Filed 12/23/22 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

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 

Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Defendant Josue Brayn Lopez (defendant) was convicted of 

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

contends there was insufficient evidence of premeditation and 

deliberation to support his conviction. He also claims that an 

error in the abstract of judgment requires 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; we refer to him as Rodriguez. Danny Sanchez was also 

known as Kevin Sanchez, Gasparin, and Cornejo; we refer to him 

as Sanchez. Rodriguez and Sanchez were always together and 

appeared to be best friends. They were members of Parkview 

Locos, a clique of the MS-13 gang.

On April 3, 2020, 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 18th 

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. Sanchez 

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 Street, 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 

territory. Such a display of weakness would put the MS-13 

member in danger and subject him to discipline within his own 

gang for failing to abide by MS-13’s code of conduct. That 

discipline might include assaulting the member with fists, bats, 

or other blunt objects, and, at times, stabbing and murdering 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 is
4

willing to kill its own members to maintain order within the 

gang.

3. The Undercover Operation1

On April 16, 2021, before he was interviewed by the police, 

defendant was placed in a cell with an undercover agent who 

wore a recording device. Police detectives listened to the 

conversation between defendant and the agent while it took 

place.

Defendant was a member of the Coronado Locos clique.2 He 

knew Rodriguez because Rodriguez sometimes “kicked it” with 

defendant’s clique. After Rodriguez was murdered, some 

individuals from Parkview Locos told defendant that Sanchez 

had set Rodriguez up to be killed. In response, 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 know 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

was 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 The 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 or “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 clique.

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 individuals from Parkview Locos continued “whacking”

Sanchez, so Sanchez sat back down. Defendant told them 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 stabbed 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 

Ten minutes after the undercover operation was completed, 

two detectives interviewed defendant. He said he was 23 years 

old and had been in the Coronado Locos clique of MS-13 since he 
6

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 “shotcaller” 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 prosecuted under a 

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

3 All undesignated statutory references are to the Penal 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, the jury returned a verdict of 

first degree murder. Defendant contends the evidence is 

insufficient to support his conviction because the only evidence of 

his specific intent was based on speculation from a gang expert 

on how gangs operate. We are not persuaded.

When the 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 reasonable trier of fact could find the defendant guilty

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

535, 585.) Our 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.) “Evidence 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

result 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; “premeditation” means thought over in advance. (Ibid.)

Premeditation and deliberation do not require any extended
8

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 thoughts 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 commission 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—extends 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 

confederate to kill someone could be found to have acted willfully, 

deliberately, and with premeditation, having formed his own 
9

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 

murdering 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 killing 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 

defendant “was mad about how these fools were kind of iffy about 

what they were doing. ...”

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, defendant 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.

Defendant also told the undercover agent he knew the group was

going to “whack” Sanchez because defendant and the Parkview 
10

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

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

should be present when 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 fired 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, 

defendant told the undercover agent he knew the Parkview Locos 

members were 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, 

defendant 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.” Defendant 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. Defendant’s interpretation of its holding is
11

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 death, 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 objecting to the testimony at trial. 

This 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, substantial 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 felony 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 

No. 8.
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DISPOSITION

The judgment is affirmed. The trial court is directed 

to correct the abstract of judgment by removing the checkmark in 

box No. 8 indicating that defendant was sentenced under the 

Three Strikes law and to ensure that a certified copy 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.