People v. Alfaro CA2/3 ( 2021 )

Filed 10/28/21 P. v. Alfaro CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B306009
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA459245)
v.
DARIO ALFARO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Henry J. Hall, Judge. Affirmed.
Paul Kleven, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury found Dario Alfaro guilty of willful, deliberate, and
premeditated attempted murder1 with true findings on gang and
principal gun use allegations. On appeal, he contends there was
insufficient evidence to support the premeditation finding and
that the jury was misinstructed on that issue. We disagree and
affirm the judgment.
BACKGROUND
I. The attempted murder
Alfaro was jointly tried with fellow Easy Rider gang
members Ronald Hernandez and Rafael Rivera for attempted
premeditated murder and shooting at an occupied vehicle.2
Alfaro’s gang moniker was Lil Boy, Hernandez’s gang monikers
were Stranger and Muerto, and Rivera’s gang moniker was
Drowzy.
The victim testified that on July 13, 2017, at 2:20 p.m., he
was driving his Mustang to a friend’s house when he heard
someone yell. Thinking that a friend might be calling to him, he
made a U-turn and stopped in front of an apartment building
where he had seen three men standing, two of whom the victim
identified as Hernandez and Rivera. The victim recognized
Hernandez because they had gone to school together.
Hernandez and Rivera walked up to the victim, who asked,
“ ‘What’s up?’ ” Hernandez and Rivera threw gang signs and
1
We hereafter refer to willful, deliberate, and premeditated
attempted murder as attempted premeditated murder.
2
This Division affirmed the judgments of conviction as to
Rivera in People v. Rivera (Aug. 20, 2020, B297551) [nonpub.
opn.] and as to Hernandez in People v. Hernandez (Feb. 10, 2021,
B303457) [nonpub. opn.].
2
replied, “ ‘Riders.’ ” The victim did not associate with gangs, so
he drove away. As he left, Rivera threw something at his car.
About 10 to 15 minutes later, the victim was taking a
shortcut through a nearby car wash when he saw Hernandez and
Rivera in a Mercedes. Hernandez was driving the car, and
Rivera was in the front passenger seat. The victim could not tell
if anyone else was in the car. The Mercedes made a U-turn and
pursued the victim until the Mercedes was positioned behind the
victim’s car. Through his rearview mirror, the victim saw Rivera
reach down towards his feet. Panicked, the victim had jumped
the double lines into incoming traffic when he saw the Mercedes
moving to the open space on his right. As the victim was turning
onto another street, he heard the Mercedes’s engine revving and
then the Mercedes hit the back of the victim’s car, the victim
thought intentionally. The victim heard at least two gunshots,
then about three more. Three or four bullets struck the victim’s
car. The victim was uninjured.
A witness saw the Mercedes crash into the victim’s car and
someone from the rear passenger side of the Mercedes fire a
revolver three to four times at the victim’s car. But the witness
could not tell how many people were in the Mercedes and saw
none of their faces.
Around the time of these events, Alfaro messaged his
girlfriend at 2:32 p.m. that, “ ‘I’m a call you. If you get a jail
call[,] answer.’ ” Later that night, Alfaro told her that he had
been with Hernandez and another guy, and they had a fight or
altercation with someone. They chased him in Hernandez’s car,
crashed into the car, and shots were fired.
The day after the shooting, Alfaro told his girlfriend in text
messages that Stranger had gotten locked up and someone had
3
snitched. He sent her a screenshot of a message from Rivera that
said, “ ‘Strangers got locked up yesterday. They took his car,
raided his pad and all. Someone followed us and snitched.’ ”
When she asked about the “ ‘bitch,’ ”3 Alfaro responded that he
had to move it. Later, he texted that “ ‘we moved her.’ ” Alfaro
also told his girlfriend that they had acquired the gun three days
before the shooting.
