Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from judgments of conviction of the Superior Court of the County of Los Angeles, No. TA087038, Gary R. Hahn, Judge.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant Rafael F. Silva.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant Eudaldo Jessie De La Torre.
MOSK, J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Rafael Silva (Silva) drove defendant and appellant Eudaldo De La Torre (De La Torre) to the house of a local drug dealer, slowed down and stopped while De La Torre shot the dealer multiple times at close range, and then sped away from the scene. There were several eyewitnesses, including the drug dealer who survived.
Silva and De La Torre are sometimes referred to collectively as defendants.
Defendants appeal from their convictions of attempted premeditated murder. Silva argues that there was insufficient evidence to support the jury’s finding that he aided and abetted the attempted murder and that there was insufficient evidence that either he or De La Torre premeditated and deliberated the attempted murder. Both defendants also argue that there was insufficient evidence to support the jury’s finding that the gang allegations were true.
We hold that there was substantial evidence that Silva aided and abetted the attempted murder, that Silva and De La Torre premeditated and deliberated the attempted murder, and that defendants committed the attempted murder for the benefit of, at the direction of, or in association with, a criminal street gang. We therefore affirm the judgments of conviction.
FACTUAL BACKGROUND
On October 7, 2006, Darrell Folger (Darrell) was at his mother’s house located at 22214 South Moneta Avenue in Carson. The house is on the southeast corner of Moneta and 222nd Street. At the time, Darrell’s grandmother, mother, aunts, and two brothers, David and Steven, all lived at that house.
Because Darrell Folger and his two brothers, David Folger and Steven Folger, each testified, they will be referred to by their first names.
That afternoon, Darrell was talking to his brother David outside the house near Darrell’s Cadillac that was parked in the driveway. Darrell was standing behind his Cadillac and David was standing next to a nearby tree. Both men were facing toward the house and away from the street. Darrell heard a gunshot behind him, turned toward the street, and saw a charcoal gray Trailblazer traveling northbound on Moneta Avenue. He saw Silva driving and De La Torre in the passenger seat. Darrell saw De La Torre with his hand extended out of the passenger window holding a black, semiautomatic handgun. After the first shot, David fell to the ground and tried to crawl away, but was shot several more times. At the time of the first shot, Darrell was eight to ten feet from David. After the first shot, Darrell ran and sought cover in front of his Cadillac. Neither Silva nor De La Torre said anything before the shooting, and De La Torre never pointed the gun at Darrell.
After the gunshots were fired, Darrell observed the Trailblazer “[take] off in a hurry” north on Moneta and then make a right on 222nd Street. Darrell tried to get the license plate number of the Trailblazer, but was unsuccessful. Darrell saw David face down on the ground “rolling around a little bit” and observed a red mark on his chest. David told Darrell that he was having difficulty breathing and that he believed “it was 204 Street” that shot him.
Los Angeles County Deputy Sheriffs and paramedics arrived at the scene. The paramedics treated David at the scene and then transported him to the hospital. Darrell spoke to the deputies and told them everything he could remember about the incident.
Later that afternoon, Darrell spoke to a friend of David’s, and based on the information the friend provided, Darrell and a friend drove to a location about eight blocks from his mother’s house. When Darrell saw a Trailblazer at that location, he said “that’s the truck, that’s the truck,” and wrote down its license plate number. After Darrell wrote down the license plate number, he saw Silva leaving a house across the street from where the Trailblazer was parked. Darrell made eye contact with Silva and “decided to keep going....” Darrell went to a friend’s house, called the Sheriff’s Department, and reported the Trailblazer’s license plate number.
During direct examination, Darrell declined to give any identifying information about David’s friend.
Two days later, Detective Erhorn interviewed Darrell who told the detective as much as he could remember about the shooting. The following day, Detective Trejo came to Darrell’s workplace and showed him a photographic lineup. Darrell identified Silva from that lineup.
