Filed 8/7/26 In re E.C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Californi a Rul es of Co urt, rul e 8. 11 15( a), pro hibit s c ou rts an d part ies from citi ng or r ely ing o n op inio ns
not c ertifie d for p ubli cati on or order ed p ubli sh ed, exc ept a s s pe cifie d b y rul e 8. 11 15(b) . T his opin ion
has not b ee n c ertifie d for p ubli cati on or or der ed p ubli shed for p urpos es of rul e 8 .11 15 .
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re E.C., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE , F089856
Plaintiff and Respondent, (Super. Ct. No. 25JL-00036A )
v.
OPINION
E.C.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Mason L.
Brawley, Judge.
Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Dina Petrushenko and
Rosanne Rust, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Meehan, J. and Snauffer, J.
Minor E.C. contends on appeal that the juvenile court’s order must be reversed
and the matter remanded because there is insufficient evidence that minor committed
count 1 (Pen. Code,1 §§ 182, subd. (a)(1), 245, subd. (a)(2); conspiracy to commit assault
with a firearm); and count 2 (§ 245, subd. (a)(2); assault with a firearm). The People
disagree. We reverse the court’s true finding on count 1. In all other respects, the court’s
order is affirmed.
PROCEDURAL SUMMARY
On April 9, 2025, an amended juvenile wardship petition was filed in Merced
County Superior Court, pursuant to Welfare and Institutions Code section 602, alleging
minor committed conspiracy to commit assault with a firearm (§§ 182, subd. (a)(1), 245,
subd. (a)(2); count 1); and assault with a firearm (§ 245, subd. (a)(2); count 2). Minor
denied the allegations.
On April 30, 2025, the juvenile court held a contested jurisdiction hearing.
On May 7, 2025, the court found the allegations of the petition true.
On May 21, 2025, the juvenile court held a disposition hearing. The court
adjudged minor a ward of the court and committed him to the Bear Creek Academy Long
Term Program.
On May 21, 2025, minor filed a timely notice of appeal.
FACTS
On February 28, 2025, at approximately 9:30 p.m., Angel M. drove to a liquor
store in his aunt’s pickup truck with his cousin, E.M. E.M. waited in the truck while
Angel went inside. A subject wearing a green sweater was in the store at the same time.
Angel had never seen the subject in the green sweater before and they did not interact in
the store.
1 All further statutory references are to the Penal Code, unless otherwise noted.
2.
As Angel exited the store, the subject in the green sweater also exited the store.
Angel saw the subject in the green sweater walk to a white car in the parking lot and then
saw the other subjects in the car get out of it. They began to approach Angel, following
the subject in the green sweater.
E.M. was sitting in the passenger seat of the parked pickup truck when he heard
angry “screaming” from outside the truck as Angel exited the store. E.M. heard Angel
say, “Go to sleep.” E.M. saw four subjects near the white car. He stated that the driver
stayed in the car. Another was talking and holding a bat while approaching Angel. He
stated the subject with the bat was wearing a ski mask and appeared to be a juvenile. He
identified minor in court as the subject holding the bat.
Angel testified that there were four subjects in the white car, but only three
approached him. He stated the driver of the vehicle never got out of the car. He saw that
one subject was holding a metal baseball bat. They were approximately 30 feet away
from him when they began approaching him with the bat. He testified that the subject
holding the baseball bat appeared to be approximately 16 or 17 years old but that his face
was covered with a black ski mask. The subjects asked him if he was part of a gang.
Angel testified that he tried to ignore them and quickly get back in the truck, telling them
to “Go to sleep,” because they looked like juveniles.
A surveillance video recording from the liquor store parking lot was entered into
evidence. Angel testified that the video showed him outside of the liquor store when he
was approached by one of the subjects. He stated that he then saw another subject
coming, so he got into the truck as fast as he could. He stated that because the incident
happened so quickly, he only noticed one subject had a bat, but that the video showed
two of the subjects, both the front passenger and the back passenger from the white car,
had metal bats as they approached him.
3.
As soon as Angel got back to the truck, he started it and left the parking lot. He
then saw the white car follow the truck, and said to E.M., “ ‘They’re going to follow
us,’ ” as he kept watch in his rearview mirror.
E.M. testified that as soon as they drove away from the liquor store, the white car
also left the parking lot and began to chase the truck. He stated the white car was right
behind the truck and “when we started, like, getting further [from the white car], then
that’s when [the subjects in the white car] started shooting.” He stated the shooting
began approximately 10 to 15 seconds after they drove out of the parking lot. He said
there were no other cars nearby, so he knew the subjects in the white car were the ones
shooting at the truck. He stated, “I could see, like, the shots going off because at first I
was standing up with the truck looking behind me, and then I sat down, and they were
kind of, getting further, like, a little bit more back, and they just started shooting. And
when I looked back, when I stood up again, when all the shots were done, I looked back,
and I saw them hit a right.” He stated he could hear the shots and see the muzzle flashes
and that the glass in the truck broke, so he ducked down. He stated that if he had not
ducked down, he would have been shot in the “shoulder and forehead” based on where a
bullet hole in the truck windshield was.
