Filed 2/5/15 P. v. Guzman CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                              B240155

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. TA115722)
         v.

FERNANDO GUZMAN et al.,

         Defendants and Appellants.


         APPEAL from judgments of the Superior Court of Los Angeles County,
Eleanor J. Hunter, Judge. Affirmed.
         Joanna McKim, under appointment by the Court of Appeal, for Defendant and
Appellant Fernando Guzman.
         Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
and Appellant Luis Angel Rodriguez.
         John A. Colucci, under appointment by the Court of Appeal, for Defendant and
Appellant Jesus Trujillo.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Robert M.
Snider, Deputy Attorneys General, for Plaintiff and Respondent.
                          _________________________
       Appellants Fernando Guzman, Luis Angel Rodriguez, and Jesus Trujillo appeal
from the judgments entered following their convictions by jury on count 1 – first degree
murder (Pen. Code, § 187)1 with a lying-in-wait special circumstance (§ 190.2, subd.
(a)(15)) and count 2 – shooting at an inhabited dwelling (§ 246) with a principal armed
with a firearm (§ 12022, subd. (a)), with findings as to each offense a principal personally
used a firearm, personally and intentionally discharged a firearm, and personally and
intentionally discharged a firearm causing great bodily injury and death (§ 12022.53,
subds. (b), (c), (d) & (e)(1)), and the offense was committed for the benefit of a criminal
street gang (§ 186.22, subd. (b)). The court sentenced each appellant to prison for 50
years to life. We affirm.
                                 FACTUAL SUMMARY
1. People’s Evidence.
       a. The Murder of Jonathan Escobar.
       Viewed in accordance with the usual rules on appeal (People v. Ochoa) (1993)
6 Cal.4th 1199, 1206 (Ochoa), the evidence established that about 7:00 p.m. on
November 19, 2010, appellants, Nathalie Roman, and Cindy Nunez were at Roman’s
home in Paramount. Several of Guzman’s friends, including Miguel Cossio-Almeda, and
Scrappy, were there. Appellants, Cossio-Almeda, Roman, and Nunez were members of
the DMS criminal street gang (DMS).2
       While in Roman’s home, Trujillo and Cossio-Almeda spoke ill of Jonathan
Escobar (the decedent) and said, “Fuck that fool.” Escobar was a member of M2K, a
tagging crew affiliated with the Paramount Varrio gang (Varrio) in Paramount. DMS
was a rival of M2K and Varrio. Guzman and Escobar were friends and when Trujillo and
Cossio-Almeda spoke ill of Escobar, Guzman defended him. Cossio-Almeda talked
about a shotgun, a “.22,” and a “nine-millimeter,” and showed a photograph of those


1
       Subsequent statutory references are to the Penal Code.
2
       As we discuss later, Guzman was a member of a clique that was part of DMS.

                                             2
weapons to Roman. Sometime after 11:00 p.m., Guzman asked Roman to ask Rodriguez
if Guzman could borrow Rodriguez’s truck. Guzman and Scrappy left in the truck.
Rodriguez, Trujillo, and Cossio-Almeda followed in Cossio-Almeda’s car.
       About 11:50 p.m., Charlene Peacock was in her apartment at 8237 Somerset in
Paramount. Escobar lived in the apartment complex. Peacock heard a distant shotgun
blast, a closer shotgun blast, then three or four quieter shots. Several bullets entered
Peacock’s home; others struck the complex. Peacock called 911 and reported seven shots
were fired and a car was speeding away.
       Peacock later looked out her window and saw the complex’s pedestrian gate open.
Escobar staggered into the complex with blood on his shirt and collapsed in the driveway
of the parking structure. Rodriguez jumped a fence and landed on a minivan. He leaned
across the front of the minivan and aimed and fired a shotgun at Escobar. Trujillo and
Guzman entered via a side gate. Guzman was unarmed. Trujillo lay on the ground and
aimed and fired a handgun at Escobar. Escobar sustained two gunshot wounds, a fatal
.22-caliber wound in the back, and a wound on the back of his right forearm. A detective
testified Escobar was shot after 11:46 p.m. but before 11:50 p.m. Guzman never went to
Escobar after he was shot to see if he was okay.
       A fourth man holding a gun stood near a car outside the gate. He was yelling
orders and telling others to make sure Escobar was dead. Guzman seemed to be afraid.
Peacock testified Guzman said, “ ‘I guess they supposedly came over just to talk to
[Escobar] or to scare [him], not to kill him.’ ” Peacock also testified Guzman said, “ ‘I
thought you guys was gonna,’ ” but Guzman was interrupted and someone grabbed him.
At some point Rodriguez or Trujillo told Guzman to shut up. Peacock testified the fourth
man hurried appellants into a car that drove away, but she was not sure each appellant
entered the car. A Camry belonging to Cossio-Almeda drove away. Rodriguez’s truck
was nearby.




