Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. JW07-6813.
Pollak, J.
This is one of four appeals now before us arising from a single trial in which wardship and commitments to the Division of Juvenile Justice (DJJ) have been imposed on four minors for their roles in a gang-related shooting in which one innocent youth was killed and another wounded.
On March 16, 2007, Antwanisha Morgan, Thomas J., Antoine S., Chante P., and other young people were talking outside a recreation center in the Bayview District of San Francisco. About a month earlier, some of these youths (not identified as members of any gang) had chased members of the G-3 criminal street gang away from a talent show at the recreation center where the gang members had started a disturbance. On March 16, three members of the G-3 gang, T.Tr., E.R., and D.B., returned to the center and two of the three shot at the group of youths that were congregated there, killing Antwanisha and wounding Thomas J. Immediately after the shooting, all three drove off in a waiting car driven by Kamisha Gray and occupied by two other gang members, T.Tu. and another youth. An expert on criminal street gangs testified that he believed each of the four accused minors was a member of the G-3 gang, and that the shooting was in retaliation for the prior incident at the talent show and an attempt to rehabilitate the reputation of the gang by instilling fear in the community.
Because so many juveniles were involved in this case, for clarity we have used initials to identify those against whom wardship petitions were brought and the first names and last initials to identify those juveniles who were not parties to the proceedings. Individuals identified by their full names are not minors.
The juvenile court found that he committed conspiracy, first degree murder, two counts of attempted murder, and assault with a deadly weapon. The court also found that he committed these crimes for the benefit of or in association with a criminal street gang. D.B. was committed to the DJJ for a maximum of two terms of 25 years to life for the conspiracy and the murder, and additional concurrent terms for the remaining offenses. A term of 10 years was imposed but stayed for the gang enhancement.
D.B. contends that there was insufficient evidence to support the gang enhancement and the finding that he was responsible for the crimes as a coconspirator or as an aider and abettor. We conclude that there was substantial evidence to support the juvenile court’s findings. For the reasons discussed in our opinion in In re E.R. (Oct. 21, 2010, A124706) ___ Cal.App.4th ___, the finding on the murder count must be reduced to murder in the second degree, but we shall otherwise affirm.
BACKGROUND
Approximately one month before the shooting, Antoine was in a dance competition at the International School for the Arts (ISA), a high school. During the performance an altercation occurred between “two different crowds.” Antoine’s friend Chris was also present and Antoine saw “somebody else come on in front of him and shake... their hair in front of him. The next thing I know [is] the staff... came in between and was breaking it up.” The person who shook his hair in Chris’s face had dreadlocks.
Alex H. was also present at the recreation center on March 16. He testified that while Antoine was dancing at the talent show “[p]eople got on stage and they started shaking their dreads in [Antoine’s] face.” One boy repeated this behavior with Chris, who was standing next to Alex. Alex pushed the boy who did this and the two started arguing. Alex was asked if “shaking your dreads [is] part of a dance, ” and he answered that it was not, but also testified that some of the people shaking their dreadlocks were doing so as part of a dance. Thomas J. was also in the audience at the ISA talent show. He left when the fight broke out.
Chante P. was at the talent show with Antoine, Alex and two other young people. She saw some girls come in through the side door who she described as “loud and disrespectful” to Chante and her friends. They were “walking by us and pushing us and mugging us.” She had previously seen the girls in the Potrero Hill neighborhood. One of the girls made a phone call and T.Tu. (also known as Bad Boy) and some other boys came into the auditorium through the side door. “They said let’s have a... dance battle. And they were dancing on stage.... And somebody pushed another person. And that person got mad. And then they was about to fight. And a security guard that was there said you guys are not going to fight in here. Take that outside.” Everyone left the auditorium. Then “everybody started arguing, ” and Alex, Antoine and another boy followed T.Tr. and T.Tu. up Potrero Hill.
On March 16, Antoine, Antwanisha, and several other youths were standing outside of the Bayview recreation center on Third Street between Revere and Quesada waiting for Antwanisha’s mother. Three boys walked by. Antoine heard a sound “like a firecracker” and Antwanisha fell to the ground. One of his friends grabbed Antoine and they ran. As they were running they heard “bullets hitting on cars and the wall and the street.” Antoine heard “a lot” of shots; some sounded like firecrackers and the others sounded “a little bit louder, sounded like a gun.” Thomas J. was shot in his hip. He saw two boys, each holding a gun.
