Filed 12 / 23 / 2 2 P. v. Lopez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This

opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEO PLE,

Plaintiff and Respondent,

v.

JOSUE BRAYN LOPEZ

,

Defendant and Appellant. B317628

Los Angeles County

Super. Ct. No. BA497696

APPEAL from a judgment of the Superior Court of Los

Angeles County, Ronald S. Coen , Judge. Affirmed with directions

. David Y. Stanley

, under appointment by the Court of

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey , Assistant

Attorney General, Scott A. Taryle and Stefanie Yee , Deputy

Attorney s Ge neral, for Plaintiff and Respondent.2 INTRODUCTION

Defendant Josue Br ay n Lopez (defendant) was convicted of

first degree murder as a direct aider and abettor. On appeal, h e

contends there was insufficient evidence of premeditation and

deliberation to suppor t his conviction

. He also claims that an

error in the abstract of judgment require s correction. We agree

that the abstract must be corrected, but we otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Rodriguez and Sanchez are murdered.

Selvin Martute was also known as Mr. Rodriguez and Little

Boy ; w e refer to him as Rodriguez. Danny Sanchez was also

known as Kevin Sanchez

, Gasparin, and Cornej o; w e refer to him

as Sanchez. Rodriguez and Sanchez were always together and

appeared to be best frien ds. They were members of Parkview

Locos , a clique of the MS

- 13 gang.

On April 3, 202 0

, Rodriguez and Sanchez were in an alley

behind Wi Spa , located at 2700 Wilshire Boulevard , which is in

MS

- 13 territory. A car drove up and two members of the 18 th

Street gang pinned Rodriguez against a fence and killed him.

Sometime after Rodriguez was killed, surveillance cameras

recorded defendant and three members of Parkview Locos on

bicycles arriving at Sanchez’s home, which was a tent or shed

with a blue tarp near Hoover Street and Carondelet Street. Video

footage showed them leaving on their bicycles about eight

minutes later.

On April 6, 2021 , Sanchez was found dead in his tent ; he

had a large amount of blood on his lap and pants area

. Sanch ez

had been stabbed 27 times and died from multiple sharp force

injuries to his organs, including his lungs and major arteries.3

2. Gang Evidence

MS

- 13 has three main “cliques” that operate in the

Rampart area of Los Angeles

— Rampart Locos, Parkview Locos,

and Coronado Locos. While each clique operates independently,

its members are friendly and work with each other as they are all

under the umbrella of MS

- 13. MS

- 13’s main rival is the 18th

Street gang.

Gangs have certain codes of conduct, and gang members

want to get “respect” from their peers and those in leadership

positions. MS

- 13 members are expected to look out for each other,

and running away from a conflict would be a sign of weakness.

When members of MS

- 13 encounter rivals, especially members of

18th St reet, they are expected to retaliate. It would be a sign of

weakness if an MS

- 13 member was unwilling to act violently

when confronted with a rival gang, and would signal to the rival

gang that there is an opportunity to move in and take over MS

- 13

territo ry. Such a display of weakness would put th e MS

- 13

member in danger and subject him to discipline within his o wn

gang for failing to abide by MS

- 13 ’s code of conduct. That

d iscipline might include assault ing the member with fists, bats,

or other blunt obje cts, and, at times, stabb ing and murder ing the

individual

. Each clique has a “shot caller

. ” The shot caller makes sure

the clique is maintaining the code of conduct and committing

crimes that benefit the gang. An MS

- 13 gang member with

multiple tattoos is “ not at the bottom of the totem pole; ” the

individual has “proven themselves” and “earned that respect to

obtain each tattoo.” It is sometimes necessary to involve members

of one clique in the discipline of another clique member to provide

oversight. MS

- 13 is very strict about its code of conduct and is4

willing to kill its own members to maintain order within the

gang.

3. The U ndercover O peration 1

On April 1 6, 2021, before he was interviewed by the police,

defendant was placed in a cell with an undercover agent who

wore a recording device. Police d etectives listened to the

conversation between defendant and the agent while it took

place.

