Filed 9/19/13 P. v. Carvajal CA2/2

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B239135

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA368069)
         v.

FRANCISCO CARVAJAL,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Alex
Ricciardulli, Judge. Affirmed as modified.


         Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Toni R.
Johns Estaville, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Francisco Carvajal (defendant) appeals his conviction of
first degree murder. He contends that the evidence was insufficient to support a finding
of premeditation and deliberation; and that the evidence was insufficient to support a
theory that he aided and abetted the murder or the felonies underlying the prosecution’s
felony-murder theory. Defendant also contends that the trial court erred in failing to
instruct the jury with CALCRIM No. 549, and that the court erroneously imposed a 10-
year gang enhancement rather than a 15-year minimum parole eligibility requirement.
We modify the sentence to strike the gang enhancement, but finding no merit to
defendant’s other contentions, we affirm the judgment.
                                     BACKGROUND
Procedural history
       Defendant was charged with the murder of Juan Ocegueda (Ocegueda),1 in
violation of Penal Code section 187, subdivision (a).2 The information specially alleged
pursuant to section 186.22, subdivision (b)(1)(C), that defendant committed the crime for
the benefit of, at the direction of, and in association with a criminal street gang, with the
specific intent to promote, further and assist in criminal conduct by gang members; and
that defendant personally used a deadly weapon, a knife, within the meaning of section
12022, subdivision (b)(1). The information further alleged that defendant had served a
prior prison term as described in section 667.5, subdivision (b).
       A jury found defendant guilty of first degree murder and found true the gang
allegation, but found not true the deadly weapon allegation. On January 6, 2012, after the
prosecutor chose not to proceed on the prior prison term allegation, the trial court
sentenced defendant to 25 years to life in prison, plus an additional 10 years due to the



1      The victim’s name is apparently misspelled in the information, as his sister,
Elizabeth Ocegueda, testified that the spelling of her surname was Ocegueda. We
therefore use her spelling for the victim, but refer to the victim’s siblings Elizabeth and
Julio Ocegueda by their first names to avoid confusion.

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

                                              2
gang finding. Defendant was given 6913 actual days of custody credit and the court
ordered him to pay mandatory fines and fees as well as restitution in the amount of
$3,844.41. Defendant filed a timely notice of appeal from the judgment.
Prosecution evidence
       Ocegueda lived with his parents, sister Elizabeth and brother Julio. Elizabeth and
her parents occupied the main house in front, and the brothers had rooms in the garage
next to the back alley. Shortly before 8:45 a.m. on December 6, 2006, Elizabeth was
leaving with her mother to bring Julio home from the hospital. Elizabeth testified she
saw Ocegueda on the front porch with a man she knew as “Chance,” identified by other
witnesses as David Canche (Canche). As Elizabeth and her mother got into their car,
Elizabeth saw Canche walk toward the back gate that led to the alley behind their house.
At the gate, Canche spoke to another man, who appeared to be hiding. Elizabeth could
not identify the other man as he stood almost completely behind the garage and she could
barely see him. The unidentified man and Canche were both wearing dark clothing.
       A short while later, two 911 calls were placed, one from a motorist after she nearly
hit a bleeding man running across the street and another after Ocegueda knocked on his
neighbor’s door for help, before collapsing in front of her house. When Elizabeth
returned home with her mother and brother just past 10:00 a.m., the police were there.
Elizabeth saw the lock on her bedroom door had been broken and the living room was in
disarray as though there had been a struggle.
       Deputy Medical Examiner Vladimir Levicky testified that Ocegueda suffered four
stab wounds: one five to six inches deep that penetrated his chest, right lung, and right
heart ventricle, and caused death within several minutes; one life-threatening stab wound
to the abdomen that was almost as deep as the first; and two superficial wounds. Dr.
Levicky testified the wounds were probably caused by a knife, and assuming a four-inch
blade, pressure would have been required to inflict the two deeper wounds. In his
opinion, the fatal stab wound to the chest was the first to be inflicted, based on the