A witness was sitting in her car at the intersection of Quesada and Third Street on March 16 when she “heard some popping sounds.” She looked to her left and saw an African-American person wearing dark clothing shooting a gun. When he had fired five or six shots, he “went up the street. There was a car sitting there waiting. And [he] got in the car and the car took off.” She reported the license plate number of the car to the police.
Chante was standing in front of the recreation center with Antwanisha when she was killed. “A group of boys walked down the street. And we stopped talking. And put our heads down. And they walked by us.” There were four or five boys in the group. They walked around the corner onto Quesada, arguing. At the corner the boys looked back at the group in front of the recreation center. One of the boys came back around the corner and began shooting. “His gun got jammed. And another boy came around the corner and started shooting.” She recognized the first shooter as “E-Boy” or E.R. and the second shooter as “Bad Boy, ” or T.Tu. She identified a third person in the group as D.B.
Chante later testified that she did not know D.B. and had not seen him that night, and that she had based her testimony that he was present on the fact that “someone told [her] that they thought [D.B.] was there with the shooters.”
Chris C., a friend of Antwanisha, had been at the ISA talent show and was also present in front of the recreation center on March 16. He saw a boy with a gun in his hand who also had his hands over his face. The boy said to Chris, “You got five, ” and in response Chris ran.
Kamisha testified that on March 16 she drove T.Tu., T.Tr., D.B., E.R. and a boy named “Smed” to Third Street and Quesada. She turned onto Revere and stopped at the corner because someone in the car said, “There he is.” D.B., T.Tr. and E.R. got out of the car. Kamisha pulled the car forward and parked on Quesada. T.Tr. and E.R. fired shots then got back in the car along with D.B. While E.R. and T.Tr. were shooting, D.B. “was standing there. He wasn’t doing nothing.” As they drove away, T.Tu. opened the door of the car and said to some people, “You see how we do.” The three boys who had gotten out of the car talked about the shooting and said that “somebody should have got hit.” Kamisha drove them to D.B.’s house.
Kamisha was given immunity for her testimony and placed in a witness protection program.
Kamisha left D.B.’s home with T.Tu. They drove to Kamisha’s house, then to Potrero Hill. While they were driving, another car in which there were three people wearing masks pulled alongside them. Kamisha pulled onto the freeway with the other car following behind. On the freeway, someone in the other car shot at them and T.Tu. shot back. When Kamisha pulled off the freeway, she collided with another vehicle, then got out of the car and ran.
On December 21, 2007, a juvenile wardship petition was filed under Welfare and Institutions Code section 602, subdivision (a) alleging that D.B. had committed conspiracy (Pen. Code, § 182, subd. (a)(1)) (count 1), murder (§ 187) (count 2), two attempted murders (§§ 187, 664) (counts 3 and 4), and assault with a firearm (§ 245, subd. (a)(2)) (count 5). An arrest warrant was attached to the wardship petition. The warrant alleged personal use of a firearm with great bodily injury which caused the death of Antwanisha (§ 12022.53, subd. (d)), that D.B. was a principal in the commission of the conspiracy (§ 12022.53, subd. (e)), personal use of a firearm with great bodily injury causing injury to Thomas J. (§ 12022.53, subd. (d)), and that the crimes were committed for the benefit of a criminal street gang with the intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
Further statutory references are to the Penal Code unless otherwise specified.
Leonard Broberg, a member of the San Francisco Police Department Gang Task Force, testified as an expert on gang culture in San Francisco. He has been aware of and investigated the “25th Street” gang since 1996. The gang’s territory is the Potrero Hill housing development. G-3 is a subset of the 25th Street gang. “Zoo Block” is another gang that occupies the Potrero Hill Annex on the north side of the housing development. Broberg identified a photograph of T.Tu. using the G-3 hand sign and one of T.Tr., D.B., and T.Tu. using the G-3 sign. He identified two other photographs of D.B. along with various other juveniles using the G-3 sign. In another photograph, D.B was simulating holding two guns. Broberg opined that “[f]requently gang members... will not have pictures of themselves tak[en] holding actual guns, but they will simulate holding guns to basically show people that they would pick up a gun.” In another photograph, D.B. was identified using the 25th Street gang sign. Two other photographs showed D.B. with documented members of the Zoo Block and 25th Street gangs. Broberg identified D.B. in a photograph taken from his home; on the bottom of the photograph was written “25th” and “G-3 Rude.”
