Filed 1/18/23

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RUBEN SILVA, JR.,

Defendant and Appellant.

F083248

(Super. Ct. No. CRM005996A)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. 

Hansen, Judge. (Retired Judge of the Merced Super. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.)

Solomon Wollack, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ross 

K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with exception of the Factual Background and part III. of the 

Discussion.
2.

INTRODUCTION

Petitioner Ruben Silva, Jr., petitioned the superior court, pursuant to former 

section 1170.95 (now § 1172.6) of the Penal Code,1for resentencing on his conviction 

for second degree murder. The superior court held an evidentiary hearing (§ 1172.6, 

subd. (d)(1)) and denied the petition after finding petitioner was guilty of murder under 

an implied malice theory. 

On appeal, petitioner argues the order denying the petition must be reversed 

because Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) eliminated 

implied malice as a valid theory of murder liability for aiders and abettors and, in any 

event, substantial evidence did not support a finding petitioner acted with implied malice. 

We affirm.

FACTUAL BACKGROUND*

Briefly stated, Bill James was fatally stabbed on November 6, 2009, during an 

altercation with members of the Mongols motorcycle club, including petitioner. The 

following evidence was adduced at petitioner’s trial.2 

I. The Mongols

Extensive testimony was presented at trial regarding the Mongols, their 

organizational structure, and their criminal activities. 

Montebello Police Sergeant C. Cervantes testified as an expert on the Mongols. 

Cervantes was assigned to a federal Bureau of Alcohol, Tobacco, Firearms and 

1 Undesignated statutory references are to the Penal Code. Former section 

1170.95 recently was renumbered section 1172.6, with no change in text. (Stats. 2022, 

ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion.

* See footnote, ante, page 1.

2 Our factual summary is derived from the reporter’s transcript from petitioner’s 

direct appeal (F064330). The clerk’s and reporter’s transcripts from petitioner’s direct 

appeal were lodged in the superior court and subsequently filed in this court as part of the 

record on appeal. We additionally took judicial notice of the record on appeal in case 

No. F064330. 
3.

Explosives (ATF) task force in Los Angeles called the “One-Percenter Task Force,” 

which investigates outlaw motorcycle gangs. Cervantes explained, “The term onepercenter was defined by the American Motorcycle Association years back and in 

defining the term they suggested that 99 percent of American motorcyclist[s] are law 

abiding,” while “[t]he other one percent are outlaws.” He identified the Mongols as a 

“one-percenter gang.” 

Beginning in 2005, Cervantes was a case agent for an approximately four-yearlong investigation called “Operation Black Rain,” which involved infiltration of the 

Mongol gang by undercover agents. The infiltration involved three undercover ATF 

agents in a Mongol chapter in Los Angeles and one undercover ATF agent in a Mongol 

chapter in Las Vegas, all of whom became “full Mongol members.” During this time, the 

Mongols had four to five hundred members. However, at the time of trial, Cervantes 

estimated there were probably 250 to 300 Mongol members. 

Cervantes explained there are two ways to join the Mongols, the first and most 

respected of which is to “prospect in.” A person begins this process by “hang[ing] 

around loosely at parties and some other events,” then gaining “100 percent approval” to 

come into a particular chapter. Upon gaining such approval, the individual is given a 

“bottom rocker,” which is “the most important identifier . . . as it identifies the state 

name.” The bottom rocker is placed on a black riding vest, and a tab that says “prospect” 

is placed on the front of the vest to identify the individual as prospecting. During this 

phase, prospects may be given simple tasks, such as running errands, or may carry drugs 

or guns. However, the “most important job” for a prospect is to provide security at 

Mongol events, parties, or meetings. After a period of time, a prospect will be given a 

center patch bearing a caricature of Genghis Khan on a motorcycle, “which is the Mongol 

emperor.” During this period, the individual may be tasked with similar duties as during 

the initial prospecting phase. Eventually, when the individual becomes a full member, 

they receive the “top rocker,” which is the “most important one” and bears the name 
4.

“Mongols.” Becoming a full member also requires a “100 percent vote.”3 All the 

undercover ATF agents involved in Operation Black Rain “prospected in.” 

Cervantes explained that the Mongols are configured by chapters, all of which are 

governed by the “Mother Chapter” in Southern California, which is governed by the

national president. If individual chapters have issues they cannot work out amongst 

themselves, those issues are taken to the national chapter. The Mongols have a 

constitution, which does not “elude to criminal activity.” However, a prior, 2002 edition

of the constitution did include criminal protocols and, according to Cervantes, an attorney 

for the Mongols had that material removed. The Mongols also have a fight song, which 

is recited at a variety of events and gatherings, as follows: 

“We’re Mongol raiders, we’re raiders of the night. We’re dirty sons of 

bitches. We rather fuck and fight. [¶] . . . [¶] We castrate our enemies 

with a dirty piece of glass and shove our rusty buck knives up their fucking 

ass. [¶] . . . [¶] Hidy hidy christ almighty who the fuck are we. Shit, fuck, 

cunt, suck, Mongols MC.” 