On October 15, 2006, Darrell went to the Sheriff’s station and met again with Detective Erhorn. The detective showed Darrell another photographic lineup in which Darrell thought he recognized De La Torre’s photograph, but he “wasn’t sure because at the time of the shooting, the guy [the passenger] had a hat and glasses.” Detective Erhorn told Darrell that he would prepare a new photographic lineup in which the subjects would be wearing hats and glasses. When Darrell subsequently reviewed the new lineup, he identified De La Torre as the shooter.
Sometime after the shooting, Darrell inspected his mother’s house to determine if any bullets had struck the house. He observed a bullet hole in the stucco on the front exterior wall of the house. He also observed where the bullet came through the interior wall, struck a lamp, and penetrated the ceiling.
On October 7, 2006, at about 12:15 p.m., Karen Alvarez was driving near the intersection of Moneta Avenue and 222nd Street. She noticed a dark colored SUV stopped in front of her. The SUV was stopped in front of the house on the corner of Moneta and 222nd Street, but there was no stop sign at that intersection. Alvarez was waiting to proceed, but the SUV did not move, and then she heard “popping noises.” She noticed a man near a tree and “red spots started showing up on the back of his white T-shirt.” After “it [sank] in that... somebody was being shot,” Alvarez saw the SUV “[take] off around the corner.” Alvarez tried to follow the SUV, but when she turned the corner in the same direction as the SUV, she “didn’t see the [SUV]....”
On October 7, 2006, at about 12:15 p.m., Steven Folger was at his mother’s house on Moneta Avenue. His two brothers, David and Darrell, his grandmother, and his aunt were at home that afternoon. He was “hanging outside” with his brothers, but at some point he went inside and laid on the couch that faced out toward Moneta. While on the couch, Steven heard “loud pops... like firecrackers almost.” He looked out the window and saw his brother David on the ground. He also saw a dark gray SUV with two Hispanic males in the two front seats. Steven could see that the passenger wore a hat and sunglasses, but he could not see the driver’s face. He observed the passenger bring a black handgun back inside the SUV as it turned the corner. The SUV turned right at 222nd Street.
Steven called 911 and informed the operator that his brother had been shot. Steven was at David’s side and, at the operator’s request, asked David what kind of truck the suspects were driving. David replied that it was a charcoal gray Trailblazer.
Steven observed three red spots by David’s heart, some by his abdomen, and two by his feet. Steven later observed where a bullet entered his mother’s house and ricocheted into the ceiling.
In 2006, David Folger had been dealing drugs in the Carson area for about two years. He sold marijuana and “dabbled” in other drugs, such as methamphetamine. As a drug dealer, he was familiar with the gangs in that area. No gang controlled the area, but at least two claimed it. Among others, the Carson 13 gang claimed that area, but it was disputed territory
In July 2006, David attended a meeting with a man named Tony, who was affiliated with the Carson 13 gang. David had been dealing drugs in a neighborhood that the Carson 13 gang claimed as its territory. Silva, whom David knew as “Droopy,” was also at the meeting. David noticed that Silva drove a charcoal gray Trailblazer. Tony asked David to pay “taxes” on the proceeds from David’s drug sales in the claimed territory. David replied, “I’m white. I’m not a Mexican.” Shortly after the meeting, a blue T-Bird with primer spots pulled up to David’s car and someone in the T-Bird shot at him.
About two months later, on October 7, 2006, David was at his mother’s house on Moneta Avenue. He lived there with his brother Steven, his mother, and grandmother. That afternoon around 12:15 p.m., he was outside the house with his other brother, Darrell, near Darrell’s Cadillac that was parked in the driveway. He was standing between a tree and the Cadillac, facing the house, when he noticed a dark colored Trailblazer approaching northbound on Moneta. The Trailblazer slowed down, and he recognized Silva, i.e., “Droopy,” in the driver’s seat. David knew Silva was a member of 204th street gang. Then he saw the passenger “coming out the window with a handgun.” The passenger was “heavyset” and wearing a hat and sunglasses. David attempted to run to a tree for cover, but as soon as he turned to run, he was shot in the lower back near his spine. His legs “paralyzed” and he fell on his “knees face first.” David did not hear anyone in the vehicle say anything before he was shot.
