Filed 8/18/14 P. v. Perez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055735

v.                                                                       (Super.Ct.No. RIF112730)

EZEKIEL PEREZ, JR.,                                                      OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michele D. Levine,

Judge. Affirmed.

         Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Lise Jacobson and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
                                    I. INTRODUCTION

       A jury found defendant and appellant Ezekiel Perez, Jr. guilty as charged of the

first degree felony murder of Oscar Carrillo based on the attempted robbery of Carrillo,

and found a gang enhancement allegation true. (Pen Code, §§ 187, subd. (a), 186.22,

subd. (b)(1).)1 Defendant was sentenced to 25 years to life in prison.

       Defendant and a codefendant, Leroy Gutierrez, were tried together before separate

juries. Financial gain, lying-in-wait, and criminal street gang special-circumstance

allegations were alleged against defendant and Gutierrez (§ 190.2, subd. (a)(1), (15),

(22)), but all three special-circumstance allegations were dismissed against defendant

before the prosecution presented its case-in-chief against defendant and Gutierrez.2

       In arguing the case to defendant’s jury, the green jury, the prosecution claimed

Gutierrez shot and killed Carrillo during an attempted robbery of Carrillo, and defendant

aided and abetted the attempted robbery and resulting murder by driving the getaway car

and providing Gutierrez with the gun used in the crimes. On defendant’s murder charge,

defendant’s jury was instructed solely on first degree felony murder based on robbery and

attempted robbery and not on any other murder theory.

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

       2  Gutierrez’s jury, the orange jury, found him guilty of the first degree murder of
Carrillo, found the lying-in-wait and gang special-circumstance allegations true, and
found a gang enhancement allegation true. The financial gain special-circumstance
allegation was dismissed against Gutierrez. Gutierrez was sentenced to life in prison
without the possibility of parole after his jury deadlocked on whether to recommend the
death penalty during the penalty phase. Gutierrez is not a party to this appeal, having
abandoned his appeal before filing an opening brief.

                                              2
       Defendant claims his murder conviction must be reversed because (1) the court

erroneously admitted the testimony of Veronica Cantu, recounting out-of-court

statements made to her by Gutierrez, who did not testify, suggesting defendant gave

Gutierrez the gun Gutierrez used to kill Carrillo, (2) insufficient evidence supported

instructing the jury on felony murder based on attempted robbery, and (3) the prosecutor

presented inconsistent factual theories to the juries and “made a false argument” to

defendant’s jury, by arguing to Gutierrez’s jury that Gutierrez intended to murder Carrillo

but not rob him, while arguing to defendant’s jury that Gutierrez intended to rob Carrillo,

and defendant shared that intent and aided and abetted an attempted, “botched” robbery

of Carrillo, during which Carrillo was murdered.

       We find defendant’s claims without merit and affirm the judgment.

                                   II. BACKGROUND

A. Veronica Cantu’s Testimony Against Defendant

       At the time of trial in October 2011, Cantu had known defendant since 1987, when

they were in junior high school together. On the night of September 30, 2003, Cantu,

Gutierrez, defendant, and several other people were smoking methamphetamine at

Cantu’s apartment in Corona. Defendant lived several blocks away from Cantu and was

dating Cantu’s sister, who lived with Cantu, their mother, and Cantu’s two children.

       Later during the evening on September 30, Cantu told Gutierrez she was tired of

being broke and having no money. Gutierrez told her he knew how to get some money if

she was “down,” or willing to go along with a plan, and she said, “Yeah, I’m down.”


                                             3
Next, Gutierrez told Cantu, “Well you need to give me a ride to find a gun tonight,” and

Cantu agreed.

       Gutierrez left Cantu’s house, and around two hours later, Cantu, accompanied by

Lindsay Parchcorn, picked up Gutierrez and a person named “Mando” at Stefanie

Macias’s house. With Cantu driving, the four of them went to the Riverside/La Sierra

area, looking for a gun.

       At one point, they stopped at a gas station, Gutierrez pointed to another gas station

across the street and said, “That’s where it’s going to take place.” At the first gas station,

Gutierrez took over driving for Cantu because she was falling asleep, and drove over to

the second gas station. There was a “tire or lube” business next to the second gas station.

       Gutierrez stopped the car on a side street, behind and around one city block from

the second gas station. He told Cantu she was going to wait for him on the side street in

the car, he “was going to come out running,” and she was going to drive the car onto the

91 freeway. To demonstrate the plan, Gutierrez drove onto the 91 freeway, got off on the

next exit, turned into a Stater Bros. parking lot, and said, “we’re going to come here,

we’re going to leave your car here, and my homeboy will be right here waiting for us.”

Cantu later feel asleep while Gutierrez continued driving. They later returned to Corona,

but they did not have a gun. At Cantu’s apartment, Gutierrez dropped off Cantu,

Parchcorn, and another person they picked up in La Sierra who had a methamphetamine

pipe. Gutierrez told Cantu he was going out again to look for a gun because he did not

yet have one.


