1

Filed 5/3/23 P. v. Tillman CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW LEE TILLMAN,

Defendant and Appellant.

E078605

(Super.Ct.No. RIF72212)

OPINION

APPEAL from the Superior Court of Riverside County. Sean P. Crandell, Judge. 

Affirmed.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, Anthony DaSilva and Steve 

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
2

In 1996, defendant and appellant Andrew Lee Tillman was the driver of the vehicle 

in which the front seat passenger, Daniel Marcus Carter (codefendant), used a shotgun to 

shoot at the victims, killing one. In 1999, a jury convicted defendant of first degree

murder (as an aider and abettor) and found that he was a principal armed with a firearm

and, as a principal and an aider and abettor, he discharged a firearm from a motor vehicle 

with the intent to inflict death. (Pen. Code,1 §§ 187, subd. (a); 12022, subd. (a)(1); 190.2, 

subd. (a)(21).) He was sentenced to a total indeterminate term of one year in state prison, 

plus life without the possibility of parole.

On August 17, 2021, defendant filed a petition for resentencing pursuant to section 

1172.6 (former § 1170.95).2 Counsel was appointed, the issue was briefed, and two 

separate hearings were held. The superior court denied the petition on the grounds it 

failed to state a prima facie case. The court reasoned that the jury instructions for the 

special circumstance required the jury to find that defendant had the intent to kill; the 

jury’s verdict found he had the intent to kill; and the jury’s finding was upheld on appeal.

Defendant appeals, contending the superior court erroneously denied his petition 

at the prima facie stage based on the jury’s verdicts without determining whether the jury 

was properly instructed. Because the record of conviction establishes defendant’s 

ineligibility for resentencing relief as a matter of law, we affirm.

1

 All further statutory references are to the Penal Code unless otherwise indicated.

2

 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) 

amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, 

ch. 58, § 10.) The current section numbering will be used throughout this opinion.
3

I. PROCEDURAL BACKGROUND AND FACTS

A. Defendant’s Convictions.

During late fall of 1996, members of the Elsinore Young Classic (EYC) shot at 

defendant’s home on North Lindsay Street in Lake Elsinore, causing a feud between EYC 

and defendant (including his friends). In early December, one of defendant’s friends 

brought a “bolt action .30 aught 6 rifle” with a scope to defendant’s home for his 

protection in the event of additional shootings. 

On December 12, 1996, defendant hosted a “get together,” which began at his house 

but later moved to his grandfather’s house across the street. Many of defendant’s friends, 

including codefendant, attended. One friend brought the rifle. During the party, defendant 

borrowed his girlfriend’s car. He left with codefendant and Rene Canales but returned 

about five to 10 minutes later. Defendant left again with codefendant, who sat in the front 

passenger seat, and Canales, Gabriel Adame, and Julius Cheek, who sat in the back. They 

left to purchase alcohol. Another witness testified that the group left in the car because 

they had seen some “Latinos.” Defendant told his girlfriend that he “wasn’t going to do 

anything stupid.”

As they were driving, they saw three people (Frances Rios, Vicky Sanchez,

3 and 

Alonzo Escobar) at the corner of Main and Summer in Lake Elsinore. At codefendant’s 

request, defendant pulled up to them, and codefendant said, “‘You from EYC, homey? 

You from EYC? What’s your name? What’s your name?’” One of the females 

3

 We note that Ms. Sanchez’s first name is spelled differently (Vicky, Vickie, 

Vicki) throughout the record.
4

responded, “‘Just leave us alone. Get away.’” Codefendant said to the guys in the car, 

“‘See that ese. See that ese.’”

4

 At codefendant’s request, defendant made a turn and 

pulled up into the parking lot of a closed gas station and stopped the car. Codefendant

asked, “‘What are you going to do now?’” He then pointed the rifle out the window, 

shot, and killed Sanchez.5 He reloaded the rifle and fired a second shot, which grazed 

Rios’s hair. After the second shot, defendant sped off and returned to his grandfather’s 

house. When asked how defendant looked after the shooting, Canales said, “He was just 

in shock.”

Back at defendant’s grandfather’s house, approximately five to 10 minutes after 

defendant drove away, his girlfriend and others heard gunshots. When defendant, 

codefendant, and the three other young men returned to the house, codefendant excitedly 

bragged about shooting Sanchez: “‘I shot somebody.’” “‘I got one of them.’” “‘Oh, I 

shot that ese. I shot him. I shot him. Did you see him fall? Did you see him fall? Boy, 

that’s a rush.’”

On May 13, 1999, a jury convicted defendant and codefendant of first degree 

murder. (§ 187.) Defendant was convicted as an aider and abettor. The jury found true 

the allegation that he was a principal armed with a firearm, and the special circumstance 

that, “as a principal, and aider and abettor, intentionally discharged a firearm from a 

4

 “The EYC gang name is pronounced ‘ese,’ the Spanish phonetic pronunciation 

of the letters ‘e’ and ‘c.’ An EYC gang member is thus called an ‘ese.’” 

5

 Defendant was 18 years old at the time of the shooting.
5

motor vehicle with the intent to inflict death.” (§§ 12022, subd. (a)(1), 190.2, subd. 

(a)(21).) The jury also found true the allegation that codefendant personally used a 

firearm in the commission of the offense, and the special circumstance that the killing 

was committed intentionally by discharging a firearm from a motor vehicle. (§§ 12022.5, 

190.2, subd. (a)(21).) The trial court sentenced defendant to a one-year term in state 

prison for the personal use of a firearm and a consecutive term of life without the 

possibility of parole.

On direct appeal, this court affirmed the judgment, concluding, inter alia, that 

sufficient evidence demonstrated defendant’s intent to kill. (See People v. Carter et al.

(Sept. 8, 2000, E025621) [nonpub. opn.].)

B. Defendant’s Petition for Habeas Corpus.6

On September 1, 2020, defendant filed a petition for writ of habeas corpus in this 

court, claiming there was insufficient evidence to support the special circumstance 

finding because there was a lack of evidence that he was a major participant in the crime 

and that he acted in reckless disregard for human life. (In re Tillman, supra, E075619.) 

This court summarily denied the petition, reasoning that defendant’s special 

circumstances enhancement was based on section 190. 2, subdivision (a)( 21), which 

requires a finding of intent to kill; thus, the question of whether defendant was a major 

participant who acted with reckless disregard for human life is irrelevant, and the cases of 

6

 On July 7, 2022, we granted defendant’s unopposed request for judicial notice 

of his petition for habeas corpus in In re Tillman (Sept. 23, 2020, E075619). (Evid. 

Code, §§ 452, subd. (d), 459.)
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People v. Banks (2015) 61 Ca1.4th 788 and People v. Clark (2016) 63 Cal.4th 522 do not 

apply.

C. Defendant’s Petition for Resentencing.

On September 24, 2021, defendant filed a petition for resentencing under 

section 1172.6. After appointing counsel, receiving briefing, and holding two separate 

hearings, the superior court denied the petition on grounds it failed to state a prima facie 

case. The court reasoned that the jury instructions for the special circumstance required 

the jury to find that defendant had the intent to kill; the jury’s verdict likewise found he 

had the intent to kill; and this court’s decision on direct appeal also found that defendant

had the intent to kill.

II. DISCUSSION

Defendant contends the superior court improperly denied his section 1172.6 

petition without conducting an evidentiary hearing. He argues his eligibility for relief 

based on the jury instructions that allowed the jury to reach its verdict “by finding [he] 

intended to aid and abet a shooting from a vehicle without a direct intent to kill anyone 

but with reckless indifference to whether such a shooting was dangerous.” He asserts 

that this is not a valid theory of murder because it does not require malice and it does not 

require an actus reus of intentionally aiding and abetting a killing. As we explain, we 

reject his contention.

“A person convicted of felony murder or murder under the natural and probable 

consequences doctrine or other theory under which malice is imputed to a person based 

solely on that person’s participation in a crime, attempted murder under the natural and 
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probable consequences doctrine, or manslaughter may file a petition with the court that 

sentenced the petitioner to have the petitioner’s murder . . . conviction vacated and to be 

resentenced.” (§ 1172.6, subd. (a).) The petition must allege the petitioner was 

(1) charged with one of the enumerated crimes under a theory of felony murder, murder 

under the natural and probable consequences doctrine, or other theory under which 

malice is imputed to a person based solely on that person’s participation in a crime, or 

attempted murder under the natural and probable consequences doctrine; (2) convicted of 

murder or attempted murder or manslaughter; and (3) the petitioner could not presently 

be convicted of murder or attempted murder because of changes to sections 188 or 189

(Stats. 2018, ch. 1015, §§ 2, 3) made effective January 1, 2019. (§ 1172.6 subd. (a)(1), 

(2), (3).)

Where the petition complies with the three requirements, the superior court 

proceeds to section 1172.6, subdivision (c), to assess whether the petitioner has made “a 

prima facie showing” for relief. (See People v. Lewis (2021) 11 Cal.5th 952, 960.) 

“[T]he prima facie inquiry . . . is limited. . . . ‘“[T]he court takes petitioner’s factual 

allegations as true and makes a preliminary assessment regarding whether the petitioner 

would be entitled to relief if his or her factual allegations were proved. If so, the court 

must issue an order to show cause.”’ [Citations.] ‘[A] court should not reject the 

petitioner’s factual allegations on credibility grounds without first conducting an 

evidentiary hearing.’” (Lewis, at p. 971.) At the prima facie hearing, the court may 
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consider the record of conviction.7 (Ibid.) “If the petition and record in the case establish 

conclusively that the defendant is ineligible for relief, the [superior] court may dismiss 

the petition.” (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).)

Section 189, as amended, limits liability under a felony-murder theory principally 

to “actual killer[s]” and those who, “with the intent to kill,” aid or abet “the actual killer 

in the commission of murder in the first degree.” (§ 189, subd. (e)(1), (2).) “Defendants 

who were neither actual killers nor acted with the intent to kill can be held liable for 

murder only if they were ‘major participant[s] in the underlying felony and acted with 

reckless indifference to human life, as described in subdivision (d) of [Penal Code] 

Section 190.2’—that is, the statute defining the felony-murder special circumstance.” 

(Strong, supra, 13 Cal.5th at p. 708; see § 189, subd. (e)(3).)

The superior court is not required to issue an order to show cause and conduct an 

evidentiary hearing unless a defendant makes a prima facie showing that he or she could 

not be convicted of murder after the statutory amendments to sections 188 and 189. In 

7

 However, this does not include our appellate opinion. “[T]he factual summary 

in an appellate opinion is not evidence that may be considered at an evidentiary hearing 

to determine a petitioner’s eligibility for resentencing. [Citation.] If such evidence may 

not be considered at an evidentiary hearing to determine a petitioner’s ultimate eligibility 

for resentencing, we fail to see how such evidence could establish, as a matter of law, a 

petitioner’s ineligibility for resentencing at the prima facie stage.” (People v. Flores

(2022) 76 Cal.App.5th 974, 988; see People v. Clements (2022) 75 Cal.App.5th 276, 292 

[“[E]ffective January 1, 2022, the Legislature limited use of prior appellate opinions . . . . 

[T]rial judges should not rely on the factual summaries contained in prior appellate 

decisions when a section [1172.6] petition reaches the stage of a full-fledged evidentiary 

hearing.”].)
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the present case, defendant failed to make such a showing because the record of 

conviction establishes the jury found that defendant harbored an intent to kill.

The information charged defendant with murder, alleged that his codefendant 

personally used a firearm and that the intentional killing was perpetrated by means of 

discharging a firearm from a motor vehicle, within the meaning of section 190.2, 

subdivision (a)(21). The trial court instructed the jury with CALJIC No. 3.00, which 

defined principals and aiders and abettors: “Persons who are involved in committing a 

crime are referred to as principals in that crime. Each principal, regardless of the extent 

or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly 

and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the 

commission of the crime.” The court also instructed the jury on aiding and abetting 

liability with CALJIC No. 3.01: “A person aids and abets the commission of a crime 

when he or she, [¶] (1) with knowledge of the unlawful purpose of the perpetrator and [¶] 

(2) with the intent or purpose of committing or encouraging or facilitating the 

commission of the crime, and [¶] (3) by act or advice aids, promotes, encourages or 

instigates the commission of the crime . . . .”

The trial court instructed the jury on the natural and probable consequences 

doctrine with CALJIC No. 3.02. The court told jurors that, to find defendant guilty of 

murder, they had to find the crime of murder was committed, defendant aided and abetted 

the commission of the crime of shooting from a vehicle, and the murder was a natural and 
10

probable consequence of the commission of the crime of shooting from a vehicle.8 The 

court also instructed on the elements of murder (CALJIC No. 8.10), the definition of 

malice (CALJIC No. 8.11), the elements of murder perpetrated by means of discharging a 

firearm from a motor vehicle with the intent to inflict death (CALJIC No. 8.25.1), and the 

requirements for a true finding on the allegation a principal was armed with a firearm

(CALJIC No. 17.15). And the court gave CALJIC No. 8.80.1, which defined the special 

circumstance allegation under section 190.2, subdivision (a)(21): “If you find a 

defendant in this case guilty of murder of the first degree, you must then determine if the 

following special circumstance is true or not true: Intentional discharge of a firearm from 

a motor vehicle. [¶] The People have the burden of proving the truth of a special 

circumstance. If you have a reasonable doubt as to whether a special circumstance is 

true, you must find it to be not true. [¶] If you find that a defendant was not the actual 

killer of a human being, or if you are unable to decide whether the defendant was the 

actual killer or an aider and abettor, you cannot find the special circumstance to be true as 

8

 “One who aids and abets another in the commission of a crime is not only guilty

of that crime, but is also guilty of any other crime committed by a principal which is a 

natural and probable consequence of the crime originally aided and abetted.

“In order to find the defendant guilty of the crime of murder, as charged in 

Count I, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime of 

murder was committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That 

a co-principal in that crime committed the crime of shooting from a vehicle; and [¶] 

4. The crime of murder was a natural and probable consequence of the commission of the 

crime of shooting from a vehicle.

“You are not required to unanimously agree as to which originally contemplated

crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable 

doubt and unanimously agree that the defendant aided and abetted the commission of an 

identified and defined target crime and that the crime of murder was a natural and 

probable consequence of the commission of that target crime.” (CALJIC No. 3.02.)
11

to that defendant unless you are satisfied beyond a reasonable doubt that such defendant 

with the intent to kill aided, abetted, or assisted any actor in the commission of the 

murder in the first degree, or with reckless indifference to human life and as a major 

participant, aided, abetted, or assisted in the commission of the crime of first degree 

murder which resulted in the death of a human being, namely Vicky Sanchez. [¶] A 

defendant acts with reckless indifference to human life when that defendant knows or is 

aware that his acts involve a grave risk of death to an innocent human being. . . .” The 

court did not instruct on the felony-murder rule.

Consistent with the jury instructions, the trial prosecutor emphasized that the case 

involved a drive-by shooting. After discussing the elements of murder and the 

requirements for the jury to find the perpetrators acted with malice, he argued that

defendant was liable as a principal who aided and abetted the killing, and because he was 

necessary as the driver of the car. The prosecutor then stated, “[I]f you do conclude . . . 

that drive-by murder in the first degree applies, and you all vote guilty that [defendant is] 

guilty of first-degree murder based upon the drive-by shooting then you go to the special 

circumstance.” He explained the special circumstance allegation under section 190.2, 

subdivision (a)(21): “It must be proved that the murder was perpetrated by means of 

discharging a firearm from a motor vehicle; two, that the perpetrator intentionally 

discharged the firearm at another person or persons outside the vehicle, and; three, the 

perpetrator at the time he, in this case, discharged the firearm, intended to inflict death. 

[¶] . . . [¶] It also applies to [defendant] when you apply the aider and abetter statute. If 
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[defendant] had the same intent as [codefendant], then [defendant] is just as guilty as 

[codefendant].” 

In response, defense counsel argued: “There really is no solid, no concrete, no 

reliable evidence of proof beyond a reasonable doubt that [defendant] knew that 

[codefendant] was going to shoot Ms. Sanchez, and that [defendant] knew that 

[codefendant] was going to kill Ms. Sanchez.” Counsel noted that witnesses’ 

descriptions of defendant after the shooting as being “in a state of shock,” “sad,” “upset,” 

and “not himself,” are sufficient to create reasonable doubt. He argued the “essence of 

the government’s case” is that defendant is guilty because he is the driver. Defense 

counsel added that witness testimony—just before the shooting, defendant was going to 

leave and continue on with the original plan of going to purchase alcohol—shows that 

defendant “didn’t know that [the shooting] was going to happen.” 

In rebuttal, the prosecutor argued defendant’s actions fail to support an assertion 

of ignorance. Counsel pointed out that defendant initially left the party to purchase 

alcohol, but returned shortly thereafter, picked up other friends, drove in a pattern that 

was not a direct route to a liquor store, pulled into the gas station, and stopped. At the 

gas station, codefendant pulled out the rifle, fired the first round, then fired a second 

round, before defendant sped off. The prosecutor argued that under those circumstances, 

it is reasonable that defendant “knew, and they all knew, that that rifle was in the car. 

[Codefendant] pulled out the rifle. And between the time that [defendant] saw 

[codefendant] with the rifle, a few seconds went by. Five seconds; that’s a long time 

under those circumstances. And then the first shot. High-powered 30.06 rifle. Boom. 
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Bolt-action rifle. [¶] The seconds tick away as [defendant] drives away. No. Does he 

stay right there? Yes, so that [codefendant] can fire another round at the strangers in the 

street. After the second round was fired, they drive away.” In closing, the prosecutor

asserted: “[T]he overwhelming amount of evidence shows that [codefendant] was in the 

passenger seat, that he fired that rifle out the window, that [defendant] was the driver. 

Guilty of drive-by murder in the first degree, and they’re guilty of the special 

circumstances.”

The jury’s true finding under section 190.2, subdivision (a)(21), that defendant

“did, as a principal, and aider and abettor, intentionally discharge a firearm from a motor 

vehicle with the intent to inflict death” necessarily means the jury found defendant acted 

with the intent to kill. If he acted with the intent to kill, defendant is not eligible for relief 

under section 1172.6. (§ 189, subd. (e); see Strong, supra, 13 Cal.5th at p. 710 [“Senate 

Bill 1437 relief is unavailable if the defendant was either the actual killer, acted with the 

intent to kill, or ‘was a major participant in the underlying felony and acted with reckless 

indifference to human life.’”].) 

The jury’s true finding on the drive-by murder special circumstance allegation 

means the jury could not have convicted defendant of murder under the natural and 

probable consequences doctrine. Rather, by finding defendant had the intent to kill, the 

jury in effect found him guilty of murder as a direct aider and abettor. (Cf. People v. 

Medrano (2021) 68 Cal.App.5th 177, 183-184 [“By convicting appellant of conspiracy to 

commit first degree murder,” the jury “in effect found that appellant was a direct aider 

and abettor of the killings” because the jury instruction required the jury to find he acted 
14

“‘with the specific intent to agree to commit . . . first degree murder and with the further 

specific intent to commit such offense.’”].) This satisfies the amended provisions of the 

statutes as they apply to a person convicted of murder where he or she was not the killer. 

Because the jury did not impute malice to defendant and convict him under a no-longer 

valid theory, he can “presently be convicted of murder” (§ 1172.6, subd. (a)(3)), 

notwithstanding changes to §§ 188 or 189. (See People v. Mancilla (2021) 

67 Cal.App.5th 854, 864, 867-868 [defendant was “ineligible for relief under section 

[1172.6] as a matter of law” because the jury did not convict him under a theory of 

liability affected by the 2019 amendments to the law of murder]; People v. Bentley

(2020) 55 Cal.App.5th 150, 154 [special circumstance finding under § 190.2, 

subd. (a)(21), incorporated finding of intent to kill, rendering a defendant ineligible for 

relief under § 1172.6].)

