People v. Aguilar CA4/3

Filed 11/06/20 P. v. Aguilar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,

Plaintiff and Respondent, G057314

v. (Super. Ct. No. 17CF2394)

ALBERT JAVIER AGUILAR, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed in part, reversed in part, and remanded with directions.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina,
Lynne G. McGinnis, and Alan L. Amann, Deputy Attorneys General, for Plaintiff and
Respondent.
 A jury convicted defendant Albert Javier Aguilar of attempted murder (Pen.
Code, §§ 187, subd. (a), 664, subd. (a); undesignated statutory references are to the Penal
Code), second degree robbery (§§ 211, 212.5, subd. (c)), assault with a firearm (§ 245,
subd. (a)(2)), and felon in possession of a firearm (§ 29800, subd. (a)(1)). They also
found defendant personally used a firearm in the commission of the robbery (§ 12022.53,
subd. (b)). The trial court found defendant had suffered a prior conviction that qualified
both as a serious felony (§ 667, subd. (a)(1)) and a strike (§§ 667, subd. (d), 1170.12,
1
subd. (b)). Defendant was sentenced to a determinate term of 13 years and four months.
Defendant raises a host of claims on appeal: (1) Insufficient evidence
supports his guilt as an aider and abettor to the attempted murder and the assault with a
firearm charges. (2) Similarly, the evidence failed to establish he was either the
perpetrator or a direct aider and abettor of the robbery. (3) His robbery conviction must
be reversed because of instructional errors regarding unanimity and the elements of a
robbery. (4) The prosecutor committed prejudicial misconduct in closing argument by
vouching for a witness and misstating the evidence. (5) The trial court erred in denying
defendant’s new trial motion on the ground the jury’s verdicts were “contrary to the law”
and evidence. (6) Defendant’s attempted murder conviction must be set aside because
the recent statutory elimination of the natural and probable consequences doctrine as
regards murder liability applies to attempted murders. We affirm in part, reverse in part,
and remand for resentencing.

1
Five years for the attempted murder (doubled to 10 under the two strikes law);
one year consecutive for the robbery (doubled to two under the two strikes law); and
eight months consecutive for the felon in possession charge (doubled to 16 months under
the two strikes law). A four-year term for the assault with a firearm conviction was
imposed and stayed under section 654. The firearm use and the prior serious felony
enhancements were stricken.

2
 FACTS
Because defendant raises sufficiency of evidence claims as to three of his
convictions, we lay out the facts in some detail, doing so in the light most favorable to the
jury’s verdicts. (People v. Abilez (2007) 41 Cal.4th 472, 504.) Additional facts relevant
to the specific issues defendant raises on appeal are found in the discussion below.
A.V. was drinking with a friend one night at a bar in Santa Ana. He
became uneasy because he thought that a man in the bar—later identified as defendant—
was looking at him. Soon after, he was approached by a man who told him someone was
outside breaking into A.V.’s pickup truck.
A.V. went out to the parking lot where he saw a bald man—later identified
2
as codefendant Daniel Perez —who was about six feet tall with a “heavy” build, sitting in
the driver’s seat of the truck. He also noticed a rear window in the truck had been
broken. A.V. got into the passenger side of the truck, and Perez got out and moved
toward the back of the truck.
A.V. slid over to the driver’s side. Before he could start up the truck, Perez
fired two gunshots, one striking the rear windshield and one the adjacent cab panel. A.V.
said he heard “thunder sounds” from the gun, and felt “heat” behind his head. He did not
immediately realize it was from a gunshot; he just thought the rear windshield had been
broken.
A.V. got out of the truck and saw Perez backing away, holding a chrome
revolver pointed at him. A.V. initially testified that when he saw Perez standing behind
the truck, there were two other men standing about 13 feet away, in front of the truck. He
later corrected his testimony and said he only saw one man, whom he later identified as
defendant, standing in front. He had not seen defendant out in the parking lot until after
he got out of the truck. He described defendant as a short, bearded man with a star tattoo
2
Perez and defendant were originally charged together. Perez’s case was severed
prior to trial and is not before us.

3
on his shaved head, and said he was the same person who had been looking at him earlier
inside the bar.
A.V. said defendant was armed with a black, semiautomatic handgun.
Defendant approached A.V. while holding the gun and, at some point, they began to
fight. A.V. initially testified he hit defendant and defendant hit him back with his fist and
the black gun. He corrected his testimony to say he had taken defendant’s gun from him
and hit defendant in the head with it.
During the fight, he was able to push defendant’s head to the ground. Perez
came up from behind and began pistol-whipping A.V., stunning him. Perez twisted
A.V.’s head, tried to choke him with one arm, and bit A.V. on the shoulder, leaving a bite
mark. Despite Perez’s efforts, A.V. said he “never stopped beating [defendant] up.”
Although A.V. had the black gun in his hand during the melee, and hit defendant with it,
he did not recall what ultimately happened to it.
In statements later given to police, A.V. said that at some point Perez
approached him, demanded his wallet, bracelet, and a gold chain necklace, and had
pulled the chain from his neck. However, when testifying, A.V. did not recollect making
those statements to police. He did testify he had lost the chain, although he could not
recall when and could not remember anyone taking it from him. It was only when he was
discharged from the hospital and collected his belongings that he realized he had “lost a
gold chain.”
The fight ended when someone yelled that the police were coming. A.V.
saw Perez and defendant then get into a car together and drive off. When police arrived,
A.V. told them two men armed with guns had tried to take his truck from him. He was
taken to the hospital, where he gave police more details.
Police subsequently received information linking defendant’s DNA to
forensic evidence collected in the bar parking lot on the night of the incident. They
showed A.V. a set of photographs, and he identified defendant as the person he had