Angel stated he heard glass crack in the truck about 10 to 15 seconds after he
drove away from the liquor store and realized they had been shot at. He stated he could
still see the white car when the shooting started because it was the only car behind his
truck at the time, and there were no other cars on the road. He stated he and E.M.
immediately ducked down in the truck. He testified he heard approximately 12 shots and
that the shooting lasted about 10 seconds or less. He did not see who fired the shots from
the white car. When he looked back up, he saw the white car behind them turn right
towards some apartments.
4.
Angel testified that once the shooting stopped, he immediately looked for police.
He soon found officers nearby and was able to flag down Los Banos Police Officer Julian
Pacheco.
At approximately 9:53 p.m., Los Banos Police Department Detective Stephen
O’Day responded to a call about the incident. When he arrived at the truck, he observed
its rear window was shattered and that there were multiple impact marks on its tailgate
and several other locations. Based on his experience and training, he determined the
marks were caused by bullets entering and exiting the truck.
Once O’Day arrived to interview Angel and E.M., Pacheco went to the nearby
scene of the shooting where officers found 13 expended .40-caliber bullet cartridges and
one bullet fragment. The court admitted photographs of the expended cartridges and the
bullet fragment that Pacheco took at the scene.
The court admitted a photograph taken by O’Day of the bullet holes in the truck as
evidence. O’Day stated the photograph showed “more than ten” bullet holes in the truck,
and that four or five of those bullet holes appeared to be near the place in the truck where
the passenger would have been seated and that three bullet holes appeared to be close to
where the driver would have been seated. He stated some bullets appeared to have hit the
front windshield of the truck on the passenger side. He testified that Angel and E.M.
appeared to be approximately the same height as him, and that if he had been sitting
normally in the passenger seat of the truck during the shooting incident, he would have
been hit in the head with a bullet based on where the photograph showed the bullet hole
in the windshield.
O’Day testified that the surveillance video recording from the liquor store showed
the subject in the green sweater opening the rear trunk of the white car, then walk to the
driver’s side of the white car. He stated the video then showed him walking in the
direction of the truck, with two other subjects from the white car getting out and walking
in the same direction as the subject in the green sweater while holding objects that
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appeared to be long like bats. He testified that the subjects appeared angry and upset. He
stated that he identified the driver of the white car as G.O., the front passenger as E.T.,
and the rear right passenger as minor.
When viewing a surveillance video recording from an apartment complex taken
earlier on the day of the incident, O’Day testified it showed the same white car with four
subjects, including the subject in the green sweater. He identified the subject in the green
sweater as G.O. and another subject in the video as R.T. He testified that it showed
minor in the backseat and he identified minor in court.
Angel also viewed the surveillance video from the apartment complex and
testified that the white car shown in the video matched the white car that was used in the
shooting. He testified that one of the subjects shown in the video matched one of the
subjects from the white car that approached him outside the liquor store. He then
testified that another subject shown in the video matched the subject who was in the back
seat of the white car during the incident. He stated he was able to get a “good look” at
the face of the subject in the backseat of the white car. He identified the subject from the
back seat of the white car in court as minor.
O’Day stated that while investigating the shooting incident, he obtained a search
warrant for G.O.’s social media accounts and his telephone number. The court admitted
the records of text messages from G.O.’s phone as evidence. O’Day testified that he also
found G.O.’s social media profile account “ ‘wslb4thg.’ ” He stated the account
contained a photograph of G.O. holding a gun.
O’Day stated several messages on the social media platform were sent
approximately an hour to two hours after the shooting incident from the social media
profile username “ ‘408.nano,’ ” in a conversation between R.T., G.O., and E.T.’s
accounts. The court admitted the messages as evidence.
He testified that the social media profiles involved in the group chat were
“ ‘408.nano’ ” and “ ‘5711.nano,’ ” associated with E.T., “ ‘nmfrmthetank,’ ” associated
6.
with a subject named N.M., “ ‘wslb4thg’ ” and “ ‘top.oppws,’ ” both associated with
G.O., and “ ‘thuggin_n_plugginoriginals,’ ” associated with R.T. O’Day testified that
none of the social media accounts involved in the group chat belonged to minor.
O’Day testified that throughout the conversation, there were approximately five
messages referring to “[minor].” O’Day stated that in the group chat, R.T. sent messages
to the group “to the effect of ‘what up. Who’s all down to show up and work out [on]
Sunday with the homies from the hood.’ They essentially [were] talking about some sort
of meet-up to work out of program,” and another message that stated, “ ‘It’s actually
mandatory for this Sunday work out and meet up. They in the big boy group talking
about doing for those who don’t show for no good reason. March 2nd, mandatory meet
and work out.’ ”
O’Day stated the subjects involved in the group chat continued to talk about the
meet-up and that E.T.sent a message to the group stating, “ ‘So, what’s popping with
[minor]?’ ” He stated that R.T.’s account “ ‘thuggin_n_plugginoriginals’ ” responded
that minor still needed more time for observation, sending a message stating, “ ‘Well he’s
still learning about him. He’ll get his time.” O’Day stated that, in a message in the group
chat sent on 10:11 a.m. on February 27, 2025, the day before the shooting incident,
another user sent a message to E.T. asking, “ ‘Who is [minor]?’ ” and that E.T.
responded, “ ‘Nah, [he’s] my “N” word,’ ” and that then R.T. messaged the group chat,
stating, “ ‘No,’ ” and then, referring to minor, sent another message stating, “ ‘Lil homie
from out here, but we about to try and turn him out.’ ” O’Day testified that “turn him
out” meant the group was trying to “welcome [minor] into a gang.”
