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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 MO LINA

,
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 appoin tment 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 Attorney s 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) on e of the legal theories that supports his
conviction is inva lid, (2) the jury instructions were defective, and (3) there was insufficient evidence. His arguments lack merit.
We therefore affi rm , but order that defendant’ s date of birth be
corrected in va rious court documents.
FACTS AND PROCEDURAL BACKGROUND
I. Facts At just past noon on a Tuesday in January 2017, defendant, Jerome Hooks (Hook s ) and Stephen Cuevas (Cuevas) accosted a man exiting a liquor store.
The encounter took place in territory cont rolled by the 89 Family Swans street gang. Defendant, Hooks

, and Cuevas are all members of that ga ng. Cueva s 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 liquo r store located within but at the edge

o f 89 Fam ily 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 momen tarily , but then ducked into the liquo r store and emerged holding his hand t o his waist band 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 bu t 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 Cu evas 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 fire d of f a s econd shot. That
shot also missed. Defendant, Hooks

, and Cuevas then ran away.
The following day, defendant was carrying a gun identic al
in “ make and model” to th e gun Cuevas used the day before;
defendant was also wit h Hooks.
II. Procedural Background
A. The charge and allegations The People charged defendant with a single count of willful,
deliberate

, and premedi t ated attempted murd er (Pen. Code,4

§ § 187
, subd. (a) , 664 , subd. (a) ). 1 The People furt her a lleged 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
inten tionally dis charged a firearm (§ 12 022.53 , su bds. (c) & (e) (1 ) )

. B. Evidence at trial
The primary eviden ce a t trial was surveillance video from the marijuana dispensary that showed the incident unfold from a variety of an gles. The vid eo had no audio track

. An of ficer 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 mem ber’s presence in another gang’s territory is a “sign of disrespect” ; ( 4 ) when member s of rival gangs confront one another, there is a “ high ” “ probability [ of ] violence, ” ranging from a “ p h ysical fight” to gunplay, suc h th at “ h av[ing] a gun ” is an
“absolut e[] necess[ity]” if gang members are going “ to confront a rival gang member” ; and ( 5 ) gang m embers 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 d efendant 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 wa s a “natural and probable consequence” of that fight or c hallenge (the natural and probable consequences theory)

. The jury found defendant guilty of attempted premedi t ated murder, and found tru e the gang and firearm allegations.
C. Post trial motions, sentencing and appeal Defendant moved for a new trial on the ground that S enate
B ill 1437 (2017

- 2018 Reg. Sess. (S .B. 1437)) retroactive ly
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 sentenc e, the court s truck the gang enhancement and imposed bu t stayed the 20

- year firearm
enhancement.
Defendant fi led this timely appeal.

DISC USSION
Def e ndant raises a pletho ra of challenge s to his conviction, and those challenges can be grouped into three bucket s

— 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 Va lidity 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 from6

finding him guilty under a direct aiding and abetting the ory, (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. Genti le (2020)
10 Cal.5 th 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
theor y , 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 de cide 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 p remeditated murder , and (2) the verdict
form used the words “ malice afo rethought ” when no jury
instruction used th ose words.
Defendan t ’ 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 l egally incorrect on the ground that the trial court should not have given the CALCRIM 403 instruction in the7

hand, the highlighted language seem ed t o indicate that a finding that defendant was guilty of fi ghting or ch alle nging someone to fight

— a prer equisite only to the natural and prob able consequences t heory

— 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 instruct ion 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

ass erts. ( People v. Letner and Tobin (2010) 50 C al. 4th 99, 182.)
We conclude th at there is no reasonable lik elihood that the jur y

re ad the highlight ed phrase fro m the nat ural and probable

con sequence s theory instruction to entirely negat e 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”
“alternati ve their [ies]” at issue in the case. (Accord, People v.
Silveria and Trav is (2020) 10 Ca l. 5th 195, 300 [argument of counsel may be considered in e v aluating whether there was a

rea sonabl e likelihood of being misled].)
The verdict form’s use of words not i n 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 i s appropriate for cases, such as this one, where the so

- called “target” crime (here, figh ting or challenging to fight) is not separately charged. (CALCRIM No. 403, Notes.)8

immaterial

, so long as the intention of the jury to con vict clearl y may be seen.’ [Citation s .] ” ( People v. Jackson (2014) 58 C al. 4th 724, 750.) Here, th e j ury ’ s v erdict reflected a fi nding of gu ilt on the crime of attempted premedit ated murde r 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 proffer ed arguments separately.
A. Chiu

- base d argument
In Chiu

, supra , 59 Cal. 4th 155, our Supreme Court held
that a de fendant cannot be co nvicted of f irst degree

, premeditated
murde r under a natural and probable consequence s 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 ( Ha rdy ) .) Defendant urges that this same logic should apply to the crime of at tempted 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 pr emeditated 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 convic ted 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 law9