                                              3
       b. Additional Evidence.
       Deputies recovered eight .22-caliber casings in the street, sidewalk, and driveway,
and the evidence was consistent with shots having been fired from the street. The casings
came from the same firearm. Two plastic waddings from a shotgun shell were recovered,
one in the driveway, the other adjacent to the driveway.
       Deputies found a cell phone next to Escobar’s body. The cell phone belonged to
Escobar’s father. A cell phone was also recovered from Guzman when he was arrested
on December 7, 2010. Escobar’s cell phone received text messages from Guzman’s cell
phone asking Escobar to walk out to the front of the location. At 11:46 p.m. on
November 19, 2010, Escobar’s cell phone received a message from Guzman’s cell phone
that said, “Foo come.” At 11:47 p.m., Escobar’s cell phone sent a message to Guzman’s
cell phone that said, “I am.” At “11:55” p.m., Escobar’s cell phone received two
messages from Guzman’s cell phone. One said, “Where you at, foo? I’m here.” The
other said, “Ima bounce. You’re taking too long. Lates.”
       At 12:09 a.m. on November 20, 2010, Escobar’s cell phone received a long
message from Guzman’s cell phone. The message included the words, “Be careful,”
“Paramount looking,” “Anyone to,” and “Truchas foo.” Los Angeles County Sheriff’s
Detective Kasey Woodruff testified if someone sent Escobar a text “warning him to
watch out for Eastside Paramount because they’re looking for someone to shoot” this
would aid the sender “like an alibi.”
       Woodruff testified that on December 16, 2010, Nunez told him the following.
Guzman told Nunez concerning the murder, “they killed the victim.” Guzman also told
Nunez that he killed Escobar3 and if she revealed the killing, she would be killed.




3
      Notwithstanding Guzman’s argument that Woodruff was “pressed by the
prosecutor” to testify that Nunez told Woodruff that Guzman told Nunez that he killed
Escobar, Woodruff’s testimony on this issue occurred after Woodruff refreshed his
memory with his notes.

                                             4
       Woodruff testified Roman told him the following. The same five people who left
Roman’s house later returned, and both vehicles returned. Guzman and Scrappy were
still in the truck. Guzman said, “ ‘I thought we were just going to talk but those fools just
started shooting.’ ”
       c. Gang Evidence.
       Woodruff, a gang expert, testified about, inter alia, DMS and a Paramount clique
as follows. (We italicize below facts pertinent to an issue we later address, i.e., whether
the Paramount clique was part of DMS.) DMS was a criminal street gang the primary
activities of which included assault and murder.4
       Rodriguez and Trujillo were DMS members. The shooting was committed for the
benefit of, at the direction of, and in association with, DMS. The present offense
occurred in M2K territory.
       There were about 28 members in DMS. When the prosecutor asked Woodruff
what territory “they” claimed, Woodruff testified there were “two territories, with two,
separate cliques.” The original started in Lynwood, followed by the Paramount clique.
The Paramount clique’s vandalism said, “DMS, DMS13, maybe a moniker.” (Italics
added.) The Paramount clique was new, consisted of six to seven members, and was
trying to gain territory where Escobar lived. Woodruff testified concerning the
Paramount clique, “. . . DMS was starting to try out new clique, their clique. The area
they’re trying to call their own is the area traditionally known as Paramount Varrio . . . .”
(Italics added.)
       Woodruff testified he asked Roman “how many DMS are in the Paramount
clique” and she indicated who was in that clique, namely, appellants, Roman, Nunez, and
a person named Juero. (As mentioned, Woodruff also testified Rodriguez and Trujillo


4
       As part of the proof of the predicate offenses required to establish a “pattern of
criminal gang activity” for purposes of section 186.22, subdivisions (b)(1), (e), and (f),
the People proved Cossio-Almeda and Javier Cueros each committed a qualifying
offense. Woodruff testified Cossio-Almeda and Cueros were DMS members.