4
fought with. At trial, the prosecutor showed A.V. a set of six photos of bald men,
including defendant, and he stated it was he who had written under defendant’s
photograph: “I had a fight with him. He had the black gun. I hit him on the head.”
On cross-examination, A.V. was impeached with several inconsistencies
between his testimony and his statements to police, and admitted he was unable to recall
many details of the incident or of his conversations with police. He acknowledged
having several prior convictions and arrests, and being a drug user. He agreed his
testimony was being given under a grant of use immunity, which provided that so long as
he was truthful, his statements could not be used against him.
J.S., a friend of A.V., was at the bar with A.V. on the night of the incident.
At one point, A.V. told J.S. he needed to go outside. After about 10 to 15 minutes, J.S.
also left the bar. As he came out of the bar, J.S. saw a man standing in front of a pickup
truck shooting at A.V., who was sitting in the driver’s seat. A second taller man was
standing near the truck’s door. They looked like they were arguing but J.S. could not
hear what was being said. When questioned further, J.S. said the person who shot at A.V.
was not the man standing in front of the truck, but instead was the tall man standing near
the truck’s door. The man in front of the truck was a young, “chubby” man, about five
feet four inches tall. After the shots were fired, J.S. went back inside the bar, and then
heard two more gunshots. He later was shown some photos but was not able to identify
anyone.
Officer Jimmy Correal arrived at the scene and saw A.V.’s pickup truck
with what appeared to be bullet holes in the rear window and the rear cab panel
underneath it. He also saw A.V. sitting next to the truck, bleeding from a head wound.
A.V. told him two armed men, who left together in a silver Hyundai, had tried to take his
truck.
Correal also spoke to A.V. later at the hospital, and he told him that when
he came out of the bar, he saw one of the men in the driver’s seat of his truck. The man

5
was Hispanic, about six feet tall and 250 pounds, with a muscular build. When A.V. got
into the truck, the man got out and then shot at him. A.V. then saw a shorter Hispanic
man, about five feet, five inches tall, weighing about 180 pounds, come out of the bar and
stand outside the truck. Both men were armed; one with a revolver and the other with a
semiautomatic handgun.
A.V. told Correal the man who had been in the truck demanded his money
and his gold chain. He ripped the gold chain from A.V.’s neck and then chased him
around the parking lot. A fight began and A.V. knocked the semiautomatic gun out of
the shorter man’s hand and then smashed his head against the pavement. While he was
fighting with the shorter man, the other man was pistol whipping A.V. and twisting his
neck. After the fight, both men left together in a silver Hyundai.
Detective Mike Judson also interviewed A.V. A.V. told him he had been in
the bar with J.S. when someone told him that his truck was being stolen. When he came
out, the first man was inside his truck. The man fired a gun and, after he heard the
“boom,” he got out of the truck and confronted the man. A.V. then noticed the shorter
man, who was armed with a semiautomatic pistol. He told Judson he had seen the shorter
man inside the bar, where he had been scowling at others, before the incident. The two
men chased him around the parking lot, and at the end of the chase, A.V. disarmed the
shorter man and started beating him. The other man intervened and bit A.V.
A.V. told Judson that after the fight, the men took his gold chain. They
also tried to take his wallet and bracelet, but he did not let them. Judson could not recall
whether A.V. said Perez had taken the necklace or whether it was both of them. Judson
saw some cuts on the back of A.V.’s neck, and a bite mark on his upper arm.
About four months after the incident, detective Francisco Gomez showed a
photographic array containing defendant’s photograph to A.V. A.V. identified defendant
as the shorter man with the black gun he had fought with during the incident. A.V. also
mentioned he had seen star tattoos on defendant’s head. Detective Paul McClaskey

6
testified defendant has two star shaped tattoos on his temple, which were redacted from
the photograph shown to A.V. He said A.V. was not able to identify the taller man who
had shot at him in any of the photos he was shown. On cross-examination, McClaskey
stated A.V. told him he did not realize that defendant had a gun until he took it from him
and beat him with it.
A police forensics team investigated the scene and found two unfired .22-
caliber cartridges, one .22-caliber shell casing, one .25-caliber shell casing, and a .22-
caliber semiautomatic magazine splattered with blood. A.V.’s pickup had two bullet
holes in it: one in the rear window, and another in the cab panel immediately below it.
A forensic scientist from the Orange County Crime Lab, testified he
compared a swab containing a sample of defendant’s DNA with evidence swabs taken
from the scene of the incident and a control swab taken from A.V. One of the unfired
.22-caliber cartridges had DNA on it that was determined to have come from defendant
with a frequency profile of one in one trillion. Defendant was also determined to be
consistent as a minor contributor to DNA found on the magazine, with a frequency
profile of one in three.
The parties stipulated that on the day of the incident, defendant had
previously suffered a felony conviction within the meaning of the felon-in-possession of
a firearm provisions of section 29800, subdivision (a)(1).
DISCUSSION
1. Sufficiency of the Evidence
Defendant argues there was insufficient evidence to establish his derivative
liability under a natural and probable consequences theory for Perez’s acts of attempted
murder and assault with a firearm. He also contends insufficient evidence showed he
robbed A.V. of the gold chain, either as the direct perpetrator or as an aider and abettor.
We reject his first claim, but agree with the second.

7
 A. Standard of Review
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is
a limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738.) We “evaluate the whole
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—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. [Citations.]” (People v. Ramos (2016) 244 Cal.App.4th 99, 104; Jackson v.
Virginia (1979) 443 U.S. 307, 318-319 [“[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt”].)
We “must accept logical inferences that the jury might have drawn from the
circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396 (Maury).) If
more than one inference may reasonably be drawn from the evidence, we accept the
inference supporting the judgment. (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
“‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all
conflicts in the evidence and reasonable inferences must be resolved in favor of the
judgment.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409
(Campbell).)
Similarly, “[w]e resolve neither credibility issues nor evidentiary conflicts;
we look for substantial evidence.” (Maury, supra, 30 Cal.4th at p. 403.) It is the jury that
weighs the evidence, assesses witness credibility, and resolves conflicts in the testimony.
(People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) “A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]”
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) Simply put, an appellant “bears an
enormous burden” to prevail on a sufficiency of the evidence claim. (Sanchez, at p. 330.)