Cervantes also described a document called “Simple Protocol,” which describes 

how Mongols “would like to see themselves behave.” One part of the document states, 

“Always pay attention and be alert. Carry yourself as though you are at war.” Cervantes 

explained that the Mongols have rivals, the “most bitter and probably bloody” being the 

Hells Angels. Cervantes explained this rivalry had continued for “many years” and 

“many members on both sides have died” in violent confrontations in Northern and 

Southern California. Another part of the protocol provides: “If you get arrested never 

give a statement of any kind. Don’t make the stupid mistake of lying to talk your way 

out of jail. All you’ll end up doing is telling on yourself or implicating Brothers or 

3 The second way to join the Mongols is “probating in.” In this process, a probate 

member receives all three patches at once, as well as a “diamond ‘P’ ” for the front of the 

vest. The individual remains on probation for a year. This process is allowed when there 

is a need to increase membership numbers quickly. 
5.

someone else. Remember telling on yourself is telling on a Brother. Always say that you 

have nothing to say and you want to speak with an attorney.” The protocol also advised 

members not to “say anything adverse that would cause anyone to go to jail, even if it’s 

not a Brother.” 

Another part of the simple protocol states, “[R]emember everything you do 

reflects on the club. Never make the club look bad.” Cervantes explained that, if a 

member gets disrespected and does not act or respond, it reflects poorly on the group. 

Failure or refusal to act could result in being kicked out or other ramifications. Cervantes 

explained that there have been “several instances” of Mongols “[getting] into it” at bars 

with people who are not affiliated with a rival gang. 

Cervantes testified that the Mongols associate with the colors black and white, 

whereas the Hells Angels associate with red and white. Cervantes explained that both 

Mongols and Hells Angels claim the territory in Central California, but the Hells Angels 

are the dominant presence. Cervantes explained that the Mongols engage in criminal 

activities, including theft of motorcycle parts and motorcycles, drug sales, firearms 

proliferation, witness intimidation, violent assaults, and murder. However, the Hells 

Angels are “more business oriented” and less violent than the Mongols. Undercover ATF 

officers were indoctrinated that they were at war and were to be alert and on guard for 

issues with the Mexican Mafia and the Hells Angels. He explained the Hells Angels 

“were to be dealt with onsite and that included murder.” 

Cervantes testified it is common for Mongols to have large parties, which involve 

a standard protocol. Cervantes described these parties as “self[-]regulated,” with the 

Mongols providing their own security. When coming in to “enemy territory,” they may 

stay “right where they’re at,” and may send security out beforehand to make sure the area 

can be secured. Undercover ATF agents were trained that, in Northern California, they 

required a heightened sense of security because the area is dominated by Hells Angels. 

The undercover agents were indoctrinated in how to secure locations and to immediately 
6.

check any public facility they walked into. Additionally, for some parties and gatherings, 

the Mongols will institute a curfew, which is strictly enforced. Cervantes explained that 

law enforcement generally has very few problems with these types of events because 

“they take care of themselves and they’re with each other.” However, when small groups 

leave the party and go out in public or to bars, “the problems erupt.” These problems can 

include fights, stabbings, shootings, and assaults. 

Cervantes explained that a “rat pack” describes when a person is jumped, beat up, 

or hit repeatedly by multiple people. He explained this is a common Mongol occurrence 

and Mongols are trained in this activity. Additionally, when any Mongol is involved in a 

fight, others are told to jump in to protect their members. Weapons would be used, even 

if the victim did not have a weapon. Cervantes explained that rat packs occurred at least 

monthly, if not daily. Rat packs are also mentioned in the “Simple Protocol.” 

Cervantes explained that Mongols are required to carry knives. However, some 

bars and other locations check for weapons at the door, and Mongols may not be armed 

in such situations. Language requiring Mongols to carry knives was contained in the 

original Mongols constitution but was removed. 

II. The Stabbing

A. Overview

During the weekend of November 6, 2009, the Mongols held an event at a hotel in 

Santa Nella. The Mongols had imposed a curfew on their members during the event. 

Shortly after 11:00 p.m., a group of seven to eight men briefly entered the Pastime 

Club in Gustine. Based on surveillance video of the Pastime Club, Cervantes identified 

the group as including petitioner, Andrew Silva, Albert Aleman, Richard Naudin, 

Brandon Carvalho, Rafael Valdez, and twin brothers, Mark and Anthony Oseguera. All 

but Andrew Silva were Mongol members from various California chapters. Andrew 

Silva was a member of a “wrecking crew,” which Cervantes described as a group of 

younger relatives of Mongol members who sometimes are recruited into the gang. Inside 
7.

the Pastime Club, the men divided into groups and searched the premises, including the 

bathroom. The group left without speaking to anyone. 

Soon thereafter, a group of men entered the Gustine Club, approximately one 

block down the street from the Pastime Club, where James was a patron. Several men 

approached James and shouted something to the effect of “Mongols[,] motherfucker.” 

James attempted to remove his jacket and said, “I don’t give a fuck who you are.” Some 

of the bar patrons heard what sounded like a switchblade or retractable knife being 

opened. The men immediately attacked James, with at least one of the men making 

thrusting motions at him. James was seemingly stabbed with a knife during this 

encounter. Another man sprayed the area with pepper spray. 

The fight moved outside. James fought someone through the rear passenger door 

of a truck in the parking lot. Another man approached James from behind and stabbed 

him twice in the back. James fell to the ground and later died. 