Darrell had been in the same area as David, but once David turned to run, he lost track of Darrell. David fell on his side and back, and could not get up. He saw the Trailblazer pull in front of him, next to the curb, and David heard at least seven more shots. He was shot in the right chest and in the abdomen “multiple times.”
At the time of the shooting, David weighed “about 500 pounds,” but at trial he weighed 250 pounds.
When the shooting stopped, David looked for Darrell and saw him by the garage. Darrell had his cell phone out and ran to the house “to tell them to call 911.” David saw the Trailblazer make a right on 222nd Street. At the time of the shooting, David’s brother Steven, his grandmother, and his aunts were inside the house.
The paramedics arrived to treat David. He could barely speak because he “couldn’t breathe.” He was taken to the hospital where he stayed ten and a half months, during which time he underwent approximately 12 surgeries to treat his “multiple gunshot wounds.” At the time of trial, he was still taking medication and was wearing a wound pack to help heal open wounds on his abdomen. Since his surgeries, he had experienced medical problems, such as “nerve damage.”
On October 7, 2006, Deputy Leslie Larson responded to a report of a gunshot victim at 22214 Moneta Avenue. At the scene, Deputy Larson saw David on the ground bleeding. Deputy Larson interviewed Darrell, Steven, and Alvarez. The deputy also recovered four bullet casings from the curb line in front of the residence. On the western exterior wall of the residence, Deputy Larson observed bullet strike damage and, in the interior of the residence, observed where the bullet hit a lamp and deflected into the ceiling. At about 6:30 p.m. that same day, Darrell telephoned Deputy Larson and provided the license number and location of the suspect vehicle. Darrell also provided nicknames for the two suspects
On October 7, 2006, deputies from the Sheriff’s Department responded to the location provided by Darrell—22729 South Fries Avenue—and impounded a gray 2006 Trailblazer with the license plate number provided by Darrell. A Sheriff’s Department criminalist found two of De La Torre’s fingerprints on the impounded Trailblazer. Silva was subsequently arrested, near where the Sheriff’s Department impounded the Trailblazer, for driving on a suspended license.
The Trailblazer had been missing from a National Car Rental facility since August 19, 2006, and was reported stolen on October 3, 2006.
Deputy Eric Ehrhorn was assigned to investigate the shooting of David. He was familiar with Silva and knew his nickname was “Droopy.” He was also aware that Silva lived at 22729 South Fries Avenue in Carson. On October 9, 2006, Deputy Ehrhorn contacted David at the hospital, but could not interview him because David had difficulty breathing. He also interviewed Darrell, who informed the deputy that he had seen the suspect vehicle near 22729 South Fries Avenue. On October 12, 2006, Deputy Ehrhorn served a search warrant at Silva’s residence. There he contacted De La Torre, who had 204th Street gang tattoos and identified himself as “Gremlin.” Deputy Ehrhorn arrested and booked De La Torre. Deputy Ehrhorn had worked in Carson since the 1990s and was aware that in October 2006, the Carson 13 and 204th Street gangs “didn’t cross each others paths.... [T]hey kind of lived amongst each other,” i.e., they did not appear to be rivals. According to Deputy Ehrhorn, Silva’s residence was within the Carson 13 gang’s territory. Silva’s family had lived there for some time, and Silva had an agreement with the Carson 13 gang that he could stay at that residence without fear of retaliation. Even though Silva’s house was in the Carson 13 gang’s territory, the house was a known “hangout” for 204th Street gang members.
At the time of trial, Los Angeles Police Officer Bruce Coss was assigned to the Harbor Division gang enforcement detail. He had extensive education, background, and experience dealing with criminal street gangs. He was assigned to the 204th Street gang in the Harbor Division. His sole responsibility was to monitor that gang. The 204th Street gang had approximately 100 members. The gang shared a common sign or symbol—204—that could be seen in their tattoos and graffiti. The major activities of the 204th street gang were assaults with deadly weapons, carjackings, narcotics sales, and murders.