                                              4
       Gutierrez later returned to Cantu’s apartment, still without a gun. At that point,

Cantu told Gutierrez she thought defendant had a gun, and he should ask defendant

whether he could borrow defendant’s gun. In response, Gutierrez said he was going to

ask defendant for a gun and left Cantu’s apartment.

       Later during the morning of October 1, and before Cantu went to work around

7:30 a.m., Gutierrez returned to Cantu’s apartment. After Gutierrez returned, Cantu saw

defendant at her apartment, but she did not see defendant and Gutierrez arrive together.

When defendant was at the apartment, but outside of defendant’s presence, Gutierrez

asked Cantu whether she had any methamphetamine to “smoke out” defendant, meaning

let defendant use, in exchange for defendant allowing Gutierrez to use defendant’s gun.

Cantu understood Gutierrez was saying defendant had agreed to let Gutierrez use his gun,

but Cantu did not hear or see Gutierrez and defendant talk about using defendant’s gun.3

       Cantu told Gutierrez she did not have any more methamphetamine for defendant,

and began to get ready for work. Before she left for work, she had another conversation

with Gutierrez about the robbery, outside of defendant’s presence. After Gutierrez called

the gas station to see what time it opened, Cantu told him she could not help him during


       3   The court instructed defendant’s jury that it could use Gutierrez’s statements, as
testified to by Cantu and made outside defendant’s presence, for the limited purpose of
evaluating Cantu’s testimony and the subsequent actions of both Gutierrez and defendant,
but it could not infer defendant knew Gutierrez and Cantu were planning to commit a
robbery because defendant was not present when the statements were made. In contrast,
statements attributed by Cantu to Gutierrez regarding what Perez may have said—
including that Perez agreed to let Gutierrez use defendant’s gun—were admitted for all
purposes.

                                             5
the daytime because she worked. Gutierrez told Cantu he would find another getaway

driver. Cantu understood she would receive half the money from the robbery for letting

Gutierrez use her car.

       Gutierrez drove Cantu to work in her car, and kept the car. At this point, Cantu

had not seen a gun, but Gutierrez did not say anything more about not having a gun or

needing to get a gun. Cantu returned to her apartment around noon on October 1,

Gutierrez and defendant were there, and her car was in her garage. Gutierrez was

“pumped up,” and told Cantu words to the effect that he “just pulled up there,” “asked for

Oscar [Carrillo],” and “went bam, bam, bam.” Gutierrez said defendant was driving.

       Cantu returned to work around 1:00 p.m., and drove herself in her car. Later that

evening, the police stopped Cantu while she was driving her car and arrested her. After

being shown a picture of her car from a surveillance videotape and being told her car was

used in a shooting, Cantu admitted giving her car to Gutierrez so he could commit a

robbery.

       Cantu was charged with murder, but the charge was dismissed after Cantu agreed

to plead guilty to robbery and conspiracy, serve a nine-year sentence, and testify

truthfully. Cantu had served her sentence and was out of custody at the time of defendant

and Gutierrez’s trial in October 2011.

B. Additional Testimony Against Defendant

       After Gutierrez took Cantu to work on the morning of October 1, he and defendant

used Cantu’s car to take Macias from Cantu’s apartment to Macias’s home in Corona.


                                             6
Defendant was driving, and as they dropped off Macias Gutierrez told her something to

the effect that he was going to take care of something and would call her later. Later that

day, Macias learned that a person named Oscar had been murdered.

       Around 10:30 a.m. on October 1, Carrillo was shot and killed in front of the

garage bay where he was working at the Lube Express on the corner of Magnolia and

Pierce. A gas station was adjacent to the Lube Express building.

       Witnesses saw a gray car, later identified as Cantu’s car, pull in front of the garage

bay where Carrillo was working, saw the passenger, later identified as Gutierrez, make a

hand motion toward Carrillo to come to the car, and saw Carrillo approach the car. As

Carrillo approached or was near the car, Gutierrez fired multiple bullets at him, striking

him with six bullets. The driver of the car, later identified as defendant, sped away and

drove onto the eastbound 91 freeway.

       Around 30 minutes before Carrillo was shot, Jonathan Silva, who was working at

the Lube Express with Carrillo, noticed the gray car parked in front of the gas station near

the Lube Express. At that time, Gutierrez walked up to Silva and Carrillo, began talking

about problems with his car, and asked for a job application. Although Carrillo said they

were hiring, Gutierrez did not take an application. Instead, he continued talking about his

car; the entire conversation lasted a minute or two. No threats or demands were made,

and it did not appear to Silva that Carrillo and Gutierrez knew each other. Gutierrez

returned to the car and drove away. No one else was in the car.