                                              5
were DMS members.) Rodriguez was the leader of the Paramount clique. We note
Guzman appeared to acknowledge the Paramount clique was part of DMS when
Guzman’s counsel cross-examined Woodruff at trial as follows: “Q. Now, the territory
that you were saying that the Paramount – the DMS clique is trying to claim is actually
territory that previously belonged to Paramount Varrio; is that correct? [¶] A. Yes.”
2. Defense Evidence.
       In Guzman’s defense, a gang expert testified DMS was not a gang but a tagging
crew. Sometimes gang members planned crimes of which a particular gang member was
unaware. Guzman’s shocked look at the scene was consistent with a reaction to an
unexpected event. The word “Truchas” meant “be careful.” Rodriguez and Trujillo
presented no defense witnesses.
                                         ISSUES
       Appellants claim the trial court erred in its response to a jury question concerning
aiding and abetting liability. Guzman claims (1) the trial court erroneously failed to
instruct on aiding and abetting, (2) there was insufficient evidence he aided and abetted
murder, (3) there was insufficient evidence he committed first degree murder, (4) there
was insufficient evidence supporting the special circumstance finding, and (5) there was
insufficient evidence supporting his conviction on count 2. Rodriguez and Trujillo claim
there was insufficient evidence supporting the gang enhancement finding.5
                                      DISCUSSION
1. The Trial Court Properly Responded to the Jury’s Question.
       a. Pertinent Facts.
       At 9:30 a.m. on Friday, January 13, 2012, the jury began deliberations. At
11:05 a.m., the jury by a written note asked the court two questions: “(1) If an individual
aids and abets, even without intent, can that person be guilty of murder or any other




5
       Each appellant joins in the other’s arguments.

                                             6
charge[?]” and “(2) Can an individual who does not have the intent of murder be
convicted with murder, if he aids and abets an individual who does have the intent?”
       Outside the presence of the jury, the court indicated, inter alia, it intended merely
to refer the jury to CALCRIM Nos. 400, 401, and 403. Guzman argued the court had to
answer the first question in the negative “because the instruction specifically says that
they need to have that intent” and any other answer would be misleading. Guzman’s
counsel argued the court’s answer to the second question should be, “only if they’re
convinced beyond a reasonable doubt that he intended to aid and abet in the act of murder
or an act which has a natural probable consequence resulting in the murder.”
       The court observed appellants previously had agreed to the instructions and the
court believed they fully instructed the jury. The court returned the jury’s note after
writing on it, “Please refer to jury instructions # 400, 401 and 403. If you need anything
further, please inform the court.” At noon, the jury notified the court the jury had
reached its verdicts. We will present additional facts below where pertinent.
       b. Analysis.
       Appellants claim the trial court erred in its response to the jury’s note. We
disagree. The jury’s first question could be construed as asking if a defendant could be
guilty of a charge if the defendant aided and abetted without intent to aid and abet.
However, the court’s response referred the jury to, inter alia, CALCRIM No. 401, on
aiding and abetting, and that instruction stated (1) the People had to prove, inter alia,
“Before or during the commission of the crime, the defendant intended to aid and abet the
perpetrator in committing the crime” (italics added) and (2) someone aids and abets if,
inter alia, “he specifically intends to, . . . aid.” (Italics added.) Guzman’s trial counsel
conceded “the instruction specifically says that they need to have that intent.” (Italics
added.)