O’Day testified that another message to the group chat sent on the day of the
shooting incident at 11:45 a.m. from E.T. stated, “ ‘Pole fully loaded,’ ” and that another
user, “ ‘nmfrmthetank,’ ” responded, “ ‘Oh, yep,’ ” to which R.T. then responded,
“ ‘N’word, good bullets, and rip through cars, ‘N’ word.’ ” O’Day stated
“ ‘nmfrmthetank’ ” responded, “ ‘I can bring the’ and insert[ed] a drum emoji, ‘and
7.
extend later today,’ ” to which E.T. responded, “ ‘Just bring the ext.’ ” O’Day stated E.T.
then said, “ ‘and tell them you got a drum at the pad,’ ” and “ ‘nmfrmthetank’ ” then said,
“ ‘isddd.’ ” O’Day stated that then [E.T. said] ‘eh, but those bullets are some hard,’ and
then says “N” word, ‘the gun hella heavy,’ and then inserts an emoji, an emoticon of
someone laughing and crying.”
O’Day testified that, based on his training and experience, “pole fully loaded”
referred to a fully loaded firearm, other messages referred to “good bullets,” “ext.” and
“extend” referred to an extended magazine, and the drum emoji and “drum” referred to a
drum magazine.
O’Day testified that at 9:26 p.m. on the night of the shooting incident, G.O. asked
E.T. “ ‘wya’ or ‘where you at’ in acronyms. [E.T.] respond[ed], ‘I’ll drop lo,’ … as in
location, and then proceed[ed] to send the hyperlink” to a location approximately a mile
and a half from the liquor store where the shooting incident occurred.
The court admitted a photograph that had been posted to the social media accounts
in the group chat. O’Day testified the photograph showed five subjects in a park, with
one holding a handgun. He testified one of the subjects in the photograph was R.T., and
another was E.T.
The court also admitted into evidence two still photographs from a video taken on
the night of the shooting after the incident occurred and posted to social media by R.T.
the following morning. O’Day testified the photos showed subjects, including minor,
inside a vehicle. He stated it showed minor seated in the middle of the back seat of the
vehicle.
The court entered into evidence the video that the still photographs were from, that
was recorded from the interior of a vehicle and posted to social media by
“ ‘nmfrmthetank’ ” at 11:52 a.m. on March 1, 2025, the morning after the shooting
incident. O’Day testified that the clock on the dashboard inside the vehicle showed it
was recorded at 10:51 p.m., before it was posted the next morning, because the video
8.
showed it was nighttime outside the vehicle when it was recorded. O’Day testified the
video showed five subjects inside the vehicle, with G.O. driving the vehicle and R.T.
seated behind the driver’s seat. He stated it showed minor next to R.T., in the middle of
the backseat, and E.T. on the right side of the backseat. He stated it showed minor
wearing the same clothes he was wearing in the video from the liquor store. He testified
the video showed the front passenger holding a .40-caliber Glock firearm and that the
vehicle was a white Toyota Corolla, the same model as the white car involved in the
shooting incident.
O’Day testified that the white car was located on April 4, 2025. Police surveilled
the car and later detained R.T., E.T., and minor outside the car. O’Day testified that he
concluded, based on the totality of the evidence, that minor was the rear passenger in the
white car during the shooting incident.
DISCUSSION
I. Count 1 (Conspiracy to Commit Assault with a Firearm)
Minor contends the evidence is insufficient to support the juvenile court’s finding
that he committed count 1 (conspiracy to commit assault with a firearm; §§ 182, subd.
(a)(1), 245, subd. (a)(2)). The People disagree. We agree with minor.
A. Background
Minor was charged in count 1 with conspiracy to commit assault with a firearm
(§§ 182, subd. (a)(1), 245, subd. (a)(2)), and in count 2 with assault with a firearm (§ 245,
subd. (a)(2)).
At the contested jurisdiction hearing, the juvenile court heard counsel’s arguments.
The prosecution and defense counsel agreed the subjects in the white car shot at
the truck. They also agreed that G.O. was the subject in the green sweater and was the
driver of the white car during the incident, and that another subject from the white car
was holding a bat while approaching Angel in the liquor store parking lot. Counsel also
9.
agreed the video from the apartment complex showed minor in the white car with G.O.
earlier on the day of the incident. They also stated the video taken in the white car
sometime after the incident and posted to social media the next morning showed G.O.
driving and minor in the backseat while the front passenger held a .40-caliber handgun.
They also agreed the social media messages from the days leading up to the incident
referenced having a gun, bullets, and extended magazine and referenced observing minor,
but agreed that minor did not participate in the online conversation. They further agreed
the evidence showed minor was not the subject who used the firearm to shoot at the
truck.
The prosecution argued this evidence showed minor conspired with the other
subjects in planning to use a firearm to shoot at the victims and that it showed minor
aided and abetted the execution of this plan, even though the subject in the front
passenger seat of the white car was the person who actually used the firearm during the
incident. The prosecution argued,
“The issue is if the minor in the courtroom today aided or abetted
and conspired as part of this assault … And they were also certain that a
figure … holding a bat, was with [G.O.] and approaching the victim when
he hopped into his car in the parking lot. You saw that in the [liquor store]
video. And you could see that [the figure] was holding a metallic bat in his
hand.