Defendant was a membe r of the Coronado Locos clique. 2 He

knew Rodriguez because Rodriguez sometimes “kicked it” with

defendant ’s clique. A fter Rodriguez was murdered, some

individuals from Parkview Locos told defendant that Sanchez

had set Rodriguez up to be killed. In respon se, defendant asked

them , “[W]ell, what are you fools doing about it?” The Parkview

Locos individuals were “youngsters” who were “iffy” about what

they were doing. Defendant wanted to “go see what’s up” and talk

to Sanchez. He told the group they “should k now what’s up” and

“do what you got to do.” Defendant offered to go with the group to

help and provide back up.

Defendant told the undercover agent he knew the group

w as going to “whack” Sanchez because defendant and the

Parkview Locos were “turned up” and “were talking about

whacking [Sanchez] back.” Defendant knew the Parkview Locos

members “were gonna do something” and felt that someone from

1 Th e type of undercover operation conducted in this case is known as a

“ Perkins operation .” (See Illinois v. Perkins (1990) 496 U.S. 292.)

2 He has several gang tattoos including a tattoo of horns on the top of

his head, an “MS” tattoo on his cheek, and a huge tattoo of “MS” on his

chest.5

another clique should be present to say the discipline was

justified o r “legit.”

When they arrived at Sanchez’s tent, defendant sat down

next to Sanchez while the Parkview Locos group stood in front

and around them. Defendant and the others questioned Sanchez

about whether he had set Rodriguez up. Someone from Parkview

Locos took out a knife, and defendant tried to signal to Sanchez

that the individual wanted to stab and kill him. Parkview Locos

members looked to defendant for direction and advice, but he felt

any issue with Sanchez was a matter within their cli que

.

Defendant was just there to “scope it out to see like if it’s legit.”

Three individuals from Parkview Locos began stabbing

Sanchez, causing him to scream. Defendant covered Sanchez’s

mouth because he was making too much noise and defendant did

not want them to get caught. In response to being asked by the

agent if anyone was holding Sanchez down, defendant stated,

“Yeah, like it was me. Like I was going like this to him the whole

time.” At some point, Sanchez got up and ran or moved around.

The indi viduals from Parkview Locos continued “whack ing ”

Sanchez, so Sanchez sat back down. Defendant told the m that

Sanchez was making too much noise and defendant covered

Sanchez’s mouth “ again. ” Sanchez bit defendant ’s hand, causing

him to let go. Someone stabb ed Sanchez a final time and then

they left the tent. Defendant covered Sanchez , who was still

moving, with a blanket and left. Defendant had to change his

clothes because he “was covered in blood and shit.”

4. Defendant’s Police Interview

T en minutes after t he undercover operation was completed

,

two d etective s interviewed defendant

. He s aid he was 23 years

old and had been in the Coronado Locos clique of MS

- 13 since he6

was 12

. Defendant told the detectives he was angry when he

heard Rodriguez had been killed.

Defendant agreed to go to a meeting to confront Sanchez if

people needed his help. He was there to give his opinion as to

who was right and who was wrong, but he denied being a “shot

caller” for this meeting. Defendant sat next to Sanchez at the

meeting. The others began stabbing Sanchez and defendant

covered Sanchez ’s mouth but let go when he realized they really

were stabbing him , which defendant had not expected them to do.

Defendant told them to stop but the last person stabbed Sanchez

one more time. He could tell Sanchez was dying, and he felt bad

and put a blanket over him. If it had been up to defendant, he

would have told the group to stab Sanchez in the legs instead of

killing him. Defendant also told the detectives that if he had not

participated in Sanchez’s murder, he would have been labeled “a

snitch, a bitch” and endangered himself and his family. Indeed,

he would “probably [be] somewhere buried.”

5. Conviction and Sentencing

After a jury trial, defendant was found guilty of first degree

murder in violation of Penal Code section 187, subdivision (a) for

Sanchez’s murder

. 3 He was sentenced to a prison term of 25 years

to life.

DISCUSSION

1. Substantial evidence supports the murder conviction.

It is undisputed that defendant was prose cuted under a

direct aider and abettor theory. Consistent with that theory, the

3 All undesignated statutory references are to the Pen al Code.7

jury was instructed on aider and abettor culpability. The jury was

also instructed on the definitions of malice, and on first and

second degree murder. As noted, t he jury retur ned a verdict of

first degree murder

. Defendant contends the evidence is

insufficient to support his conviction because the only evidence of

h is specific intent was based on speculation from a gang expert

o n how gangs operate. We are not persuaded.

When th e sufficiency of the evidence to support a conviction

is challenged on appeal, we review the entire record in the light

most favorable to the judgment to determine whether it contains

evidence that is reasonable, credible, and of solid value from

which a r easonable trier of fact could find the defendant guilty

beyond a reasonable doubt. ( People v. Elliott (2012) 53 Cal.4th

535, 585.) O ur task is not to resolve credibility issues or

evidentiary conflicts, nor is it to inquire whether the evidence

might be reasonably reconciled with the defendant ’ s innocence.

( People v. Manibusan (2013) 58 Cal.4th 40, 92.) “ E vidence of a

defendant ’ s state of mind is almost inevitably circumstantial, but

circumstantial evidence is as sufficient as direct evidence to

support a conviction.” ( People v. Bloom (1989) 48 Cal.3d 1194,

1208.)

Murder is of the first degree when it is willful, deliberate

and premeditated. (§ 189, subd. (a).) A killing is premeditated

and deliberate if it is considered beforehand and occurred as the

resu lt of preexisting thought and reflection, rather than as the

product of an unconsidered or rash impulse. ( People v.

Pearson (2013) 56 Cal.4th 393, 443.) “ Deliberation ” refers to

careful weighing of considerations in forming a course of

action; “ premeditati on ” means thought over in advance. ( Ibid. )

Premeditation and deliberation do not require any extended8

period of time. ( People v. Salazar (2016) 63 Cal.4th 214, 245.) The

issue is not so much the duration of time as it is the extent of

reflection, because t houghts may follow each other with great

rapidity, and cold, calculated judgment may be arrived at quickly.

( People v. Potts (2019) 6 Cal.5th 1012, 1027.)

Three categories of evidence are especially probative to

establish premeditation and deliberation: (1 ) what was the

defendant doing before he committed the crime (planning

activity), (2) facts about the relationship between the victim and

the defendant (motive), and (3) the manner of killing. ( People v.

Potts, supra

, 6 Cal.5th at pp. 1027

– 1028; People v. Anderson

(1968) 70 Cal.2d 15, 26

– 27.) The so

- called Anderson factors are

not all required and are not exclusive; instead, they are a

framework to guide appellate review. ( People v. Morales (2020) 10

Cal.5th 76, 89.)

“ Aiders and abettors may still be convicted of first degree

premeditated murder based on direct aiding and abetting

principles. ( [ People v. ] McCoy [(2001)] 25 Cal.4th 1111, 1117

–

1118.) Under those principles, the prosecution must show that

the defendant aided or encouraged the commissi on of the murder

with knowledge of the unlawful purpose of the perpetrator and

with the intent or purpose of committing, encouraging, or

facilitating its commission. ( Id

. at p. 1118.) Because the mental

state component

— consisting of intent and knowledge

— ex tends to

the entire crime, it preserves the distinction between assisting

the predicate crime of second degree murder and assisting the

greater offense of first degree premeditated murder.

... An aider

and abettor who knowingly and intentionally assists a

co nfederate to kill someone could be found to have acted willfully,

deliberately, and with premeditation, having formed his own9

culpable intent. Such an aider and abettor, then, acts with the

mens rea required for first degree murder.” ( People v. Chiu (2014)

59 Cal.4th 155, 166

– 167.)

There is sufficient evidence in the record of planning,

motive, and manner of killing from which the jury could find that

defendant aided and abetted the Parkview Locos members in

murder ing Sanchez , and that defendant knew they intended to

kill and he shared that intent.

First, defendant and the Parkview Locos members had a

motive for kill ing Sanchez. MS

- 13 had a code of conduct

mandating that its members retaliate against rival gangs and

especially against 18th Street gang members. Discipline for

failing to uphold this code included assault, stabbing, and

murder. MS

- 13 was willing to kill its own members to maintain

order within the gang. Sanchez was murdered by members of his

own gang as discipline for setting Rodriguez up to be killed by

18th Street gang members, or for not retaliating when 18th

Street gang members murdered Rodriguez in MS

- 13 territory.

Defendant also admitted he got “mad” when he found out that

Rodriguez had been killed “by the enemies and shit.” And

defe ndant “was mad about how these fools were kind of iffy about

what they were d oing. ...”