3      The abstract of judgment shows the total credits as 690.

                                              3
minimal bleeding of the abdominal stab wound. Ocegueda also had a cut on his finger
and a long cut running from his forehead through his eyebrow and down his cheek.
         Monique Flores (Flores) testified that Canche was her boyfriend in December
2006, and that Ocegueda was a close friend, so close that she thought of him as her
brother. Ocegueda occasionally allowed Flores and Canche to stay with him in his room
and the three sometimes used drugs together. Flores was also acquainted with defendant
during that time. Defendant was not acquainted with Ocegueda.
         Canche and defendant were members of the Highland Park gang;4 Flores denied
being a member of the gang during the time she dated Canche, but admitted that she
associated with the gang. She also admitted she had committed two robberies, one with
Canche, and had been convicted of receiving stolen property, car theft or joy-riding, petty
theft, and possession of a firearm by a felon. She testified under an immunity agreement.
         Flores was with Canche and defendant nearly all of the night before the murder.
Defendant and a friend had waved them down in the street while she was driving a car
she and Canche had stolen. Canche told Flores to stop for defendant and she complied,
although she did not want to do so because defendant had lost the respect of the Highland
Park gang about two months earlier. Flores explained that defendant would have to earn
back the gang’s respect by committing crimes such as robbery, assault, or even a killing.
She also knew that defendant needed money because he had been living on the streets.
Canche told her that he (Canche) would do anything for money, which Flores expected
from any gang member; she explained that gang members stole because many of them
used drugs or needed money “or because someone did somebody wrong or stuff like
that.”
         While driving around, the group stopped briefly at Ocegueda’s house to ask after
Julio, who had been beaten in a robbery at his house during which Flores’s laptop and
Elizabeth’s printer had been stolen. Later, after dropping her passengers off at various
places, Flores went to work until 5:00 a.m. Thereafter she stopped at Ocegueda’s house

4     Chance was Canche’s gang “moniker” or nickname. Defendant’s gang moniker
was “Cisco” or the “Cisco Kid.”

                                             4
to have him check something on her stolen car before picking up Canche and defendant
at Canche’s mother’s residence. Flores then drove to a parking lot where she and Canche
smoked methamphetamine with a friend while defendant slept in the back seat. After that
Flores drove Canche and defendant back to Ocegueda’s house where she parked in the
alley near Ocegueda’s room. While Canche went to speak to Ocegueda, Flores occupied
herself by “fixing” the ignition of a car parked nearby. Flores testified that as far as she
knew, defendant continued to sleep in the back seat of the car.
       After what seemed to Flores like 15 minutes, Canche and defendant appeared in
the alley near her car telling her to “Hurry up, get in the car” and, “We have to go.”
Defendant was wearing Flores’s two-tone windbreaker that was dark on the bottom with
dark sleeves. Canche wore a black windbreaker that resembled a bomber jacket. Flores
saw blood on their jackets and hands. Defendant was holding a large antique-looking
knife, about five inches long, with a mother-of-pearl handle, which he placed in the
pocket of the passenger door. The two men were nervous, acting paranoid and overly
rushed. Flores screamed, “What the fuck did you do?” and tried to throw the keys, but
they insisted that she drive. She argued with them, asked what they had done, demanded
to go back, and repeatedly tried to get out of the car. At first, Flores claimed that neither
man would tell her what had happened; later in her testimony, she admitted that both
Canche and defendant told her they were inside the front house where Ocegueda was
stabbed. Defendant told Flores that Ocegueda had tried to fight back while saying, “No,
no, please, no.”
       Flores testified she drove them to Canche’s house, where she again attempted to
escape. Canche caught her, dragged her back to the car, placed her in the back seat, and
drove to East Los Angeles to a house belonging to a man Flores did not know. Canche
gave the man their jackets and defendant told him to burn them. The man put the jackets
in a black trash bag and went toward the back yard. Flores said she did not speak to the
man and Canche held her hand or wrist during the time she was in his house. Then for




                                              5
several hours she remained in the car which was locked with the alarm set while Canche
and defendant stood at a distance talking.5
       Defendant drove the car back to the carport of the apartment building where
Canche’s mother lived, and defendant guarded Flores there until 7:00 p.m. During that
time, Flores received a call from a friend who said that Ocegueda was dead; Canche took
the cell phone from Flores and terminated the call. Flores testified she hit Canche and
told him she hated him as he put her back into the car.
       Flores heard defendant say he wanted to go change his shoes because there was
blood on them. Defendant drove the car to the home of a Highland Park gang member
Jeremy Holell (Holell) also known as “Lucky.” Flores fell asleep. She was awakened by
police officers, who arrested her, searched the car, and seized a rifle from the center
console. Canche was also arrested, but defendant was not found. At some point before
she and Canche were arrested, Canche and defendant both cried, and Canche told Flores
he was sorry.
       Flores was interviewed by Homicide Detective Jose Carrillo of the Los Angeles
Police Department (LAPD). She lied to him at first, not wanting to be a “snitch” and
wanting to protect her boyfriend, but she finally told the truth because she cared more
about Ocegueda. Flores knew the gang might “green light” her for snitching, meaning
that gang members would kill her. She told Detective Carrillo that Canche went into
Ocegueda’s house to get his own belongings, but she knew that defendant went inside to
take Ocegueda’s new laptop computer which was kept in the front house.
       Detective Carrillo testified that Flores directed him to Osorio’s house after her
arrest. Osorio said that defendant had asked him to burn the black bag he had left in the
trash. Detective Carrillo retrieved the bag from the trash and inside found a two-tone

5       The owner of the house in East Los Angeles, Arthur Osorio (Osorio), testified that
defendant, his cousin, came to his home that morning with a woman to rest for awhile.
Osorio also claimed that the woman chatted with him and said she had met him years ago
when she came to a party at his house. The next day, police came and found a black bag
in the back yard.