II. Communications between defendants and Easy Rider gang
members
Evidence was introduced that in the days leading up to the
shooting, Alfaro had discussions with Rivera and other gang
members about getting a gun. On the day before the shooting,
Rivera complained to Alfaro via Facebook that “Stranger” refused
to give the “ ‘toy’ ” (referring to a gun) to Rivera. Easy Rider gang
member and shot caller Osbaldo Chavez, whose gang moniker
was Kasper, resolved the dispute by designating Alfaro to be “ ‘on
point,’ ” meaning in charge of the gun. Kasper instructed that
the gun was for emergencies only and that Alfaro should keep it
unless either Kasper or “Sparks” (another Easy Rider) approved
giving it to someone else. Alfaro confirmed to Kasper that he had
the “ ‘baby,’ ” referring to a gun. Rivera and Alfaro also discussed
how the gun is “ ‘there for when someone needs it’ ” and that
“ ‘Kasper said it’s supposed to be there at the homies’ reach in
case of anything.’ ”
On the evening of the shooting, Kaspar and Alfaro
messaged each other. Kaspar asked Alfaro if the “ ‘girl is cool?’ ”
3
Alfaro used this word to refer to a gun.
4
Alfaro responded that he had moved “her to a better spot me and
Strange know.”4
III. The People’s gang expert testimony
The People’s gang expert explained that gangs are
hierarchical. At the top is the original gangster or “OG,” who can
dictate orders to other gang members. Gang members will share
guns and use code words when referring to guns. Shot callers
decide who is “on point,” meaning in charge of the gun.
Respect is important to gangs. If a gang is disrespected, it
is vital for the disrespected gang to respond, usually violently.
IV. The defense
Hernandez testified in his defense. He admitted he was an
Easy Rider gang member. He also admitted that he had the gun
but gave it to Alfaro the morning of the shooting.
The day of the shooting, Hernandez was with Alfaro and
Rivera in front of Hernandez’s apartment building. However,
Hernandez had walked away to talk to an ex-girlfriend, so he did
not witness the verbal exchange with the victim.
Upset because he had argued with his ex-girlfriend,
Hernandez asked Alfaro and Rivera to drive with him to a park
to drink. They were in Hernandez’s car, with Hernandez in the
driver’s seat, Alfaro in the backseat, and Rivera in the front
passenger seat when they happened upon the victim. Rivera told
Hernandez to “ ‘pull up on this nigga, I’m going to dump on this
fool.’ ” Rivera pulled a gun from a black bag and shot out the
window. Alfaro also said he wanted to “ ‘dump on’ ” the victim.
4
The gun was never recovered.
5
Up to that moment, Hernandez did not know there was a
gun in the car. Although Hernandez tried to drive in a manner to
avoid any confrontation, he accidentally crashed into the victim’s
car, which was when Rivera shot at the victim.
V. Verdict and sentence
A jury found Alfaro guilty of attempted premeditated
murder (Pen. Code,5 §§ 664, subd. (a), 187, subd. (a); count 1),
shooting at an occupied motor vehicle (§ 246; count 3), and
vandalism by graffiti (§ 594, subd. (a); count 4).6 As to counts 1
and 3, the jury found true gang (§ 186.22, subd. (b)) and principal
gun use (§ 12022.53, subds. (b), (c) & (e)) allegations.7
On December 11, 2019, the trial court sentenced Alfaro on
count 1 to life with a minimum parole eligibility of seven years
plus 20 years for the gun enhancement and to a consecutive two
years on count 4. The trial court imposed but stayed sentences
on the remaining count and enhancements.
DISCUSSION
I. There was sufficient evidence to support the premeditation
finding, assuming Alfaro was the shooter.
Alfaro contends there was insufficient evidence to support
the premeditation finding. His contention proceeds on the
5
All further undesignated statutory references are to the
Penal Code.
6
The jury also found Rivera and Hernandez guilty of
attempted premeditated murder with true findings on gang and
principal gun use allegations. Personal gun use allegations were
never presented to the jury as to any of the three defendants.
7
Alfaro was found not guilty of count 2. The facts
underlying count 4 for vandalism are irrelevant to this appeal,
and we therefore do not summarize them.
6
assumption that the jury found that he was the shooter—even
though the prosecutor’s theory of the case was that either Rivera
or Alfaro could have been the shooter, and the jury found true
only principal gun use allegations. Nonetheless, adopting this
assumption, we find that there was sufficient evidence to support
the premeditation finding.
Murder is of the first degree when it is willful, deliberate
and premeditated. (§ 189, subd. (a).) Premeditation and
deliberation require more than a showing of intent to kill.