8
 B. Aiding and Abetting Liability
Section 31 provides that all persons “concerned in the commission of a
crime” are principals to that crime, regardless of whether they directly commit the act
constituting the crime or aid and abet in its commission. Thus, one who “aids and abets a
crime is guilty of that crime even if someone else committed some or all of the criminal
acts.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) “[A]n aider and
abettor’s liability for criminal conduct is of two kinds. First, an aider and abettor with the
necessary mental state is guilty of the intended crime. Second, under the natural and
probable consequences doctrine, an aider and abettor is guilty not only of the intended
crime, but also ‘for any other offense that was a “natural and probable consequence” of
the crime aided and abetted.’ [Citation.]” (Ibid.)
For the first kind—a “direct” aider and abettor—a person aids and abets a
crime if he or she aids, promotes, encourages, or instigates the commission of the crime,
with knowledge of the perpetrator’s unlawful purpose and the intent to facilitate the
commission of the crime. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).)
“The actual perpetrator must have whatever mental state is required for each crime
charged . . . . [A direct] aider and abettor, on the other hand, must ‘act with knowledge of
the criminal purpose of the perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating commission of, the offense.’ [Citation.]”
(People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) Under this theory, the crime
committed is the “target” offense.
The second kind of aiding and abetting liability is based on the natural and
probable consequences doctrine, which distinguishes “target” crimes and “nontarget”
crimes. “‘By its very nature, aider and abettor culpability under the natural and probable
consequences doctrine is not premised upon the intention of the aider and abettor to
commit the nontarget offense because the nontarget offense was not intended at all. It
imposes vicarious liability for any offense committed by the direct perpetrator that is a

9
natural and probable consequence of the target offense. [Citation.] Because the
nontarget offense is unintended, the mens rea of the aider and abettor with respect to that
offense is irrelevant and culpability is imposed simply because a reasonable person could
have foreseen the commission of the nontarget crime.’ [Citation.]” (People v. Chiu
(2014) 59 Cal.4th 155, 164 (Chiu).) Thus, “[t]he natural and probable consequences
doctrine is based on the principle that liability extends to reach ‘the actual, rather than the
planned or “intended” crime, committed on the policy [that] . . . aiders and abettors
should be responsible for the criminal harms they have naturally, probably, and
foreseeably put in motion.’” (Ibid.)
C. The Attempted Murder and Assault with a Firearm
The prosecution’s theory of defendant’s liability for the attempted murder
and assault with a firearm charges was that those offenses were a natural and probable
consequence of Perez’s breaking into A.V.’s truck and attempting to steal either it or its
contents. Because defendant intended to directly aid and abet the target offense of
attempted larceny, the prosecution contended he was therefore derivatively liable for
Perez’s subsequent crimes.
Defendant argues the target offense was “complete prior to any joint
activity between [defendant] and Perez.” (Capitalization omitted.) And because an aider
and abettor’s intent must be formed prior to or during commission of the offense aided
and abetted, defendant contends he did not aid and abet the attempted larceny at all. (See
People v. Montoya (1994) 7 Cal.4th 1027, 1039 (Montoya) [distinguishing aider and
abettors from accomplices after the fact].) Although defendant’s second premise is true,
his first is not.
A.V. did not notice defendant’s presence in the parking lot until after
Perez’s shots were fired and he got out of the truck, but J.S. testified that when he came
out of the bar and saw the man shoot at A.V. in the truck, the second man—defendant—
was also in the parking lot and standing by the truck.

10
 More importantly, there was evidence of “joint activity” between defendant
and Perez even before the parking lot encounter. A.V. testified he became uncomfortable
because defendant was watching him inside the bar. It is reasonable to infer defendant
was a lookout, keeping an eye out for someone leaving the bar and discovering Perez’s
theft-in-progress. “[A] lookout necessarily encourages and facilitates the commission of
the offense. ‘Such conduct is a textbook example of aiding and abetting.’ [Citation.]”
(In re Gary F. (2014) 226 Cal.App.4th 1076, 1081 (Gary F.).) This inference is
reinforced by the fact that when A.V. did leave the bar, defendant followed, where he
then approached A.V. with a gun in his hand.
Defendant points out there was no “testimony” Perez and defendant came
to the bar together and concludes this shows there was no evidence they were acting in
concert. However, this ignores the significance of the fact they left together. It is not
unreasonable to conclude the two were in cahoots from the outset based on the fact they
fled the scene together in the same car. Moreover, when A.V. got the best of defendant
in the fight, the fact that Perez came to defendant’s aid and attacked A.V. indicates
defendant’s presence was not merely incidental. Or as A.V. put it, “two guys” had tried
to take his truck.
“‘Whether a person has aided and abetted in the commission of a crime
ordinarily is a question of fact. . . . [¶] . . . [¶] Among the factors which may be
considered in making the determination of aiding and abetting are: presence at the scene
of the crime, companionship, and conduct before and after the offense.’ [Citation.]”
(Nguyen, supra, 61 Cal.4th at p. 1054.) In addition, in this context “‘flight is one of the
factors which is relevant in determining consciousness of guilt.’” (Gary F., supra, 226
Cal.App.4th at p. 1080.) All four factors are present here.
Defendant did not merely “happen by the scene of the crime.” (Campbell,
supra, 25 Cal.App.4th at p. 409.) Instead, the evidence supports an inference he was
extensively involved as a lookout inside the bar and as backup once outside, both of

