this 

coordinated action, the jury could reasonably infer that defendant 

had signaled to Cuevas—his protégé and cousin—that then was 

the time to pull out the gun. Defendant had a gun of the same 

make and model the next day; from this and from the gang 

expert’s testimony that gang members share weapons 

collectively, the jury could infer that it was the same gun and 

that defendant had dominion and control over it, both before and 

after the charged crime. What is more, the gang expert testified 

that gang members who are “going out to commit a crime 

together” “know [which of them] has a gun,” and this is a 

permissible expert opinion about how gangs operate generally 

that provided the jury a basis to conclude that defendant knew 

about the gun. (People v. Killebrew (2002) 103 Cal.App.4th 644, 

657 (Killebrew) [expert testimony regarding the “‘culture and 

habits’” of gangs is permissible]; Olguin, supra, 31 Cal.App.4th at 

p. 1371 [testimony about what “gang members typically expect” is 

permissible]; Nguyen, supra, 61 Cal.4th at p. 1055 [same]; cf. 

Killebrew, at p. 658 [expert may not testify “that a specific 

individual had specific knowledge”]; In re Wing Y. (1977) 67 

Cal.App.3d 69, 78-79 [evidence of gang membership alone not

relevant to prove criminal conduct]; Spivey v. Rocha (9th Cir. 

1999) 194 F.3d 971, 978 [evidence of gang membership to prove 

bias unduly prejudicial when other evidence of bias is admitted].) 

Legally, there can be sufficient evidence that a gang member 

intended to kill a rival gang member even without proof that the 

member knew one of his cohorts possessed a gun. (Medina,

supra, 46 Cal.4th at p. 924; see also People v. Montes (1999) 74 

Cal.App.4th 1050, 1056.) 
21

Third, defendant contends that the gang expert’s testimony 

regarding a gang’s need to police its territory is irrelevant here 

because the 89 Family Swans gang had allowed a rival gang to 

operate the marijuana dispensary within but on the border of its 

territory, such that the 89 Family Swans gang must care less 

about its territory and such that defendant had no reason to 

confront the rival gang member. Although the dispensary was 

run by a different gang, the expert also opined that this was 

likely a begrudging accommodation because the other gang was 

more powerful than the 89 Family Swans and opined that it was 

not unusual for gangs to have irregularly shaped territories in 

any event. Based on this evidence, the jury could have 

reasonably inferred that the 89 Family Swans had greater

incentive to patrol their territory from further encroachment 

rather than lesser incentive, as defendant contends. 

Lastly, defendant urges that defendant’s reaction after 

Cuevas pulled out the gun does not show defendant had the 

intent to kill. We disagree. After Cuevas pulled the gun on the 

victim, defendant did not express shock; instead, he stepped 

forward to prevent the victim from reaching Cuevas. The fact 

that defendant was in close proximity to the victim thereafter 

was not out of a desire to stop Cuevas from shooting, but instead 

because the victim grabbed defendant and tried to use him as a 

human shield to keep Cuevas at bay. And the fact that defendant 

and the others fled after Cuevas’s second shot missed could 

reasonably be viewed by a jury as part of the common plan to 

evade capture once the confrontation was over. (Medina, supra, 

46 Cal.4th at p. 924 [evidence that the defendants fled after the 

shooting was treated as an additional factor suggesting aiding 

and abetting liability].) Most importantly, the manner in which 
22

defendant, Hooks, and Cuevas worked together before Cuevas 

drew the gun was sufficient by itself to establish the existence of 

a common plan to kill the victim as well as defendant’s 

knowledge of the plan and his intent to kill.

IV. Correction of Errors in Date of Birth

Defendant contends, and the People concede that 

defendant’s date of birth is incorrectly reported as November 7, 

1994 rather than the correct date of November 7, 1997, in the (1) 

abstract of judgment, (2) probation report, (3) complaint, and (4) 

information. Courts have an inherent power, even on appeal, to 

correct clerical errors in records so as to make these records 

‘“reflect the true facts.’” (People v. Mitchell (2001) 26 Cal.4th 181, 

185.) Because the probation report and abstract of judgment 

continue to be used by the California Department of Corrections 

and Rehabilitation for administrative and classification purposes 

(§§ 1203c, subd. (a)(1), 1203.01; Cal. Rules of Court, rule 4.411), 

we order those two documents to be corrected.
23

DISPOSITION

The trial court is ordered to correct the abstract of 

judgment and the probation report to reflect that defendant’s 

date of birth is November 7, 1997. The court is further ordered to 

forward a certified copy of the corrected abstract of judgment and 

probation report to the Department of Corrections and 

Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST