People v. Molina CA2/2

Filed 4/30/21 P. v. Molina CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B295701

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA143107)
v.

DAVID MOLINA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa P. Magno, Judge. Affirmed as modified.

Stephen M. Vasil, under appointment by the Court of
Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Michael Katz, Deputy
Attorneys General, for Plaintiff and Respondent.

******
 A jury convicted David Molina (defendant) of the attempted
premeditated murder of a person he believed to be a rival gang
member. On appeal, defendant argues that his conviction must
be reversed because (1) one of the legal theories that supports his
conviction is invalid, (2) the jury instructions were defective, and
(3) there was insufficient evidence. His arguments lack merit.
We therefore affirm, but order that defendant’s date of birth be
corrected in various court documents.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
At just past noon on a Tuesday in January 2017, defendant,
Jerome Hooks (Hooks) and Stephen Cuevas (Cuevas) accosted a
man exiting a liquor store.
The encounter took place in territory controlled by the 89
Family Swans street gang. Defendant, Hooks, and Cuevas are all
members of that gang. Cuevas is defendant’s cousin, and is
defendant’s protégé in the gang; to reflect this relationship,
defendant’s moniker is “Big TK Bandit” and Cuevas’s is “Lil TK
Bandit.” During the incident, Cuevas was wearing a ballcap with
a logo and in colors associated with the 89 Family Swans gang.
The incident in January 2017 started when defendant
spotted a man he believed to be a member of a rival gang (the 7-
Trey Crips) leaving a liquor store located within but at the edge
of 89 Family Swans territory. Defendant and Hooks started to
follow the man as he walked down the sidewalk toward his
parked car. Cuevas joined defendant and Hooks in their
approach momentarily, but then ducked into the liquor store and
emerged holding his hand to his waistband and with the hood of
his hoodie up.

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 As defendant, Hooks, and Cuevas caught up to the man,
defendant started talking to the man. At first, the man ignored
them but eventually turned to face them.
Defendant then stepped forward and squared off with the
man as Hooks and Cuevas fanned out on either side of defendant
in a semicircle around the man. Seconds later, defendant held
out his arm to point at the man and Cuevas immediately
thereafter pulled a revolver from his waistband and took aim at
the man.
Upon seeing the gun, the man lunged toward Cuevas but
defendant pulled him away. Cuevas fired a shot but the shot
missed the man and shattered the glass door of a marijuana
dispensary behind the melee. The man then grabbed defendant,
and the two engaged in a pushing and shoving match with the
man trying to keep defendant as a “shield” between himself and
Cuevas.
Hooks then stepped forward and punched the man in the
face. The man released defendant and then started to run down
the street. As the man fled, Cuevas fired off a second shot. That
shot also missed.
Defendant, Hooks, and Cuevas then ran away.
The following day, defendant was carrying a gun identical
in “make and model” to the gun Cuevas used the day before;
defendant was also with Hooks.
II. Procedural Background
A. The charge and allegations
The People charged defendant with a single count of willful,
deliberate, and premeditated attempted murder (Pen. Code,

3
§§ 187, subd. (a), 664, subd. (a)).1 The People further alleged that
(1) the crime was committed for the benefit of, at the direction of,
or in association with a criminal street gang (§ 186.22, subd.
(b)(1)(C)), and (2) a principal in the crime had personally and
intentionally discharged a firearm (§ 12022.53, subds. (c) &
(e)(1)).
B. Evidence at trial
The primary evidence at trial was surveillance video from
the marijuana dispensary that showed the incident unfold from a
variety of angles. The video had no audio track. An officer who
had reviewed the video “several times” walked the jury through
what was on the video, and offered still photographs from the
video.
A gang expert familiar with the 89 Family Swans gang
opined on street gang culture. Among other things, the expert
opined that (1) gangs are territorial and place great “importance”
on “defend[ing]” their territory “from encroachment” by rival
gang members; (2) “gangs are all about status and respect”; (3) a
rival gang member’s presence in another gang’s territory is a
“sign of disrespect”; (4) when members of rival gangs confront one
another, there is a “high” “probability [of] violence,” ranging from
a “physical fight” to gunplay, such that “hav[ing] a gun” is an
“absolute[] necess[ity]” if gang members are going “to confront a
rival gang member”; and (5) gang members who are “going out to
commit a crime together” “know [which of them] has a gun.”
Because Cuevas was the shooter, the trial court instructed
the jury that defendant could be convicted of the attempted
premeditated murder on one of two theories: (1) defendant aided