                                             7
       The car returned a second time around 20 minutes later. This time, two people

were in the car; a man later identified as defendant was driving, and Gutierrez was in the

front passenger seat. From the passenger seat, Gutierrez called to Carrillo, saying the car

was making a noise and asking Carrillo to take a test drive with him, but Carrillo

declined.

       The car left and returned a third time, when the shooting occurred. Defendant was

still driving, Gutierrez was still in the front passenger seat, and this time two women were

in the backseat. From the passenger seat, Gutierrez called to Carrillo, saying he had a

part for the car. Carrillo approached the car, Silva heard gunshots, and saw Carrillo fall

to the ground. No one threatened Carrillo or demanded money.

       On October 23, 2003, the policed conducted a traffic stop of defendant’s father in

an effort to locate defendant. Defendant was in the camper shell of the truck, and was

taken into custody and arrested. It appeared defendant had dyed his hair with blonde

streaks.

C. Defendant’s Recorded Jail Call

       The jury heard a recording of a telephone call defendant made using a pay phone

at the jail. During the call, a woman read defendant a newspaper article about the murder

and arrests, and defendant became upset when he heard Cantu was cooperating with the

police. Defendant concluded the conversation by telling the woman, “I already told them

[the police] I was there.”




                                             8
D. Stipulations

       The parties entered into several stipulations, including that (1) both defendant and

Gutierrez were members of Corona Varios Locos, a criminal street gang within the

meaning of section 186.22, subdivision (f), (2) on October 2, 2003, when police were

conducting a stakeout of Gutierrez to arrest him for the murder of Carrillo, Gutierrez said

to someone via cell phone: “That bitch don’t know what I did. I’m not going out like

that. Yeah, I know I’m hot. I might need to lay low for a while or skate town. I’m not

going out like that. You know what I’m saying?,” and (3) after Gutierrez made these

statements, officers tried to arrest him, but he fled on foot, was captured, and was taken

into custody.

                                    III. DISCUSSION

A. Cantu’s Testimony Attributing Statements to Gutierrez Was Properly Admitted

       Before Cantu testified, defendant objected to allowing her to testify to statements

Gutierrez made to her outside defendant’s presence and suggesting that defendant agreed

to give Gutierrez the gun Gutierrez used to shoot Carrillo in exchange for some

methamphetamine, and that defendant was driving when the shooting occurred. The

objections were made on the grounds the statements were hearsay and violated

defendant’s Sixth Amendment confrontation rights under the Aranda/Bruton4 rule, which




       4People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States
(1968) 391 U.S. 123 (Bruton).

                                             9
prohibits a nontestifying defendant’s confession from being admitted against a

codefendant in a joint trial.

         The court ruled Gutierrez’s statements did not violate defendant’s confrontation

rights because they were not testimonial, and the statements were admissible under the

declarations against interest exception to the hearsay rule. (Evid. Code, § 1230.) Here,

defendant does not claim the statements were testimonial, and he concedes Gutierrez was

unavailable to testify. (See People v. Duarte (2000) 24 Cal.4th 603, 609 [witness’s

invocation of Fifth Amendment right against self-incrimination establishes witness’s

unavailability to testify].) Instead, defendant claims the statements were inadmissible

hearsay (Evid. Code, § 1200) because they were not specifically disserving to Gutierrez’s

penal interests and were untrustworthy (Evid. Code, § 1230). He also claims the

statements violated his confrontation rights under Aranda/Bruton because they were

unaccompanied by “particularized guarantees of trustworthiness.” Neither claim has

merit.

         1. Evidence Code Section 1230

         Under Evidence Code section 1230: “Evidence of a statement by a declarant

having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if

the declarant is unavailable as a witness and the statement, when made, . . . so far

subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position

would not have made the statement unless he believed it to be true.” The proponent of

such evidence must show (1) the declarant is unavailable, (2) the declaration was against


                                               10
the declarant’s penal interest when made, and (3) the declaration was sufficiently reliable

or trustworthy to warrant admission despite its hearsay character. (People v. Duarte,

supra, 24 Cal.4th at pp. 609-610; People v. Brown (2003) 31 Cal.4th 518, 535.)

       As noted, defendant concedes Gutierrez was unavailable to testify, but argues that

Gutierrez’s statement to Cantu about “smoking out” defendant for providing a gun to use

in the robbery were “collateral assertions” not specifically disserving to Gutierrez’s penal

interests. The declarations against penal interest exception to the hearsay rule does not

extend to “collateral assertions” not specifically disserving of the declarant’s penal

interest. (People v. Duarte, supra, 24 Cal.4th at p. 612 [“we long ago determined that

‘the hearsay exception should not apply to collateral assertions within declarations

against penal interest.’”].) In addition, a hearsay statement “‘which is in part inculpatory

and in part exculpatory (e.g., one which admits some complicity but places the major

responsibility on others)’” does not qualify as a statement against penal interest because it

does not meet the test of trustworthiness. (Ibid.) But a statement can both incriminate

others and be specifically disserving to the declarant’s penal interests, and such

statements are admissible if they are trustworthy. (People v. Greenberger (1997) 58

Cal.App.4th 298, 335.) Indeed, “‘“[t]he focus of the declaration against interest

exception to the hearsay rule is the basic trustworthiness of the declaration.