“And you could also see, throughout the rest of the videos, that
[minor] was in the same vehicle as [G.O.] hours beforehand, the same
vehicle [at] the [apartments] ….
“You could see him in a video that, all the evidence suggests, was
taken at 10:59 p.m., a little more than an hour afterwards, where you could
see [G.O.], a person wearing the same [clothing] [minor] was shown
wearing, the next day, in the video and that the facial features you could
see, … were the same [as minor]. There was a .40[-]caliber handgun being
displayed in that shot.
10.
“[G.O.] was driving. And other figures identified as participants
were in that vehicle. And then you saw [minor] the next day, still in the
same clothing ….
“The [social media] messages showed they were planning this. They
were talking about [minor] frequently, that they were trying to observe if he
was ready, that they were going to be bringing a gun. The gun that they
were going to use have bullet that would go through a vehicle, quote, real
good.
“There was a conspiracy that while [minor] wasn’t communication,
he was definitely a part of. He was there, again, with [G.O.] hours
beforehand and then just an hour after.
“This minor had agreed and conspired to help make an attack with a
deadly weapon, including the bat, and, ultimately, including the firearm ….
“Both victims described the hostility of the man in green and the
figure that—again, Angel said it looks similar to this minor. All this
evidence—yes, that this minor participated in, conspired, and took steps
towards, personally, assault with a deadly weapon and, ultimately, assault
with a firearm. He aided and abetted into that conspiracy even though he
was—the evidence suggests he wasn’t the one pulling the trigger.
“The law only requires that he aided and abetted that conspiracy. He
came in, without his own deadly weapon, to go after the victims. He was
taking steps towards the victims with that bat.
“There’s no question that this minor was the person you saw in that
video, the person you saw with that bat, and that he’s guilty of conspiracy,
that the allegations are true, that he was conspiring to commit assaults with
deadly weapons and, ultimately, a firearm, and that he aided and abetted in
the assault with a firearm.”
Defense counsel disagreed, arguing that while the evidence showed minor was
present during the shooting incident and participated in the initial pursuit of Angel with
the bat and then got back in the car, the evidence did not show that minor conspired to
commit assault with a firearm because it did not show he knew a firearm would be used
during the incident. Defense counsel argued,
“I don’t believe that the testimony of the witnesses or the evidence
presented, during the four days, as I have counted, of this jurisdictional
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hearing—to prove the conspiracy alleged in Count 1, the People must prove
that [minor] intended to agree, and did agree, with one or more of the other
subjects, defendants, coresponsibles to commit an assault with the firearm;
that, at the time of the agreement, [minor] and one or more of those
individuals—one or more of the alleged members of the conspiracy
intended that one or more of them would commit the assault with the
firearm; also, that [minor] and either [G.O. or], [E.T.] committed at least
one of the following overt acts, to accomplish the assault with the deadly
weapon, and at least one of the overt acts was committed in the state of
California.
“So simply being there in the rear passenger seat of the white Toyota
Corolla is not enough to make [minor] a member of the conspiracy. The
People have to prove that the members of the alleged conspiracy had an
agreement and the intent to commit the assault with the firearm.
“I do agree with [the prosecution] that the evidence does not show
that [minor] was the one who discharged the firearm. There’s just no
evidence that [minor] was part of this agreement. And additionally the
overt act—an overt act is an act by one or more members of the conspiracy
that is done to accomplish the agreed-upon crime.
“The overt act must happen after the defendant or youth has agreed
to commit the crime. The overt act must be more than the act of agreeing
or planning to commit[] the crime ….
“Here, there is no evidence that [minor] agreed to commit the assault
with the firearm ….
“The [social media] messages [between G.O., E.T.], and other
subjects] span from the time period from February 27 to—I believe …
March 1. And [minor] was not in any of those messages—correction. He
was referenced in those messages. But none of those messages were from
[minor], nor were there messages after the alleged act, where any of the
subjects were bragging about having committed this offense.
“Certainly, there’s nothing that shows that [minor] was a part of this
agreement. The evidence tends to show that—[minor] was the rear
passenger of the vehicle….
“Several of the videos’ images were admitted into the evidence that
occurred after the alleged incident. Whatever happened after, that’s after
the conspiracy would have been made, if there was any. And I don’t think
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that those are relevant to prove that the subjects conspired the day before or
two days before.
“Again, we have no information when that video [taken inside the white
car] was actually taken aside from that it was posted on March 1 at 11:52
a.m.
“So with that said, I don’t believe there’s sufficient evidence to
prove beyond a reasonable doubt that [minor] was—did agree to commit
the assault with the firearm on Angel and [E.M.].”
The prosecution then argued that the video from the liquor store showed that
minor did not just sit in the car, but rather, after communicating with [G.O.], got out of
the car with a bat, and was seen earlier with the other subjects at the apartment complex,
and accordingly, must have known a gun was in the car and would be used during the
incident. The prosecution stated,
“[Minor] stepped out with a bat … and the person in the front passenger
seat had some long item in his hand. And as the testimony indicated, the
person in that front seat was—the shots appeared to have come from the
person in the front seat because the bullets could have only come from that
side of the vehicle.
“While [minor] wasn’t in the [social media] messages, neither was
[G.O.] But [G.O.] was there. And he was seemingly leading on, acting as
driver, going closer to [Angel]. He was part of the conspiracy. And so was
[minor]. They mentioned him at least four times during the conversation
leading up to this. He was present with [G.O.] hours beforehand. And at
the time, when [G.O.] was walking towards the victims, he followed.
“[Minor] knew of the conspiracy. This clearly shows he was part of
the conspiracy. And he was not only agreeing with it but was taking active
steps, literal steps, towards the victims to complete it. He was walking
towards the victims with a bat. And a gun was in that vehicle.
“The only reasonable conclusion is that he knew they were going to
be attacking the victims with multiple deadly weapons, including a firearm.
And he was there to aid….
“So the only conclusion is that the allegation is that it’s true. He
aided and abetted in the assault with a firearm. And he was part of the
conspiracy and took overt acts, in furtherance of the conspiracy, to harm
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Angel with a deadly weapon and conspired, knowing a firearm was
involved….”
The court then found true that minor committed conspiracy to commit assault with
a firearm. It stated,
“So, in this case, I note that the agreement does not have to be a
detailed or formal agreement. It can be an agreement to commit[] the
crime, can be inferred from conduct if the conclusion made that the
numbers acted with a common purpose. And I find, in this case, that the
members of the white [car] acted with a common purpose.
“In the totality, I find that there was intent to commit the crime by
the occupants of the white [car]. And, in totality, I believe that the white
[car] was used in the shooting. Based on the totality of the evidence, I
believe that [minor] was the rear passenger of that vehicle.
“I believe that [minor] was the one that exited the vehicle with the
bat and got out to confront the victims in a ski mask and then returned to
the vehicle in the rear passenger seat and that that vehicle was, then, used to
chase down the victims.
“I believe, based on the evidence, that a .40 caliber gun was used.
That .40[-]caliber gun is the same gun that was shown in the vehicle that
was used in the shooting….
“With that, turning to the allegations, Count 1 … conspiracy to
commit a crime—I find that the People have proven their case beyond a
reasonable doubt and, therefore, find that the allegation of … conspiracy to
commit a felony, to be true beyond a reasonable doubt.”
B. Law
1. Assault with a Firearm
Section 245, subdivision (a)(2) prohibits “an assault upon the person of another
with a firearm.” (§ 245, subd. (a)(2).) Section 240 defines assault as, “an unlawful
attempt, coupled with a present ability, to commit a violent injury on the person of
another.” (§ 240.) To be found guilty of assault with a firearm, the prosecution must
prove beyond a reasonable doubt that the defendant: (1) committed an act with a firearm
that by its nature would directly and probably result in the application of force to a
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person; (2) acted willfully in committing that act; (3) was aware that the act would
directly and probably result in the application of force to another; and (4) had the present
ability to apply force with a firearm to a person. (People v. Flores (2007) 157
Cal.App.4th 216, 219–221.)
2. Conspiracy
“Conspiracy is an inchoate crime. ‘A conviction of conspiracy requires proof that
the defendant and another person had the specific intent to agree or conspire to commit
an offense, as well as the specific intent to commit the elements of that offense, together
with proof of the commission of an overt act “by one or more of the parties to such
agreement” in furtherance of the conspiracy.’ [Citations.] ‘Criminal conspiracy is an
offense distinct from the actual commission of a criminal offense that is the object of the
conspiracy.’ [Citation.] Other than the agreement, the only act required is an overt act
by any of the conspirators, not necessarily the defendant, and that overt act need not itself
be criminal. [Citation.] Conspiracy thus criminalizes preparatory conduct at an earlier
stage than an attempt to commit a crime. ‘ “ ‘As an inchoate crime, conspiracy fixes the
point of legal intervention at [the time of] agreement to commit a crime,’ and ‘thus
reaches further back into preparatory conduct than attempt.’ ” ’ ” (People v. Smith (2014)
60 Cal.4th 603, 616, superseded on other grounds in People v. Carr (2023) 90
Cal.App.5th 136, 142.) An overt act in furtherance of a conspiracy must occur after the
agreement but before the completed offense. (People v. Zamora (1976) 18 Cal.3d 538,
560, overruled in part on other grounds in Cowan v. Superior Court (1996) 14 Cal.4th
367, 376; People v. Brown (1991) 226 Cal.App.3d 1361, 1368.)
Conspiracy requires specific intent to commit the target offense. (People v. Ware
(2022) 14 Cal.5th 151, 164 (Ware); People v. Swain (1996) 12 Cal.4th 593, 600.) “The
mental state elements of conspiracy require the prosecution to demonstrate the defendant
had the specific intent both to agree to the conspiracy and to commit the object offense.
[Citations.] The two elements are distinct, but closely related. In some cases, it may be
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useful to distinguish between the two elements, especially when evidence of one is direct
and the other is circumstantial. (See, e.g., People v. Marsh (1962) 58 Cal.2d 732, 742–
744 [focusing on intent to commit a crime where there was clear evidence of intent to
agree]; People v. Beck and Cruz (2019) 8 Cal.5th 548, 629 [focusing on intent to agree
where there was clear evidence of intent to commit a crime].) But in many cases, proof
of the two specific intent elements will overlap. (See, e.g., Harno, Intent in Criminal
Conspiracy (1941) 89 U.Pa. L.Rev. 624, 631 [‘[The two types of intent necessary for
conspiracy] always shade into each other and often there is no practical purpose served in
distinguishing them’].) Together, these two specific intent elements play a critical role in
a conspiracy prosecution: Proof of these elements is what separates a coconspirator from
a mere bystander to the crime.” (Ware, supra, 14 Cal.5th at p. 164.)
“Decades ago, in Scales v. United States (1961) 367 U.S. 203, the United States
Supreme Court held that the First Amendment forbids punishing a person merely for
associating with others—even as part of a group premised on a violent aim. Because the
law will not recognize a rule of guilt by association, we insist on proof of a defendant’s
knowledge of, and specific intent to further, the group’s unlawful ends. (Scales, at p.
229; see, e.g., Elfbrandt v. Russell (1966) 384 U.S. 11, 19 [‘A law which applies to
membership without the “specific intent” to further the illegal aims of the organization …
rests on the doctrine of “guilt by association[,]” which has no place here’]; Holder v.
Humanitarian Law Project (2010) 561 U.S. 1, 18 [noting that ‘mere membership’ in, or
association with, an organization that advocates terrorism cannot itself be criminalized].)”
(Ware, supra, at p. 165.)
“In any conspiracy prosecution, ‘the accused often is confronted with a
hodgepodge of acts and statements by others which he may never have authorized or
intended or even known about, but which help to persuade the jury of [the] existence of
the conspiracy itself.’ [Citation.] This feature of conspiracy prosecutions raises
particular concerns in the context of a prosecution involving a ‘single massive conspiracy
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…. [¶] … The risk is that a jury will be so overwhelmed with evidence of wrongdoing …
that it will fail to differentiate among particular defendants.’ ” (Ware, supra, at pp. 165–
166.)
To prove conspiracy, the prosecution need not establish the intent to participate in
every act necessary to complete the object offense. (See Salinas v. United States (1997)
522 U.S. 52, 63 [“A conspiracy may exist even if a conspirator does not agree to commit
or facilitate each and every part of the substantive offense”].) “But ultimately, to connect
any individual to the charged conspiracy, the prosecution must at least establish that the
individual specifically intended to agree to commit the criminal offense and to play at
least some role in achieving it.” (Ware, supra, 14 Cal.5th at pp. 166–167.)
3. Standard of Review
“[W]e must ‘ “review the entire record in the light most favorable to the
judgment,” ’ and then determine whether it contains ‘ “evidence that is reasonable,
credible, and of solid value” ’ such that a reasonable jury could have found the defendant
guilty beyond a reasonable doubt. [Citations.] As we have recently explained,
‘sufficiency determinations necessarily take account of the “standard of proof that
applied before the trial court.” ’ [Citations.] ‘[T]hat is why in criminal cases we must
ensure the record demonstrates substantial evidence to establish guilt beyond a
reasonable doubt.’ ” (Ware, supra, 14 Cal.5th at p. 167.)
“We must ‘ “presume in support of the judgment the existence of every fact the
jury could reasonably have deduced from the evidence … ‘… for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends.’ ” ’ [Citations.] But we cannot,
however, venture beyond the evidence presented at trial, and may consider only those
inferences that are reasonably supported by the record. ‘ “[A] reasonable inference …
‘may not be based on suspicion alone, or on imagination, speculation, supposition,
surmise, conjecture, or guess work.’ ” ’ [Citations.] It ‘must logically flow from other
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facts established in the action,’ and it cannot be ‘based entirely on the suspicions of the
officers involved in the case and the conjecture of the prosecution.’ ” (Ware, supra, at
pp. 167–168.)
C. Analysis
To summarize, the evidence shows: (1) minor was with G.O. and other subjects in
the white car at the apartment complex earlier on the day of the shooting incident, before
the incident occurred, but no firearm was visible in the apartment complex video of the
subjects; (2) other subjects, including G.O., R.T., and other subjects were involved in
conversations on social media and text message in the days prior to the shooting incident,
in which they referenced the need to observe minor further before they decided to “turn
him out;” (3) G.O., R.T., and other subjects referenced having a gun, bullets and
magazines in the same conversations; (4) the online conversation between the other
subjects did not reference a specific plan to use the gun; (5) minor was not a participant
in the social media and text message conversations between G.O., R.T., and other
subjects; (6) video showed minor was at the liquor store in the back seat of the white car,
and got out of the car with a metal bat after G.O. came back to the car and appeared to
talk to the other subjects in it, including minor; (7) G.O., E.T., who was in the front
passenger seat of the car, and minor, who was in the rear passenger seat of the car,
pursued Angel on foot in the parking lot of the liquor store; (8) minor and E.T. were
holding long objects that appeared to be bats while they pursued Angel on foot in the
parking lot; (9) minor went back to the white car with E.T. and G.O. when Angel got into
his truck, with minor returning to the back seat, G.O. returning to the driver’s seat and
E.T. returning to the front passenger seat; (10) the white car immediately began to pursue
Angel’s truck; (11) approximately 10 to 15 seconds after the vehicles left the parking lot,
a .40-caliber firearm was fired at Angel’s truck from the front seat of the white car; and
(12) a video filmed inside the white car sometime after the shooting incident occurred
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showed G.O. driving the white car and someone in the front seat holding a .40-caliber
handgun while minor sat in the back seat of the car with two other subjects.
Considering this evidence as a whole, we conclude that no reasonable factfinder
could find beyond a reasonable doubt that minor had the requisite intent to participate in
conspiracy to commit the target offense of assault with a firearm, despite his participation
in the initial confrontation in the liquor store parking lot and his return to the car when
Angel fled in his truck.
The evidence amply shows that he participated in pursuing Angel with a bat in the
liquor store parking lot, and that he got back into the back seat of the car with the other
subjects after Angel fled in the truck. Minor does not dispute this. It is, however, a
separate question whether minor was a member of the charged conspiracy to utilize a
firearm to continue the assault on Angel.
The People contend that by conspiring with the group to commit assault with the
baseball bat by following Angel in the parking lot, minor also conspired to commit
assault with a firearm, also evidenced by his return to the white car with the other
subjects.
However, we agree with minor that the record does not support the court’s finding
that he had the requisite specific intent to commit the target offense of assault with a
firearm. While the evidence may support the inference that minor had specific intent to
agree to pursue Angel with the bat and continue to pursue him in the car, the record does
not support the inference that minor had the specific intent for someone in the group to
utilize a firearm to commit the target offense of assault with a firearm. The People
concede minor was not the subject in the car who used the firearm to shoot at Angel’s
truck. Further, although minor was referenced in the online conversation between the
other subjects in the days prior to the incident, he was only referenced as someone they
were continuing to observe, and who was not yet a member of a gang. As the People also
concede, minor was not a party to the online conversations himself. Further, while the
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online conversations between the other subjects discussed one of them possessing a
firearm and ammunition, they did not discuss a specific plan to use it. Last, the video
showing the subjects in the white car, including minor seated in the backseat, while
someone in the front passenger seat is holding a .40-caliber handgun, was filmed
sometime after the shooting incident occurred, and posted to social media the next day.
The evidence, as a whole, does not establish that minor conspired with the other subjects
to use a firearm to shoot at the truck as they pursued it in the car.
The People further contend that because a .40-caliber handgun is the “size of two
hands,” minor must have known it was in the white car when he went with the other
subjects to the liquor store and participated in pursuing Angel on foot with the bat and
then got back in the car with them to pursue Angel’s truck. However, whether minor
knew the firearm was in the car based on its approximate size of “two hands” is only
speculation, as the People concede minor was seated in the backseat throughout the
incident, while the shooter was seated in the front seat, and no evidence shows he was
actually aware it was in the car.
In sum, after considering the record in its entirety, we conclude that the evidence
presented at the contested jurisdiction hearing is insufficient to show that minor had the
requisite specific intent to participate in a conspiracy to commit the target offense of
assault with a firearm. The evidence showed he had intent to be with the other subjects
that evening and to participate in assault with a bat when he pursued Angel on foot in the
parking lot of the liquor store, and to continue the pursuit in the car when he got back into
the car with the other subjects when Angel fled in the truck. However, it is not sufficient
to support a finding that minor specifically intended to enter an agreement to commit
assault with a firearm, or that he specifically intended to commit assault with a firearm,
either personally or through others, as there is no evidence that he knew before the
incident that any of the other subjects in the car would have or use a firearm during the
incident or would use it to assault Angel when he fled from them in the truck.
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II. Aiding and Abetting Assault with a Firearm
Minor also contends the evidence is insufficient to support the juvenile court’s
finding that he committed count 2 (assault with a firearm; § 245, subd. (a)(2)). The
People disagree. In this instance, we agree with the People.
A. Background
After hearing counsels’ arguments, as discussed above, the juvenile court found
count 2, assault with a firearm, true.
B. Law
An aider and abettor must have known the perpetrator’s unlawful intent, intended
to facilitate or encourage the commission of the offense; and performed an act that
actually assisted the achievement of the crime. (People v. Perez (2005) 35 Cal.4th 1219,
1225; People v. Beeman (1984) 35 Cal.3d 547, 561.) An aider and abettor’s culpable
intent must connect to the specific charged offense; liability attaches only where the
defendant acted with knowledge of the perpetrator’s criminal purpose and with the intent
to encourage or facilitate commission of that offense. (Beeman, supra, at p. 560.) “The
actual perpetrator must have whatever mental state is required for each crime charged….
[A direct] aider and abettor, on the other hand, must ‘act 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.’ ” (People v. Mendoza (1998) 18
Cal.4th 1114, 1123.) The aider and abettor’s intent to facilitate or encourage the
principal offense must be formed before or during the commission of the offense.
(People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
“ ‘Whether defendant has 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. Campbell (1994) 25 Cal.App.4th 402, 409.) “ ‘Among 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
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offense.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054; In re Gary F. (2014) 226
Cal.App.4th 1076, 1080.) Additionally, “ ‘flight is one of the factors which is relevant in
determining consciousness of guilt.’ ” (Gary F., at p. 1080.)
“It sometimes happens that an accomplice assists or encourages a confederate to
commit one crime, and the confederate commits another, more serious crime (the
nontarget offense). Whether the accomplice may be held responsible for that nontarget
offense turns not only upon a consideration of the general principles of accomplice
liability set forth in People v. Beeman [(1984)] 35 Cal.3d 547, but also upon a
consideration of the ‘natural and probable consequences’ doctrine, which is at issue in
this case and will be discussed below.” (People v. Prettyman (1996) 14 Cal.4th 248,
259–260.)