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 n ot 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 liabilit y. (§§ 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 pr otection of the law. In People v. Love ( 2020) 55 Ca l.App. 5th 27 3 , review granted Dec

. 16
, 2020, S265445 ( Love ) , we rejected bo th of the arguments defendant now proffers . ( Id. at pp. 279, 287

- 289.) Defen dant lays out the manifold ways in which he thinks Love is wrongly
decided. We are not per suaded

. 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 Cour t has drawn no10

such distinction. ( People v. Wilkinson (2004) 33 Cal.4th 8 2 1, 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.5 th 1087, 1103
, review granted Nov. 13, 2019, S258175 ( Lopez ) ; People v. Olguin (1994) 31 C al.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 na tural and probable consequence of the predicate offense of “fighting or c hallenging someone to fight” was attempted premeditated murder ( as it only required attempted mu rder to be the consequence ), and (2) it did not require th e jury to fi nd that defendant had intended for
Cuevas to aid and ab et h im in the fight or challenge to fight t hat
defend ant actually perpetrat ed as the predicate offense. As noted above, we independently review clai ms of instructional error. ( Mitchell

, s upra , 7 Cal. 5 th at p . 579.)
A. Attempted murder versus attempted premeditated murder As noted abov e, 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) attempted11

murder is a nat ural 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 premedita ted murder is a natural and probable

conse quence of the predicate offen se. ( Ibid. ) Defendant urges
that Favor ’s rule has been superseded by Chiu and by the U nited
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. ( A lleyne

, 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,
deliber ate, and premeditated nature of an attempted murder is ‘“the functional equivalent of an element”’ of the offense insof ar as it increases the punishment for an attempted murder ”]

, overruled in part on other grounds as stated in People v. Scott (2015) 61 Ca l.4 th 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 p robable 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.5 th 838, 852 [ Alleyne undermines
Favor ] ), and our Supreme Court has granted review to consider

t he 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 inte nt” 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 p p. 261

- 262), a defendant can also be convicted under this theory if he is the one who actua lly perpetrates the p redicate off ense , is a ided and abetted in that offense by a second person, and the second person thereafter

co mmits the charged crime (e.g

., Olguin

, supra , 31 Cal.App

. 4th at pp. 1367, 1375; People v. Cu luko (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 additiona l 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 th e predicate offense, so the defendant must be13

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 argumen t is foreclosed by precedent. The agency principles and language from Kauffman delimit the liability of co conspirators by shielding them from the acts of a coconspirato r that are the “ fresh and independent product of the
mind of one of the confederates outside of, or foreign t o, the common design.” (

Kauf f ma n , supra , 152 Cal. at p. 334.) In People v. Smith (2014) 60 C al. 4th 603 ( Smith ), however, our Supreme Court held that this limitat ion 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 lia b ility ’ ” to all of the crimes that natural ly a nd probably flow from that predicate offense. ( People v. Luparello (1986) 187 C al. App.3d 410, 439; Olguin

, su pra , 31 Cal.App. 4th at p. 1376; see People v. Morante (1999) 20 Ca l.4th 403, 433 [“A iding
and a b etting does not require participat ion 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 probable14

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 theor y 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]; Culu ko

, supra , 78 Cal.App.4th at p p. 329

- 330 [defendant who abused
victim liable for murder by second person, without a sho wing that
defendant consent ed to that per son’ s assistan ce with the abuse ] .)
III. Suf

ficiency of th e Evidence As noted above, defendant ’s conviction for attempted premeditated murd er 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 committe d the crime of

att empted premeditated murder, and attempt ed m urder is a
natural and probable consequence of the crime of fighting or attemptin g to fight on the facts of this case. Because, as we have held, both theories are valid, the jury need not unanim ously agree on the theory of liability underlying the conviction. ( Smith

, supra , 60 Cal.4th at p. 618.) In determining whether there is
sufficient evide nce 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, ev idence tha t is reasonable, credible, and of solid value

— from which a reasonable15

trier of fact could find the defen dant guilty beyond a reasonable
d oubt. ” [Citation.] ’ ” ( People v. D alton (201 9 ) 7 Ca l.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) th e 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 nat ural and probable consequence of the [predicate offense].” ( Prettyman

, supra , 14 Cal. 4th at pp. 261

- 262 ; Olguin

,

su pra , 31 Cal.App. 4th at p p . 1367, 1375 ; Hardy

, supra , 5 C al. 5th at p. 92 .) The charged cr ime is a natural and probable

con sequence of the pr edicate offense if a reasonable person in
defendant’s circ umstances would recognize that the charged
crime was a rea sonably fo r esee a ble consequence of the predicate
off ense. ( Chiu