James died from multiple stab wounds. He suffered “seven sharp force injuries” 

including (1) a three-inch long, six-inch deep wound to the left side of the neck, which 

extended down the back, through the skin, and into the muscle; (2) a 1-7/8-inch long, 

nine-inch deep wound to the right flank that entered the right chest, nearly cut the liver in 

half, passed through the right diaphragm and right lung, and nicked the superior vena 

cava, a large vessel around the heart; (3) a 7/8-inch long, four-inch deep wound to the left 

chest that passed through the left lower lobe of the lung; (4) a 1-1/2-inch long, four-inch 

deep wound to the upper midback that penetrated the left chest and lung and incised the 

sack around the heart; (5) a 1-1/2-inch long, nine-inch deep wound to the lower midback, which entered the abdominal cavity and incised multiple loops of small bowel;4

 

4 The foregoing wounds were described variously as “a 16-inch wide,” “1/16 inch 

wide,” and “16-inch wide.” The pathologist explained that the width measurement is 

taken by “push[ing] the edges back together, which is the best way to do the 
8.

(6) a 3-1/2-inch long, 1/2-inch wide, and one-inch deep incised wound to the back of the 

right arm; and (7) a 5-1/2-inch long by 1-1/2-inch wide incised wound to the front side of

the right forearm. 

B. Eyewitness Accounts

Sara G. was seated at the bar of the Gustine Club with her roommate, Ashley K.5 

Ashely was seated next to James.6 Sara saw a group of four to six men suddenly 

approach James shouting, “Mongols motherfucker, what’s up.” She described one of the 

men as a “short and kind of chunky” (capitalization omitted) Hispanic man with a black 

goatee, approximately five feet, four inches or five feet, five inches tall and 

approximately 220 pounds. Sara heard what sounded like a “retractable knife” or 

switchblade being flipped out and saw the man make a motion with his left hand like he 

was flipping out a knife. She did not see the knife itself. She identified this man as 

petitioner. At the same time, a tall, skinny man deployed what Sara thought was a can of 

mace. Sara ran outside, where she saw the men flee in two or three vehicles, including a 

black or gray pickup truck, which petitioner entered. 

measurements.” It therefore appears the references to a 16-inch wide wound may be a 

transcription error. 

5 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by 

their first names. No disrespect is intended.

6 At the time of trial, Sara no longer had a good memory of the incident. She 

testified primarily regarding statements she previously made to law enforcement. She 

first was interviewed on November 6, 2009, the night of the incident. She testified that, 

at that time, the incident was fresh in her mind and her statement was truthful. 

On November 9, 2009, she provided a written statement to a different officer. 

Sara acknowledged she had spoken to two other people between her interview and her 

written statement, and she included in her statement information she heard from other 

people and did not personally witness. She did so because she believed the police wanted 

all the information she had. We include in our summary only those facts Sara stated she 

witnessed herself. 
9.

Ashley was sitting between James and Sara when a group of 12 to 15 men wearing 

black and white entered the bar and divided up. Approximately five of the men walked 

toward Ashley’s area while the others remained near the door. As the group walked past 

her, she heard someone say “Mongols.” She later identified petitioner as part of this 

group based on his distinctive “bow tie” goatee. She told Sara to put her beer down so 

they could leave. She heard the clicking sound of a knife. When she turned around, the 

bar was sprayed with mace. She was severely affected by the mace and unable to see 

anything else. 

Denise G. was standing next to James when a group of approximately six to seven 

men entered the bar and walked directly toward James. Denise and James had recently 

reentered the bar after going out back to smoke. Denise described the group of men as 

acting “really tough like, like they were on a mission.” Three of the men came up behind 

Denise and said some words toward James. Denise could not make out the words other 

than “mother” and “Mongols.” James said, “What?” and the men repeated themselves. 

James said, “I don’t give a shit” and two of the men lunged for him. Denise thought 

petitioner was one of the men who lunged at James but was not certain. Denise was 

pushed out of the way and another man pepper sprayed the bar using an approximately 

15-inch canister. Denise ran outside and saw people running around. She saw James

collapse and reached down to touch him. Her hands came up full of blood so she 

retrieved towels from the bar to try to stop the bleeding. She saw a light silver pickup 

truck pulling away with a partially opened passenger door. She did not see the stabbing. 

Jennifer H. was working as a bartender at the Gustine Club and recalled James had 

a calm demeanor that evening. At approximately 11:15 p.m., six or seven men who 

looked like gang members walked in, and the other patrons became quiet and appeared 

uncomfortable. The men proceeded directly toward James and said something Jennifer 

could not hear. James replied, “What?” James tried to take off his jacket and, as his 

jacket was halfway off, all the men except for one jumped him. The other man pepper 
10.

sprayed the area using a 14- to 16-inch canister. Jennifer initially ducked behind the bar 

and eventually ran outside where she saw the men jumping into a white Chevy Tahoe and 

a gray GMC pickup truck. James was lying on the sidewalk bleeding from his mouth and 

arm. 

Amaro M. was also at the Gustine Club when approximately six men walked in 

and said, “Mongols, motherfucker, Mongols, Mongols. What’s up? Mongols.” Three of 

the men walked past Amaro and around James and one of them said something to James

under his breath. Three more men approached and surrounded James. James said, “I 

don’t give a fuck who you are.” Amaro heard what sounded like the flick of a knife, and 

one of the men made a motion with his left hand. The men then rushed James and the

man who had what sounded like a knife began thrusting at James with his right hand. 