[Citations.]”’” (People v. Tran (2013) 215 Cal.App.4th 1207, 1216 (Tran).)

       “‘There is no litmus test for the determination of whether a statement is

trustworthy and falls within the declaration against interest exception. The trial court


                                             11
must look to the totality of the circumstances in which the statement was made, whether

the declarant spoke from personal knowledge, the possible motivation of the declarant,

what was actually said by the declarant and anything else relevant to the inquiry. . . .’”

(Tran, supra, 215 Cal.App.4th at p. 1217, quoting People v. Greenberger, supra, 58

Cal.App.4th at pp. 334-335; accord, People v. Cervantes (2004) 118 Cal.App.4th 162,

174-175.)

       Courts have recognized that the least trustworthy or reliable circumstance obtains

when the declarant has been arrested and attempts to improve his situation with the police

by deflecting criminal responsibility onto others. (Tran, supra, 215 Cal.App.4th at p.

1217.) But courts have “found a strong assurance of trustworthiness” when the statement

is made in a “purely private, personal setting,” or in a “‘“conversation . . . between

friends in a noncoercive setting that fosters uninhibited disclosures.”’ [Citations.]”

(Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 760.)

       We independently review the trial court’s preliminary determination whether a

hearsay statement is sufficiently trustworthy to qualify as a declaration against penal

interest—the same standard courts have traditionally applied in determining whether a

hearsay statement bears sufficient indicia of trustworthiness to satisfy the confrontation

clause. (Tran, supra, 215 Cal.App.4th at pp. 217-218; People v. Cervantes, supra, 118

Cal.App.4th at pp. 174-175; Lilly v. Virginia (1999) 527 U.S. 116, 137 [independent

review applies in determining whether a hearsay statement has sufficient “guarantees of

trustworthiness” to satisfy the confrontation clause].) In contrast, we review the trial


                                             12
court’s ultimate decision to admit or exclude the statement for an abuse of discretion,

bearing in mind that the scope of the court’s discretion is limited by the applicable law

and reversal is appropriate only when there is no reasonable basis for the court’s ruling.

(Tran, supra, at pp. 1217-1218; People v. Brown (2003) 31 Cal.4th 518, 534 [evidentiary

rulings reviewed for abuse of discretion].)

       Based on all the relevant circumstances, we independently conclude Gutierrez’s

statement to Cantu, asking her whether she had any methamphetamine to give defendant

in exchange for the use of defendant’s gun, was both specifically disserving to

Gutierrez’s interests and sufficiently trustworthy to be admitted as a declaration against

Gutierrez’s penal interests, notwithstanding its hearsay character. First, Cantu gave

detailed testimony that she, Gutierrez, and others spent the night before the murder

driving around in Cantu’s car while Gutierrez was looking for a gun to use in a robbery

Gutierrez was planning with Cantu. As they were driving, Gutierrez told Cantu the

robbery was going to occur at the gas station next to the Lube Express where Gutierrez

later shot and killed Carrillo. Without having found a gun, Gutierrez and Cantu returned

to Cantu’s apartment during the early morning hours of October 1.

       Cantu then told Gutierrez she thought defendant had a gun. Defendant lived a

short distance away from Cantu’s apartment; Gutierrez left the apartment, and when he

returned a short time later Cantu saw that defendant was also in her apartment. Outside

defendant’s presence, but while defendant was in the immediate vicinity and Cantu could

have easily spoken to him, Gutierrez asked Cantu whether she had any more


                                              13
methamphetamine to “smoke out” or give to defendant in exchange for defendant

providing him (Gutierrez) with a gun to use in the robbery.

       Gutierrez’s statement to Cantu, asking her for methamphetamine to give defendant

in exchange for the use of defendant’s gun in the robbery Gutierrez was planning with

Cantu, was specifically disserving to Gutierrez’s penal interests because it directly

implicated him in a conspiracy to rob a gas station. (See §§ 182, subd. (a)(1), 184, 211.)

The statement was also trustworthy because it did not attempt to shift blame to defendant

or anyone else. Gutierrez was no less culpable for conspiring to commit robbery because

defendant was providing him with a gun to commit the robbery. (Cf. People v. Duarte,

supra, 24 Cal.4th at pp. 613-617 [statements to police minimizing the declarant’s

responsibility for a shooting and making declarant look more sympathetic than his

accomplice not specifically disserving to the declarant’s penal interests and

untrustworthy].) Cantu’s detailed testimony concerning Gutierrez’s search for a gun

earlier that morning also support the statement’s reliability.