                                               7
       The jury’s second question could be construed as asking if a defendant could be
guilty of murder if the defendant lacked intent to murder but unintentionally aided and
abetted a second person who harbored intent to murder (and murdered). To that extent,
the above analysis controls.
       The jury’s second question alternatively could be construed as asking if a
defendant could be guilty of murder if the defendant lacked intent to murder but
intentionally aided and abetted a second person who harbored intent to murder (and
murdered). The court gave CALCRIM No. 401 on aiding and abetting, and CALCRIM
No. 403, on aiding and abetting, and natural and probable consequences. CALCRIM
No. 403 told the jury, inter alia, “To prove that the defendant is guilty of murder, the
People must prove that: [¶] 1. The defendant is guilty of assault with a firearm; [¶]
2. During the commission of assault with a weapon a coparticipant in that assault with a
firearm committed the crime of murder; [¶] AND [¶] 3. Under all of the circumstances,
a reasonable person in the defendant’s position would have known that the commission
of the murder was a natural and probable consequence of the commission of the assault
with a firearm.” (Italics added.) CALCRIM Nos. 401 and 403 effectively answered in
the affirmative the alternative construction of the second question.
       As our Supreme Court stated in People v. Gonzalez (1990) 51 Cal.3d 1179
(Gonzalez), “Where, as here, the original instructions are themselves full and complete,
the court has discretion under section 1138 to determine what additional explanations are
sufficient to satisfy the jury’s request for information. [Citation.] [The trial court]
fulfilled that duty, and no error or prejudice appears.” (Id. at p. 1213.)
       The jury was given a copy of the written instructions for use during deliberations.
They were full and complete for purposes of the facts before the jury. Trujillo concedes
the instructions were complete. A court does not always have to elaborate on standard
instructions. The court’s reply note directed the jury’s attention to specific instructions
and told the jury if it needed anything further to inform the court. The court received no
further inquiry from the jury. The trial court’s response to the jury was not error.

                                              8
(Cf. Gonzalez, supra, 51 Cal.3d at pp. 1212-1213; People v. Moore (1996)
44 Cal.App.4th 1323, 1331; People v. Hill (1992) 3 Cal.App.4th 16, 25.)6
       Moreover, even if the trial court erred, it does not follow we must reverse the
judgment. The jury’s note suggested it was inquiring about whether a defendant could
unintentionally aid and abet and whether a defendant could be guilty of murder as an
aider and abettor without intent to murder.
       However, first, our Factual Summary and parts 3 and 5 of our Discussion
demonstrate there was ample evidence (1) appellants (with Guzman as an intentional
aider and abettor, and Rodriguez and Trujillo as direct perpetrators) committed the first
degree intent-to-kill murder of Escobar based on the theories, as to the degree of the
murder, it was willful, deliberate and premeditated, and committed by lying in wait
(where lying in wait required a state of mind equivalent to premeditation and
deliberation),7 (2) appellants satisfied the lying-in-wait special circumstance (where lying




6
        People v. Loza (2012) 207 Cal.App.4th 332 (Loza) and People v. Nero (2010)
181 Cal.App.4th 504 (Nero), cited by Guzman, are inapposite. In each of those cases, the
trial court’s response to jury questions directed the jury to a previously given
instruction’s language indicating an aider and abettor, and a direct perpetrator, were
equally guilty. (In Loza, this language was in CALCRIM No. 400; in Nero, the language
was in CALJIC No. 3.00.) Although that language is generally true, it is a misstatement
of law when applied to facts in cases like Loza and Nero where an issue at trial is whether
the defendant aider and abettor had a less culpable mental state than the direct
perpetrator, i.e., cases in which the defendant aider and abettor properly could be
convicted of a lesser offense than the direct perpetrator. However, CALCRIM No. 400,
has been modified with the result the version thereof the trial court in the present case
gave to the jury does not contain the above mentioned misstatement of law.
7
      The court, using CALCRIM No. 521, instructed the jury that lying in wait for
purposes of first degree lying-in-wait murder required a state of mind equivalent to
premeditation and deliberation. There is no dispute this was a correct statement of law.

                                              9
in wait required a state of mind equivalent to premeditation and deliberation),8 and
(3) appellants committed the murder to benefit DMS.9
       Second, the jury, properly instructed,10 found (1) appellants committed the first
degree murder of Escobar, where the theories, as to the degree of the murder, were the
murder was willful, deliberate and premeditated, and committed by lying in wait (with
lying in wait equivalent to premeditation and deliberation), (2) appellants had satisfied
the lying-in-wait special circumstance (with intent to kill required as to an aider and
abettor,11 and lying in wait equivalent to premeditation and deliberation), and
(3) appellants committed the murder to benefit DMS. In sum, the ample evidence and
jury findings indicate appellants’ mental states were, and the jury impliedly found they
were, far more culpable than any purported unintentional aiding and abetting, or any
aiding and abetting without intent to murder (with liability based merely on natural and


8
       The court, using CALCRIM No. 728, instructed the jury that the lying-in-wait
special circumstance required a state of mind equivalent to premeditation and
deliberation. There is no dispute this was a correct statement of law.

        In part 3 of our Discussion, we reject Guzman’s various sufficiency contentions
concerning murder, first degree murder, and the special circumstance. Moreover,
although Rodriguez and Trujillo join in Guzman’s sufficiency contentions, those
contentions were largely based on Guzman’s alleged status as an aider and abettor.
However, there was ample evidence Rodriguez and Trujillo were direct perpetrators. To
the extent Rodriguez and Trujillo join in Guzman’s sufficiency contentions supported by
Guzman’s arguments concerning his alleged status as an aider and abettor, Rodriguez and
Trujillo have failed to demonstrate prejudicial error. (See Nero, supra, 181 Cal.App.4th
at p. 510, fn. 11.)
9
        In part 5 of our Discussion, we reject the contentions of Rodriguez and Trujillo
that insufficient evidence supported their respective gang enhancement findings.
10
       In part 2 of our Discussion, we reject Guzman’s claim of prejudicial instructional
error concerning the degree of murder.
11
        The court, using CALCRIM No. 702, instructed the jury that the lying-in-wait
special circumstance required an aider and abettor of first degree murder to harbor intent
to kill. There is no dispute this was a correct statement of law.

                                             10
probable consequence theory). Any trial court error in its response to the jury’s note was
not prejudicial under any conceivable standard. (Cf. People v. Watson (1956) 46 Cal.2d
818, 836 (Watson); Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]
(Chapman).)
2. The Trial Court Did Not Erroneously Fail to Instruct on Aiding and Abetting, Natural
and Probable Consequences, and First Degree Murder.
       Guzman claims the trial court erroneously failed to instruct on aiding and abetting
as they related to natural and probable consequences. He argues the trial court
erroneously failed to instruct the jury had to find that murder of the first degree, not
merely murder, was a natural and probable consequence (i.e., a reasonably foreseeable
consequence) of an aided and abetted assault with a firearm. Guzman’s claim is
unavailing.
       We assume without deciding Guzman’s claim is correct. (See People v. Woods
(1992) 8 Cal.App.4th 1570 (Woods).)12 However, even if the trial court erred, it does not


12
        Woods, cited by Guzman, is distinguishable. In Woods, the appellate court
concluded second degree murder by a confederate was a reasonably foreseeable
consequence of assaults the defendant aided and abetted, and “the trial court had a duty to
inform the jurors they could convict [the defendant] of second degree murder as an aider
and abettor even though they found [the confederate] was guilty of first degree murder.
(Woods, supra, 8 Cal.App.4th at p. 1578.) However, in Woods, unlike in the present
case, the jury asked the trial court, “Can a defendant be found guilty of aiding and
abetting a murder in the second degree if the actual perpetrator of the same murder is
determined to be guilty of murder in the first degree?” and the trial court erroneously
answered no. (Id. at pp. 1579-1581.)