Defendant’s reliance on People v. Pacheco (2022) 76 Cal.App.5th 118 (Pacheco)

9

is misplaced. “Pacheco is inapplicable to the case before us because its analysis is 

limited to the issue of the preclusive effect of the jury’s true finding of the gang special 

circumstance allegation. [Citation.] In a footnote, the Pacheco court is clear that it did 

not consider any potential argument that the jury’s first degree murder finding 

9

 “On May 18, 2022, our Supreme Court granted review in Pacheco, supra, 

76 Cal.App.5th 118 (S274102) but has deferred further action pending disposition 

of People v. Curiel (Nov. 4, 2021, G058604 [nonpub. opn.]), review granted January 26, 

2022, S272238 [lead case], which presents the following issue: ‘Does a jury’s true 

finding on a gang-murder special circumstance (Pen. Code, § 190.2, subd. (a)(22)) 

preclude a defendant from making a prima facie showing of eligibility for resentencing 

under Penal Code section [1172.6]?’” (People v. Williams (2022) 86 Cal.App.5th 1244, 

1252, fn. 10.)
15

(premeditation and deliberation) or the related jury instruction (CALCRIM No. 521 [first 

degree murder instructions]), caused Pacheco to be ineligible for relief under section 

1172.6 as a matter of law. [Citation.]

“In Pacheco, [the defendant] and other gang members jumped two people; one 

victim died and the other survived. [Citation.] [The defendant] was convicted of first 

degree murder as an aider and abettor, attempted murder, and gang participation. 

[Citation.] The jury also found true a gang special circumstance allegation. [Citation.] 

The jury was instructed on aiding and abetting a crime (which would include murder) 

(CALCRIM No. 401) and aiding and abetting a murder under the natural and probable 

consequences theory. [Citation.] The jury was also instructed that in order to find the 

gang special circumstance to be true, the People had to prove: ‘“1. A perpetrator

intentionally killed [the victim]; [¶] 2. At the time of the killing, the defendant was an 

active participant in a criminal street gang; [¶] 3. The defendant knew that members of 

the gang engage in or have engaged in a pattern of crim[inal] gang activity; [¶] 4. The 

murder was carried out to further the activities of the criminal street gang; [¶] AND [¶] 

5. The defendant had the intent to kill at the time of the killing.” (CALCRIM No. 736, 

italics added.)’ [Citation.]

“The appellate court reversed the trial court’s summary denial of [the defendant’s] 

section 1172.6 petition as the jury’s true finding on the gang special circumstance 

allegation did not render [the defendant] ineligible for relief under section 1172.6 as a 

matter of law. [Citation.] The Pacheco court explained as follows: ‘[T]he jury’s true 

finding on the gang special circumstance certainly establishes [the defendant] intended to 
16

kill [the victim] at the time of his killing (the mens rea). But the gang circumstance 

instruction does not establish—as a matter of law—that Pacheco directly aided and 

abetted the killing of [the victim] (the actus reus).’ [Citation.] ‘Therefore, the jury could 

have potentially found [the defendant] intended to kill [the victim] under the gang special 

circumstance enhancement (the mens rea), but under the natural and probable 

consequence theory, [the defendant] only actually aided and abetted the nontarget crime 

of disturbing the peace (the actus reus).’ [Citation.]

“In sum, Pacheco is inapplicable to the case before us. Unlike in Pacheco, [here,] 

the record of conviction conclusively demonstrates the jury could not have considered the

driveby shooting special circumstance allegation without first finding that [the defendant]

was guilty of first degree murder, as either a perpetrator or direct aider and abettor, 

thereby rendering him ineligible for section 1172.6 relief as a matter of law. And it is 

that argument that we find dispositive.” (People v. Williams, supra, 86 Cal.App.5th at 

pp. 1257-1258.)10

10

 Moreover, the record demonstrates defendant was an active participant in the 

drive-by shooting. After leaving the party for a few minutes, he briefly returned, left a 

second time to drive around the streets until they found an individual whom they believed 

to be a member of EYC. Defendant then pulled the car into the gas station and positioned 

it to enable each shooting to take place. He waited for codefendant to fire two separate 

shots, then sped off, instead of rendering aid. This circumstantial evidence sufficiently 

showed that defendant knew codefendant intended to shoot the victims, and defendant 

shared the intent to kill them. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054; see 

People v. White (2014) 230 Cal.App.4th 305, 319 [in determining the state of mind of the 

aider and abettor, the “existence of the requisite knowledge may be established by 

circumstantial evidence”].)
17

III. DISPOSITION

The postjudgment order denying defendant’s petition for resentencing under 

section 1172.6 is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.