       Defendant argues the statement was untrustworthy because Gutierrez apparently

lied to Cantu when he told her he was going to rob a gas station, and his true intent was to

obtain Cantu’s car, and defendant’s gun, to use in murdering Carrillo. But defendant

offers no reason why Gutierrez would lie to Cantu about wanting to give defendant drugs

in exchange for the use of defendant’s gun. Gutierrez’s prior search for a gun, as testified

to by Cantu, and his subsequent use of a gun in the shooting of Carrillo, strongly indicate




                                             14
he was not lying to Cantu when he indicated defendant was agreeing to let Gutierrez use

defendant’s gun in exchange for methamphetamine.

       2. Aranda/Bruton

       For the same reasons he claims Gutierrez’s statement to Cantu did not qualify as a

statement against Gutierrez’s penal interests, defendant claims the admission of the

statement violated his confrontation rights under the Aranda/Bruton rule. We reject this

claim for the same reasons we rejected defendant’s state law evidentiary claim.

       In Bruton, a nontestifying defendant’s confession that he and his codefendant

committed a robbery was admitted against the defendant in their joint trial. (Bruton,

supra, 391 U.S. at p. 126.) The confession was hearsay, did not fall under any exception

to the hearsay rule, and the jury was instructed to consider the confession only against the

defendant who made the confession. (Id. at pp. 124-125, 129.) Despite the instruction

not to consider the statement against the codefendant, the high court ruled the admission

of the confession in the joint trial violated the codefendant’s Sixth Amendment

confrontation rights. (Id. at pp. 126-128, fn. 3, 137.)

       In Aranda, which was decided before Bruton, the California Supreme Court

adopted a judicial rule of practice similar to the rule later adopted in Bruton. (Aranda,

supra, 63 Cal.2d at pp. 530-531.) But to the extent Aranda requires the exclusion of

evidence that is not required to be excluded under federal constitutional law, it was

abrogated by the 1982 enactment of the “truth-in-evidence” provision of Proposition 8.

(Cal. Const., art. I, § 28, subd. (d); People v. Fletcher (1996) 13 Cal.4th 451, 465.)


                                             15
       In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the high court held

that only testimonial hearsay statements violate a criminal defendant’s Sixth Amendment

confrontation rights. Such testimonial hearsay statements are admissible only if the

declarant is unavailable to testify and the defendant had a prior opportunity to cross-

examine the declarant about the statement. (Crawford, supra, at p. 59; see also Davis v.

Washington (2006) 547 U.S. 813, 821 [clarifying that only testimonial statements cause a

declarant to be a “witness” within the meaning of the confrontation clause, and “[i]t is the

testimonial character of the statement that separates it from other hearsay that, while

subject to traditional limitations upon hearsay evidence, is not subject to the

Confrontation Clause.”].)

       In the wake of Crawford and Davis, numerous state and federal court cases,

including decisions issued by the United States and the California Supreme Courts, have

recognized that the confrontation clause is violated only by the erroneous admission of

testimonial hearsay statements. (See, e.g., Whorton v. Bockting (2007) 549 U.S. 406, 420

[Crawford eliminated “Confrontation Clause protection against the admission of

unreliable out-of-court nontestimonial statements”]; People v. Loy (2011) 52 Cal.4th 46,

66 [“‘Only the admission of testimonial hearsay statements violates the confrontation

clause’”]; see also People v. Arceo (2011) 195 Cal.App.4th 556, 574-575 & fn. 12

[discussing cases and coming to the same conclusion].) As noted, defendant does not

claim that Gutierrez’s statement to Cantu was testimonial. Thus, its admission did not

violate defendant’s confrontation rights.


                                             16
B. Substantial Evidence Supports Defendant’s First Degree Felony Murder Conviction

Based on Robbery or Attempted Robbery

       Defendant’s jury was instructed on first degree felony murder based on robbery or

attempted robbery, and not on any other murder theory.5 Defendant claims insufficient

evidence supports his felony murder conviction for two reasons: (1) there was

insufficient evidence he knew Gutierrez was going to rob Carrillo or intended to aid and

abet Gutierrez in robbing Carrillo; and (2) there was insufficient evidence of a causal or

temporal relationship between any robbery or attempted robbery of the gas station and

the shooting of Carrillo.

       1. Applicable Legal Principles

       The applicable standard of review is well settled. In reviewing a challenge to the

sufficiency of the evidence supporting a criminal conviction, we review the entire record

in the light most favorable to the judgment to determine whether it contains substantial

       5  Defendant’s jury was instructed: “The defendant is charged in Count 1 with
first-degree murder, under a theory of Felony Murder. [¶] The defendant may be guilty
of murder under a theory of Felony Murder even if another person did the act that
resulted in the death. I will call the other person the perpetrator. [¶] To prove that the
defendant is guilty of first-degree murder under this theory, the People must prove that:
[¶] One, the defendant attempted to commit or aided and abetted a robbery or attempted
robbery; [¶] Two, the defendant intended to commit or intended to aid and abet the
perpetrator in committing a robbery or attempted robbery; [¶] Three, if the defendant did
not personally commit or attempt to commit a robbery, then a perpetrator whom the
defendant was aiding and abetting personally committed or attempted to commit a
robbery; [¶] Four, while committing or attempting to commit a robbery, the perpetrator
caused the death of another person; and [¶] Five, there was a logical connection between
the cause of death and the commission or attempted commission of the robbery. The
connection between the cause of death and the robbery or attempted robbery must
involve more than just their occurrence at the same time and place.”