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

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and abetted Cuevas in the crime of attempted murder (the direct
aiding and abetting theory), or (2) defendant engaged in the
crime of “fighting or challenging someone to fight,” Cuevas aided
and abetted defendant in that fight or challenge, and the
attempted murder committed by Cuevas was a “natural and
probable consequence” of that fight or challenge (the natural and
probable consequences theory).
The jury found defendant guilty of attempted premeditated
murder, and found true the gang and firearm allegations.
C. Posttrial motions, sentencing and appeal
Defendant moved for a new trial on the ground that Senate
Bill 1437 (2017-2018 Reg. Sess. (S.B. 1437)) retroactively
abolished liability for attempted murder under a natural and
probable consequences theory. The trial court denied the motion.
The trial court sentenced defendant to prison for seven
years to life. In imposing this sentence, the court struck the gang
enhancement and imposed but stayed the 20-year firearm
enhancement.
Defendant filed this timely appeal.
DISCUSSION
Defendant raises a plethora of challenges to his conviction,
and those challenges can be grouped into three buckets—those
challenging the legal validity of his conviction, those challenging
the jury instructions, and those challenging the sufficiency of the
evidence. He also challenges the accuracy of his date of birth
recorded in several court documents.
I. Legal Validity of the Conviction
Defendant argues that his conviction of attempted
premeditated murder is legally invalid. He offers a two-step
argument: (1) the jury instructions precluded the jury from

5
finding him guilty under a direct aiding and abetting theory, (2)
he cannot be held liable for attempted premeditated murder on a
natural and probable consequences theory because of (a) our
Supreme Court’s decision in People v. Chiu (2014) 59 Cal.4th 155
(Chiu), superseded by statute as stated in People v. Gentile (2020)
10 Cal.5th 830, 849, and (b) S.B. 1437. The validity of a legal
theory of liability as well as jury instructions are questions of law
we review de novo. (People v. Waidla (2000) 22 Cal.4th 690, 730;
People v. Mitchell (2019) 7 Cal.5th 561, 579 (Mitchell).)
We reject the first step of defendant’s argument.
Although the jury was instructed on both the direct aiding
and abetting theory and the natural and probable consequences
theory, defendant contends that the instructions precluded the
jury from finding him guilty on a direct aiding and abetting
theory because (1) the introductory sentence of the natural and
probable consequences theory instruction stated, “Before you may
decide whether the defendant is guilty of attempted murder, you
must decide whether he is guilty of fighting or challenging
someone to fight” (italics added), and the seemingly absolute
nature of this command precluded the jury from also considering
whether defendant directly aided and abetted Cuevas in
committing attempted premeditated murder, and (2) the verdict
form used the words “malice aforethought” when no jury
instruction used those words.
Defendant’s arguments lack merit.
To us, the highlighted language rendered the jury
instructions confusing, not wrong on their face.2 On the one

2 We therefore reject the People’s concession that the
instruction was legally incorrect on the ground that the trial
court should not have given the CALCRIM 403 instruction in the

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hand, the highlighted language seemed to indicate that a finding
that defendant was guilty of fighting or challenging someone to
fight—a prerequisite only to the natural and probable
consequences theory—was something the jury must decide before
rendering its verdict for attempted murder on any theory. On the
other hand, the highlighted language was part of the jury
instruction clearly labeled as defining the “natural and probable
consequences” theory, which was separate from the instruction
defining the direct “aiding and abetting” theory. Where, as here,
the jury instructions “as a whole” are ambiguous, we ask
“whether there is a ‘“reasonable likelihood that the jury has
applied the challenged instruction”’” in the way the defendant
asserts. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 182.)
We conclude that there is no reasonable likelihood that the jury
read the highlighted phrase from the natural and probable
consequences theory instruction to entirely negate the direct
aiding and abetting theory instruction. The jury was given one
instruction for each theory, and those theories were clearly
labeled as distinct. What is more, both the prosecutor and the
defense attorney repeatedly argued to the jury there were “two”
“alternative their[ies]” at issue in the case. (Accord, People v.
Silveria and Travis (2020) 10 Cal.5th 195, 300 [argument of
counsel may be considered in evaluating whether there was a
reasonable likelihood of being misled].)
The verdict form’s use of words not in the jury instructions
is also of no moment because the “‘form of the verdict generally is