“At common law, a person encouraging or facilitating the commission of a crime
could be held criminally liable not only for that crime, but for any other offense that was
a ‘natural and probable consequence’ of the crime aided and abetted. [Citation.] [¶]
Although the ‘natural and probable consequences’ doctrine has been ‘subjected to
substantial criticism’ [citation], it is an ‘established rule’ of American jurisprudence
[citation]. It is based on the recognition that ‘aiders and abettors should be responsible
for the criminal harms they have naturally, probably and foreseeably put in motion.’
[Citation.] The first California decision to embrace this doctrine was People v. Kauffman
(1907) 152 Cal. 331.” (People v. Prettyman, supra, 14 Cal.4th at p. 260.)
Thus, “[a]n aider and abettor is guilty not only of the intended, or target, crime but
also of any other crime a principal in the target crime actually commits (the nontarget
crime) that is a natural and probable consequence of the target crime. [Citations.] ‘Thus,
for example, if a person aids and abets only an intended assault, but a murder results, that
person may be guilty of that murder, even if unintended, if it is a natural and probable
consequence of the intended assault.’ [Citations.] [¶] A consequence that is reasonably
foreseeable is a natural and probable consequence under this doctrine. ‘A nontarget
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offense is a “ ‘natural and probable consequence’ ” of the target offense if, judged
objectively, the additional offense was reasonably foreseeable. [Citation.] The inquiry
does not depend on whether the aider and abettor actually foresaw the nontarget offense.
[Citation.] Rather, liability “ ‘is measured by whether a reasonable person in the
defendant’s position would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted.’ ” [Citation.]
Reasonable foreseeability “is a factual issue to be resolved by the jury.” ’ ” (People v.
Smith (2014) 60 Cal.4th 603, 611.)
Acts committed after a crime has been completed are insufficient to establish
aiding and abetting liability. (People v. Rutkowsky (1975) 53 Cal.App.3d 1069, 1072.)
C. Analysis
Here, the evidence is sufficient to support the juvenile court’s finding that minor
committed assault with a firearm. It shows he aided and abetted the other subjects in the
car in the target offense of assaulting Angel with a baseball bat and continuing the pursuit
of Angel in the car; assault with a firearm was a natural and probable consequence of the
initial assault. Although the evidence does not show minor knew during the initial
assault in the parking lot that one of the other subjects would use a firearm later when
they continued to pursue Angel in the car, the record is sufficient to support the court’s
reasonable inference that here, assault with a firearm was a reasonably foreseeable
natural and probable consequence of the target offense of assault.
The People contend the juvenile court could have reasonably inferred based on the
evidence that minor “knew the trio’s continued attack [on Angel] would involve the use
of a firearm,” because “[i]n the parking lot when they approached [Angel], the three had
already demonstrated a willingness to use violence in a coordinated manner with at least
one weapon that [minor] himself carried [and d]uring the car chase, the bat was no longer
of use but the trio could shoot at [Angel and] [E.T.] had access to a gun” and
ammunition, “[a]pproximately thirty seconds after [Angel] got in his truck, 13 bullets
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were fired from the passenger’s side of the white sedan at [Angel’s] truck,” and that the
video taken after the shooting showed minor in the back of the car and showed someone
in the front with the gun, which was approximately the size of two hands. He argues the
evidence supports the inference that the gun’s presence in the car was visible to its
occupants, including minor, before the shooting occurred, and accordingly, it was further
reasonable to infer that minor understood E.T. would use the gun to continue their
coordinated attack on Angel.
As discussed above, the evidence does not support the inference that minor was
aware the gun was in the car before the incident or that he was aware E.T. intended to use
a gun to commit assault with a firearm.
However, while the evidence is not sufficient to support the inference that minor
foresaw the assault with a firearm, as discussed above, liability based on the theory of
aiding and abetting “ ‘ “ ‘is measured by whether a reasonable person in the defendant’s
position would have or should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted,’ ” ’ ” and such reasonable
foreseeability is a factual issue to be resolved by the factfinder. (People v. Smith, supra,
60 Cal.4th at p. 611.)
Lack of evidence that minor had knowledge before the incident that a firearm
would be used, such that he did not have the specific intent to conspire with the others to
commit assault with a firearm, does not preclude that a reasonable person in minor’s
position should have known that assault with a firearm was reasonably foreseeable
following assault with a bat and pursuit of the victim in a car once the victim escaped in
his truck. While we find the evidence is insufficient to support the inference that minor
specifically intended to conspire to commit the target offense of assault with a firearm
(count 1), we conclude the evidence is sufficient to support the juvenile court’s true
finding on count 2.
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Reviewing the record in the light most favorable to the judgment, we conclude the
evidence is sufficient to support the juvenile court’s finding that minor committed assault
with a firearm because he aided and abetted the other subjects in committing the target
offense of assault by pursuing Angel with a baseball bat and continuing the pursuit in the
car. While the evidence does not support the inference that minor knew a firearm would
be used in the incident, the nontarget offense of assault with a firearm was a natural and
probable consequence of the target offense of assault.
DISPOSITION
The juvenile court’s true finding on count 1 is reversed. In all other respects, the
court’s order is affirmed.
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