                                            17
evidence—that is, reasonable, credible evidence of solid value—upon which a jury

comprised of rational persons could have found the defendant guilty of the crime beyond

a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

       A killing committed in the perpetration of an attempted robbery or robbery is first

degree murder. (§ 189.) And “[u]nder long-established rules of criminal complicity,

liability for such a murder extends to all persons ‘jointly engaged at the time of such

killing in the perpetration of or an attempt to perpetrate the crime of robbery’ [citation]

‘when one of them kills while acting in furtherance of the common design.’ [Citation.]”

(People v. Pulido (1997) 15 Cal.4th 713, 716, italics added.)

       Robbery is the felonious taking of personal property in the possession of another,

from his person and immediate presence and against his will, accomplished by means of

force or fear and with the specific intent to permanently deprive him of the property.

(§ 211; People v. Clark (2011) 52 Cal.4th 856, 943.) Attempted robbery requires neither

the commission of an element of robbery nor the completion of a theft or assault; instead,

it requires a specific intent to commit robbery and a direct but ineffectual act towards its

commission. (People v. Lindberg (2008) 45 Cal.4th 1, 24, 27.)

       The specific intent to commit robbery is the mental state element required for first

degree felony murder based on robbery or an attempt to commit robbery. (People v.

Friend (2009) 47 Cal.4th 1, 49.) “[A]n aider and abettor will ‘share’ the perpetrator’s

specific intent when he or she knows the full extent of the perpetrator’s criminal purpose




                                             18
and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s

commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)

       A jury may infer that a defendant harbored a specific intent to commit robbery, or

any crime, from all of the facts and circumstances shown by the evidence. (People v.

Lindberg, supra, 45 Cal.4th at p. 27, citing People v. Bloom (1989) 48 Cal.3d 1194, 1208

[“Evidence of a defendant’s state of mind is almost inevitably circumstantial, but

circumstantial evidence is as sufficient as direct evidence to support a conviction.”].)

       2. Substantial Evidence Shows Defendant Intended to Aid and Abet a Robbery

       Defendant argues the evidence did not permit a reasonable inference he harbored a

specific intent to commit a robbery, the mental state necessary to convict him of the first

degree felony murder of Carrillo based on robbery or attempted robbery. Defendant

points out that even though he was at Cantu’s apartment when Cantu and Gutierrez

discussed robbing the gas station, there was no evidence he overheard their conversation

or that either of them told him about their plan to rob the gas station. He also argues

Gutierrez must have lied to Cantu about robbing the gas station; and Gutierrez’s true

intent was to shoot and kill Carrillo, not rob anyone.

       We conclude the jury could have reasonably inferred defendant believed Gutierrez

was going to commit a robbery and that defendant intended to aid and abet Gutierrez in

the commission of that robbery. First, defendant’s jury was instructed it could use

Gutierrez’s statements, as testified to by Cantu and made outside defendant’s presence,

for the limited purpose of evaluating Cantu’s testimony and the subsequent actions of


                                             19
both Gutierrez and defendant, but it could not use the statements to infer defendant knew

Gutierrez and Cantu were planning to commit a robbery, because defendant was not

present when the statements were made.

       But the court did not limit the jury’s use of Gutierrez’s statements for any other

purpose, and the statements supported a reasonable inference that defendant had in fact

agreed to let Gutierrez use his gun in a robbery in exchange for some methamphetamine.

Defendant was at Cantu’s apartment on the morning of October 1 and was in the

immediate vicinity of Cantu and Gutierrez when Gutierrez asked Cantu whether she had

any methamphetamine to give defendant in exchange for the use of defendant’s gun.

Accordingly, Cantu could have easily asked defendant whether he was, in fact, agreeing

to lend his gun to Gutierrez so Gutierrez could use it in a robbery. Defendant’s

immediate availability for questioning by Cantu on the point bolstered the reasonableness

of the inference that defendant had, in fact, agreed to lend his gun to Gutierrez for

Gutierrez’s use in a robbery.