Broberg opined that 25th Street was a criminal street gang based on his “knowledge of the individuals involved with the gang. Their criminal histories. Their associations. Some of their activities in committing some of the predicate crimes that are enumerated under [section] 186.22. And that some of the 25th Street gang members have pled guilty to being 25th Street gang members.” In reaching his opinion Broberg had reviewed hundreds of police reports involving the gang.
D.B. was a documented member of the 25th Street gang. Broberg based this opinion on “a number of sources. I reviewed his criminal history. I have looked at police reports where he is associated with other gang members both inside the gang’s territory and outside the gang’s territory. There have been references to [D.B.] in connection with G-3 in letters that I have also reviewed. [¶] In 2004 Officer Valenzuela recovered a binder... that... was attributed to [D.B.] And there were a number of writings in there, lists of gang members from the Potrero Hill area, both 25th Street, other areas and Zoo Block.” Inside the binder were numerous gang references and a photograph of D.B., whose gang moniker was “Gutta”, using the G-3 hand sign. There was also a letter from Kamisha to D.B. in which she talks “about banging for the building, ” and says “before I was the first lady of the building I was yo first lady. Can it stay that way?” Referring to oneself as the first lady of the gang “signifies that the person that they’re involved in a relationship with has a position of great importance within the gang, or is leading it.”
A validated gang member is “somebody who’s actually been adjudicated, who acknowledges culpability, responsibility for gang membership in a court of law, ” whereas “documented is a... looser term. Documented would be somebody who’s come to the attention of law enforcement... as being somebody who may be associated with the gang.” For a documented gang member the police “have been monitoring the individual’s activities within the gang....”
Broberg identified another letter sent to D.B. from “an individual that is trying to keep up on some of the activities in the gang’s area or the gang’s activities. Even while they are not in the area or they are incarcerated. There is [a] reference to G-3.... There [are] also references in there about being ready for the beef. Back in 2006 there were a number of rivalries that were going on, like Potrero Hill and G-3 in particular and some groups in the Fillmore. And when they are talking about beefs they are talking about rivalries.” The letter said, “I need you to bring us back G-3.... We should all have cannons.” “Cannons” refers to guns, and “ ‘I need you to bring us back G-3, ’... is a reference to an individual that has the power as the leader that could... reestablish the group’s reputation.” Broberg interpreted that statement as in indication that D.B. was “leading the movement or the actions in order to reestablish the reputation of the gang.”The same letter also said, “Gutta run shit, ” which Broberg opined was “a reference to [D.B.] being in charge. ‘Run shit’ basically means that he directs the actions.” The letter also made reference to the “25th Street Mob, ” a reference to “all the areas up in Potrero Hill in the areas that are within the gang’s territory.” The letter referred to “Cut throats, ” which Broberg identified as a subgroup of the G-3 gang.
Other evidence that established D.B. as a gang member included a shirt taken from D.B.’s house, which Broberg described as having “a lot of significance because as you look at the shirt... you can see all kinds of references to the different areas of Portrero Hill, 25th Street, two dice... one dice has two dots. The other... has five dots. Lifetime 25 Hustler. That is basically maybe a commitment to 25th Street.... Young Gutta. Again, that is the reference to the moniker for [D.B.] Across the top, again, Potrero Hill. Deuce Five for 25. 25th Street Mob Hard Hittaz. This is writing[ ] that was also seen in the binders including the one that was recovered back in 2004.” Another shirt, also taken from D.B.’s house, was a red jersey with “McGwire 25” on it. Broberg testified that the jersey was significant because it had the number 25 on it. “Frequently... gangs or individuals that are involved in gangs... either identify with sports teams, colors, or use the numbers of individual athletes in order to identify themselves. In this case, the fact that there’s a 25 on that jersey and the fact that I believe that [D.B.] is a member of the 25th Street gang.”