                                              6
Adidas jacket which Flores identified as the one defendant had been wearing. Detective
Carrillo found a black down-filled jacket in the clothes dryer. The two jackets were later
examined. Samples from both jackets tested positive for blood and Ocegueda’s DNA.
Defendant’s DNA was found on the Adidas jacket which defendant had worn.
       At the time that Flores and Canche were taken into custody defendant had
disappeared. Detective Carrillo searched for him for several years in Los Angeles,
Victorville, and Compton. Defendant’s family members reported he had fled to Mexico
and had been killed there, but that was unable to be confirmed. Finally, in February
2010, Los Angeles County sheriff’s deputies arrested defendant after they saw him break
a car window. Defendant gave his name as Mysael Lara and a false date of birth, but his
fingerprints identified him as defendant.
Gang evidence
       LAPD Detective Steven Aguilar was called as the prosecution’s gang expert
regarding the Highland Park gang and two other gangs in northeast Los Angeles.
Detective Aguilar investigated these gangs by patrolling the area, talking to gang
members and documenting the information gained, assisting in probation and parole
checks, and investigating gang crimes. Detective Aguilar testified that Highland Park
was a large gang with common symbols, hand signs, and graffiti. He described Highland
Park as a violent gang and its primary criminal activities as vandalism, tagging, assault,
robbery, and sometimes murder, and presented certified records of two murder
convictions entered after he had participated in the investigations.6 Detective Aguilar
testified that he was acquainted with both defendant and Canche and when he stopped
defendant in November 2006, defendant admitted he was a member of the Highland Park
gang. In Detective Aguilar’s opinion, Canche was also a Highland Park gang member.




6      One of the murders was committed in April 2006 by Jesse Rodriguez, a younger
member of the Highland Park gang who killed a fellow gang member’s girlfriend after
seeing her with a rival. The other murder was committed in January 2006 by Felix Rene
Ramirez, also a Highland Park gang member.

                                             7
       Given hypothetical facts mirroring the evidence presented at trial, Detective
Aguilar stated his opinion that the crime was committed for the benefit of the Highland
Park criminal street gang. He explained that such a crime committed in Highland Park
territory during broad daylight by two gang members would help the gang control the
neighborhood by strengthening the gang’s violent reputation and instilling fear in the
residents of the community, making them less likely to call the police. Murder was the
ultimate act of violence committed to inhibit people from cooperating with the police,
thus facilitating the commission of other crimes.
       Detective Aguilar defined the phrase “putting in work” for the gang as committing
a crime for the gang. At least two gang members usually participated in such a crime so
that one could be a witness and give the perpetrator credit within the gang so that he
might gain respect. If a gang member refused to support a fellow gang member while
committing a crime, or if he attempted to prevent it, he would lose the gang’s respect and
could be disciplined, even killed.
       Detective Aguilar was acquainted with Holell, or Lucky, a documented member of
the Highland Park gang. As an older member who had committed many crimes for the
gang and had served time in prison, Holell was well respected within his gang. Referring
to the hypothetical facts given by the prosecutor, Detective Aguilar testified that going to
the home of a respected fellow gang member was further evidence that the crime was
committed for the benefit of the gang. Gang members liked to show off and brag about
their crimes and would often go to another gang member’s house afterward for that
purpose.
Defense evidence
       Canche testified on defendant’s behalf, taking all the blame for Ocegueda’s death
but denied he had ever intended to steal from or rob Ocegueda. Canche claimed he could
not recall whether defendant was present at the time, but later in his testimony he said he




                                             8
was alone with Ocegueda. Canche testified he was in prison at the time of trial as a result
of a plea to charges related to Ocegueda’s death.7
       Canche testified he was on friendly terms with Ocegueda in 2006 and went to his
home often, approximately 40 or 50 times in November 2006. Canche and Flores had
been living together but were evicted in 2006 and still had no stable home in December.
Ocegueda lived in a detached converted garage, and he never went into the front house
during their visits. Ocegueda’s parents did not want him or any of his friends there as
they disapproved of “his chosen lifestyle.” Canche had never gone to the front house
before December 6, 2006.
       Defendant and Canche knew each other from the Highland Park neighborhood
where Canche grew up and they had been friends for several years. When Canche and
Flores were driving around on the evening of December 5, 2006, they “met up” with
defendant and “hanged out for a minute” before picking up Flores’s girlfriend. Canche
could not remember what they did the rest of the night but they went to Ocegueda’s
house in the morning. Flores parked in the alley and defendant slept in the back seat.
Ocegueda told Canche that he would meet him in the back in a few minutes, after his
mother and sister left. Canche denied seeing defendant or any other man in the alley
while Ocegueda was chatting with his mother and sister.
       Canche claimed he followed Ocegueda to the front house after Ocegueda refused
to help him gather his belongings in the garage room. Canche testified that once in the
front house, he confronted Ocegueda with rumors that he had raped someone, and
Ocegueda became hysterical and they argued. Ocegueda repeatedly said Canche’s name
and pleaded with him not to do anything to him. Canche claimed this behavior confused
him because he was not being aggressive or threatening and did not have a weapon at that
time. The argument became more heated until they exchanged blows and Canche took



7     The jury was not informed that Canche entered into a plea bargain under which he
was permitted to plead no contest to voluntary manslaughter and serve 13 years in prison.


                                            9
his knife from his pocket and stabbed Ocegueda. Asked to describe the knife, Canche
testified that it was all silver or chrome in color.
        Canche could not recall most of the events that followed. He remembered
returning to the car but not whether defendant was in the car or outside at the time. He
remembered going to his mother’s place, but nowhere else. Canche did not recall going
to East Los Angeles, spending several hours at Osorio’s house or leaving his jacket there.
Canche claimed Flores was upset only at first, and that he did not hold her against her
will. He recalled going to Holell’s house because they needed a place to spend the night
and Holell was a friend. He could not remember where defendant went after that.
        Canche admitted gesturing to defendant when he entered the courtroom, but
denied it was a greeting. He admitted that he was member of the Highland Park gang but
when asked whether defendant was a member of the gang, he refused to answer. He also
refused to say whether Holell was a gang member. Canche admitted he knew that
Ocegueda had computers and a laptop, and although he initially denied knowing whether
he possessed drugs, he conceded that Ocegueda might have had drugs at sometime during
their visits.
        When Canche was interviewed by Detective Carrillo after his arrest he denied
stabbing Ocegueda, participating in it, or knowing who did, adding, “and I’m not going to
name no names.” He also told detectives there was someone else with him but he did not
know who. When the detective said, “you know who did because you were right there,”
Canche answered, “But I’m not going to tell you who did it.”
        Defendant’s wife, Leticia Carvajal, testified she had lived with defendant since
2004 and they married in 2009. She said that defendant had worked the entire time,
either as a tow truck driver or a security guard. She brought his pay stubs, one for
January 2006, another for July 2006, and one each from 2005, 2008, and 2010. She
claimed they never lived apart since their marriage, although he did leave for a few days
in December 2006 after an argument. He returned home before Christmas. She never
heard family members claim defendant died in Mexico, did not know that defendant was
a gang member, and knew nothing of this incident until his arrest in February 2010.


                                               10
                                       DISCUSSION
I. Substantial evidence
       Defendant contends that his conviction of first degree murder was not supported
by substantial evidence. In particular, he contends that the evidence of premeditation and
deliberation was insufficient, that the evidence of aiding and abetting was insufficient to
impose vicarious liability for Canche’s crime, and that the evidence of an intent to rob or
commit a burglary was insufficient for felony-murder liability.
       When a criminal conviction is challenged as lacking evidentiary support, “the
court must review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence -- that is, evidence which is
reasonable, credible, and of solid value -- such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d
557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
       We must presume in support of the judgment the existence of every fact the jury
could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978,
1053.) We do not reweigh the evidence or resolve conflicts in the evidence. (People v.
Young (2005) 34 Cal.4th 1149, 1181.) “‘An appellate court must accept logical
inferences that the jury might have drawn from the evidence even if the court would have
concluded otherwise. [Citation.]’ [Citation.]” (People v. Halvorsen (2007) 42 Cal.4th
379, 419.) The appropriate test is not whether the evidence proves guilt beyond a
reasonable doubt, but whether the evidence supports the jury’s conclusions. (People v.
Wright (1985) 39 Cal.3d 576, 592.) Reversal on a substantial evidence ground “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.)
       A. Premeditation and deliberation
       “All murder which is perpetrated by means of . . . willful, deliberate, and
premeditated killing . . . is murder of the first degree.” (§ 189.) Premeditation and
deliberation means “preexisting reflection and weighing of considerations rather than