The 204th street gang’s territory was within the Los Angeles Police Department’s jurisdiction.
Officer Coss was familiar with Silva, who was a 204th Street gang member with the moniker “Droopy.” Silva had tattoos on his head, arm, lower back, and leg that signified his membership in the 204th Street gang. Officer Coss was also familiar with De La Torre, who was a 204th Street gang member with the moniker “Gremlin.” De La Torre had tattoos signifying his membership in the 204th Street gang on his stomach, chest, arm, back, and leg.
Silva’s residence at 22729 South Fries Avenue in Carson was outside the 204th Street gang’s territory, but was considered a “pocket area” for the 204th Street gang with its “members surfacing at that location on a regular basis.” In Officer Coss’s opinion, the shooting of David was a “gang-related shooting and it [was] done [for] their [the 204th Street gang’s] benefit and possibly at their direction.” The shooting benefited that gang by intimidating members of the community and instilling fear in rival gang members because it was done “in broad daylight.” Also, younger 204th Street gang members would put Silva and De La Torre, as senior members of the gang, “on a pedestal.” Shootings, such as the one at issue, have a “huge devastating effect on the community” in which they occur, and deter potential witnesses from testifying against the gang.
PROCEDURAL BACKGROUND
In an amended information, the Los Angeles County District Attorney charged defendants in Count 1 with the attempted murder of David in violation of Penal Code sections 664 and 187, subdivision (a)—a felony; in Count 2 with the attempted murder of Darrell in violation of sections 664 and 187, subdivision (a)—a felony; and in Count 3 with shooting from a motor vehicle in violation of section 12034, subdivision (c)—a felony. The District Attorney alleged as to Counts 1 and 2 that the attempted murders of David and Darrell were committed willfully, deliberately, and with premeditation within the meaning of section 664, subdivision (a). The District Attorney further alleged as to all counts that: a principal personally and intentionally discharged a handgun causing great bodily injury to David within the meaning of section 12022.53, subdivisions (d) and (e)(1); a principal personally and intentionally discharged a handgun within the meaning of section 12022.53, subdivisions (c) and (e)(1); and a principal personally and intentionally used a handgun within the meaning of section 12022.53, subdivisions (b) and (e). The District Attorney also alleged as to all counts that the offenses were committed for the benefit of, at the direction of, or in association with, a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C) and that those actions caused the offenses to become serious felonies within the meaning of section 1192.7, subdivision (c)(8). In addition, the District Attorney alleged as to all counts that: De La Torre personally and intentionally discharged a handgun causing great bodily injury to David within the meaning of section 12022.53, subdivision (d), causing the offenses to become serious felonies within the meaning of section 1192.7, subdivision (c)(8) and a violent felony within the meaning of section 667.5, subdivision (c)(8); De La Torre personally and intentionally discharged a handgun within the meaning of section 12022.53, subdivision (c), causing the offenses to become serious felonies within the meaning of section 1192.7, subdivision (c)(8) and a serious felony within the meaning of section 667.5, subdivision (c)(8); and De La Torre personally and intentionally used a handgun within the meaning of section 12022.53, subdivision (b), causing the offenses to become a serious felony within the meaning of section 667.5, subdivision (c)(8). The District Attorney further alleged as to all counts, pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), that Silva had suffered a prior conviction of a serious or violent felony and that De La Torre had suffered two prior convictions of serious or violent felonies.
All further statutory references are to the Penal Code unless otherwise stated.
Defendants pleaded not guilty and denied the special allegations. Following a jury trial, defendants were found guilty on Counts 1 and 3, but acquitted on Count 2, the attempted murder of Darrell. The jury also found as to Count 1 that the attempted murder was premeditated and that Counts 1 and 3 were committed for the benefit of a criminal street gang. In addition, the jury found the firearm enhancements to be true. The trial court found Silva’s prior conviction allegation to be true, but the prosecution was unable to proceed as to De La Torre’s prior conviction allegations.