11
which suggest a coordinated effort. (See Montoya, supra, 7 Cal.4th at p. 1043 [one who
makes “it more likely that the crime will be successfully completed than would be the
case absent such participation . . . logically should be liable as an aider and abettor”]; cf.
Campbell, at pp. 409-410 [affirming aider and abetting liability for an attempted robbery
where the defendant and perpetrator approached the victims together, there was “no
evidence [defendant] was surprised by [perpetrator’s] conduct or afraid to interfere with
it,” and “jury could reasonably conclude that [defendant acted] to intimidate and block
[victims], divert suspicion, and watch out for others who might approach”]; People v.
Luna (1956) 140 Cal.App.2d 662, 665 [the defendant liable where he “stood by prepared
to take a hand” in a fight involving a codefendant and “aggressively entered it when he
thought the proper time had arrived”].) Similarly, “companionship” is shown here not
only by Perez’s and defendant’s conduct during the crimes, but by the fact they fled
together in the same car when alerted to the fact the police were coming.
Defendant also contests the jury’s conclusion the attempted murder and
assault with a firearm offenses were a natural and probable consequence of the attempted
larceny. He contends there was “insufficient evidence that [defendant] could have
reasonably foreseen Perez’s decision to shoot at [A.V.].”
However, the focus of inquiry is not on whether defendant could have
reasonably foreseen Perez’s decision to shoot at A.V. ““‘A nontarget offense is a
“‘natural and probable consequence’” of the target offense if, judged objectively, the
additional offense was reasonably foreseeable.’” [Citation.] ‘The latter question is not
whether the aider and abettor actually foresaw the additional crime, but whether, judged
objectively, it was reasonably foreseeable.’ [Citation.]” (People v. Covarrubias (2016) 1
Cal.5th 838, 901.) This “is a factual question to be resolved by the jury in light of all of
the circumstances surrounding the incident.” (People v. Nguyen (1993) 21 Cal.App.4th
518, 531; People v. Favor (2012) 54 Cal.4th 868, 874 [same].) The question the jury had
to resolve here was whether, from an objective standpoint, an attempted murder was a

12
reasonably foreseeable consequence of Perez’s and defendant’s attempted theft scheme in
light of the entire factual background and not merely the bare-boned definition of the
target crime of attempted larceny. When viewed in that full context, there was sufficient
evidence in the record to allow the jury to resolve that question affirmatively.
Defendant argues that Perez’s shooting at A.V. was not foreseeable because
attempted larceny is not an “inherently violent” offense. He provides no authority for
3
why that fact is determinative. Moreover, as discussed, we do not merely “look to the
naked elements of a target crime but must consider the full factual context which the
defendant faced.” (People v. Lucas (1997) 55 Cal.App.4th 721, 732; People v. Medina
(2009) 46 Cal.4th 913, 920 [same]; cf. Chiu, supra, 59 Cal.4th at p. 165 [“We have never
held that the application of the natural and probable consequences doctrine depends on
the foreseeability of every element of the nontarget offense”].)
The key piece of evidence in this respect is that both Perez and defendant
were armed during these crimes. Unlike a pair of shoplifters or opportunistic
pickpockets, these two attempted larceny perpetrators were both armed with guns—and
used them. In the context of the surrounding circumstances, therefore, this attempted
larceny was far from an “inherently” nonviolent offense.
It is not unreasonable to infer that one arms himself with a gun because he
foresees the possibility of needing to use the weapon. In such a factual setting, a jury
could reasonably find the use of those firearms, either to facilitate their planned purposes
of stealing from vehicles in the bar parking lot or to make good on an escape, was a
reasonably foreseeable eventuality. (Cf. In re R.C. (2019) 41 Cal.App.5th 283, 286 [“It
was foreseeable that [minor] would use the pistol as a weapon. Why else would he bring
it to the scene of the crime”].) In sum, all relevant factors are present: presence at the

3
Defendant cites United States v. Andrews (9th Cir. 1996) 75 F.3d 552, but that
case had nothing to do with “inherently violent” offenses or their foreseeable
consequences.

13
scene of the crime, companionship, and conduct before and after the offense, including
their flight from the scene together. (Nguyen, supra, 61 Cal.4th at p. 1054; Gary F.,
supra, 226 Cal.App.4th at p. 1080.) Defendant’s convictions for attempted murder and
assault with a firearm under a natural and probable consequence theory are supported by
substantial evidence.
D. The Robbery
Defendant next contends there was insufficient evidence to convict him of
4
the robbery, either as the perpetrator or as a direct aider and abettor. We agree.
To prove defendant guilty of robbery, the prosecution had to show either he
or a coperpetrator took personal property in the possession of another, from his person or
immediate presence, and against his will, by means of force or fear, with the intent to
permanently deprive the owner of it. (§ 211; see CALCRIM No. 1600.) To be guilty of
robbery as a direct aider and abettor, defendant must have formed an intent to aid or abet
the robbery before or while Perez carried away the property to a place of temporary
safety. (CALCRIM No. 1603.) “[T]he jury need not decide unanimously whether
defendant was guilty as the aider and abettor or as the direct perpetrator.” (People v.
Majors (1998) 18 Cal.4th 385, 408.) Here, neither theory is supported by substantial
evidence.
A.V. told Correal the man who had been in his truck—Perez—demanded
his money and his gold chain. He ripped the gold chain from A.V.’s neck and then
chased him around the parking lot. And it was only then that the fight began. A.V. did
not give Correal any details suggesting defendant’s involvement.
On the other hand, A.V. told Judson that it was after the fight that “they”
took his gold chain. “They” also tried to take his wallet and bracelet, but he did not let

4
The prosecution’s theory of defendant’s liability for the robbery was not based
on the natural and probable consequences doctrine. As a result, the jury was not
instructed it could base its robbery verdict on that alternative theory.