                                             11
mere unconsidered or rash impulse. [Citation.]” (People v. Perez (1992) 2 Cal.4th 1117,
1125 (Perez).) In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the
California Supreme Court suggested “three types of evidence -- evidence of planning
activity, preexisting motive, and manner of killing -- that assist in reviewing the
sufficiency of the evidence supporting findings of premeditation and deliberation.
[Citation.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) There is no requirement
that all three factors be established or that any one factor must be accorded a particular
weight. (Perez, supra, pp. 1124-1125.)
       First defendant cites Flores’s testimony that as far as she knew, defendant was
asleep in the back seat of the car when Canche went inside to speak to Ocegueda,
apparently suggesting that he could not have planned the crime because he was asleep. If
so, defendant fails to view the evidence in the light most favorable to the jury’s express
and implied findings, as we must. (See People v. Redmond (1969) 71 Cal.2d 745, 755.)
Flores also testified the very next time she saw defendant after seeing him asleep, he was
outside the car acting rushed, nervous, and paranoid, holding a knife, with blood on his
hands and jacket -- blood later determined to contain Ocegueda’s DNA. The jury could
reasonably infer that Flores was either complicit, trying to avoid snitching on defendant,
or she had not been paying attention while she was “fixing” the ignition of a car parked in
the alley. In any event, Flores also testified that both defendant and Canche told her they
had gone inside Ocegueda’s house. Defendant even reported to her that Ocegueda had
tried to fight back while saying, “No, no, please, no.”
       In addition, Elizabeth testified she saw Canche speaking to a man in dark clothing
who appeared to be hiding behind the garage. The jury was not required to reject this
observation in favor of Canche’s denial that he saw a man in the alley at that time. It is
the province of the jury to believe or disbelieve testimony, resolve conflicts in the
testimony, and draw factual inferences. (People v. Alexander (2010) 49 Cal.4th 846,
883.) The jury could reasonably infer that the man behind the garage was defendant, as
defendant wore a dark jacket, had been nearby, asleep in a car, and there was no evidence
of a third man in the alley.


                                             12
       Defendant also contends there was no substantial evidence of planning because the
decision to go to Ocegueda’s house was spontaneous, thus not part of a preexisting plan
to steal or kill.8 Defendant’s argument presupposes that planning is probative only if it
takes place prior to arriving at the scene of the crime. There is no requirement however,
that planning activity take place at a particular time prior to the decision to kill.
“‘Premeditation and deliberation can occur in a brief interval. “The test is not time, but
reflection. ‘Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly.’”’ [Citation.]” (People v. Sanchez (2001) 26
Cal.4th 834, 849.) Elizabeth testified that Canche spoke to the man in the alley while he
appeared to be hiding. As defendant’s demeanor was furtive and the crime was
committed soon after Elizabeth and her mother left, the jury could reasonably infer that
Canche’s conversation with defendant involved planning the crime -- if they had not done
so before their “spontaneous” arrival on the scene.
       Further, planning may be reasonably inferred from evidence that defendant armed
himself before committing the crime. (See, e.g., People v. Caro (1988) 46 Cal.3d 1035,
1050; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224.) Substantial evidence
supports a finding that either defendant or Canche or both were armed with knives at the
time: Canche testified he carried a silver or chrome colored knife in his pocket when he
followed Ocegueda into the front house, and Flores testified that defendant had with him
a knife with a mother-of-pearl handle as he entered the car immediately after the
stabbing.
       Again disregarding the evidence favoring the jury’s findings, defendant suggests
that the only evidence of motive was defendant’s gang membership and his need for
money. A review of all the evidence reveals facts from which a jury could reasonably
infer that both defendant and Canche harbored a motive not only to gain money, but also
to gain respect within defendant’s gang, or at least not to lose respect. Flores testified

8     Defendant’s characterization of the decision as spontaneous is apparently drawn
from Flores’s testimony that she “just decided” to go to Ocegueda’s house at 7:40 that
morning.