Amaro grabbed the man from behind and pulled him off and another man pulled out what 

looked like a 14- to 16-inch fire extinguisher and sprayed the area. Amaro ran for the 

door. Outside, he saw James standing in the open rear passenger doorway of a white 

Ford F150 extended cab truck. James appeared to be fighting with someone in the 

backseat when someone in a white T-shirt with a Mongols insignia ran up and stabbed 

him twice in the back with a 10- or 12-inch knife. The vehicles took off and James fell to 

the ground. Amaro saw that James had a hole in his neck and his arm was split open

from his bicep to his forearm. 

III. Law Enforcement Response

Gustine Police Officer T. Warner responded to the Gustine Club at approximately 

11:30 p.m. and observed people in the area who were coughing and had red, watery eyes 

consistent with being pepper sprayed. The air also smelled of pepper spray. Warner 

found James lying facedown, partially in the roadway and partially on the sidewalk in 

front of the Gustine Club. James was covered in blood and, when Warner flipped him 

over, Warner observed a large, eight-inch laceration to James’s right arm at the bend of 
11.

his elbow. He also observed a large stab wound to the middle, lower portion of James’s 

back on the right side. 

Meanwhile, Merced County Sheriff’s Deputy R. Daniel was on patrol at

approximately 11:30 p.m. when he responded to radio traffic by traveling toward Santa 

Nella, on the lookout for a white Chevy Tahoe heading southbound on Highway 33. As 

he came over an overpass, he spotted a white Chevy Tahoe traveling southbound on 

Highway 33, followed “very closely” by a silver pickup. Both the Tahoe and the pickup 

entered the parking lot for the hotel where the Mongol event was occurring. Once in the 

parking lot, the vehicles drove in different directions. Daniels stopped to deploy his 

patrol rifle before following the Tahoe. Daniels drove around the north side of the hotel 

and observed four to five men exiting the Tahoe and moving around it before eventually 

going into the hotel. Daniels backed into a corner of the parking lot where he could keep 

an eye on the Tahoe. A group of approximately 10 men came out of the hotel and stood 

in a breezeway adjacent to the Tahoe. A female also came out of the hotel, opened the 

Tahoe, removed items, and returned to the hotel. She made three trips to the Tahoe. 

Eventually, more patrol units arrived and established a perimeter.

In the hotel parking lot, law enforcement located the gray or silver GMC pickup 

truck and white Chevy or GMC Tahoe and had them towed. Both vehicles were 

processed for fingerprints. Petitioner’s fingerprint was found on a snack package inside 

the pickup truck. Aleman’s fingerprints were found on the exterior front passenger door 

of the Tahoe. Naudin’s fingerprints were found on a water bottle inside the Tahoe. Dark 

red stains were visible in the front and rear passenger side cab, interior door panel, door 

handle, front passenger dashboard, and exterior passenger side of the pickup. In the 

Tahoe, officers observed “blood spatter in the front passenger side area, the rear backseat 

and a third row seat.” These included red-brown stains in the upper right-hand corner of 

the center console, the rear passenger side door, the rear center console armrest, the rear 

back seat on the driver’s side, and the third-row seatbelt buckle.
12.

Approximately three to five feet in front of the Tahoe, law enforcement located a 

black beanie with a red stain, as well as a black sheath, approximately 16 inches long,

bearing the word “Mongols.” In a different part of the parking lot law enforcement 

located another black beanie. The following day, a hotel employee located a white shirt 

next to a large knife underneath a stairway, as well as several shirts in a trash can. One of 

the shirts in the trash can was black, white, and gray plaid; an additional shirt or shirts 

were white. The shirt next to the knife was long sleeved and had red stains around the 

cuff. The parties stipulated that the plaid shirt and the long-sleeved shirt emitted a strong 

odor of pepper spray.7 

Inside the Gustine Club, near where James had been attacked, authorities 

recovered a blue and white plaid jacket with a “bloodstain right below the jacket.” 

Denise identified the jacket as belonging to James. In the street, police found a cell 

phone, several white towels (one of which had “blood all over it”), a black Raider’s ball 

cap, and two black T- shirts. Police found a red plaid button-down shirt on the sidewalk 

in front of the bar, a black ball cap on a chair just outside the door of the bar, and a 

cellophane cigarette wrapper on the sidewalk just south of the front door to the bar. The 

day after the incident, a passerby found a “black handle folding knife” in the street on the 

same block as the Gustine Club. 

DNA testing of blood from both knives and both vehicles excluded petitioner as a 

major contributor to any of the samples. A sample from the blade of the knife found 

under the stairwell contained a mixture of DNA from two contributors, the Oseguera 

brothers and James.8 A trace DNA swab of the same knife also contained a mixture of 

two contributors, with the major profile matching the Osegueras. James could not be 

7 The other shirts were not examined by the trial attorneys or the jury due to risk 

of exposure to the effects of pepper spray. 

8 Because the Osegueras are identical twins, it was impossible to distinguish 

between their DNA samples. 
13.

excluded as a minor contributor to this mixture. A sample from an apparent blood stain 

on the handle of the black folding knife contained a mixture of two contributors, with 

James as the major contributor. There was insufficient information to determine the 

source of the minor contributor. A trace DNA swab of the same knife contained a 

mixture of three contributors, with Valdez as a possible major contributor. Blood stains 

from inside the pickup truck and Tahoe matched James’s DNA profile. Blood stains on 

the Tahoe’s passenger side upper center console, rear center console and driver’s side 

rear bench seat matched the Oseguera DNA profile. Petitioner’s DNA was found on a 

size 4X white T-shirt recovered from the hotel garbage. 