       Defendant’s and Gutierrez’s subsequent actions in the 30 minutes or so before the

shooting occurred also supported a reasonable inference that defendant intended to aid

and abet Gutierrez in committing a robbery by driving the getaway car. Some 30 minutes

before the shooting, Gutierrez approached Silva and Carrillo from the gas station, where

Silva saw that Cantu’s car was parked. At that time, Gutierrez briefly spoke to Silva and

Cantu, asking for a job application and talking about problems with Cantu’s car, then he

left. Around 20 minutes later, defendant, driving Cantu’s car, drove Gutierrez to the front


                                             20
of the Lube Express where Gutierrez attempted to lure Carrillo into the car. After

Carrillo refused to get into the car, defendant drove away with Gutierrez, then returned a

third time when Gutierrez again tried to engage Carrillo in conversation just before he

shot him. After the shooting, defendant sped away and drove onto the 91 freeway, in

conformity with the robbery plan which Cantu and Gutierrez had discussed earlier.

       All of this evidence supports a reasonable inference—not a speculative inference

or mere suspicion6—that defendant believed Gutierrez intended to commit a robbery of

Carrillo at the Lube Express and that defendant intended to aid and abet Gutierrez in the

commission of that robbery, by driving the getaway car and providing the gun. In sum,

defendant’s and Gutierrez’s actions preceding the shooting, in light of the previous

discussion between Cantu and Gutierrez about their plan to rob the gas station, supported

a reasonable inference that defendant believed Gutierrez intended to rob Carrillo at the

Lube Express and intended to aid and abet Gutierrez in committing that robbery—even if

Gutierrez never truly intended to commit any robbery but only intended to shoot and kill

Carrillo.




       6  We recognize that evidence which merely raises a suspicion of the defendant’s
guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises
the possibility, and this is not a sufficient basis for an inference of fact. (People v. Reyes
(1974) 12 Cal.3d 486, 500; People v. Morris (1988) 46 Cal.3d 1, 21 [a reasonable factual
inference may not be based on “‘suspicion alone, or on imagination, speculation,
supposition, surmise, conjecture, or guess work.’”].)

                                              21
       3. Substantial Evidence Shows the Attempted or Aborted Robbery of Carrillo and

the Shooting of Carrillo Were Part of One Continuous Transaction

       “[T]he felony-murder rule requires both a causal relationship and a temporal

relationship between the underlying felony and the act resulting in death. The causal

relationship is established by proof of a logical nexus, beyond mere coincidence of time

and place, between the homicidal act and the underlying felony . . . . The temporal

relationship is established by proof the felony and the homicidal act were part of one

continuous transaction.” (People v. Cavitt (2004) 33 Cal.4th 187, 193.)

       In other words, “[t]he killing is considered to be committed in the perpetration of

the underlying felony if the acts were part of a continuous transaction. [Citation.] No

strict causal or temporal relationship between the murder and underlying felony is

required. [Citation.]” (People v. Booker (2011) 51 Cal.4th 141, 175.)7

       Defendant argues there was insufficient evidence of either a causal or a temporal

relationship between the aborted robbery of the gas station and the murder of Carrillo.


       7  The jury was instructed pursuant to CALCRIM No. 549 that: “In deciding
whether the act causing the death and the felony were part of one continuous transaction,
you may consider the following factors: [¶] One, whether the felony and the fatal act
occurred at the same place; [¶] Two, the time period, if any, between the felony and the
fatal act; [¶] Three, whether the fatal act was committed for the purpose of aiding the
commission of the felony or escape after the felony; [¶] Four, whether the fatal act
occurred after the felony but while the perpetrator continued to exercise control over the
person who was the target of the felony; [¶] Five, whether the fatal act occurred while
the perpetrator was fleeing from the scene of the felony or otherwise trying to prevent the
discovery of [sic] reporting the crime; [¶] Six, whether the felony was the direct cause of
the death; and [¶] Seven, whether the death was the natural and probable consequence of
the felony.”

                                            22
Because Gutierrez’s efforts focused on Carrillo at the Lube Express and not the gas

station he discussed with Cantu, defendant argues there was no attempted robbery; thus

there was no continuous transaction between the nonexistent attempted robbery and the

shooting of Carrillo. Defendant also asserts that because the evidence shows Gutierrez

only intended to kill Carrillo and not rob him, there was no logical nexus between the

nonexistent attempted robbery and the shooting.

       Defendant’s arguments are based on his self-serving view of the evidence and

ignore evidence that supports a contrary view. For the reasons discussed, defendant’s

and Gutierrez’s actions immediately preceding the shooting support a reasonable

inference that defendant believed Gutierrez intended to rob Carrillo at the Lube Express,

and that defendant intended to aid and abet Gutierrez in the commission of that robbery.

In short, the evidence shows defendant and Gutierrez were attempting to rob Carrillo,

first when they approached Carrillo in the car and asked him to take a ride with them, and

later when they returned and called Carrillo to the car a second time. That Gutierrez

decided to target Carrillo at the Lube Express for a robbery rather than the gas station, or

that Gutierrez never intended to commit a robbery in the first place, is immaterial to

whether defendant believed a robbery was to take place and intended to aid and abet

Gutierrez in the commission of that robbery. Because substantial evidence shows

Carrillo was the target of defendant’s intended robbery, there was a logical nexus

between the attempted or aborted robbery of Carrillo and Carrillo’s murder.