14
them. Judson could not recall whether A.V. said Perez had taken the chain or whether it
was “both of them.” Again, A.V. did not provide Judson with any other details about
defendant’s involvement.
When testifying, A.V. did not recall making those statements to either
detective. He did testify he had lost the chain, but he could not recall when and could not
remember anyone taking it from him. It was only when he was discharged from the
hospital and collected his belongings that he realized he had “lost a gold chain,” but he
did not know what had happened to it. He suggested in his testimony that the necklace
may have been taken “when I was laying on the ground. I was laying for a while
unconscious on the ground.” He based this on the fact that when he arrived at the
hospital, he had his bracelet and his wallet, but not the necklace. However, he had earlier
testified he did not realize his necklace was missing until he was discharged from the
hospital. He could not recall telling anyone he was ever unconscious. And if he was, he
did not describe when that was.
Thus, we have evidence of three distinct—and inconsistent—scenarios
involving the taking of the gold chain: (1) It did not actually happen—or at least A.V.
could not remember it happening, possibly because he was unconscious at the time; (2)
Perez demanded and took the necklace before the fight broke out; and (3) the necklace
was taken by someone after the fight. There was testimony to support all three
possibilities, although in all three, details of defendant’s exact involvement are lacking.
However, not only are all three scenarios inconsistent with each other, they are also
inconsistent with the other evidence; it is not simply which of A.V.’s statements are to be
believed and which are to be rejected. These are not minor discrepancies involving
extraneous details. Nor are they the result of lapsed memories over a period of time;
Correal and Judson interviewed A.V. in the hospital soon after the incident.
The taking of the necklace could not have occurred before the fight, as A.V.
told Correal, because A.V. testified that when he got out of the truck, Perez ran away

15
towards some parked cars, as though he was trying to hide. A.V. then confronted
defendant and those two began to fight. Similarly, the taking of the necklace could not
have occurred after the fight, as he told Judson, because A.V. agreed “the entire fight
stops when someone is yelling out the police are coming.” And at this point, A.V. said
Perez and defendant went to their car and left. Finally, as noted, A.V. testified he could
neither recall the chain being taken nor ever telling the police about it. His speculation he
may have been unconscious while he was robbed is inconsistent with the time line of the
other events; in fact, the only time A.V. reasonably could have been unconscious is after
the pair fled and before police arrived. Furthermore, it conflicts with his statement to
Judson that “they” also tried to take his wallet and bracelet, but he would not “let them.”
The evidence of whether a robbery even occurred, let alone when, is therefore rather
equivocal.
More importantly, there is no evidence noticeably pointing to defendant’s
involvement. In other words, nothing supports an inference that defendant, as opposed to
Perez, was the direct perpetrator of the robbery, or that defendant “‘“aid[ed], promote[d],
encourage[d], or instigate[d] the commission of the [robbery],”’” “‘“with knowledge of
[Perez’s] unlawful purpose . . . and the intent . . . [to facilitate] the commission of the
[robbery].” (Nguyen, supra, 61 Cal.4th at p. 1054; see McCoy, supra, 25 Cal.4th at p.
1117 [“the aider and abettor’s guilt for the intended crime is not entirely vicarious.
Rather, that guilt is based on a combination of the direct perpetrator’s acts and the aider
and abettor’s own acts and own mental state”].)
We review for substantial evidence. Under this standard of review, our
power “‘begins and ends with the determination as to whether, on the entire record, there
is substantial evidence, contradicted or uncontradicted, which will support the
determination.’ [Citation.]” (People v. Superior Court (Jones) (1998) 18 Cal.4th 667,
681.) Even so, “substantial evidence does not mean any evidence, no matter how slight.”
(People v. Baker (2012) 204 Cal.App.4th 1234, 1247.) Rather, it is “evidence which,

16
when viewed in light of the entire record, is of solid probative value, maintains its
credibility and inspires confidence that the ultimate fact it addresses has been justly
determined.” (People v. Conner (1983) 34 Cal.3d 141, 149.) As regards the robbery in
this case, such evidence is lacking, and defendant’s conviction for that offense must
therefore be reversed.
2. Defendant’s Instructional Error Claim Is Moot
Defendant also contends the trial court incorrectly gave a unanimity
instruction that undermined and conflicted with the instruction defining robbery because
it conflated petty theft and robbery and failed to reiterate the force-or-fear element that
distinguishes robbery from mere larceny. As a result, he argues the robbery conviction
must be reversed. However, because we have reversed defendant’s robbery conviction
on other grounds, we need not determine whether this was error.
3. There Was No Prejudicial Prosecutorial Misconduct
Defendant next asserts the prosecutor engaged in prejudicial misconduct
several times during closing argument, by vouching for a witness and by misstating the
evidence. We are not persuaded.
A. Standard of Review
“To prevail on a claim of prosecutorial misconduct based on remarks to the
jury, the defendant must show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner. [Citations.] In
conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements. [Citation.]”
(People v. Frye (1998) 18 Cal.4th 894, 970 (Frye), disapproved on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “A prosecutor who uses deceptive
or reprehensible methods to persuade the jury commits misconduct, and such actions
require reversal under the federal Constitution when they infect the trial with such
‘“unfairness as to make the resulting conviction a denial of due process.”’” (People v.