Broberg opined that D.B. was an active member of a criminal street gang and that he had participated in a crime related to the gang’s activities, specifically possession of a stolen car that had been taken at knife point. Broberg also based his opinion on the binder, the other writings, the t-shirt, and D.B.’s “ongoing associations with individuals that I believe are other 25th Street and G-3 gang members. His appearance in pictures where he is throwing the hand sign. It has been my experience that individuals throw hand signs only if they are associated with a particular gang, because the consequences could be pretty severe if you’re throwing a hand sign and people see it and you’re not a member of that gang. Because you will be subject to problems with both the members of that gang for claiming to be a part of something that you’re not, and also their rivals and you’re not going to have anybody to back you up.”
Broberg testified that “[o]ne of the things to remember about gang culture is the fact that fear and respect are interchangeable. In order to be respected, you have to be feared. In order to be feared, you have to resort to acts of violence.” “In order to be a member of the gang, you’d have to have gained their respect. You’ve also had to gain their confidence. And this is done in any number of ways, but most of all it’s by your actions and by showing your loyalty to the gang.... either [by] committing acts on behalf of the gang, participating in criminal activities of the gang, or if you’re arrested at various points and you’re not snitching on the gang.” In Broberg’s experience, “gang members aren’t going to commit acts of violence or extremely heinous acts with someone that they don’t trust. And in order to trust you, you pretty much need to be a member of the gang or a really trusted associate and that may be one... seminal act that will get you to cross over from being just a mere associate as to being a member within the gang. Also, committing an act of violence, again, what you’re doing then is you’re establishing your reputation not just within the gang but you’re establishing your reputation outside the gang.... And an individual... in order to be respected within a gang culture, you need to be feared. The more feared you are, the more respected you are. And then the gang benefits because the gang will be more respected because they will be feared. And this is usually accomplished through acts of violence.”
The fact that everyone in the car that day was a gang member or an associate of the gang indicated to Broberg that everyone in the car was supporting one another and participating in the crimes. The fact that three of the people in the car were dropped off and the car waited for them nearby suggested that the crimes were planned. He testified that gang members commit crimes together “in order to give each other moral support. They’ll commit crimes together, depending on some of the factors where maybe they need to help protect or act as lookouts or serve as an additional person that can shoot or protect the gang.”
Broberg was of the opinion that the crimes committed in this case were for the benefit of a street gang and were done in retaliation for the incident at the talent show. He based that opinion on “the basic interchangeability of fear and respect. Some of the letters that I reviewed during the course of this investigation where they’re talking about the need to reestablish themselves, they need to assert themselves, references to G-3 and the members of G-3... that were not taken seriously.”
Broberg knew about the fight at the ISA talent show from speaking with the school’s principal. Broberg testified that “shaking dreads” in someone’s face is a sign of disrespect. He was aware that E.R. and T.Tu. were present at the talent show, as were the boys who were with Antwanisha in front of the recreation center the night of the shooting. The three youths who walked by the recreation center “made absolutely no attempt to conceal their identity because people recognize[d] them.” That was significant because “as they’re walking by they wanted people to know who they were or where they were from.” “The fact that they’re not worried about people identifying them just tells you the grip that this whole idea has in the community about... not snitching, about not cooperating with the police.... [T]hey weren’t concerned with who saw them. In fact, they wanted people to know that they were there, that they were sending that message of disrespect.”
The recreation center was “a neutral zone. That’s pretty much where kids can hang out and feel fairly safe....” The people who were shot at were not documented gang members. Broberg testified that the statement, “that’s how we do, ” was “a statement saying this is how we answer any forms of disrespect.” “This is... a reference to the fact that they’re willing to resort to violence in order to establish themselves.” Broberg believed that the shooting was committed because the gang needed to reestablish respect after the disrespect that had been shown them at the talent show.
The juvenile court found true the allegations in count 1 that D.B. conspired to commit murder, that he was a principal in the crime, and that the conspiracy was committed for the benefit of a criminal street gang. The court found not true the allegations that D.B. personally used a firearm. The court found true the allegations in counts 2, 3 and 4 that D.B. committed first degree murder and two counts of attempted murder, that he was a principal in those crimes, and that the crimes were committed for the benefit of a criminal street gang, but again found not true the allegations that he personally used a firearm on Thomas J. Finally, the court found true the allegation in count 5 that D.B. committed assault with a firearm on Thomas J.