                                             23
C. The Prosecutor Did Not Commit Misconduct in Relying on Different Legal and

Factual Theories to Convict Defendant and Gutierrez

       Lastly, defendant claims the prosecutor committed misconduct in relying on two

different theories to convict him and Gutierrez of first degree murder. The essence of

defendant’s argument is that the two theories were inconsistent and irreconcilable, but

that is not the case.

       To support his claim, defendant relies on In re Sakarias (2005) 35 Cal.4th 140, a

habeas proceeding involving two defendants who were convicted in separate trials of

murdering a woman with a hatchet and a knife. (Id. at p. 144.) Each defendant

participated in the fatal attack on the woman, but in each trial the prosecutor presented

selected portions of the evidence and inconsistently claimed each defendant inflicted all

the fatal “chopping” wounds with the hatchet blade, when all of the evidence showed

only one defendant could have inflicted those wounds. (Id. at pp. 147-148.) Each

defendant was convicted of first degree murder with special circumstances and was

sentenced to death. (Id. at p. 144.)

       In reversing the conviction of the defendant who was prejudiced by the

prosecutor’s presentation of what was clearly a false factual theory, the court explained:

“[F]undamental fairness does not permit the People, without a good faith justification, to

attribute to two defendants, in separate trials, a criminal act only one defendant could

have committed.” (In re Sakarias, supra, 35 Cal.4th at pp. 155-156.) The court

continued: “[W]e hold that the People’s use of irreconcilable theories of guilt or


                                             24
culpability, unjustified by a good faith justification for the inconsistency, is

fundamentally unfair, for it necessarily creates the potential for—and, where prejudicial,

actually achieves—a false conviction or increased punishment on a false factual basis for

one of the accuseds.” (Id. at pp. 159-160.)

       Sakarias was distinguished in People v. Richardson (2008) 43 Cal.4th 959,

another case involving two defendants who were convicted in separate trials of murdering

the same woman. (Id. at p. 1015.) Unlike the prosecutor in Sakarias, the prosecutors in

Richardson did not rely on inconsistent factual theories to convict each defendant.

Instead, in both trials the prosecution consistently claimed that defendant Richardson was

the actual killer while his codefendant, Brown, acted as an aider and abettor. (People v.

Richardson, supra, at pp. 1015-1016.) The court in Richardson observed: “Variations in

emphasis where, as here, the underlying theory of the case was consistent at both trials,

does not amount to inconsistent and irreconcilable theories.” (Id. at p. 1017.)

       Here, defendant complains that the prosecutor argued to Gutierrez’s jury, the

orange jury, that Gutierrez never intended to rob the gas station or Carrillo, and intended

all along to simply shoot and kill Carrillo on behalf of his fellow Corona Varios Locos

gang member, Tommy Pena, because Carrillo was a “snitch.” In contrast, the prosecutor

argued to defendant’s jury, the green jury, that Gutierrez intended to rob Carrillo but shot

and killed Carrillo before he could obtain any money from him—i.e., an attempted

robbery of Carrillo.




                                              25
       The problem with defendant’s argument is that the varying intents the prosecutor

ascribed to Gutierrez before each jury are not inconsistent. Based on all of the evidence,

Gutierrez could have intended to rob Carrillo before he intentionally shot and killed him

for being a snitch, but decided to abort the robbery after Carrillo refused Gutierrez’s

request that he get into Cantu’s car for a test drive. The prosecutor consistently argued to

both juries that Gutierrez was the shooter and defendant was the aider and abettor.

       Additionally, the legal theory presented to Gutierrez’s jury was that Gutierrez

intentionally killed Carrillo by means of lying in wait (§ 190.2, subd. (a)(15)) and for the

benefit of his gang (§ 190.2, subd. (a)(22)), not whether Gutierrez killed Carrillo during a

robbery or attempted robbery (§ 189). As the People point out, the prosecutor’s argument

to Gutierrez’s jury “can best be seen as an effort to get [Gutierrez’s] jury to focus on

whether or not Gutierrez engaged in targeted killing” for the benefit of his gang.

       The verdict against Gutierrez is entirely consistent with (1) Gutierrez’s having an

initial but aborted intent to rob Carrillo and (2) the verdict finding defendant guilty of

first degree felony murder based on robbery or attempted robbery. The prosecutor did

not present a false factual theory to either jury. Accordingly, the verdict against

defendant was not obtained by fundamentally unfair means in violation of his due process

rights. (In re Sakarias, supra, 35 Cal.4th at pp. 159-160.)

                                    IV. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                             26
                          KING
                                 J.


We concur:

RAMIREZ
             P. J.

McKINSTER
                J.




                     27