IV. Eyewitness Identification

Police showed photographic lineups of the suspects to Sara, Ashley, Denise, and 

Amaro. 

Sara identified petitioner as the short, “chunky” assailant with the black goatee 

who she reported to law enforcement on the night of the murder.9 At the time of the 

preliminary hearing and trial, Sara was no longer able to identify petitioner. 

Ashley identified petitioner in a photographic lineup as the man with the “bow tie” 

goatee. 

Denise identified petitioner, Naudin, one of the Oseguera twins, and petitioner’s

relative, David Silva, from four photographic lineups.10 Denise identified petitioner at 

the preliminary hearing as one of two assailants who lunged at James. 

Amaro identified petitioner as one of the assailants. He recognized petitioner

because “he was one of the scariest looking guys that came in the bar that night.” Amaro 

9 Although the testimony in this regard is somewhat difficult to decipher, the 

parties agree that Sara, Ashley, Denise, and Amaro identified petitioner as a participant in 

the attack. 

10 However, the parties stipulated that David Silva was not at the Pastime Club or 

the Gustine Club on the night of the incident. 
14.

explained that petitioner rushed James, went “over the top” of another of the perpetrators, 

and came “down” on James. Amaro initially identified Mark Oseguera as the man who 

stabbed James, both inside and outside the bar. However, several days later, he contacted 

police to say he made a mistake. He then identified Mark Oseguera as the stabber inside 

the bar, and petitioner as the stabber outside the bar. At trial, he maintained that 

petitioner stabbed James outside the bar. 

Police showed the Pastime Club video to Sara, Ashley, and Amaro before showing 

them the photographic lineups. Sara testified that her identification of petitioner in the 

photographic lineup was based on her observation of him on the night of the murder and 

not her review of the Pastime Club video. Ashley identified Carvalho from the Pastime 

Club video as the man with the pepper spray. 

V. Petitioner’s Interactions with Law Enforcement

On November 7, 2009, Gustine Police Sergeant J. Hamera was working at the 

Gustine Police Department when petitioner came in to try to get the pickup truck released 

from impound. The pickup was registered to a different individual from Southern 

California. 

Hamera conducted a recorded interview with petitioner, which was played for the 

jury. Hamera informed petitioner that the vehicle had been seized as evidence in a 

homicide and, in any event, could only have been returned to the registered owner. 

Petitioner explained he was from Whittier and had borrowed the pickup from his friend’s

father for the weekend. He stated he was staying at the hotel but not in any particular 

room and had no affiliation or friendship with the Mongols. Petitioner confirmed he still 

had the keys to the pickup. He explained that, after arriving in town, he went to a bar in 

Gustine by himself, but could not recall which one. He walked in, saw a commotion and 

mace being sprayed, and ran out. He got in the truck and started to reverse when another 

man jumped at the vehicle and tried to lunge through the passenger window. Petitioner 

“threw it in reverse and took off.” (Capitalization omitted.) He denied seeing anyone get 
15.

stabbed. When he got back to the hotel there was “blood everywhere” on the door of the 

pickup and he cleaned it with a rag. (Capitalization omitted.) 

VI. Expert Opinion

Cervantes opined that the men who visited the Pastime Club, including petitioner, 

were a “war party” and were searching the bar to identify problems or rivals, including 

“potential Hells Angels.” Cervantes opined that “[e]very guy who left that [secured] 

hotel . . . kn[ew] what kind of trouble [wa]s looming out there.” Cervantes further 

opined, “They obviously don’t see anything in there that sparks their interest as far as 

Hells Angels or disrespect and away they go.” Cervantes explained: “I mean, again, I 

use the term war party. This is very clear that they’re on a hunt, they’re on a mission. 

They’re in Northern California. They definitely entered this bar looking for issues and 

apparently they didn’t find it in this bar so they went to the next one.” 

Cervantes explained the undercover ATF agents were trained that “the level of 

awareness and your heightened sense of security doubles in Northern California because 

of the fact it’s dominated by Hells Angels. And there is just definitely no better way to 

make your mark than obviously to assault or kill Hells Angel[s].” Cervantes continued:

“Now, the other thing is that when they go into different parts of the country or different 

regions they will make a stand and let other clubs and other people know they’re there. 

[¶] So this is definitely not uncommon. They will come in to the bars or to the areas and 

regions and get it out to the locals, hey, the Mongols were here. It goes back to the Hells 

Angels and Vagos or other clubs that they came into, rode through your club, went into 

your bars, made a stand, walked through wearing their stuff and they left. [¶] So this is a 

sign of their unity and their ability to sort of put it back in rival’s faces. This is not

uncommon activity that we saw for a number of years during our investigations.” 

Upon being presented with a hypothetical question matching the facts of the 

instant case, Cervantes opined that the crime was committed “for the benefit of, direction 

of or [in] association with a criminal street gang.” Cervantes opined that there was 
16.

something in the bar that prompted one or more of the group to come into the bar and yell 

out their gang name. Cervantes further opined that James’s reaction—“I don’t give a shit 

or I don’t give a fuck who you are”—would have been perceived as disrespect and

ultimately was his “demise.” Cervantes explained that James could have been mistaken 

for another biker and his appearance was “what we come to expect Hells Angels to look 

like. Male, white, shaved head, large bushy goatee-type panhandled mustaches, tattoos.” 