       People v. Favor (2012) 54 Cal.4th 868 (Favor), cited by respondent, is
distinguishable. Favor concluded, “Under the natural and probable consequences
doctrine, there is no requirement that an aider and abettor reasonably foresee an
attempted premeditated murder as the natural and probable consequence of the target
offense. It is sufficient that attempted murder is a reasonably foreseeable consequence of
the crime aided and abetted, and the attempted murder itself was committed willfully,
deliberately and with premeditation.” (Id. at p. 880, italics added.) However, Favor
involved attempted murder and not, as in the present case, murder. There is one offense
of attempted murder. Attempted premeditated murder and attempted unpremeditated
                                             11
follow we must reverse the judgment. The prejudice analysis in part 1 of our Discussion
is similarly applicable here. The ample evidence and jury findings discussed in that
analysis indicate Guzman’s mental state was, and the jury impliedly found it was, far
more culpable than the mental state of a person who merely reasonably should have
foreseen a consequence of an aided and abetted assault with a firearm might be murder of
the first degree. No prejudicial error occurred under any conceivable standard.
(Cf. Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24.)13
3. Sufficient Evidence Supports Guzman’s First Degree Murder Conviction and the
Lying-In-Wait Special Circumstance Finding.
      Guzman presents related claims there is insufficient evidence (1) he committed
murder, (2) the murder was of the first degree, and (3) he committed the lying-in-wait
special circumstance. We reject the claims.
      a. There Was Sufficient Evidence of First Degree Premeditated Intent-to-Kill
Murder.
      We examine the issue of whether Guzman was liable as an aider and abettor,14 and
our power begins and ends with the determination whether there is substantial evidence,

murder are not separate offenses, attempted murder is not divisible into degrees, and
whether an attempted murder was premeditated merely goes to the issue of punishment.
Accordingly, only attempted murder, and not whether it was premeditated, must be a
natural and probable consequence of the target offense aided and abetted. However, first
degree murder and second degree murder are separate offenses, and murder is divisible
into degrees; therefore, it is arguable premeditated murder must be a natural and probable
consequence of the target offense aided and abetted. This issue is pending before our
Supreme Court in People v. Chiu, review granted August 15, 2012, S202724.
13
      In light of our analysis, there is no need to reach the issue of whether, as
respondent claims, Guzman failed to preserve his instructional issue for appellate review.
(See People v. Palmer (2005) 133 Cal.App.4th 1141, 1156.)
14
       A “person aids and abets the commission of a crime when he or she, acting with
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the crime.” (People v.
Beeman (1984) 35 Cal.3d 547, 561.) Factors relevant to a determination of whether a
                                            12
contradicted or uncontradicted, to support the judgment. (People v. Hernandez (1990)
219 Cal.App.3d 1177, 1181-1182.) There was substantial evidence as follows.
       Appellants were DMS members. (We discuss this issue further in part 5 of our
Discussion.) This evidenced commonality of purpose. DMS and M2K were rivals, a fact
providing Guzman with a motive to commit the first degree murder of Escobar, an M2K
member. On November 19, 2010, the date of the murder, Guzman met with other DMS
members and friends at the home of a DMS member and, while Guzman was there,
Trujillo and Cossio-Almeda expressed ill-will concerning Escobar, and firearms were
discussed.
       Guzman borrowed the truck belonging to Rodriguez, the Paramount
clique’s leader. Guzman and Scrappy went to the shooting scene in the truck, followed
by Rodriguez, Trujillo, and Cossio-Almeda (another DMS member) in Cossio-Almeda’s
vehicle. The clique, of which appellants were members, was trying to gain territory in an
area where Escobar lived and which was claimed by Varrio.
       Guzman texted messages to Escobar, asking him to come outside. Based on all
the evidence, the jury reasonably could have concluded the messages were ruses to
facilitate the later ambush shooting of Guzman in M2K territory. After Escobar went
outside, the sounds of multiple shotgun blasts and gunshots filled the air. Bullets hit the
apartment complex and bullets entered Peacock’s apartment. The pedestrian gate of the
apartment complex’s carport opened, Escobar staggered in with blood on his shirt, and
collapsed.
       Even after the fusillade of shotgun blasts and gunfire fired from outside the
complex, appellants, including Guzman, entered the apartment complex and approached
the fallen Escobar. Rodriguez and Trujillo, direct perpetrators, then aimed and fired their
weapons at Escobar. Escobar was mortally wounded. Guzman never went to Escobar’s


defendant was an accomplice include presence at the scene of the crime, companionship,
and conduct before and after the offense. (People v. Singleton (1987) 196 Cal.App.3d
488, 492.)