, su

pra , 59 Cal. 4th at p. 165; People v. Medina (2009) 46 Cal. 4th 913, 920 ( Medina ) .) To be a reasonably
fo reseeable 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 premeditate d 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 perpetrate d the predicate16

offense of challenging the victim to a fight. 3 Cuevas committed the charged crime of attempted premeditated murde r by shooting
at the victim tw ice 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 natura l 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

, su pra , 46 Cal. 4th at p. 922 [so holding]; Olguin

, supra , 3 1 Ca l.App.4th at p. 1376 [same]; People v. Godinez (1992) 2 Cal.App. 4th 492, 499

- 500 [ same]; Pe ople v. Montano (1979) 96 Cal.Ap p .3d 221, 226

- 22 7 [same]; see gen erally 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 bec ause 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 w alking toward the victim; and shows defendant, Hooks

, and Cue vas walking up to

3 Wh ether 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 hi m

. 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 vi ewed the body language of defendants
and his cohorts as a challenge to fight prompted by gang rival ry

. We re ject defendant ’ s implicit en treaty to rewe igh the evidenc e. ( People v. Armstrong (2016) 1 Cal. 5th 432, 451 .) The vi ctim ’ s failure to fight back d o es 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 wi thout 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 a nd 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 wit ness’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 di d, in fact, see the aspects to which he testified on the smaller, higher

- resolution screen he18 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 kn ew of Cuevas’s unlawful purpose to commit attempted murder, ( 2) defendan t, 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 commiss ion of attempted
murder

— that is , with t he intent to kill. ( Peop le v. Mc Coy (2001)
25 Cal. 4th 1111, 1118; Prettyman

, supra , 14 Ca l. 4th at p. 259; People v. Beeman (1984) 35 Cal.3d 547, 561; People v. Lee (2003)
31 Cal. 4t h 613, 624.) Evidence of a defendan t ’ s knowledge and intent (the first and third elements) i s “ ‘ alm ost inevitably
circumstantial. ’ ” ( People v. Nguyen (2015) 61 Cal. 4th 1015, 1055 ( Nguyen ) .) Evidence “ relevant ” t o w hether a defendant has aided
and abett ed the perpetra tor (the se cond element) includes

“ ‘ presence at the scene of the crime, compan i onship, 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 purp ose 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 (199 8) 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 8 9 Fam ily Swan
members met up that day, defendant reasons t hat the ir meeting

m ust have been serendipitous “happ enstance

. ” Whether they met up mere second s or long hours before starting their assault on the victim, the coordinated manner in which they stalked an d 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 inapp osite. ( People v. Tabizon (1958) 16 6 Cal.App.2d 271, 272

- 274 [presence in ro om containing narco tics
does not constitute suff icient evidence of dominion or control] ; In
re Elisabeth H. (1 971) 20 C a l.App.3d 323, 330

- 331 [same].) Second, defendant asserts that there was insufficient
evidenc e to show he was aware Cuevas had a gun, and thus
insufficient evidence that defendant knew of Cuevas’ s plan or
that he inte nded to kill. This assertion lac ks merit factually and20

legally. Factual ly, Cuevas drew the gun from his wa ist ban d immediately afte r 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 o ut the gun. Defendant had a gun of the same
make and model the ne xt 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 defendan t knew about the gun. ( People v. Kill e brew (2002) 103 Cal.App.4th 644,
657 ( Kill e brew ) [expert testimony regarding the “ ‘ culture and
habit s ’ ” of gangs is permissib le]; Olguin

, supra , 31 Cal.App.4th at p. 1371 [ testim ony about w ha t “gan g members typically expect” is

p ermissible]; Nguyen

, sup ra , 61 Cal. 4th at p. 1 055 [same]; cf.
Kill e brew

, 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.
199 9 ) 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
i ntended 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 t hat the gang e xpert’s testimony regarding a gang’s need to police i t s territo ry is irrelevant here
because the 89 Fami ly Swans gang had allowed a rival gang to operate the marijuana dispensary w ithin 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 less er 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 f rom 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. 92 4 [evidence that the defendants fled after the shooting was treated as an additional factor suggesting aiding and abetting liability].) Most importantly

, the manner in which22

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. Co rrection 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 repo rt, (3) complaint

, and (4)
information. Courts have an inh erent power, eve n on appeal, to correct clerical error s in recor ds so as to make these records ‘“reflect the true facts.’” ( People v. Mit chell (2001) 26 Cal.4th 181,

1 85.) Because the probation r eport and ab stract 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, r ule 4.411)

, we order those two document s 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 c opy of the corrected abstract of judgment and probation report to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affir med.
NOT TO BE PUBLISHED IN T HE OFFICIAL REPORTS

.

______________________, J.
HOFFSTADT

We concur :

_____________

____________, P. J.
LUI

_____ _______ _____________, J.
ASHMANN

- GERST