Although James’s tattoos were covered, Cervantes opined that “in a bar, Northern

California and if you’re from Los Angeles and you’re a Hispanic Mong[o]l that walks 

into one of these bars that right there could easily be mistaken as a Hells Angel.” 

Cervantes additionally noted that James was wearing red underwear that may have been 

visible. “So you have red underwear, male, white, bald large bushy goatee type 

mustache, sort of that tough look in Northern California bar. 100 percent could be 

mistaken any day of the week for a Hells Angel.” Regardless, Cervantes opined, 

“disrespect was part of it and it ultimately ended up costing Mr. Bill James’s life.” 

VII. Defense Case

Jennifer H. testified that, prior to working at the Gustine Club, she was employed 

at a nearby bar and grill, which the Hells Angels sometimes frequented. Laura B. was the 

manager of the Gustine Club and testified the Hells Angels did not frequent that bar.

Gary M. was at the Gustine Club on the night of the incident, seated near the front door, 

and did not recall hearing anyone yell “Mongols.” 

The parties stipulated that Ashley identified David Silva in a photographic lineup 

as being in the Gustine Club on the night of the incident. The parties further stipulated 

that David Silva was not in the Gustine Club on the night of the incident but instead was 

at the hotel in Santa Nella, “working security.” 

Officer Warner interviewed Amaro on November 6, 2009, and Amaro stated

James had not been targeted. Amaro also stated he had been confronted by one of the 

Mongols who “got directly into his face.” A detective interviewed Amaro the following 
17.

day, and Amaro reported that James turned around quickly once the Mongols entered the 

bar. Amaro thought someone may have bumped into James, but he was not sure. 

Detective M. Ruiz showed the Pastime Club video to Sara before she had seen a 

lineup because, at that time, authorities did not know the identity of any of the suspects 

and could not put a photographic lineup together. Another detective showed Denise the 

video of the Pastime Club before showing her photographic lineups. 

Pictures were taken of petitioner on November 7, 2009, at the Gustine Police 

Department. At that time, Detective L. Clark did not see any obvious signs that petitioner 

had been in a fight. On November 22, 2009, petitioner weighed 306 pounds and was five

foot eight inches tall. 

Dr. J. Hernandez, a criminal justice professor at California State University,

Sacramento, testified for the defense as a gang expert. Hernandez disagreed with 

Cervantes’s assessment that the Mongols “storm[ed]” the Pastime Club. Instead, he saw 

only “[a] bunch of guys walking into a bar.” He was aware of the event at the hotel in 

Santa Nella, and stated the Mongols have a lot of rules and “very often it’s easier just to 

leave the event . . . than put up with the rules at a Mongol event.” He did not believe the 

group of Mongols left the hotel looking for trouble. Nothing about James’s dress would 

cause him to be identified as a Hells Angel. He rejected Cervantes’s characterization of 

the group as a “war party.” He stated that, after Operation Black Rain, there was an 

effort to minimize the conflict between the Mongols and the Hells Angels and the 

Mongols became less confrontational. He testified that not all Mongols will join in an 

altercation with a fellow member and instead may intervene to stop the altercation. 

Dr. R. Shomer, an experimental psychologist, testified that eyewitness 

identification has a low level of reliability for multiple reasons. He opined it was 

“unfortunately suggestive” for officers to show witnesses a video of possible suspects 

before conducting a photographic lineup. 
18.

PROCEDURAL HISTORY

I. Underlying Conviction

Petitioner was charged with murder (§ 187, subd. (a); count 1) and active 

participation in a street gang (§ 186.22, subd. (a); count 2). As to count 1, the 

information alleged a gang enhancement (§ 186.22, subd. (b)) and an enhancement for 

personal use of a knife (§ 12022, subd. (b)(1)). During the settling of jury instructions 

during trial, the prosecutor conceded the evidence was insufficient to support a charge of 

first degree murder, and that only second degree murder could be charged. Additionally, 

on motion by the People, the court struck the knife use enhancement. 

The jury convicted petitioner of second degree murder with a gang enhancement, 

and active participation in a street gang. Petitioner was sentenced on count 1 to a term of 

15 years to life, and on count 2 to a consecutive two-year term. On appeal, we ordered 

the sentence on count 2 stayed pursuant to section 654, but otherwise affirmed. (People 

v. Silva (Jan. 31, 2014, F064330) [nonpub. opn.].) 

II. The Petition for Resentencing

On January 4, 2019, petitioner filed a petition for writ of habeas corpus, seeking 

resentencing on his murder conviction pursuant to section 1172.6. Although the court 

initially appointed counsel to represent petitioner, petitioner subsequently retained 

counsel to represent him on the petition. The People opposed the petition on the grounds 

Senate Bill No. 1437 was unconstitutional and, in any event, petitioner was ineligible for 

resentencing as “a direct perpetrator” of the murder or an aider and abettor who acted 

with malice. In support, the People submitted the record on appeal and this court’s 

opinion from petitioner’s direct appeal, as well as the probation report from his initial 

sentencing. After further briefing, the superior court determined petitioner had made a 

prima facie showing of resentencing eligibility and was entitled to an evidentiary hearing. 

Prior to the hearing, the superior court filed a tentative statement of decision. 

Petitioner filed a response to the statement of decision. The matter was heard on July 30, 
19.