(People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) A killing is
premeditated and deliberate if it is considered beforehand and
occurred as the result of preexisting thought and reflection,
rather than as the product of an unconsidered or rash impulse.
(People v. Pearson (2013) 56 Cal.4th 393, 443.) “Deliberation”
refers to careful weighing of considerations in forming a course of
action; “premeditation” means thought over in advance. (Ibid.)
However, it is unnecessary to prove the defendant maturely and
meaningfully reflected upon the gravity of his act. (§ 189,
subd. (d).) Premeditation and deliberation do not require any
extended period of time. (People v. Salazar (2016) 63 Cal.4th 214,
245.) The issue is not so much the duration of time as it is the
extent of reflection, because thoughts may follow each other with
great rapidity, and cold, calculated judgment may be arrived at
quickly. (People v. Potts (2019) 6 Cal.5th 1012, 1027.) Also,
courts do not differentiate between completed first degree murder
and attempted murder for purposes of determining if there is
sufficient evidence of premeditation and deliberation. (People v.
Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8, disapproved on
another ground by People v. Mesa (2012) 54 Cal.4th 191, 199.)
7
Three categories of evidence are especially probative to
establish premeditation and deliberation: (1) what was the
defendant doing before he committed the crime (planning
activity), (2) facts about the relationship between the victim and
the defendant (motive), and (3) the manner of killing. (People v.
Potts, supra, 6 Cal.5th at p. 1027; People v. Anderson (1968) 70
Cal.2d 15, 26–27 (Anderson).) These so-called Anderson factors
are not all required, are not exclusive, and need not be accorded
any particular weight; instead, they are a framework to guide
appellate review. (People v. Morales (2020) 10 Cal.5th 76, 89.)
Review of the sufficiency of the evidence to support a
premeditation finding involves consideration of the evidence
presented and all logical inferences in light of the above
definitions of premeditation. (People v. Perez (1992) 2 Cal.4th
1117, 1124.) “ ‘[W]e review the entire record in the light most
favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.
[Citation]. We presume in support of the judgment the existence
of every fact the trier of fact reasonably could infer from the
evidence. [Citation]. If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be
reconciled with a contrary finding.’ ” (People v. Covarrubias
(2016) 1 Cal.5th 838, 890.)
Applying these standards here, there was more than
sufficient evidence of all three Anderson factors.
First, there was evidence of planning activity. In the days
leading to the shooting, Rivera and “Stranger” (inferentially,
8
Hernandez) argued about who would have the gang gun. Kasper
dictated that Alfaro would be in charge of the gun, and Alfaro
confirmed to Kasper that he had the gun the day before the
shooting. To be sure, at that time, Alfaro could not have planned
to use the gun the next day against this specific victim.
Nonetheless, as the People’s gang expert testified and as Kasper
said, gang guns were for emergencies. Alfaro thus armed himself
in preparation for an emergency, which, it was reasonable to
infer, he thought had occurred when he and his codefendants
encountered the victim. (See, e.g., People v. Ramos (2004) 121
Cal.App.4th 1194, 1208 [gang member armed himself before
attending party, showing a “willingness to take immediate lethal
action” if need arose].)
And although the incident happened suddenly, there was
nonetheless evidence of a plan to shoot the victim. (See, e.g.,
People v. Sanchez (2001) 26 Cal.4th 834, 849 [premeditation
established in gang context even though time between seeing
victim and actual shooting was brief].) After the victim drove
away, Alfaro and the others got into Hernandez’s car and
pursued him. Hernandez positioned his car so that they were
behind the victim, immobilized the victim’s car by crashing into
it, and a person or persons from inside Hernandez’s car fired
gunshots at the victim.
There was also evidence that Alfaro and Rivera discussed
who would “dump on” the victim, with both men wanting to do it.
Alfaro dismisses his statement as the product of an unconsidered
or rash impulse that cannot support a premeditation finding.
(See, e.g., People v. Pearson, supra, 56 Cal.4th at p. 443
[premeditated killing is not one that is unconsidered or done on
rash impulse].) But, as we have said, a cold, calculated judgment
9
may be arrived at quickly. (People v. Potts, supra, 6 Cal.5th at
p. 1027.)
Moreover, Alfaro and his codefendants had a loaded gun,
and the evidence suggested that Alfaro had control of it.