The trial court sentenced De La Torre on Count 1 to life with the possibility of parole. The trial court also sentenced De La Torre to an additional, consecutive 15 years to life sentence based on the gang enhancement, plus an additional, consecutive 25 years to life sentence for the firearm enhancement under section 12022.53, subdivision (d), for an aggregate sentence on Count 1 of 40 years to life. The trial court stayed imposition of sentence as to Count 3 and imposed but stayed sentence as to the other special allegations.
The trial court sentenced Silva on Count 1 to life with the possibility of parole and doubled the minimum parole eligibility term of seven years to 14 years based on the prior strike conviction. The trial court sentenced Silva to an additional, consecutive 25 years to life sentence for the firearm enhancement under section 12022.53, subdivision (d), for an aggregate sentence on Count 1 of 39 years to life. The trial court stayed imposition of sentence on Count 3 and imposed but stayed sentence as to the other special allegations.
Defendants filed timely appeals from their judgments of conviction.
DISCUSSION
A. Standard of Review
Each contention made by defendants is based on a claim of insufficient evidence. We review such claims under a substantial evidence standard of review. “‘In reviewing [a claim regarding] the sufficiency of the evidence, we 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.” [Citation.] “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We “‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’”’ (Peoplev. Davis [(1995)] 10 Cal.4th 463, 509-510.) If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573-574, 99 S.Ct. 2781]), as is the due process clause of article I, section 15, of the California Constitution (People v. Berryman [(1993)] 6 Cal.4th 1048, 1083).” (People v. Osband (1996) 13 Cal.4th 622, 690.)
B. Substantial Evidence of Aiding and Abetting Attempted Murder
Silva contends the evidence in support of his conviction for attempted murder, as an aider and abettor, was insufficient. According to Silva, there was no substantial evidence to support a finding that he was aware De La Torre intended to kill David or that he intended to encourage or facilitate the killing.
The jury found Silva guilty of the attempted murder of David on an aiding and abetting theory of liability. “Both aiders and abettors and direct perpetrators are principals in the commission of a crime. Penal Code section 31 defines ‘principals’ as ‘[a]ll persons concerned in the commission of a crime... whether they directly commit the act constituting the offense, or aid and abet in its commission....’ (See Pen. Code, § 971 [‘all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals....’].) We have observed, ‘the dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.’ (People v. McCoy (2001) 25 Cal.4th 1111, 1120 [108 Cal.Rptr.2d 188, 24 P.3d 1210].)” (People v. Calhoun (2007) 40 Cal.4th 398, 402.)
In People v. Lee (2003) 31 Cal.4th 613, the Supreme Court explained the application of the aiding and abetting theory of liability in the context of an attempted murder. “Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (E.g., 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 53, pp. 262–263; see, e.g., People v. Swain (1996) 12 Cal.4th 593, 604–605 [49 Cal.Rptr.2d 390, 909 P.2d 994].) To be guilty of a crime as an aider and abettor, a person must ‘aid[] the [direct] perpetrator by acts or encourage[] him [or her] by words or gestures.’ (People v. Villa (1957) 156 Cal.App.2d 128, 134 [318 P.2d 828]; accord, People v. Gonzales (1970) 4 Cal.App.3d 593, 600 [84 Cal.Rptr. 863]; see generally 1 Witkin & Epstein, Cal. Criminal Law, supra, Introduction to Crimes, § 78, p. 124.) In addition, except under the natural-and-probable-consequences doctrine (see, e.g., People v. McCoy (2001) 25 Cal.4th 1111, 1118 [108 Cal.Rptr.2d 188, 24 P.3d 1210]; see generally People v. Prettyman (1996) 14 Cal.4th 248, 260–263 [58 Cal.Rptr.2d 827, 926 P.2d 1013]),... the person must give such aid or encouragement ‘with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of,’ the crime in question. (People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal.Rptr. 60, 674 P.2d 1318]; accord, e.g., People v. Prettyman, supra, 14 Cal.4th at p. 259; People v. Croy (1985) 41 Cal.3d 1, 11–12 [221 Cal.Rptr. 592, 710 P.2d 392].) When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person ‘must share the specific intent of the [direct] perpetrator,’ that is to say, the person must ‘know[] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator’s commission of the crime.’ (People v. Beeman, supra, 35 Cal.3d at p. 560.) Thus, to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill. (See People v. McCoy, supra, 25 Cal.4th at p. 1118.)” (People v. Lee, supra, 31 Cal.4th at p. 623-624.)