2021. The court denied the petition on the record and also issued a statement of decision 

explaining its reasoning. The court found the trial evidence failed to prove, beyond a 

reasonable doubt, that petitioner was the actual killer or acted with express malice. 

However, the court found the evidence proved beyond a reasonable doubt that petitioner 

was guilty of murder as an aider and abettor who acted with implied malice.11 

Accordingly, the court determined petitioner was not entitled to resentencing. 

DISCUSSION

I. Applicable Law

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend 

the felony murder rule and the natural and probable consequences doctrine . . . to ensure 

that murder liability is not imposed on a person who is not the actual killer, did not act 

with the intent to kill, or was not a major participant in the underlying felony who acted 

with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord, 

People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) The bill amended the natural 

and probable consequences doctrine by requiring that a principal act with malice 

aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, 

People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) The bill amended the 

felony-murder rule by providing that a participant in a qualifying felony is liable for 

murder only if the victim was a peace officer in the performance of his or her duties, or 

11 The court also found the evidence established petitioner was a major participant 

in the attack and acted with reckless indifference to human life, standards that would be 

applicable under a felony murder, rather than implied malice, theory. The court also 

determined the evidence proved, beyond a reasonable doubt, that petitioner aided and 

abetted in the crime of assault with a deadly weapon and that he did so for the benefit of 

or in association with a criminal street gang. The court likewise determined the evidence 

proved, beyond a reasonable doubt, that petitioner was an active member of a criminal 

street gang as alleged in count 2. It is unclear why the court made findings on these 

matters, which were not at issue in the section 1172.6 proceedings. However, as 

petitioner concedes, the court’s ultimate ruling was based on its determination that 

petitioner acted with implied malice. 
20.

the defendant was the actual killer, aided and abetted the actual killer in the commission 

of first degree murder with the intent to kill, or was a major participant in the felony and 

acted with reckless indifference to human life. (§ 189, subds. (e), (f); accord, Strong, at 

p. 708.) 

Senate Bill No. 1437 also added former section 1170.95, now renumbered as 

section 1172.6, which provides a procedure for persons 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” to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a); accord, 

Gentile, supra, 10 Cal.5th at p. 853.) Under section 1172.6, an offender seeking 

resentencing must first file a petition in the sentencing court, and the sentencing court 

must determine whether the petitioner has made a prima facie showing that he or she is 

entitled to relief. (§ 1172.6, subds. (a)-(c); accord, Strong, supra, 13 Cal.5th at p. 708.) 

If the trial court determines the petitioner has made such a showing, “the trial court must 

issue an order to show cause and hold a hearing to determine whether to vacate the 

murder conviction and to resentence the petitioner on any remaining counts.” (Gentile,

supra, 10 Cal.5th at p. 853; accord, § 1172.6, subds. (c), (d)(1).) 

At this evidentiary hearing, “the burden of proof shall be on the prosecution to 

prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under 

California law as amended by the changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (d)(3).) Significantly, “[a] finding that there is 

substantial evidence to support a conviction for murder . . . is insufficient to prove, 

beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Ibid.) The 

prosecutor and the petitioner may offer new or additional evidence to meet their 

respective burdens. The admission of evidence at the hearing is governed by the 

Evidence Code. However, the court also “may consider evidence previously admitted at 

any prior hearing or trial that is admissible under current law, including witness 
21.

testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural 

history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3).)

We review the trial court’s findings following the evidentiary hearing for 

substantial evidence, and the application of those facts to the statute de novo. (People v. 

Cooper (2022) 77 Cal.App.5th 393, 412.) 

II. An Aider and Abettor to Murder Need Not Act with Express Malice

Petitioner argues Senate Bill No. 1437 eliminated implied malice as a valid theory 

of murder for aiders and abettors. He therefore argues an aider and abettor to murder 

must act with express malice. We adopt the reasoning of every court to have addressed 

this issue and conclude that implied malice remains a valid theory of liability for aiders 

and abettors to murder. (E.g., People v. Vargas (2022) 84 Cal.App.5th 943, 953-955

(Vargas); People v. Vizcarra (2022) 84 Cal.App.5th 377, 388-392 (Vizcarra); People v. 

Langi (2022) 73 Cal.App.5th 972, 982-983 (Langi); People v. Powell (2021) 63 

Cal.App.5th 689, 710-714 (Powell).)

“Murder, whether in the first or second degree, requires malice aforethought.” 

(Gentile, supra, 10 Cal.5th at p. 844.) “Malice can be express or implied. It is express 

when there is a manifest intent to kill (§ 188, subd. (a)(1)); it is implied if someone kills 

with ‘no considerable provocation . . . or when the circumstances attending the killing 

show an abandoned and malignant heart’ (§ 188, subd. (a)(2)).” (Ibid.) More

specifically, “second degree murder based on implied malice has been committed when a 

person does ‘ “ ‘an act, the natural consequences of which are dangerous to life, which 

act was deliberately performed by a person who knows that his conduct endangers the life 

of another and who acts with conscious disregard for life’ ”. . . .’ [Citation.] Phrased in a 

different way, malice may be implied when defendant does an act with a high probability 

that it will result in death and does it with a base antisocial motive and with a wanton 

disregard for human life.” (People v. Watson (1981) 30 Cal.3d 290, 300.) 
22.