first place. The CALCRIM 403 instruction the court gave is
appropriate for cases, such as this one, where the so-called
“target” crime (here, fighting or challenging to fight) is not
separately charged. (CALCRIM No. 403, Notes.)

7
immaterial, so long as the intention of the jury to convict clearly
may be seen.’ [Citations.]” (People v. Jackson (2014) 58 Cal.4th
724, 750.) Here, the jury’s verdict reflected a finding of guilt on
the crime of attempted premeditated murder as well as on the
enhancements, findings that the jury reaffirmed when being
polled.
We also reject the second step of defendant’s argument, and
examine each of his proffered arguments separately.
A. Chiu-based argument
In Chiu, supra, 59 Cal.4th 155, our Supreme Court held
that a defendant cannot be convicted of first degree, premeditated
murder under a natural and probable consequences theory of
liability because, in the court’s view, “the legitimate public policy
considerations of deterrence and culpability would” be better
served by holding such aiders and abettors liable for, at most,
second degree murder. (Id. at p. 166; People v. Hardy (2018) 5
Cal.5th 56, 92-93 (Hardy).) Defendant urges that this same logic
should apply to the crime of attempted premeditated murder,
such that his liability as an aider and abettor under a natural
and probable consequences theory should be capped at attempted
murder, not attempted premeditated murder. (Accord, People v.
Mejia (2019) 40 Cal.App.5th 42, 49-50 [so holding].)
Defendant’s argument is inconsistent with our Supreme
Court’s decision in People v. Favor (2012) 54 Cal.4th 868 (Favor).
Favor held that a defendant may be convicted of attempted
premeditated murder based on a jury finding that attempted
murder was a natural and probable consequence of the
underlying crime he aided and abetted as long as the jury
separately finds that the attempted murder was premeditated.
(Id. at pp. 879-880.) More to the point, Favor remains good law

8
because Chiu dealt with a different issue—namely, the public
policy considerations underlying the crime of murder. (Accord,
People v. Flores (2016) 2 Cal.App.5th 855, 869 [so holding].) Chiu
did not speak to the considerations underlying the crime of
attempted murder and, to the contrary, went out of its way to
distinguish and preserve Favor. (Chiu, supra, 59 Cal.4th at p.
163.) Until our Supreme Court overrules Chiu, we are bound to
follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455-456.)
B. S.B. 1437-based argument
S.B. 1437 amended the statutes defining murder to prohibit
a murder conviction based solely upon a natural and probable
consequences theory of liability. (§§ 188, subd. (a)(3), 189, subd.
(e).) Defendant urges that S.B. 1437’s prohibition should apply to
the crime of attempted murder as well, and further contends that
refusing to do so violates the equal protection of the law. In
People v. Love (2020) 55 Cal.App.5th 273, review granted Dec. 16,
2020, S265445 (Love), we rejected both of the arguments
defendant now proffers. (Id. at pp. 279, 287-289.) Defendant lays
out the manifold ways in which he thinks Love is wrongly
decided. We are not persuaded. Defendant also argues that he is
making a novel and more as-applied equal protection argument
not addressed in Love—namely, that (1) the jury was not
instructed on any lesser included offenses, (2) the jury was
therefore presented with a choice between convicting him of
attempted murder and acquitting him, and (3) this all-or-nothing
choice warrants application of strict scrutiny under equal
protection (rather than rational basis scrutiny). We are also not
persuaded by this argument, as our Supreme Court has drawn no