Silva argues there is no evidence that he knew De La Torre was armed or that he knew De La Torre intended to shoot David. Thus, according to Silva, the mere fact that Silva drove away from the scene of the shooting with De La Torre is insufficient to establish that Silva shared De La Torre’s intent to kill and committed some act to facilitate, or in furtherance of, that killing.
The record discloses that, in addition to driving away from the scene with De La Torre, Silva attended a meeting with David about two months prior to the shooting, during which Carson 13 gang affiliate Tony demanded that David pay taxes on the drug sales David was making in territory claimed by the Carson 13 gang. David, however, refused the demand stating, “I’m white. I am not a Mexican.” Shortly after the meeting, David was the victim of an unsuccessful drive-by shooting. Moreover, on the day of the incident, Silva drove his fellow 204th Street gang member, De La Torre, to David’s house in a stolen Trailblazer, slowed the Trailblazer as it approached David’s location in front of his house, and watched as De La Torre shot David in the back as David attempted to run for cover. Silva then pulled the Trailblazer next to the curb, close to where David had fallen, and stopped the vehicle. Silva waited as De La Torre fired at least seven more rounds at David, hitting him multiple times. De La Torre did not point the gun at Darrell, who was nearby, or anyone other than David. After De La Torre fired the additional rounds at close range, Silva sped away from the scene with De La Torre so quickly that eyewitnesses could not record his license plate number or follow him.
The foregoing evidence was undisputed and corroborated in certain material respects by Darrell, Steven, and Alvarez; thus, it was reasonable, credible, and of solid value. From that evidence, a reasonable trier of fact could have inferred that Silva drove De La Torre to David’s house so that De La Torre could shoot and kill David.
Whatever Silva’s knowledge prior to the first shot, after that shot he pulled to the curb near where David was incapacitated and stopped the Trailblazer, providing De La Torre with both the time and ability to shoot at David at least seven more times, hitting him in the chest and abdomen, and then sped away. That evidence supports a reasonable inference that at least during the shooting, Silva became aware of De La Torre’s intent to kill and shared it.
Accordingly, we conclude there was substantial evidence that Silva aided and abetted the attempted murder of David. His conviction on the attempted murder charge is therefore affirmed.
C. Substantial Evidence of Premeditation and Deliberation
Silva argues that, even assuming he is liable for the attempted murder of David as an aider and abettor, there was no substantial evidence to support the finding that the attempted murder was premeditated and deliberate under section 664. As Silva views the record, there was no evidence of planning activity; a relationship between David and either Silva or De La Torre from which animosity can be inferred; or a premeditated method of killing, such as an ambush.
Silva concedes at the outset that there is no requirement that a defendant convicted as an aider and abettor of attempted murder must personally premeditate and deliberate. Rather, as Silva acknowledges, it is sufficient for purposes of finding Silva guilty of first degree attempted murder that either he or De La Torre premeditated and deliberated the attempted murder. (See People v. Lee, supra, 31 Cal.4th at pp. 616-617.)
In People v. Burney (2009) 47 Cal.4th 203, the Supreme Court explained the concepts of premeditation and deliberation in the context of first degree murder. “A murder that is premeditated and deliberate is murder of the first degree. (§ 189.) ‘“In this context, ‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’”’ (People v. Jurado (2006) 38 Cal.4th 72, 118 [41 Cal.Rptr.3d 319, 131 P.3d 400], quoting People v. Mayfield (1997) 14 Cal.4th 668, 767 [60 Cal.Rptr.2d 1, 928 P.2d 485].) ‘“An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.” [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing—but “[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.”’ (People v. Jurado, supra, 38 Cal.4th at pp. 118–119.)” (People v. Burney, supra, 47 Cal.4th at p. 235.)
“‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. [Citations.] “The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” [Citations.]”’ (People v. Koontz (2002) 27 Cal.4th 1041, 1080 [119 Cal.Rptr.2d 859, 46 P.3d 335].)” (People v. Harris (2008) 43 Cal.4th 1269, 1286-1287.)
The evidence in this case showed that about two months before De La Torre shot David, Silva attended a meeting with David during which Tony, an affiliate of the Carson 13 gang, demanded that David pay taxes on the proceeds of his drug sales. David responded, “I’m white. I’m not a Mexican,” which can reasonably be construed as a refusal to pay the demanded taxes. Shortly after the meeting, David was the victim of an unsuccessful drive-by shooting. Approximately two months later, Silva drove De La Torre—who was armed with a loaded semiautomatic handgun—to David’s house, slowed down as his vehicle approached the location where David was standing with his back to the street, and watched as De La Torre shot David in the back, disabling him. Once David was helpless on the ground, Silva pulled the Trailblazer to the curb near David, stopped and waited as De La Torre fired at least seven additional rounds at David, hitting him several more times. Silva then fled the scene with De La Torre so quickly that Alvarez, whose vehicle was stopped directly behind Silva’s during the shooting, was unable to follow them.
That evidence supports a reasonable inference of motive and planning—Silva felt disrespected or insulted by David’s refusal to pay taxes and recruited fellow 204th Street gang member De La Torre to procure a loaded weapon and assist in the killing of David. The method of the attempted killing also shows cold, calculated deliberation. De La Torre went to David’s house with a loaded semiautomatic weapon. When Silva saw David standing with his back to the street, he slowed down so De La Torre could get off a shot before David could find cover. Silva then took advantage of David’s incapacity by pulling up next to him and stopping, providing De La Torre with the time and ability to fire several more shots at David from even closer range. Silva then waited until De La Torre stopped firing before speeding off around the corner and out of sight of the witnesses. Thus, there was sufficient evidence from which a reasonable trier of fact could have inferred that either Silva or De La Torre, or both, premeditated and deliberated before and during the shooting of David. Silva’s first degree attempted murder conviction is therefore affirmed.
D. Substantial Evidence of Gang Enhancement
Defendants contend that there was insufficient evidence to support the jury’s finding that the shooting of David was for the benefit of, or at the direction of, or in association with, a criminal street gang. According to defendants, proof that they were 204th Street gang members, without more, is insufficient to show that the attempted murder was committed for the benefit of that gang. In addition, De La Torre argues that although the evidence may have suggested that defendants shot David to benefit the Carson 13 gang, there was no evidence that Carson 13 was a criminal street gang, and the gang expert testified that the shooting benefited the 204th Street gang, not the Carson 13 gang. Section 186.22, subdivision (b) provides in pertinent part: “[A]ny 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶]... [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.” Section 186.22 is part of the Street Terrorism Enforcement and Prevention Act (STEP Act). (§ 186.20 et seq.; People v. Gardeley (1996) 14 Cal.4th 605, 615.) The Supreme Court in Gardeley summarized the requirements of section 186.22 as follows: “To summarize, to subject a defendant to the penal consequences of the STEP Act, 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.’ (§ 186.22, subd. (b)(1) and former subd. (c).) In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)” (People v. Gardeley, supra, 14 Cal.4th at pp.616-617.)
Defendants do not dispute that the prosecution proved that the 204th Street gang was a criminal street gang, as that term is defined in the STEP Act, and that they were members of that gang. Defendants’ primary contention is that, notwithstanding the gang expert’s testimony that the shooting was committed for the benefit of the 204th Street gang, the evidence showed only that defendants were members of that gang, not that they were acting for its benefit, or at its direction, or in association with it. As defendants view the record, there was nothing in the evidence, beyond their gang membership, that linked the shooting of David to gang activity, much less 204th Street gang activity, such that we should disregard the gang expert’s opinion to the contrary.