“When a person directly perpetrates a killing, it is the perpetrator who must 

possess . . . malice. [Citations.] Similarly, when a person directly aids and abets a 

murder, the aider and abettor must possess malice aforethought.” (Gentile, supra, 10 

Cal.5th at p. 844.) “Aiding and abetting is not a separate offense but a form of derivative 

liability for the underlying crime.” (Id. at p. 843.) Thus, “[g]uilt as an aider and abettor 

is guilt ‘based on a combination of the direct perpetrator’s acts and the aider and abettor’s 

own acts and own mental state.’ ” (Powell, supra, 63 Cal.App.5th at p. 710.) 

As our sister court has explained, “[i]n the context of implied malice, the actus 

reus required of the perpetrator is the commission of a life-endangering act. For the 

direct aider and abettor, the actus reus includes whatever acts constitute aiding the 

commission of the life[-]endangering act. Thus, to be liable for an implied malice 

murder, the direct aider and abettor must, by words or conduct, aid the commission of the 

life-endangering act, not the result of that act. The mens rea, which must be personally 

harbored by the direct aider and abettor, is knowledge that the perpetrator intended to 

commit the act, intent to aid the perpetrator in the commission of the act, knowledge that

the act is dangerous to human life, and acting in conscious disregard for human life.” 

(Powell, supra, 63 Cal.App.5th at p. 713, italics & fns. omitted; accord, Vargas, supra, 

84 Cal.App.5th at p. 954.)

Petitioner argues that, in eliminating the natural and probable consequences 

doctrine, Senate Bill No. 1437 eliminated aider and abettor liability for “unintended” 

murders and made the crime of aiding and abetting murder “structurally identical” to 

crimes like attempted murder and conspiracy to commit murder, which both require 

specific intent to kill. However, our high court has continued to recognize “[t]hat one 

may intentionally aid a perpetrator in doing an act when he or she knows the act naturally 

and probably will cause death and consciously disregards this probable result.” (Powell, 

supra, 63 Cal.App.5th at p. 713, citing Gentile, supra, 10 Cal.5th 830.) In Gentile, the 

high court explained that a direct aiding and abetting theory of murder “requires that ‘the 
23.

aider and abettor . . . know and share the murderous intent of the actual perpetrator.’ 

[Citation.] For implied malice, the intent requirement is satisfied by proof that the actual 

perpetrator ‘ “knows that his conduct endangers the life of another and . . . acts with 

conscious disregard for life.” ’ [Citation.] Therefore, notwithstanding Senate Bill [No.] 

1437’s elimination of natural and probable consequences liability for second degree 

murder, an aider and abettor who does not expressly intend to aid a killing can still be 

convicted of second degree murder if the person knows that his or her conduct endangers 

the life of another and acts with conscious disregard for life.” (Gentile, at p. 850.) We 

agree with Powell that “[t]his language clearly suggests an aider and abettor can be liable 

for implied malice murder as a theory independent of the natural and probable 

consequences doctrine.” (Powell, at p. 713.) 

Accordingly, we reject petitioner’s contention that an aider and abettor to murder 

must act with express malice.

III. Substantial Evidence Supports Denial of the Petition*

Petitioner argues the superior court’s finding that he acted with implied malice is 

not supported by substantial evidence. We disagree.

Petitioner does not dispute that the evidence supports a finding that he participated 

in the attack. Indeed, multiple eyewitnesses identified petitioner as one of the attackers 

who initiated the altercation within the bar. However, petitioner contends there is no

basis in the evidence to conclude he knew his companions were armed or intended to stab 

James. We conclude substantial evidence supports a finding that petitioner knew the 

perpetrators of the murder intended to commit a life-endangering act, petitioner intended 

to aid them in the commission of that act, he knew the act was dangerous to life, and he 

disregarded that risk. (Powell, supra, 63 Cal.App.5th at p. 713.) 

* See footnote, ante, page 1.
24.

First, substantial evidence supports an inference that petitioner knew his 

companions were armed and intended to engage in a planned, coordinated attack. 

Cervantes characterized the Mongols who entered the Pastime Club as a “war party,” 

who left when they did not see anything that sparked their interests. The group was 

armed with at least two knives, one of which was described as a large hunting-type knife. 

One member of the group also carried an approximately 16-inch can of pepper spray. 

The group quickly entered the Gustine Club yelling the name of their gang and proceeded 

directly to confronting James. After the Mongols provoked a response from James, the 

encounter proceeded rapidly to life-endangering violence. At least one witness testified 

that one of the perpetrators made thrusting motions toward James, and the superior court 

found that James was first stabbed during the assault inside the bar. Substantial evidence 

supports a finding that petitioner intended to aid in this life-endangering act. 

Additionally, Cervantes testified that Mongols are required to carry knives. 

Although he testified that this and other requirements were eventually removed from the 

Mongol constitution, he explained that this was done on the advice of a lawyer to make 

the constitution less incriminating. Moreover, multiple eyewitnesses testified to hearing 

the sound of a knife being flipped open at the onset of the attack. Given the testimony 

regarding the attackers’ proximity to other patrons, a trier of fact reasonably could infer 

that petitioner also heard the sound of a knife being flipped open and therefore knew, by 

the time he joined the attack, that life-endangering violence would be used. In joining the 

melee, he disregarded this risk to life. 

Accordingly, substantial evidence supports the superior court’s finding that 

petitioner acted with implied malice.
25.

DISPOSITION

The order is affirmed.

DETJEN, J.

WE CONCUR:

POOCHIGIAN, Acting P. J.

PEÑA, J.