                                              13
that defendant needed money because he had been living on the street. Canche told her
that he would do anything for money, and she admitted that she and Canche had
committed a robbery together. Flores’s experience with the gang taught her that gang
members stole money when it was needed. As part of her association with the Highland
Park gang, Flores had committed two robberies, auto theft, and had received stolen
property. Flores and Canche knew that Ocegueda owned a brand new laptop computer
that he kept in the front house, and which Canche had told Flores that defendant wanted.
       In addition, defendant was a member of the Highland Park gang, a violent gang
whose primary criminal activities included robbery, assault, and murder. Flores testified
that defendant was “not wanted” by the gang. Based upon her experience with the gang,
Flores explained defendant would have to prove himself in order to be invited back into
the gang by earning respect. Earning respect and proving oneself meant committing
crimes such as robbery, assault, even murder. Gang expert Detective Aguilar also
testified that committing such crimes was considered putting in work for the gang, and
the member who did so earned respect from his gang.
       Both Canche and defendant admitted to Flores they were present when one of
them stabbed Ocegueda. Detective Aguilar explained that in gang culture, crimes
committed to earn respect were generally committed with another gang member present
in order to have a witness. If the fellow gang member refused to provide support, he in
turn would lose the gang’s respect and could be disciplined, even killed. Following the
murder, defendant and Canche went to the home of an older, well respected member of
their gang, a common practice when a gang member wishes to have his crime
acknowledged.
       Consideration of the evidence also erodes defendant’s claim that the decision to go
to Ocegueda’s house was spontaneous: Flores “just decided” to go there with her
criminal gang associates knowing they needed money, that Ocegueda owned a brand new
computer, and that defendant was under pressure to prove himself to the gang. Flores
may not have meant for her associates to kill Ocegueda, but the evidence certainly
suggests that she assisted in planning a robbery or theft.


                                             14
       As to the manner of killing, “[a] violent and bloody death sustained as a result of
multiple stab wounds can be consistent with a finding of premeditation. [Citation.]”
(People v. Pride (1992) 3 Cal.4th 195, 247.) Defendant attempts to counter this logic by
arguing that a brutal stabbing is insufficient in itself to support a finding of premeditation
and deliberation. He illustrates his point with the facts of Anderson, in which the
defendant, with no apparent motive, indiscriminately inflicted 60 superficial and severe
cuts all over a child’s body. (See Anderson, supra, 70 Cal.2d at pp. 21-22.) As the
Anderson facts bear no similarity to the facts of this case, defendant’s attempt fails. First,
the brutal stabbing in this case, unlike the crime in Anderson, was accompanied by
evidence of motive and planning. Second, Ocegueda was stabbed in the chest with
enough force to cause the knife to penetrate his heart and lung, killing him within
minutes. As our high court made clear in Anderson, “directly plunging a lethal weapon
into the chest evidences a deliberate intention to kill as opposed to the type of
‘indiscriminate’ multiple attack of both severe and superficial wounds” inflicted in that
case. (Id. at p. 27.)
       As there was evidence of planning, motive and a gruesome manner of death, the
three Anderson factors, we conclude that substantial evidence supported a finding that
defendant either premeditated and deliberated his murder of Ocegueda or shared
Canche’s premeditated and deliberated intent to kill Ocegueda.
       B. Aiding and abetting
       Defendant contends the evidence was insufficient to support his liability as an
aider and abettor.
       “[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 [with] (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.)
       Defendant again contends that the evidence showed he was asleep in the car in the
alley when Canche acted alone and murdered Ocegueda. In addition, defendant again


                                              15
suggests the only evidence that he was awake and out of the car was Elizabeth’s
testimony, which should be rejected because the man she saw behind the garage could
have been someone associated with one of the other cars parked in the alley. Defendant
also argues that Canche’s “uncontroverted testimony . . . shows he acted alone in
stabbing Juan Ocegueda” and that “[t]here is no evidence whatsoever from which to infer
that [defendant] formed the specific intent to aid and abet the fatal stabbing by Canche.”
         As we have previously observed, the jury was not required to discount or
disbelieve Elizabeth’s observation, or to believe Canche’s testimony. Nor was the jury
required to speculate that Canche was speaking to an unidentified stranger in the alley, as
it was the province of the jury to believe or disbelieve testimony, resolve conflicts in the
testimony, and draw factual inferences. (People v. Alexander, supra, 49 Cal.4th at p.
883.)9
         We have also previously found substantial evidence from which the jury could
reasonably conclude that defendant was present when Ocegueda was murdered:
defendant admitted to Flores that he was inside the house; that Ocegueda had tried to
fight back; and that Ocegueda said, “No, no, please, no.” Further, Flores saw defendant
outside the car immediately after the murder. Defendant was not only awake, he was
rushed, nervous, and paranoid, held a knife, and had Ocegueda’s blood on his jacket.
         Defendant points to the rule that mere presence at the scene is insufficient to
establish aiding and abetting liability. (See People v. Miranda (2011) 192 Cal.App.4th
398, 407.) Even so, presence “‘is a circumstance which will tend to support a finding
that an accused was a principal. [Citations.]’ [Citation.]” (Ibid.) Other factors relevant
to the determination include companionship and conduct before or after the offense,