Bringing a loaded gun or other weapon to a confrontation shows
that the attempted murder was planned. (See, e.g., People v.
Salazar, supra, 63 Cal.4th at p. 245 [bringing weapon to murder
victim’s home showed premeditation]; People v. Lee (2011) 51
Cal.4th 620, 636 [same].) Also, hiding the gun after the shooting
supported the premeditation finding. (See, e.g., People v. Clark
(1967) 252 Cal.App.2d 524, 529.)
Second, there was evidence Alfaro had a motive to shoot the
victim. Alfaro told his girlfriend that there had been an
altercation with the victim who had said “ ‘What’s up’ ” to them.
The People’s gang expert testified that such a comment could
have been perceived as a challenge or as disrespectful. (See, e.g.,
People v. Ramos, supra, 121 Cal.App.4th at p. 1208 [expert
testified that gang members are expected to defend fellow gang
member who has been disrespected].) Indeed, defendants
perceived the exchange they had with the victim outside the
apartment building as disrespectful because Rivera threw
something at the departing victim’s car. The victim’s perceived
slight, per the gang’s notions of respect, had to be answered with
aggression.
Finally, the manner of the attempted killing supported the
premeditation finding. Alfaro and his accomplices got into
Hernandez’s car, pursued the victim, and crashed into the
victim’s car, which the jury could have believed was to immobilize
the victim. Multiple gunshots were fired from Hernandez’s car in
the victim’s direction, striking the victim’s car. (See, e.g., People
10
v. Herrera, supra, 70 Cal.App.4th at pp. 1463–1464 [dozen shots
fired during drive-by shooting evidenced premeditation]; People v.
Bolin (1998) 18 Cal.4th 297, 332 [firing multiple gunshots at
victims supported premeditation finding].)
To be sure, the evidence here is different than in the many
cases Alfaro cites involving arguably more horrific evidence. In
one, People v. Romero (2008) 44 Cal.4th 386, 401, the defendant
killed the victim execution style by shooting him in the back of
the head and firing a single shot. (Accord, People v. Brady (2010)
50 Cal.4th 547, 564 [defendant ensured victim was dead by
standing over prone body and firing another shot]; People v.
Martinez (2003) 113 Cal.App.4th 400 [defendant tried to shoot
rival gang member by aiming gun at victim’s head and pulling
trigger].) Although killing someone execution style may be a
quintessential example of a premeditated killing, it is not the
only type of killing or attempted killing that will support a
premeditation finding, as the other cases we have cited
demonstrate. (See, e.g., People v. Poindexter (2006) 144
Cal.App.4th 572, 588 [“The manner of killing, while not an
execution-style single shot to the head, could still support a
finding of premeditation and deliberation, as defendant quickly
fired three shots at the victim, with a shotgun, from a relatively
close range.”].)
In sum, our review of the three Anderson factors—
planning, motive, and manner of killing—shows that there is
more than sufficient evidence that Alfaro acted with
premeditation, assuming that the jury found he was the shooter.8
8
Alfaro cursorily argues that there was insufficient
evidence he was the shooter. Not so. Alfaro was “on point” for
11
II. There was sufficient evidence to support the premeditation
finding if Alfaro was an aider and abettor, and the jury was
properly instructed.
Alfaro next contends that if he was not the shooter, then
there was insufficient evidence he aided and abetted an
attempted premeditated murder. From this, he makes two
arguments. First, the jury should have been instructed that he
had to personally premeditate in order to be sentenced to a life
term as an aider and abettor. Second, and to the extent his guilt
depended on Rivera who, in this scenario we are to assume was
the shooter, there was insufficient evidence that Rivera
premeditated a murder. Neither argument is persuasive.
A. Instructional error
Alfaro contends that the trial court should have sua sponte
instructed the jury that an aider and abettor must personally act
willfully, deliberately, and with premeditation for the section 664,
subdivision (a), allegation to be found true. However, our
Supreme Court held to the contrary in People v. Lee (2003) 31
Cal.4th 613, 623. In that case, the court described section 664,
subdivision (a), as a penalty provision that increases the penalty
for attempted murder to life when the attempted murder is
premeditated. (Lee, at p. 622.) The provision requires only that
the murder attempted was premeditated and does not require an
the gun; a witness said the shots came from the rear passenger
seat, which is where Hernandez said Alfaro was sitting; and
Alfaro said he wanted to be the one to “dump on” the victim.