17
Alfaro (2007) 41 Cal.4th 1277, 1328, quoting Darden v. Wainwright (1986) 477 U.S.
168, 181.) “‘“‘A prosecutor’s misconduct that does not render a trial fundamentally
unfair nevertheless violates California law if it involves “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citation.]”
(People v. Hoyt (2020) 8 Cal.5th 892, 943 (Hoyt).)
“It is not, however, misconduct to ask the jury to believe the prosecution’s
version of events as drawn from the evidence. Closing argument in a criminal trial is
nothing more than a request, albeit usually lengthy and presented in narrative form, to
believe each party’s interpretation, proved or logically inferred from the evidence, of the
events that led to the trial. It is not misconduct for a party to make explicit what is
implicit in every closing argument . . . .” (People v. Huggins (2006) 38 Cal.4th 175,
207.) “‘“‘[A] prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear
that counsel during summation may state matters not in evidence, but which are common
knowledge or are illustrations drawn from common experience, history or literature.”’”’
(People v. Hill (1998) 17 Cal.4th 800, 819-820 (Hill).)
B. Forfeiture
Here, defendant’s trial counsel did not object to some of the prosecutor’s
closing remarks he now claims were improper. Nor did he ask the trial court to admonish
the jury. “[T]o preserve a claim of prosecutorial misconduct for appeal, “‘“a criminal
defendant must make a timely and specific objection and ask the trial court to admonish
the jury to disregard the impropriety.’” [Citation.] The lack of a timely objection and
request for admonition will be excused only if either would have been futile or if an
admonition would not have cured the harm.’” (Hoyt, supra, 8 Cal.5th at pp. 942-943.)
This requirement extends to a claim that the prosecutor vouched for a witness. (People v.
Mendoza (2016) 62 Cal.4th 856, 906 (Mendoza); cf. Hill, supra, 17 Cal.4th at p. 820 [in

18
order to preserve an objection for review, defense counsel must object to the misconduct
“‘on the same ground’”].) Because defendant did not object to some of the now-
challenged portions of the prosecutor’s closing argument, he has not preserved a
challenge to these particular remarks on appeal. We therefore only address those
comments to which he did object.
C. Analysis
“As a general matter, ‘[i]mpermissible “vouching” may occur where the
prosecutor places the prestige of the government behind a witness through personal
assurances of the witness’s veracity or suggests that information not presented to the jury
supports the witness’s testimony.’ [Citation.] . . . ‘Similarly, it is misconduct “to suggest
that evidence available to the government, but not before the jury, corroborates the
testimony of a witness.” [Citation.] The vice of such remarks is that they “may be
understood by jurors to permit them to avoid independently assessing witness credibility
and to rely on the government’s view of the evidence.” [Citation.]’ [Citation.]” (People
v. Seumanu (2015) 61 Cal.4th 1293, 1329-1330 (Seumanu).)
In the context of closing argument, “‘“[s]o long as a prosecutor’s
assurances regarding the apparent honesty or reliability of prosecution witnesses are
based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather
than any purported personal knowledge or belief,’ [his] comments cannot be
characterized as improper vouching.”’ [Citation.]” (Seumanu, supra, 61 Cal.4th at p.
1330.) Similarly, “[a] prosecutor may comment upon the credibility of witnesses based
on facts contained in the record, and any reasonable inferences that can be drawn from
them . . . .” (People v. Martinez (2010) 47 Cal.4th 911, 958.)
Defendant focuses on the prosecutor’s following remarks: “[A.V.] didn’t
make the story up, and we know this for two reasons. To begin with, you as jurors with
your own life experience saw [A.V.] sitting on the witness stand. You saw his demeanor.
You saw him listening to the questions that he was asked. And you saw . . . the way that

19
he answered the questions. I asked him one question about . . . whether his truck was his
baby and you saw the way he responded to that. . . . You saw the smile that came onto
his face. That was a genuine response. It’s the kind of response that a person . . . gets
when they have an image in their head that they’re responding to, they’re reflecting on
the question and they’re responding to that. [¶] You also know that he didn’t make the
story up because he couldn’t have.” Defense counsel objected to these remarks as
“vouching.” The court overruled the objection, finding the prosecutor was referring to
the evidence.
The prosecutor continued: “[A.V.] had been in a fight. He was bleeding all
over the place. He’d been hit hard in the head. . . . In the time it took the police to arrive,
we know that [A.V.] dragged himself over to his truck. He didn’t know there were
bullets on the ground. He didn’t know. . . .” Defense counsel objected, stating, “No such
evidence, your Honor.” The court overruled the objections, again finding the prosecutor
was referring to the evidence.
The prosecutor went on: “[A.V.] could not possibly have known the
defendant’s DNA was on one of the rounds that was on the ground,” and “yet months
later he identified without hesitating the defendant in a photo lineup.” A.V. “was beaten,
and yet in the moments before the police arrived, he provided an account that explained
everything. A person could not make that up.” Defense counsel objected as to both
vouching and misstating the evidence, which was again overruled as argument referring
to the evidence.
“[A.V.’s] account explained his bloody condition, . . . the bullet holes in his
truck, . . . the blood on the pavement . . . , [and] why a magazine was there at all when we
know magazines only come from semiautomatic firearms. And according to his account,
the short guy who was present had a semiautomatic firearm. He later identified the same
guy as the defendant whose DNA came up on one of the rounds that was on the ground
next to the broken magazine . . . . Again, once you go over this and give it some thought,