9
such distinction. (People v. Wilkinson (2004) 33 Cal.4th 821, 837-
838.)
II. Instructional Error
To convict a defendant of a crime under a natural and
probable consequences theory, the People must prove (1) the
defendant either (a) aided and abetted a second person in
committing a predicate offense, or (b) with a second person’s aid
himself perpetrated the predicate offense, (2) the second person
committed the charged crime, and (3) the charged crime “was a
natural and probable consequence of the [predicate offense].”
(People v. Prettyman (1996) 14 Cal.4th 248, 261-262 (Prettyman),
superseded by statute as stated in People v. Lopez (2019) 38
Cal.App.5th 1087, 1103, review granted Nov. 13, 2019, S258175
(Lopez); People v. Olguin (1994) 31 Cal.App.4th 1355, 1367, 1375
(Olguin).) Defendant argues that the pattern CALCRIM
instruction on the natural and probable consequences theory
given in this case is incorrect because (1) it did not require the
jury to find that the crime that must be the natural and probable
consequence of the predicate offense of “fighting or challenging
someone to fight” was attempted premeditated murder (as it only
required attempted murder to be the consequence), and (2) it did
not require the jury to find that defendant had intended for
Cuevas to aid and abet him in the fight or challenge to fight that
defendant actually perpetrated as the predicate offense. As noted
above, we independently review claims of instructional error.
(Mitchell, supra, 7 Cal.5th at p. 579.)
A. Attempted murder versus attempted
premeditated murder
As noted above, our Supreme Court in Favor, supra, 54
Cal.4th 868 held that a defendant may be convicted of attempted
premeditated murder as long as the jury finds that (1) attempted

10
murder is a natural and probable consequence of the predicate
offense, and (2) the perpetrator of the attempted murder acted
with premeditation. (Id. at pp. 879-880.) Favor rejected the
position—advanced by defendant now—that the jury must find
that attempted premeditated murder is a natural and probable
consequence of the predicate offense. (Ibid.) Defendant urges
that Favor’s rule has been superseded by Chiu and by the United
States Supreme Court’s decision in Alleyne v. United States
(2013) 570 U.S. 99 (Alleyne). We have previously explained why
Chiu did not disturb Favor.
Neither did Alleyne. Alleyne held that a jury must find,
beyond a reasonable doubt, any facts that increase a sentence
whether those facts define the elements or penalties for that
crime. (Alleyne, supra, 570 U.S. at pp. 111-112.) To be sure, the
finding that an attempted murder is premeditated triggers a
higher sentence for the crime of attempted murder. (§ 664, subd.
(a); People v. Banks (2014) 59 Cal.4th 1113, 1152 [“The willful,
deliberate, and premeditated nature of an attempted murder is
‘“the functional equivalent of an element”’ of the offense insofar
as it increases the punishment for an attempted murder”],
overruled in part on other grounds as stated in People v. Scott
(2015) 61 Cal.4th 363, 391; People v. Seel (2004) 34 Cal.4th 535,
548.) But the fact that the jury must find that the attempted
murder in this case was premeditated—which the jury in this
case did—does not speak to whether the jury must also find that
a natural and probable consequence of the predicate offense is
attempted premeditated murder rather than attempted murder.
Favor found no need for this additional finding, and Favor was
handed down 12 years after the principle that animates Alleyne
was first recognized in Apprendi v. New Jersey (2000) 530 U.S.

11
466. Admittedly, the Courts of Appeal have split over whether
Alleyne undermines Favor (compare People v. Gallardo (2017) 18
Cal.App.5th 51, 82-85 [Favor remains good law] with People v.
Dennis (2020) 47 Cal.App.5th 838, 852 [Alleyne undermines
Favor]), and our Supreme Court has granted review to consider
the issue in Lopez, supra, 38 Cal.App.5th 1087, review granted
Nov. 13, 2019, S258175. In the meantime, however, Favor
remains good law.
B. “Reciprocity of intent”
Although, in the typical case, a defendant convicted of a
charged crime under a natural and probable consequences theory
aids and abets a second person in committing a predicate offense
and the second person thereafter commits the charged crime (e.g.,
Prettyman, supra, 14 Cal.4th at pp. 261-262), a defendant can
also be convicted under this theory if he is the one who actually
perpetrates the predicate offense, is aided and abetted in that
offense by a second person, and the second person thereafter
commits the charged crime (e.g., Olguin, supra, 31 Cal.App.4th at
pp. 1367, 1375; People v. Culuko (2000) 78 Cal.App.4th 307, 329-
330 (Culuko)). This case involves the latter scenario because
defendant was the person who perpetrated the predicate offense
of fighting the victim or challenging the victim to fight; Cuevas
aided and abetted him in that fight or challenge; and Cuevas
thereafter committed an attempted premeditated murder.
Defendant urges that, in this scenario, the People must
prove an additional element—namely, that the defendant agreed
to allow the second person to participate in the predicate offense.
There must be, in defendant’s words, a “reciprocity of intent”:
The second person must intend to aid and abet the defendant in
perpetrating the predicate offense, so the defendant must be