Soon after the shooting, Alfaro told his girlfriend that if she got a
“jail call,” to answer it, and he helped hide the gun.
Notwithstanding other evidence showing that Rivera was the
shooter, the jury could have believed that one or both Rivera and
Alfaro shot at the victim.
12
aider and abettor to attempted murder to personally act with
premeditation. (Id. at p. 623; accord, People v. Favor (2012) 54
Cal.4th 868, 872 [when defendant is tried under natural and
probable consequences theory, the jury need not be instructed
that a premeditated attempt to murder must have been a natural
and probable consequence of the target offense].)
Although Alfaro acknowledges that we are bound by Lee
(see generally Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455), Alfaro tries to distinguish it based on the way in
which his jury was instructed. Alfaro’s jury was instructed with
CALCRIM No. 601, which stated in part, “The attempted murder
was done willfully and with deliberation and premeditation if
either the defendant or another perpetrator or aider and abettor or
both of them acted with that state of mind.” (Italics added.) He
argues that this language undercut Lee’s holding that the jury
must find that the attempted murder was premeditated. We
disagree. CALCRIM No. 601 as a whole instructed that the jury
had to find that the attempted murder was premeditated. At its
outset it stated, “If you find the defendant guilty of attempted
murder . . . , you must then decide whether the People have
proved the additional allegation that the attempted murder was
done willfully, and with deliberation and premeditation.” Thus,
the jury necessarily found that someone involved in the
attempted murder premeditated. Moreover, the reference to
“aider and abettor” in the instruction actually undercuts Alfaro’s
argument; that is, it told the jury that an aider and abettor could
also personally premeditate the attempted murder. Thus,
although CALCRIM No. 601 did not tell the jury it had to find
that any aider and abettor personally premeditated, it suggested
it as a possibility.
Alfaro also urges us to ignore Lee and instead to follow
People v. Dennis (2020) 47 Cal.App.5th 838, review granted July
13
29, 2020, S262184.9 The defendant in that case was prosecuted
based on the theory that he aided and abetted the actual
shooter’s attempted premeditated murder by committing a target
offense, the natural and probable consequence of which was
attempted murder (not attempted premeditated murder).
Dennis, at page 852, relied on Alleyne v. United States, supra, 570
U.S. 99, 103, which held that the Sixth Amendment requires any
fact that by law increases the mandatory minimum for a crime to
be treated as an element of the crime, so it must be submitted to
the jury and found true beyond a reasonable doubt. Dennis, at
page 854, held that the jury had to be instructed that to make the
premeditation finding, it had to find that the attempted
premeditated murder was a natural and probable consequence of
the target crime.
Dennis does not apply because Alfaro’s jury was not
instructed on a natural and probable consequences theory.
Rather, Alfaro was tried as a direct aider and abettor. The jury
9
Dennis followed People v. Lopez (2019) 38 Cal.App.5th
1087, review granted Nov. 13, 2019, S258175. As pertinent here,
the issue on review in Lopez, the lead case, is whether in “order
to convict an aider and abettor of attempted willful, deliberate
and premeditated murder under the natural and probable
consequences doctrine, must a premeditated attempt to murder
have been a natural and probable consequence of the target
offense? In other words, should People v. Favor[, supra,] 54
Cal.4th 868 be reconsidered in light of Alleyne v. United States
(2013) 570 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?”
( [as of Oct. 27, 2021].) Chiu, at
pages 158 to 159, held that “an aider and abettor may not be
convicted of first degree premeditated murder under the natural
and probable consequences doctrine. Rather, his or her liability
for that crime must be based on direct aiding and abetting
principles.”
14
was accordingly instructed on the principles of aiding and
abetting liability and attempted murder. (CALCRIM Nos. 400,
401, 252, 600.)
Because we are bound by Lee and because Dennis does not
apply, no instructional error occurred under current law.
B. Any instructional error was harmless.
Even if we were not bound by Lee and even if Dennis
applied, we would find any instructional error to be harmless
beyond a reasonable doubt. (See generally People v. Aledamat
(2019) 8 Cal.5th 1, 12–13 [instructing on legally inadequate
theory is reviewed under Chapman v. California (1967) 386 U.S.