20
a person could not make up a story when they’re in that condition in that short amount of
time.”
The whole point of these remarks was to argue how A.V.’s account was
generally consistent, both internally and with the physical evidence, i.e., it was not
fabricated. This was not improper vouching or referring to evidence not before the jury.
The prosecutor “nowhere suggested that [he] formed [his] opinion based on “‘“evidence
available to the government, but not before the jury.’”’ [Citation.] Nor did [he] imply
that the jury should adopt the prosecution’s view because of its ‘“‘prestige, reputation, or
depth of experience.’”’ [Citation.] Accordingly, there was neither impermissible
vouching nor reliance on evidence outside the record.” (People v. Krebs (2019) 8 Cal.5th
265, 344.) Similarly, he did not suggest he had other evidence, unpresented to the jury,
to support A.V.’s credibility (compare People v. Turner (2004) 34 Cal.4th 406, 433
[prosecutor improperly vouched for the credibility of expert witnesses by referring to the
prosecutor’s personal knowledge and prior use of them]), or that he personally believed
him independent of the evidence. Indeed, the prosecutor commented on A.V.’s demeanor
on the witness stand—evidence in the jury’s direct view—as something the jury should
consider in evaluating his testimony.
“Although the prosecutor’s comments invited the jury to consider the
witnesses’ motives in testifying, there is no impropriety in attempting to persuade jurors
to draw inferences based on the evidence. [Citation.] For the same reason, the
prosecutor’s use of rhetorical questions, for example, why ‘would [witness] be making
this stuff up?’ was not impermissible.” (Frye, supra, 18 Cal.4th at p. 972.) Similarly,
“there was nothing improper about the prosecutor’s statements at the conclusion of
closing argument telling jurors that ‘[witness’s] stories, her testimony, her statements to
police officers, have been just remarkably consistent, given without hesitation. There is
no way in the world she would have been able to do that if she was covering up for things
she had done.’ We find these assertions to be proper comment on the evidence adduced

21
at trial and reasonable inferences flowing from such evidence, and not, as defendant
contends, improper vouching on the part of the prosecutor.” (Ibid.) So too here.
Defendant implies the prosecutor’s colloquial use of the phrase “we all
know” when addressing the jury reveals a nefarious reference to matters outside the
record, known only to the prosecution. We disagree. Rather, the jury would have
reasonably understood the prosecutor’s reference to “we all know” as referring to the
evidence that the prosecution had presented to the jury during the trial and all the
reasonable inferences to be drawn from it; the use of the rhetorical “we” was meant to
include the jury. (Cf. People v. Bonilla (2007) 41 Cal.4th 313, 337 [references to the
truthfulness of a witness’s testimony did not suggest the prosecutor had personal
knowledge of facts outside the record].) Thus, to the extent “the vouching claim [was]
preserved, it would be without merit because the comment would not be understood to
refer to facts available solely to the government or to the prosecutor’s personal
knowledge or beliefs or the prestige of her office.” (Mendoza, supra, 62 Cal.4th at p.
907.)
“It is well settled that it is misconduct for a prosecutor to base argument on
facts not in evidence.” (Mendoza, supra, 62 Cal.4th at p. 906.) To the extent defendant
has not forfeited such a claim by failing to object, we again find no misconduct here.
Defendant objected as misstatements of the evidence when the prosecutor
stated several times that defendant and Perez “came in the same car.” The court
sustained two of these objections but overruled the others.
When taken in context, the prosecutor was not referring to nonexistent
evidence, he was instead drawing a reasonable inference from the evidence that was
presented. Thus, he told the jury, “These two guys left in the same car. It’s a reasonable
conclusion to reach that they came in the same car. Assuming that they came in the same
car, it’s also safe to assume that two guys showing up to commit crime when they both
have a gun . . . they’re in on it together.” In his rebuttal argument, the prosecutor

22
responded similarly to defense counsel’s argument there was no evidence the two came
together: “Two guys leave a bar together, they get in the same car, that’s circumstantial
evidence that they came together.” This was a fair comment on the evidence and was not
misconduct.
Finally, we also reject defendant’s newly framed federal constitutional
claims regarding the prosecutor’s arguments. Below, “[d]efendant made no objections
expressly or even impliedly referring to the federal Constitution and thus forfeited the
issue.” (Ibid. at p. 1332.) Even if were we to address these claims despite their
forfeiture, they would still lack merit. “[B]ecause there was no improper vouching under
state law, defendant’s [federal] due process claim is also meritless.” (Seumanu, at p.
1332.) Similarly, the comments defendant objected to at trial were based on fair
inferences the prosecutor drew from the evidence presented, and did not therefore deny
defendant a fair trial.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process . . . . Furthermore, and particularly pertinent here, when the claim
focuses upon comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood that the jury construed or applied any of the complained-
of remarks in an objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 44
(Morales).) Here, defendant makes no showing of such likelihood.
“Moreover, we presume that the jury relied on the instructions, not the
arguments, in convicting defendant. ‘[I]t should be noted that the jury, of course, could
totally disregard all the arguments of counsel.’ [Citation.] Though we have focused on
the prosecutor’s closing arguments, we do not do so at the expense of our presumption
that ‘the jury treated the court’s instructions as statements of law, and the prosecutor’s
comments as words spoken by an advocate in an attempt to persuade.’ [Citation.] The
trial court emphasized this rule when, as stated, it instructed the jury to follow its

23
instructions and to exalt them over the parties’ arguments and statements.” (Morales,
supra, 25 Cal.4th at p. 47.) And that is what happened here. The trial court instructed
the jury that attorneys’ comments are not evidence, both before trial began, and again at
the end of the trial.
We find no “reasonable likelihood that the jury construed or applied” the
prosecutor’s remarks “in an objectionable fashion.” (Morales, supra, 25 Cal.4th at p.
44.) In the context of the entire closing arguments of both counsel, and the instructions
given to the jury, defendant has failed to “show a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or erroneous manner”
(Frye, supra, 18 Cal.4th at p. 970.) Therefore, “[t]o the extent the alleged instances of
misconduct were not forfeited by defendant’s failure to object, we conclude none infected
the trial with unfairness or deceived the court or jury.” (Hoyt, supra, 8 Cal.5th at p. 943.)
Accordingly, defendant’s constitutional contentions also fail.
4. The Denial of Defendant’s New Trial Motion Was Not an Abuse of Discretion
Defendant brought a motion for new trial under section 1181, which allows
a trial court to grant a new trial when a jury’s verdict is “contrary to law or evidence.”
(§ 1181(6).) Defendant now contends the trial court abused its discretion in denying that
motion.
“‘A trial court has broad discretion in ruling on a motion for a new trial,
and there is a strong presumption that it properly exercised that discretion. “‘The
determination of a motion for a new trial rests so completely within the court’s discretion
that its action will not be disturbed unless a manifest and unmistakable abuse of
discretion clearly appears.’”’” (People v. Fuiava (2012) 53 Cal.4th 622, 730 (Fuiava).)
In considering such a motion, the trial court does not review the jury’s determination, but
independently reweighs the evidence. (Id. at pp. 729-730.) The court is “‘guided by a
presumption in favor of the correctness of the verdict and proceedings supporting it.
[Citation.]’” (Id. at p. 729.) Accordingly, the court “‘“should [not] disregard the