12
shown to reciprocally intend the second person to aid and abet
him. For support, defendant draws upon principles of agency and
language found in People v. Kauffman (1907) 152 Cal. 331
(Kauffman).
This argument is foreclosed by precedent.
The agency principles and language from Kauffman delimit
the liability of coconspirators by shielding them from the acts of a
coconspirator that are the “fresh and independent product of the
mind of one of the confederates outside of, or foreign to, the
common design.” (Kauffman, supra, 152 Cal. at p. 334.) In
People v. Smith (2014) 60 Cal.4th 603 (Smith), however, our
Supreme Court held that this limitation on conspirator liability
did not apply to the liability of aiders and abettors under a
natural and probable consequences theory. (Id. at pp. 615-617.)
Unlike coconspirators who merely “agree to commit a crime,”
aiders and abettors have mutually participated in the predicate
offense (ibid.); their mutual participation as “principals” in the
predicate offense functions as the “‘equivalent to manifesting
consent to liability’” to all of the crimes that naturally and
probably flow from that predicate offense. (People v. Luparello
(1986) 187 Cal.App.3d 410, 439; Olguin, supra, 31 Cal.App.4th at
p. 1376; see People v. Morante (1999) 20 Cal.4th 403, 433 [“Aiding
and abetting does not require participation in an agreement to
commit an offense, but merely assistance in committing the
offense”].) There is accordingly no need to have a further
showing of consent or agreement. What protects a defendant
from liability for wholly unexpected acts of a coparticipant is not
a showing that he agreed to let the coparticipant aid him in
committing the predicate offense, but instead that wholly
unexpected acts are unlikely to be a “natural and probable

13
consequence” of their mutual criminal activity. (Smith, at p.
617.) Defendant urges that no case has specifically rejected his
theory, but this ignores that Smith and other cases all rest on a
principle that, as explained above, is irreconcilable with
defendant’s theory and could not stand if that theory were the
law. (Accord, Smith, at pp. 609-617 [defendant who started gang
fight liable for shooting by gang rivals, without a showing that
defendant consented to the rivals’ participation in the gang fight];
Olguin, at pp. 1375-1376 [defendant who started fight liable for
shooting by coparticipant, without a showing that defendant
consented to coparticipant’s assistance with the fight]; Culuko,
supra, 78 Cal.App.4th at pp. 329-330 [defendant who abused
victim liable for murder by second person, without a showing that
defendant consented to that person’s assistance with the abuse].)
III. Sufficiency of the Evidence
As noted above, defendant’s conviction for attempted
premeditated murder rests on one of two theories: (1) defendant
aided and abetted Cuevas in the crime of attempted murder, or
(2) defendant committed the crime of fighting or attempting to
fight with Cuevas’s aid, Cuevas committed the crime of
attempted premeditated murder, and attempted murder is a
natural and probable consequence of the crime of fighting or
attempting to fight on the facts of this case. Because, as we have
held, both theories are valid, the jury need not unanimously
agree on the theory of liability underlying the conviction. (Smith,
supra, 60 Cal.4th at p. 618.) In determining whether there is
sufficient evidence under each theory, we ask whether the record,
as a whole and viewed in the light most favorable to the verdict,
contains “‘“substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable

14
trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.]’” (People v. Dalton (2019) 7 Cal.5th 166, 243.)
A. Natural and probable consequences theory
As set forth above, to prove a defendant guilty of a crime
under the theory that the crime was the natural and probable
consequence of a predicate offense, the People must establish
that (1) the defendant either (a) aided and abetted a second
person in committing a predicate offense, or (b) with a second
person’s aid himself perpetrated the predicate offense, (2) the
second person committed the charged crime, and (3) the charged
crime “was a natural and probable consequence of the [predicate
offense].” (Prettyman, supra, 14 Cal.4th at pp. 261-262; Olguin,
supra, 31 Cal.App.4th at pp. 1367, 1375; Hardy, supra, 5 Cal.5th
at p. 92.) The charged crime is a natural and probable
consequence of the predicate offense if a reasonable person in
defendant’s circumstances would recognize that the charged
crime was a reasonably foreseeable consequence of the predicate
offense. (Chiu, supra, 59 Cal.4th at p. 165; People v. Medina
(2009) 46 Cal.4th 913, 920 (Medina).) To be a reasonably
foreseeable consequence, the charged crime need only be a
“‘“possible consequence”’”—not a “‘“strong[ly] probab[le]”’” one.
(Medina, at p. 920.)
Substantial evidence supports defendant’s conviction of
attempted premeditated murder on a natural and probable
consequences theory. As seen in the surveillance video,
defendant followed the victim, started talking with him and
squared off against him as Hooks and Cuevas fanned out beside
defendant to cut off the victim’s possible routes of escape; this
constituted a challenge to a fight, which satisfied the
requirement that defendant actually perpetrated the predicate

15
offense of challenging the victim to a fight.3 Cuevas committed
the charged crime of attempted premeditated murder by shooting
at the victim twice as a part of coordinated attack to challenge a
person perceived to be a rival gang member. And the charged
crime of attempted murder was a natural and probable
consequence of the gang-related turf challenge that defendant
initiated with the victim. The gang expert opined that there is a
“high” “probability of violence” that such confrontations will
result in a fight or in gunfire. And it is well within a jury’s
province to find that a reasonable person would foresee that
attempted murder is a natural and probable consequence of a
gang-related assault or fistfight. (E.g., Medina, supra, 46 Cal.4th
at p. 922 [so holding]; Olguin, supra, 31 Cal.App.4th at p. 1376
[same]; People v. Godinez (1992) 2 Cal.App.4th 492, 499-500
[same]; People v. Montano (1979) 96 Cal.App.3d 221, 226-227
[same]; see generally People v. Ayala (2010) 181 Cal.App.4th
1440, 1449-1450 [collecting cases].)
Defendant argues that there was insufficient evidence that
he challenged the victim to a fight because the sole evidence of
the challenge was the body language depicted in the surveillance
video; defendant’s body language did not definitively indicate any
challenge or intention to fight; and the victim’s failure to fight
back shows that the victim had not been challenged to fight. To
be sure, the video did not have an audio track. But the video
itself plainly shows defendant, Hooks, and Cuevas following the
victim down the sidewalk; shows defendant walking toward the
victim; and shows defendant, Hooks, and Cuevas walking up to

3 Whether defendant also aided and abetted Hooks or Cuevas
in that challenge is irrelevant because, as noted above, it is not
necessary.

16
the victim and fanning around him. It was also undisputed that
the encounter took place in 89 Family Swans gang territory; that
defendant, Hooks, and Cuevas were 89 Family Swans members;
and that defendant believed the victim to be a member of a rival
gang. Although the jury could have viewed defendant’s
aggressive approach to the victim as an overeager desire to
engage in a discourse on the weather or a variety of other topics,
the jury also could have viewed the body language of defendants
and his cohorts as a challenge to fight prompted by gang rivalry.
We reject defendant’s implicit entreaty to reweigh the evidence.
(People v. Armstrong (2016) 1 Cal.5th 432, 451.) The victim’s
failure to fight back does not show a lack of a challenge so much
as it shows a wise choice to try to avoid a confrontation or to
escape rather than to engage the three people surrounding him in
a fight he might not survive. And although there is sufficient
evidence to support guilt on this theory without the lay opinion of
the witness who watched the video repeatedly, that witness’s
opinions make the evidence of guilt even stronger and were
properly before the jury as an appropriate lay opinion of a person
who has greater familiarity with the video and who is offering an
opinion regarding the gestalt of what the video depicted. (People
v. Son (2020) 56 Cal.App.5th 689, 696-698 [witness who watched
a video many times may offer lay opinion testimony about the
“obscure details in the video” she observed].)4