As noted, De La Torre contends that the prosecution failed to establish that the Carson 13 gang was a criminal street gang. But even assuming that is true, it does not affect our conclusion concerning the existence of substantial evidence in support of the true finding on the gang allegations.
The evidence showed that around two months before the shooting, David met with Silva, a senior member of the 204th Street gang, and Tony, a Carson 13 gang affiliate. At the meeting, Tony demanded that David pay taxes, a demand that David refused. From Silva’s presence at the meeting, a reasonable trier of fact could conclude that the demand to pay taxes was being made jointly by both Silva and Tony, particularly in light of the gang expert’s testimony that the 204th Street gang was allowed to operate in the Carson 13 gang’s territory, and that the two gangs were not rivals. Thus, David’s refusal to pay taxes could be viewed as not only offensive to Tony and the Carson 13 gang, but also to Silva and his 204th Street gang.
In addition, there was evidence that David’s house on Moneta was in a disputed territory, not controlled by any one gang, and that the disputed territory bordered on territory claimed and controlled by the 204th Street gang. There was also testimony from the gang expert that a shooting in broad daylight would increase the 204th Street gang’s reputation for violence, ruthlessness, and retaliation. All of this evidence supports a reasonable inference that the shooting benefited the 204th Street gang by enhancing its reputation in the disputed territory and by enhancing the reputation of the senior 204th Street gang members—Silva and De La Torre—in the eyes of its younger members.
That defendants did not announce their gang membership or flash gang signs before the shooting, or take credit for it afterwards, does not, as defendants contend, undercut the expert’s opinion that the shooting enhanced the 204th Street gang’s reputation for violence, ruthlessness, and retaliation in the disputed territory. David knew immediately after the shooting the 204th Street gang was responsible, and he told that to Darrell. Darrell then spoke to one of David’s friends who gave Darrell information, including defendants’ nicknames, that led to the discovery of the Trailblazer near Silva’s house, a known 204th Street gang hangout. As the gang expert testified, news of a broad daylight attempted murder, such as the one at issue, would travel fast throughout the community. Thus, the evidence supports an inference that residents of the disputed territory were aware of the 204th Street gang’s responsibility for the shooting and, in doing so, also supports the gang expert’s opinion that the shooting benefited the gang by enhancing its reputation in the disputed territory.
See footnote 2, ante. That Darrell refused at trial to identify his brother’s friend supports an inference that the shooting also benefited the gang by intimidating potential witnesses.
Similarly, that David was not a rival gang member does not, as defendants contend, compel the conclusion that the shooting was random and otherwise unrelated to gang activity. Although David was not a gang member, he was an admitted drug dealer who sold drugs in a disputed territory claimed by at least two gangs and which bordered the territories of both the 204th Street and Carson 13 gangs. When Tony, accompanied by Silva, demanded that David pay taxes, David refused, which refusal was not only an overt gesture of disrespect toward both Silva and Tony, but also to their respective gangs. As discussed, that evidence supports an inference that David was targeted for retaliation and shot due to his disrespect toward Silva and his gang. And, when that evidence is combined with Silva’s conduct in driving fellow 204th Street gang member De La Torre to David’s house, slowing down to allow De La Torre to shoot and disable David, and then stopping at the curb to permit De La Torre to shoot David several more times, it supports a reasonable inference that Silva and De La Torre were retaliating against David for what they perceived was an insult to Silva and his 204th Street gang. When reviewed under the applicable standard of review discussed above, the evidence supports a reasonable inference that the attempted murder of David was committed for the benefit of, at the direction of, or in association with, the 204th Street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. We therefore affirm the jury’s finding that the gang enhancement allegations were true.
DISPOSITION
The judgments of conviction are affirmed.
We concur: TURNER, P. J., KRIEGLER, J.