                                             13
aid. Guzman himself suggested at the scene he had known of a plan to expose Escobar to
harm, because Guzman mentioned at the scene, inter alia, they were supposed to frighten
Escobar. The fourth man at the scene, yelling orders, telling others to make sure Escobar
was dead, and helping appellants, including Guzman, to escape, implied the fourth man
was a leader of the group.
       After the shooting, Guzman texted Escobar again. The message suggested it was a
warning about Varrio but the message omitted any mention of the fact Guzman knew
Rodriguez and Trujillo, Guzman’s fellow gang members, had deliberately shot and killed
Escobar in an ambush arranged by Guzman’s ruses. The jury reasonably could have
concluded this last message was an effort to conceal Guzman’s involvement in the
premeditated ambush and murder of Escobar. After the shooting, Guzman and Scrappy
returned to Roman’s house, as did Rodriguez, Trujillo, Cossio-Almeda, and the vehicles
in which all of these confederates earlier had left the house.
       Guzman admitted to Nunez “they killed the victim” and Guzman had killed
Escobar. Guzman threatened Nunez with death if she told anyone; the threat evidenced
consciousness of guilt. Woodruff opined the shooting was committed for the benefit of,
at the direction of, and in association with, DMS. Based on all of the above facts, we
conclude there was sufficient evidence to convince a rational trier of fact, beyond a
reasonable doubt, Guzman, as an aider and abettor, committed the first degree willful,
deliberate, and premeditated intent-to-kill murder of Escobar. (Ochoa, supra, 6 Cal.4th
at p. 1206.) We also conclude the murder was a reasonably foreseeable consequence of
assaults with a firearm Guzman aided and abetted. The mere fact there may have been
conflicting evidence on issues such as Guzman’s state of mind does not compel contrary
conclusions.
       b.  There Was Sufficient Evidence of First Degree Lying-In-Wait Murder
and Sufficient Evidence Supporting the Lying-in-Wait Special Circumstance Finding.
       Guzman presents related claims there is insufficient evidence the murder was of
the first degree based on lying-in-wait theory, and insufficient evidence supporting the

                                             14
lying-in-wait special circumstance finding. He argues as to first degree lying-in-wait
theory he lacked the requisite “inten[t] . . . to make a surprise attack on” Escobar.15
Guzman argues as to the lying-in-wait special circumstance he lacked the requisite intent
to kill.16
        We incorporate here our discussion above that there was sufficient evidence to
convince a rational trier of fact, beyond a reasonable doubt, Guzman, as an aider and
abettor, committed the first degree willful, deliberate, and premeditated intent-to-kill
murder of Escobar. Accordingly, there was sufficient evidence the murder was of the
first degree based on lying-in-wait theory, and sufficient evidence supporting the lying-
in-wait special circumstance finding. (Ochoa, supra, 6 Cal.4th at p. 1206.)
4. Sufficient Evidence Supports Guzman’s Conviction for Shooting at an Inhabited
Dwelling.
        Guzman claims there is insufficient evidence he aided and abetted shooting at an
inhabited dwelling (count 2).17 He argues there is no evidence he “aided and abetted his
companions in firing their guns,” “knew the others in the group intended to commit a
deadly assault,” or “intended to facilitate the crime,” and no evidence his “texts helped
co-defendants shoot at the apartment complex.”18


15
       The court, using a modified CALCRIM No. 521, employed the above quoted
language when instructing on the requisite intent for first degree murder based on lying-
in-wait theory. There is no dispute this was a correct statement of law.
16
       The court, using modified CALCRIM Nos. 702 and 728, instructed on the lying-
in-wait special circumstance. The modified CALCRIM No. 728 required that a
defendant “intend[] to kill the person by taking the person by surprise.” The modified
CALCRIM No. 702 required that a defendant who was not the actual killer but who was
guilty of first degree murder as an aider and abettor act with intent to kill. There is no
dispute these were correct statements of law.
17
       Count 2 was based on the shooting “at an inhabited dwelling house, occupied
building” at 8237 Somerset in Paramount.
18
        See fn. 14, ante.