D.B. was committed to the DJJ for a maximum of two concurrent terms of 25 years to life for the conspiracy and the murder, three concurrent terms of five years for each of the attempted murders, and a concurrent term of two years for the assault with a deadly weapon. The court imposed but stayed a term of 25 years to life for the great bodily injury enhancement and imposed but stayed a term of 10 years for the gang enhancement. D.B. timely appealed.
DISCUSSION
Gang enhancement
Section 186.22, subdivision (b)(1) provides enhanced punishment for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” In order to be subject to this enhancement, “the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ ” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617, italics added.)
D.B. argues that, while there may have been evidence that he was a member of a criminal street gang, there was insufficient evidence that the offenses were committed for the benefit of that gang. “In resolving claims involving the sufficiency of evidence, a reviewing court must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] The supporting evidence must be substantial, that is, ‘evidence that “reasonably inspires confidence and is of ‘solid value.’ ” ’ ” (People v. Marshall (1997) 15 Cal.4th 1, 34.)
In People v. Morales (2003) 112 Cal.App.4th 1176, 1198, the defendant argued that the evidence showed only that the three defendants belonged to the same gang. The court rejected that claim. “Arguably, such evidence alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang. The crucial element, however, requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang.... Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.” (Ibid.)
D.B. relies on In re Frank S. (2006) 141 Cal.App.4th 1192 for the proposition that the evidence here was insufficient to establish his intent to assist or promote a criminal street gang. In that case, the minor was charged with carrying a concealed knife with a gang allegation under section 186.22, subdivision (b)(1). (Frank S., at p. 1195.) The minor stated that he was carrying the knife because he had been attacked two days earlier and identified himself as an affiliate of the Norteños when he was taken to the juvenile detention facility. (Ibid.) The expert testified that the minor possessed the knife to protect himself from rival gang members, and based on that testimony the juvenile court sustained the gang enhancement. (Id. at pp. 1195-1196.) The appellate court held that the expert’s testimony as to the minor’s intent was insufficient to establish that the minor was carrying the knife “for the benefit of his gang with the specific intent to promote, further, or assist criminal gang behavior.” (Id. at pp. 1194-1195.) While “[i]t is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation” (id. at p. 1196), the court noted that an expert’s opinion must be based on material admitted into evidence or material of the sort that is “reasonably relied upon by experts in that particular field in forming their opinions and [that is] reliable” (id. at p. 1197). The court found that “the expert simply informed the judge of her belief of the minor’s intent with possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits the Norteños since ‘it helps provide them protection should they be assaulted by rival gang members.’ However, unlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang....’ [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.” (Id. at p. 1199.)
Here, there was ample evidence that D.B. was in the company of gang members. There was evidence that D.B., T.Tu., T.Tr., and E.R. were members, and that Kamisha was an associate, of the G-3 gang. “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322, citing People v. Morales, supra, 112 Cal.App.4th at p. 1198.) There was evidence that D.B. was the leader of the gang and had been urged to reestablish the gang’s credibility. These crimes were committed immediately upon D.B.’s release from custody. T.Tu.’s statement, “You see how we do, ” also substantiates the theory that the crime was committed for the benefit of the gang. The expert testified that the gang was trying to rehabilitate its reputation by instilling fear, and that gang members do not generally commit crimes with non-gang members. His opinion that the crimes were committed for the benefit of the gang was based on evidence in the record.
D.B. takes issue with the credibility of Kamisha’s testimony that T.Tu. shouted, “you see how we do” after the shooting because the version of events she related changed multiple times over the course of the investigation and trial. However, “ ‘we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.’ ” (In re Stephen W. (1990) 221 Cal.App.3d 629, 642, italics added.)
D.B. points out in his reply brief that some of the expert testimony was at odds with the witness’ testimony. Specifically, D.B. points to Broberg’s testimony that one of the shooters “mugged somebody” as he walked by, that the three youths hid their faces while they were shooting but uncovered them later, and the opinion that the homicide was in retaliation for the incident at the school. Because there was evidence that D.B. was a member of the gang and committed the crime in concert with other gang members it is not necessary to rely on the disputed portions of the expert testimony to support the finding that the homicide was committed for the benefit of and with the specific intent of promoting a criminal street gang.
There was substantial evidence to support the juvenile court’s conclusion that the crime was committed in association with a gang, which is sufficient to support the enhanced punishment under section 186.22, subdivision (b)(1).