4 Defendant contends that the witness’s testimony was
“speculative” because the witness told the jury about aspects of
the video footage that the monitor in the courtroom did not
clearly depict due to its larger pixels. This contention ignores the
witness’s further explanation that he did, in fact, see the aspects
to which he testified on the smaller, higher-resolution screen he

17
 B. Direct aiding and abetting theory
To prove defendant guilty of attempted premeditated
murder on a direct aiding and abetting theory, the People have to
prove (1) defendant knew of Cuevas’s unlawful purpose to commit
attempted murder, (2) defendant, by his act or advice, aided,
promoted, encouraged or instigated Cuevas’s commission of
attempted murder, and (3) defendant acted with the intent to
commit, encourage or facilitate Cuevas’s commission of attempted
murder—that is, with the intent to kill. (People v. McCoy (2001)
25 Cal.4th 1111, 1118; Prettyman, supra, 14 Cal.4th at p. 259;
People v. Beeman (1984) 35 Cal.3d 547, 561; People v. Lee (2003)
31 Cal.4th 613, 624.) Evidence of a defendant’s knowledge and
intent (the first and third elements) is “‘almost inevitably
circumstantial.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055
(Nguyen).) Evidence “relevant” to whether a defendant has aided
and abetted the perpetrator (the second element) includes
“‘presence at the scene of the crime, companionship, and conduct
before and after the offense.’ [Citation.]” (Id. at p. 1054.)
Substantial evidence supports the defendant’s conviction of
attempted premeditated murder under a direct aiding and
abetting theory. Defendant’s knowledge of Cuevas’s purpose to
commit murder, defendant’s aid in that purpose, and defendant’s
intent to kill can be inferred from the coordinated manner in
which defendant, Hooks, and Cuevas accosted the victim;
defendant’s role in instigating the confrontation; and defendant’s
role in directing Cuevas, given that Cuevas pulled out the gun
moments after defendant pointed at the victim. Such “concerted
action reasonably implies a common purpose.” (People v.

used to study the video, and ignores that the jury was given a
laptop with which to view the video on a smaller screen.

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Campbell (1994) 25 Cal.App.4th 402, 409-410; accord, People v.
Hill (1998) 17 Cal.4th 800, 851-852 [concerted action implies
knowledge and intent]; People v. McDaniels (1980) 107
Cal.App.3d 898, 903-904 [same].) Defendant’s knowledge and
intent are further cemented by defendant’s belief that the victim
was a rival gang member, the victim’s presence in 89 Family
Swan territory, and the expert testimony that gang members will
confront trespassing rival gang members and that such
confrontations typically lead to violence.
Defendant challenges this conclusion with what boil down
to four arguments.
First, he argues that the video showed Hooks and Cuevas
crossing the street to meet up with defendant before the three of
them moved in tandem to follow and accost the victim. Because
the video captures the moment when all three 89 Family Swan
members met up that day, defendant reasons that their meeting
must have been serendipitous “happenstance.” Whether they
met up mere seconds or long hours before starting their assault
on the victim, the coordinated manner in which they stalked and
accosted their victim provides substantial evidence to support the
jury’s finding that they acted in concert and that defendant
accordingly knew of and shared Cuevas’s intent to kill. The cases
defendant cites are inapposite. (People v. Tabizon (1958) 166
Cal.App.2d 271, 272-274 [presence in room containing narcotics
does not constitute sufficient evidence of dominion or control]; In
re Elisabeth H. (1971) 20 Cal.App.3d 323, 330-331 [same].)
Second, defendant asserts that there was insufficient
evidence to show he was aware Cuevas had a gun, and thus
insufficient evidence that defendant knew of Cuevas’s plan or
that he intended to kill. This assertion lacks merit factually and