                                             15
       We incorporate here our discussion in part 3, ante, that there was sufficient
evidence to convince a rational trier of fact, beyond a reasonable doubt, Guzman, as an
aider and abettor, committed first degree intent-to-kill murder based on the theories it was
willful, deliberate, and premeditated, and committed by lying in wait. Moreover, the
shootings occurred near and in the apartment complex and near Peacock’s apartment in
the complex, resulting in bullets hitting the complex and her apartment. We conclude
there was sufficient evidence to convince a rational trier of fact, beyond a reasonable
doubt, that Guzman, as an aider and abettor, committed the offense of which he was
convicted as to count 2. (Ochoa, supra, 6 Cal.4th at p. 1206.)
5. There Was Sufficient Evidence Supporting the Gang Enhancement Findings as to
Rodriguez and Trujillo.
       Rodriguez and Trujillo claim there was insufficient evidence supporting their
respective gang enhancements. We reject their claims.
       Rodriguez and Trujillo argue the Paramount clique was not a “criminal street
gang” for purposes of section 186.22, subdivisions (b)(1) and (f), because there was
insufficient evidence the Paramount clique had as “one of its primary activities the
commission of one or more of the criminal acts” identified in subdivision (f). Moreover,
Rodriguez argues the Paramount clique was not a “criminal street gang” because there
was insufficient evidence the Paramount clique engaged in a “pattern of criminal gang
activity” for purposes of section 186.22, subdivisions (b)(1), (e), and (f), since, according
to Rodriguez, there was insufficient evidence of two or more predicate offenses required
by subdivision (e).
       Finally, relying on People v. Williams (2008) 167 Cal.App.4th 983 (Williams),
Rodriguez and Trujillo argue there was insufficient evidence supporting their respective
gang enhancements because there was insufficient evidence DMS and the Paramount
clique shared collaborative activities or a collective organizational structure.




                                             16
       However, we have italicized pertinent facts in our recitation of the gang evidence
in our Factual Summary. There was substantial evidence the Paramount clique was part
of the DMS criminal street gang, including substantial evidence, inter alia, DMS and the
clique at least partially shared membership, and DMS, by starting the Paramount clique,
was expanding DMS’s territory. Rodriguez concedes, “The prosecution offered
substantial evidence that DMS constituted a criminal street gang” and “Paramount
claimed the symbols, signs, and heritage of DMS.” We hold there was substantial
evidence supporting the respective gang enhancements of Rodriguez and Trujillo.
(Ochoa, supra, 6 Cal.4th at p. 1206.)
       In light of the above analysis, we reject the arguments of Rodriguez and Trujillo
pertaining to the Paramount clique and “primary activities,” and the argument of
Rodriguez pertaining to the Paramount clique and a “pattern of criminal gang activity.”
We note the predicate offenses for purposes of the “pattern of criminal gang activity”
requirement were committed by persons whom Woodruff testified were DMS members.
We also reject the argument of Rodriguez and Trujillo that there was insufficient
evidence supporting the gang enhancements because DMS and the Paramount clique did
not share collaborative activities or a collective organizational structure. That argument
is based on Williams, a case involving, not a clique that was part of a criminal street
gang in the circumstances presented by this case, but two separate criminal street gangs
where the only commonalities between them were ideology and names that contained the
same word.19 (Williams, supra, 167 Cal.App.4th at pp. 986-989.)




19
       The issue of whether evidence of a collaborative or organizational nexus is
required before multiple subsets of the Norteños can be treated as a whole for the purpose
of determining whether a group constitutes a “criminal street gang” within the meaning
of section 186.22, subdivision (f) is pending before our Supreme Court in People v.
Prunty, review granted June 26, 2013, S210234.

                                             17
                                   DISPOSITION
     The judgments are affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                            KITCHING, J.

We concur:




             KLEIN, P. J.




             ALDRICH, J.




                                       18