9       Quoting People v. Acevedo (2003) 105 Cal.App.4th 195, 198, defendant suggests
that the jury was not permitted to infer that he was the man in the alley because “‘[w]hen
the facts give equal support to two competing inferences, neither is established.’” That
case was referring to speculative inferences, not logical inferences based upon substantial
evidence. (See People v. Massie (2006) 142 Cal.App.4th 365, 369.) When inferences are
equally reasonable, the fact that the evidence can be reconciled with a contrary finding
does not require reversal. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)

                                               16
including flight. (People v. Medina (2009) 46 Cal.4th 913, 924.) Evidence of all such
factors was presented here. Defendant was not merely present. He was seen immediately
after the killing with a knife and the victim’s blood on him. Further, he and Canche were
members of the same gang and went to the murder scene together. We have previously
concluded that the evidence was sufficient to give rise to a reasonable inference that both
defendant and Canche harbored motives to rob and kill Ocegueda and that they planned
the crime together. After the murder the two men fled together, knowing that one or both
of them had stabbed Ocegueda. Thus evidence of the relevant factors of presence,
companionship, and conduct before or after the offense amply support the conclusion that
defendant was either a direct perpetrator or he intentionally promoted, encouraged, or
instigated the commission of the crime with knowledge of Canche’s unlawful purpose.
(See People v. Beeman, supra, 35 Cal.3d at p. 561.)
       C. Felony murder
       Defendant contends that the evidence was insufficient to support a murder
conviction under a felony-murder theory.10 “All murder . . . which is committed in the
perpetration of, or [an] attempt to perpetrate, . . . robbery [or] burglary . . . is murder of
the first degree.” (§189.) A person who enters a house, room, or building with the intent
to commit a theft or any felony is guilty of burglary. (§ 459.)
       Defendant contends that the evidence was insufficient to support the prosecutor’s
argument in summation that defendant needed money for drugs, and he points out that the
prosecutor failed to argue that he took or attempted to take any specific property. We
review the record for substantial evidence to support the judgment. (People v. Johnson,
supra, 26 Cal.3d at p. 578.) Defendant does not claim prosecutorial misconduct and cites
no authority that would require a review of the evidence supporting the prosecutor’s
argument.

10      Though defendant argued that the evidence was insufficient to support a finding of
intent to kill or reckless disregard for human life, as required for a sentence of death or
life without parole (see § 190.2, subd. (c)), since that special circumstance was not
alleged or found true and defendant was not sentenced under that provision, he has
withdrawn this contention.

                                               17
       Regardless, the evidence discussed in relation to defendant’s other contentions
more than adequately supports a finding that defendant entered the front house with the
intent to steal. Canche testified he never before had gone into the front house during his
visits to Ocegueda whose parents did not want him or any of his friends there. Canche
had never gone to the front house before December 6, 2006. Nevertheless, he went inside
the front house with defendant, a stranger to Ocegueda, after Flores “just decided” to go
to Ocegueda’s house with her criminal gang associates knowing that they needed money,
that Ocegueda kept his brand new computer in the front house, and that defendant was
under pressure to prove himself to the gang. We find otherwise.
II. CALCRIM No. 549
       Defendant contends the trial court erred in failing to define “one continuous
transaction” by not instructing the jury sua sponte with CALCRIM No. 549.
       The felony-murder rule provides that a killing is first degree murder if “committed
in the perpetration” of certain enumerated felonies, including burglary and robbery, as
alleged here. (§ 189.) “[C]onviction of first degree felony murder does not require proof
of a strict causal relationship between the underlying felony and the homicide so long as
the killing and the felony are part of one continuous transaction. [Citations.] ‘There is no
requirement that the killing occur, “while committing” or “while engaged in” the felony,
or that the killing be “a part of” the felony, other than that the few acts be a part of one
continuous transaction.’ [Citation.]” (People v. Huynh (2012) 212 Cal.App.4th 285,
307-308, fn. omitted.)
       The felony-murder rule requires some logical connection or nexus between the
felony and the act resulting in death beyond mere coincidence of time and place. (People
v. Cavitt (2004) 33 Cal.4th 187, 201 (Cavitt).) CALCRIM No. 549 lists factors to assist
in the determination of whether the act causing the death and the felony were part of one
continuous transaction under the felony-murder rule. The suggested factors include
whether the felony and fatal act occurred at the same place, the time interval if any,
whether the perpetrator continued to have control over the victim after the underlying
felony was committed, whether the killing occurred during flight, and whether death was