24
verdict . . . but instead . . . should consider the proper weight to be accorded to the
evidence and then decide whether or not, in its opinion, there is sufficient credible
evidence to support the verdict.”’” (Id. at pp. 729-730.)
Here, the court employed the correct standard, stating it had “independently
considered” the motion, and while the court understands it can reweigh the evidence, “in
reweighing the evidence, I don’t reach a different conclusion than the jury did.”
Moreover, it also detailed its independent characterizations of the evidence, and found it
sufficient.
Defendant points to one isolated fact where he disputes the court’s factual
finding—whether defendant pointed his gun at A.V. at any time—and concludes from
this the court denied the new trial motion solely based on that fact, thereby abusing its
discretion. This claim is not only factually incorrect—the court stated it reweighed all
the evidence—but defendant points to no authority to support such a hyperbolic claim.
Moreover, as noted above, it is also inconsistent with the standard of review.
Because we have found substantial evidence supports defendant’s
convictions for attempted murder and assault with a firearm, the trial court did not abuse
its discretion by independently finding sufficient evidence to deny the new trial motion.
Put simply, there was no “manifest and unmistakable abuse of discretion.” (Fuiava,
supra, 53 Cal.4th at p. 730.)
5. SB 1437 Does Not Apply to Attempted Murder Convictions
Finally, defendant argues his attempted murder conviction must be reversed
because of the 2019 statutory changes made by Senate Bill No. 1437. (2017-2018 Reg.
Sess. (SB 1437).) We disagree.
SB 1437 changed the definition of malice and the elements of the crime of
murder. It also created a statutory procedure, codified in new section 1170.95, by which
the defendants who have been convicted of murder based on a natural and probable
consequences theory of liability may petition the sentencing court to hear additional

25
evidence and, if appropriate, vacate the murder conviction if inconsistent with the now-
governing law. (See People v. Martinez (2019) 31 Cal.App.5th 719, 722-723
(Martinez).) But does SB 1437 also eliminate the natural and probable consequences
5
theory of liability for attempted murder?
To date, the Courts of Appeal have gone three ways on the question. “The
first group has held that [SB 1437] did not eliminate the natural and probable
consequences theory for attempted murder at all—either prospectively or retroactively.
(People v. Lopez (2019) 38 Cal.App.5th 1087, 1092-1093, review granted Nov. 13, 2019,
S258175 (Lopez); People v. Munoz (2019) 39 Cal.App.5th 738, 754, review granted Nov.
26, 2019, S258234 (Munoz) . . . [and] People v. Alaybue (2020) 51 Cal.App.5th 207,
222.” (People v. Love (2020) __Cal.App.5th__ (Love) (Oct. 1, 2020, B302892).) A
different panel of our own Fourth District, Division Three reached this same conclusion
in People v. Dennis (2020) 47 Cal.App.5th 838, 841, review granted July 29, 2020,
S262184 (Dennis).
“The second group has held [SB 1437] eliminated the natural and probable
consequences theory for attempted murder prospectively, but not retroactively. (People
v. Larios (2019) 42 Cal.App.5th 956, 966, 969-970, review granted Feb. 26, 2020,
S259983 (Larios); People v. Sanchez (2020) 46 Cal.App.5th 637, 642, review granted
June 10, 2020, S261768 (Sanchez).) The last group has held that [SB 1437] eliminated
the natural and probable consequences theory for attempted murder prospectively and
retroactively as to nonfinal convictions, but not retroactively as to final convictions.
(People v. Medrano (2019) 42 Cal.App.5th 1001, 1008, 1017-1019, review granted Mar.
11, 2020, S259948 (Medrano).)” (Love, supra, __Cal.App.5th at p. __.)
In Love, Division Two of the Second Appellate District, joined the first
group, and held that SB 1437 “does not eliminate the natural and probable consequences
5
The issue is currently pending in our Supreme Court and People v. Lopez,
(2019) 38 Cal.App.5th 1087 is the lead case.

26
theory for attempted murder on any basis—either prospectively or retroactively.” (Love,
supra, __Cal.App.5th at p. __.) “[W]e conclude that (1) [SB 1437’s] inapplicability to
the crime of attempted murder on a prospective basis is not clear from its text, but is clear
from its legislative history and not contradicted by any of the other canons of statutory
construction, and (2) even if [SB 1437] applied prospectively to the crime of attempted
murder, that application would not have any retroactive effect because the bill’s statutory
mechanism for providing retroactive relief—namely, section 1170.95—limits relief to
‘convictions’ for ‘murder,’ which rebuts the usual presumption that ameliorative changes
in the law apply retroactively to nonfinal convictions [citation].” (Ibid.)
Defendant has offered nothing to persuade us we should revisit our decision
in Dennis, and we now also adopt and agree with Justice Hoffstadt’s additional
conclusions as expressed in Love. Unless and until our Supreme Court rules otherwise,
we once again hold SB 1437 does not apply to attempted murder convictions.
DISPOSITION
The robbery conviction is reversed, and the matter is remanded for
resentencing. The superior court clerk is directed to prepare an amended abstract of
judgment and forward a copy to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

27