Second, there was planning evidence. Defendant and

individuals from Parkview Locos met and discussed disciplining

Sanchez for Rodriguez’s murder. During their meeting before

Sanchez was killed, d efendant asked them , “[W]ell, what are you

fools doing about it?” Defendant then offered to go with the group

to help and provide back up when Sanchez was confronted

.

Defendan t also told the undercover agent he knew the group w as

going to “whack” Sanchez because defendant and the Parkview10

Locos were “turned up” and “were talking about whacking

[Sanchez] back.” Defendant felt that someone from another clique

should be present wh en they confronted Sanchez to say the

discipline was justified or “legit.”

Third, the manner of killing supported an inference of

premeditation and deliberation. Sanchez was cornered in his tent

by four people from his own gang. And with defendant’s help, the

Parkview Locos members stabbed Sanchez 27 times. ( See People

v. Sandoval (2015) 62 Cal.4th 394, 425 [ jury could reasonably

infer premeditation and deliberation when a weapon was fir ed 28

times over two minutes ].)

There was also strong evidence that defendant aided or

encouraged the commission of the murder and shared the

murderous intent of the actual perpetrators. ( See People v.

McCoy

, supra

, 25 Cal.4th at p. 1118.) As we discussed before,

d efendant told the undercover agent he knew the Parkview Locos

members w ere going to “whack” Sanchez because defendant and

the Parkview Locos were “turned up” and “were talking about

whacking [Sanchez] back.” And after they got to Sanchez’s tent,

d efendant covered Sanchez’s mouth because Sanchez was making

too much noise while he was being stabbed. In fact, defendant

said he held Sanchez down “the whole time.” D efendant also said

he brought a blindfold with him to Sanchez’s tent because he was

mad

. And defendant acknowledged that a Parkview Locos

member kept looking at defendant for direction when they were

in Sanchez’s tent.

Defendant relies on People v. Killebrew (2002) 103

Cal.App.4th 644

, for his assertion that expert testimony about

the general practices of gangs cannot be used to establish a

defendant ’ s mens rea

. D efendant’s interpretation of its holding is11

overbroad. Killebrew does not generally prohibit such testimony;

rather, the reviewing court concluded that in view of the facts

and circumstances of that case, the expert ’ s opinion about the

defendant ’ s subjective knowledge and intent was inadmissible.

Notably, the expert’s testimony in Killebrew was the only

evidence offered by the prosecution to establish the elements of

the crime. “ As such, it [was] the type of opinion that did nothing

more than inform the jury how [the expert] believed the case

should be decided. It was an improper opinion on the ultimate

issue and should have been excluded.” ( Id. at p. 658.)

Here, in contrast to Killebrew , the evidence of defendant’s

intent to help kill Sanchez was not based solely on the gang

expert’s testimony. As explained by the Attorney General,

defendant’s mental state was established through his “own

admissions and the circumstances of Sanchez’s dea th, in addition

to the gang expert testimony that gave context to the gang

undertones.” 4 We also observe that defendant has not pointed us

to the specific expert testimony that was objectionable, or shown

that he preserved the issue by objecti ng to the te stimony at trial.

Th is argument is

, therefore, deemed forfeited. (See People v.

Perez (2020) 9 Cal.5th 1, 7 [ ordinarily, the failure to object to the

admission of expert testimony at trial forfeits an appellate claim

that such evidence was improperly admitted].)

In sum, s ubstantial evidence supports defendant’s first

degree murder conviction as a direct aider and abettor.

4 By way of example , the gang expert testified that he believed the

attack on Sanchez was planned based on defendant’s statements

during the undercover operation.12

2. The abstract of judgment should be corrected.

Defendant also argues, and the Attorney General concedes,

that the abstract of judgment must be corrected to remove a

checkmark in the box indicating that sentencing occurred

pursuant to “ PC 667(b)

- (i) or PC 1170.12, ” that is, under the

Three Strikes law. As defendant points out, no prior conviction

for a serious or violent felon y was pled or proven, and he was not

sentenced under the Three Strikes law. We therefore agree that

the abstract must be corrected to remove the checkmark in box

N o. 8.13 DISPOSITION

The judgment is affirmed. The trial court is directed

to correct the abstract of judgment by remov ing the checkmark in

box N o. 8 indicating that defendant was sentenced under the

Three Strikes law and to ensure that a certified cop y of the

corrected abstract is sent to the Department of Corrections and

Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.