                                              18
directly caused by the underlying felony or its natural and probable consequences. (See
CALCRIM No. 549.) A trial court has no sua sponte duty to give such an instruction “if
the requisite nexus between the felony and the homicidal act is not at issue and the trial
court has otherwise adequately explained the general principles of law requiring a
determination whether the killing was committed in the perpetration of the felony . . . .”
(Cavitt, supra, at p. 204.)
       This jury was adequately instructed when the trial court read CALCRIM Nos.
540A and 540B, regarding the elements of felony murder committed by a direct
perpetrator and an aider and abettor. The court’s reading of CALCRIM No. 540A
included the following language: “The defendant must have intended to commit the
felonies of burglary or attempted robbery before or at the time that he caused the death.
It is not required that the person die immediately, as long as the death and the felonies are
part of one continuous transaction.” CALCRIM No. 540B cites five factors to consider
in determining whether the prosecution had met its burden to prove guilt under the
felony-murder rule, concluding with the following: “There was a logical connection
between the cause of death and the burglary or attempted robbery. The connection
between the cause of death and the burglary or attempted robbery must involve more than
just their occurrence at the same time and place.”
       Although defendant’s reasoning is unclear, we understand his contention to be that
since the evidence was insufficient to prove that defendant entered the house with the
intent to steal or rob, an issue was raised as to whether the burglary or attempted robbery
and the killing were part of one continuous transaction. Pointing to Canche’s testimony
that he went to the front house merely to visit and that he stabbed Ocegueda
spontaneously after their argument escalated, defendant suggests that the jury could have
found the killing was “unrelated to the commission of any subsequent burglary and/or
attempted robbery except for the mere coincidence of time and place.” Such facts, if
believed, would establish that defendant was neither the direct perpetrator nor an aider
and abettor. In other words, if defendant had no intent to steal or rob and did not
participate in or encourage what was an impulsive stabbing by Canche, he was not guilty


                                             19
of murder, and there would be no transaction to characterize as continuous or not
continuous and no need to clarify the meaning of one continuous transaction.
       As respondent notes, assuming there was sufficient evidence that defendant did
intend to commit a burglary or attempted robbery, no evidence suggested that the killing
was unrelated to that burglary or attempted robbery or that the two crimes were anything
but “one continuous transaction.” As the felonies and the fatal stabbing took place in the
same place very soon after defendant and Canche entered the front house, there was no
need for the jury to consider such factors suggested in CALCRIM No. 549 as to whether
there was a time interval; whether the killing took place during flight, or whether the
perpetrator continued to have control over the victim after the felonies were complete.
Defendant’s factual argument thus does not demonstrate any need to clarify the meaning
of “one continuous transaction” such as by reading CALCRIM No. 549, and the trial
court was under no sua sponte obligation to give the instruction. (See Cavitt, supra, 33
Cal.4th at p. 204.)
       Defendant’s argument that he was prejudiced is in essence a claim that the
omission of CALCRIM No. 549 caused him prejudice because if the evidence to prove
his intent to commit the underlying felonies and the murder had been insufficient, the
instruction might have caused the jury to concluded that the requisite nexus had not been
proven. As defendant was convicted based on overwhelming evidence of his guilt, not
the trial court’s failure to read a wholly inapplicable instruction, we conclude beyond a
reasonable doubt that the omission of CALCRIM No. 549 from the jury’s instruction did
not contribute to the verdict.
III. Gang enhancement
       Defendant contends the gang enhancement imposed under section 186.22,
subdivision (b)(1)(C), should be stricken and replaced by a minimum 15-year parole
eligibility term. Respondent agrees. Because the jury convicted defendant of first degree
murder, an offense that carries a sentence of 25 years to life in prison, defendant’s gang
enhancement is governed by the 15-year minimum parole eligibility term of section
186.22, subdivision (b)(5). (People v. Lopez (2005) 34 Cal.4th 1002, 1007-1008.) We


                                            20
thus modify the judgment accordingly, but note that the modification does not shorten the
25 years to life term. (§ 190, subds. (a) & (e); People v. Lopez, supra, at p. 1009.)
                                      DISPOSITION
       The judgment is modified by striking the gang enhancement imposed under
section 186.22, subdivision (b)(1)(C), and imposing a 15-year minimum parole eligibility
term pursuant to section 186.22, subdivision (b)(5). The judgment is affirmed in all other
respects. The trial court is directed to forward a corrected copy of the abstract of
judgment to the Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                         ________________________, J.
                                                         CHAVEZ
We concur:



_________________________, Acting P. J.
ASHMANN-GERST



_________________________, J.*
FERNS




________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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