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legally. Factually, Cuevas drew the gun from his waistband
immediately after defendant pointed at the victim; from this
coordinated action, the jury could reasonably infer that defendant
had signaled to Cuevas—his protégé and cousin—that then was
the time to pull out the gun. Defendant had a gun of the same
make and model the next day; from this and from the gang
expert’s testimony that gang members share weapons
collectively, the jury could infer that it was the same gun and
that defendant had dominion and control over it, both before and
after the charged crime. What is more, the gang expert testified
that gang members who are “going out to commit a crime
together” “know [which of them] has a gun,” and this is a
permissible expert opinion about how gangs operate generally
that provided the jury a basis to conclude that defendant knew
about the gun. (People v. Killebrew (2002) 103 Cal.App.4th 644,
657 (Killebrew) [expert testimony regarding the “‘culture and
habits’” of gangs is permissible]; Olguin, supra, 31 Cal.App.4th at
p. 1371 [testimony about what “gang members typically expect” is
permissible]; Nguyen, supra, 61 Cal.4th at p. 1055 [same]; cf.
Killebrew, at p. 658 [expert may not testify “that a specific
individual had specific knowledge”]; In re Wing Y. (1977) 67
Cal.App.3d 69, 78-79 [evidence of gang membership alone not
relevant to prove criminal conduct]; Spivey v. Rocha (9th Cir.
1999) 194 F.3d 971, 978 [evidence of gang membership to prove
bias unduly prejudicial when other evidence of bias is admitted].)
Legally, there can be sufficient evidence that a gang member
intended to kill a rival gang member even without proof that the
member knew one of his cohorts possessed a gun. (Medina,
supra, 46 Cal.4th at p. 924; see also People v. Montes (1999) 74
Cal.App.4th 1050, 1056.)

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 Third, defendant contends that the gang expert’s testimony
regarding a gang’s need to police its territory is irrelevant here
because the 89 Family Swans gang had allowed a rival gang to
operate the marijuana dispensary within but on the border of its
territory, such that the 89 Family Swans gang must care less
about its territory and such that defendant had no reason to
confront the rival gang member. Although the dispensary was
run by a different gang, the expert also opined that this was
likely a begrudging accommodation because the other gang was
more powerful than the 89 Family Swans and opined that it was
not unusual for gangs to have irregularly shaped territories in
any event. Based on this evidence, the jury could have
reasonably inferred that the 89 Family Swans had greater
incentive to patrol their territory from further encroachment
rather than lesser incentive, as defendant contends.
Lastly, defendant urges that defendant’s reaction after
Cuevas pulled out the gun does not show defendant had the
intent to kill. We disagree. After Cuevas pulled the gun on the
victim, defendant did not express shock; instead, he stepped
forward to prevent the victim from reaching Cuevas. The fact
that defendant was in close proximity to the victim thereafter
was not out of a desire to stop Cuevas from shooting, but instead
because the victim grabbed defendant and tried to use him as a
human shield to keep Cuevas at bay. And the fact that defendant
and the others fled after Cuevas’s second shot missed could
reasonably be viewed by a jury as part of the common plan to
evade capture once the confrontation was over. (Medina, supra,
46 Cal.4th at p. 924 [evidence that the defendants fled after the
shooting was treated as an additional factor suggesting aiding
and abetting liability].) Most importantly, the manner in which

21
defendant, Hooks, and Cuevas worked together before Cuevas
drew the gun was sufficient by itself to establish the existence of
a common plan to kill the victim as well as defendant’s
knowledge of the plan and his intent to kill.
IV. Correction of Errors in Date of Birth
Defendant contends, and the People concede that
defendant’s date of birth is incorrectly reported as November 7,
1994 rather than the correct date of November 7, 1997, in the (1)
abstract of judgment, (2) probation report, (3) complaint, and (4)
information. Courts have an inherent power, even on appeal, to
correct clerical errors in records so as to make these records
‘“reflect the true facts.’” (People v. Mitchell (2001) 26 Cal.4th 181,
185.) Because the probation report and abstract of judgment
continue to be used by the California Department of Corrections
and Rehabilitation for administrative and classification purposes
(§§ 1203c, subd. (a)(1), 1203.01; Cal. Rules of Court, rule 4.411),
we order those two documents to be corrected.

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 DISPOSITION
The trial court is ordered to correct the abstract of
judgment and the probation report to reflect that defendant’s
date of birth is November 7, 1997. The court is further ordered to
forward a certified copy of the corrected abstract of judgment and
probation report to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
ASHMANN-GERST

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