18]; People v. Merritt (2017) 2 Cal.5th 819, 832 [“ ‘[W]here a
reviewing court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have
been the same absent the error, the erroneous instruction is
properly found to be harmless.’ ”].) That is, there was more than
sufficient evidence that Alfaro aided and abetted Rivera to
commit an attempted murder that they both premeditated.
Our discussion of law and facts in Discussion section I
applies with equal force here. But, as to the specific issue of
Alfaro’s status as an aider and abettor to attempted murder, we
add that attempted murder “requires the specific intent to kill
and the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Lee, supra, 31
Cal.4th at p. 623.) A person aids and abets the commission of a
crime when the person, acting with (1) knowledge of the
perpetrator’s unlawful purpose; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the
offense; (3) by act or advice aids, promotes, encourages, or
instigates, commission of the crime. (People v. Nguyen (2015) 61
15
Cal.4th 1015, 1054.) Factors relevant to aiding and abetting are
presence at the scene of the crime, companionship, and conduct
before and after the offense. (Ibid.)
Alfaro and Rivera were members of the same gang and
were hanging out together before the shooting occurred. The jury
thus could have found that Alfaro was with Rivera when the
initial exchange with the victim occurred and witnessed the
exchange or participated in it. Indeed, Alfaro told his girlfriend
that there had been a fight with the victim, so he had knowledge
of it. Further, the victim saw three men outside the apartment
building, which also suggests that Alfaro was aware of the
exchange with the victim. Rivera was directly involved in the
initial exchange with the victim and, as the gang expert
suggested, Rivera perceived that exchange as disrespecting him
and the Easy Riders, so he threw something at the victim’s car.
Alfaro then got into the car with Hernandez and, it is
reasonable to infer, an angry Rivera. This suggests that Alfaro
and Rivera were not just going to the park to hang out and drink.
The People’s gang expert explained that in a context like this a
gang member does not get into a vehicle to passively “go along for
the ride.” Having believed that the victim disrespected them,
Alfaro and Rivera instead were pursuing the victim to defend
their gang. (See, e.g., People v. Campbell (1994) 25 Cal.App.4th
402, 409 [accomplice did not just “happen by” crime scene].)
Moreover, Alfaro and Rivera got in a car with Hernandez
and a gun to pursue the victim. There was substantial evidence
that Alfaro and Rivera knew a gun was in the car. In the days
before this shooting, they had been in a dispute about who would
be in control of the gang gun, and Kasper had ordered Alfaro to
be “on point.” Hence, if Alfaro was in the car, so was the gun, and
16
Rivera would have known this. Indeed, the victim saw Rivera
reach down, inferentially to get the gun, and Hernandez testified
that Rivera got the gun from a black bag and shot at the victim,
all while declaring his intent to “dump on”—shoot—the victim.
At the same time, Alfaro declared his intent also to “dump” on
the victim. Rivera and Alfaro thus shared, and stated aloud, an
intent to kill the victim.
Alfaro’s conduct after the shooting also shows he was an
aider and abettor. He helped hide the gun.10 He told his
girlfriend he might be going to jail, which shows a consciousness
of guilt.
Alfaro’s take on this evidence, however, is that the three
defendants happened upon the victim, and the attack was just
“random.” This amounts to an improper request we reweigh the
evidence and reevaluate witnesses’ credibility. (People v. Brown
(2014) 59 Cal.4th 86, 106.)
Rather, Alfaro’s presence at the scene of the crime,
companionship with his fellow gang members, and conduct before
and after the offense supported his liability for the offenses as an
aider and abettor. Therefore, whether the viability of Alfaro’s
conviction as an aider and abettor for attempted premeditated
10
Alfaro suggests that hiding the gun merely made him an
accessory after the fact and not an aider and abettor. Accessories
are person who, after a felony has been committed, harbor,
conceal or aid a principal in the felony with the intent of helping
the principal avoid criminal liability and knowing that a felony
has been committed. (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 103.) However, Alfaro made no argument in the trial
court that he was merely an accessory after the fact, and, as we
have said, there was sufficient evidence he was a principal in the
crime.
17
murder hinged on either his personal premeditation or on
Rivera’s, Alfaro’s conviction must stand.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
18