Conspiracy
D.B. argues that “[a]ll of the overt acts found true by the court against [D.B.] do not establish anything more than his presence with T[.]Tr.” He argues that this is insufficient to establish the substantive offense of conspiracy or to establish the finding that he committed the remaining crimes as a coconspirator.
“The doctrine of conspiracy plays a dual role in our criminal law. First, conspiracy is a substantive offense in itself—‘an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective.’ [Citations.] Second, proof of a conspiracy serves to impose criminal liability on all conspirators for crimes committed in furtherance of the conspiracy.” (People v. Salcedo (1994) 30 Cal.App.4th 209, 215.)
“The elements of conspiracy may be proven with circumstantial evidence, ‘particularly when those circumstances are the defendant’s carrying out the agreed-upon crime.’ [Citations.] To prove an agreement, it is not necessary to establish the parties met and expressly agreed; rather, ‘a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design.’ ” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024-1025.)
D.B. quotes Lavine v. Superior Court (1965) 238 Cal.App.2d 540, 543, for the proposition that “[m]ere association does not make a conspiracy. There must be evidence of some participation or interest in the commission of the offense.” Here, there was far more than evidence of “mere association” to support the juvenile court’s finding. There was evidence that D.B. was the leader of the gang. D.B. argues that the fact that he was released from custody the day of the murder suggests that he did not know of the incident at ISA. While there was no direct evidence that he knew of the ISA incident, the evidence established that other gang members were looking to him to bolster the gang’s image. There was ample circumstantial evidence to support the juvenile court’s finding that the gang members drove to the location of the shooting, got out of the car and shot at the group, then got back in the waiting car. Kamisha testified to all of these facts. She also testified that someone in the car said, “there he is” just before she stopped the car and D.B., E.R. and T.Tr. got out and commenced shooting, which bolsters Broberg’s testimony that the shooting was an attempt by the gang to reestablish credibility after the incident at the dance. Finally, the conspiracy finding is supported by the evidence that T.Tu. shouted as they drove away, “That’s how we do, ” and they all drove to Kamisha’s house. There was sufficient evidence that the acts that day were part of a predetermined plan to instill terror in bystanders and garner respect for the G-3 gang.
D.B. relies on People v. Mata (1955) 133 Cal.App.2d 18, 19, a case in which three defendants were involved in an altercation that resulted in one death. The testimony concerning the involvement of the three defendants was somewhat confused, but the prosecutor nevertheless charged all three defendants with murder on a conspiracy theory. (Id. at p. 22.) The appellate court concluded that the trial court had erred when it gave the jury “five detailed instructions on conspiracy, and refused to give the CALJIC instruction telling the jury that ‘mere presence and association of the defendants is insufficient to show a conspiracy.’ ” (Id at p. 23.) D.B. does not question that the juvenile court applied the correct legal standard in this case, but disputes only the sufficiency of the evidence of conspiracy.
Aiding and abetting
D.B. also argues that the evidence was insufficient to support a finding that he was liable for the murder, three attempted murders, and assault with a deadly weapon on a theory that he aided and abetted the shooters. “An aider and abettor is one who acts ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ ” (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.) “[I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, ‘[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ ” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) “Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.” (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.)
In addition to the evidence that supports D.B.’s liability on the conspiracy allegations, the occupants of the car participated in returning fire to the car that chased them on the freeway and all returned together to Kamisha G.’s house after the charged crimes were committed. The juvenile court’s finding was not based merely on D.B.’s presence, but on also on the evidence concerning his membership in and association with the gang, their coordinated actions on the day of the shooting, and D.B.’s role as the leader of the gang. This evidence is sufficient to support the juvenile court’s finding that D.B. was responsible for the crimes as an aider and abettor.
Finding that the murder was first degree
As in the case of E.R., the court found the murder of Antwanisha was “in the second degree, unless it is required by law for conspiracy matters to be in the first degree” and subsequently entered a finding of first degree murder. For the reasons discussed in In re E.R., supra, ___Cal.App.4th ___ (A124706) this was error, and the finding on count 2 should be modified to murder in the second degree.
DISPOSITION
The finding on count 2 is modified to find that the minor committed murder in the second degree. The jurisdiction and disposition orders are otherwise affirmed.
We concur: McGuiness, P. J., Siggins, J.