Filed 9/8/26 P. v. Arguello CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088294
Plaintiff and Respondent,
(Super. Ct. No. CR-19-007728)
v.
MATTHEW DEREK JOSEPH ARGUELLO,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A.
McFadden, Judge.
Hilda Scheib, 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-
Appellant Matthew Derek Joseph Arguello was convicted by jury of second
degree murder (Pen. Code,1 § 187, subd. (a)), second degree robbery (§ 211), and a
substantive gang enhancement (§ 186.22, subd. (a)). In addition, the jury found true
enhancements alleging the murder was committed for the benefit of, in association, or at
the direction of a criminal street gang (§ 186.22, subd. (b)(1)), and that Arguello
personally inflicted great bodily injury in the commission of the robbery (§ 12022.7,
subd. (a)). He was sentenced to an aggregate term of 15 years to life, plus a determinate
term of 10 years.
Arguello raises multiple arguments on appeal. First, the trial court failed to
adequately consider mitigating factors relating to his youth at the time of the offense.
Arguello specifically contends the trial court should have considered his age at the time
of the commitment offense—21 years old—in determining whether he acted with implied
malice in the commission of the murder and in determining the appropriate sentence to
impose. Second, Arguello challenges the sufficiency of the evidence supporting his
second degree murder conviction. Finally, Arguello asserts, and the Attorney General
agrees, that the abstract of judgment must be corrected.
We will order the abstract of judgment corrected. We otherwise affirm the
judgment of conviction.
FACTUAL AND PROCEDURAL HISTORY
On April 13, 2021, the Stanislaus County District Attorney charged Arguello and
Ruben Anthony Rosales by information with the following: the first degree murder of
Jace Decker (§ 187, subd. (a)), with a criminal street gang enhancement and two special
circumstance allegations (§ 190.2, subd. (a)(18), (22)); second degree robbery (§ 211)
with enhancements alleging the crime was committed for the benefit of a criminal street
1 All further undefined statutory citations are to the Penal Code unless otherwise
indicated.
2.
gang (§ 186.22, subd. (b)(1)) and inflicting great bodily injury (§ 12022.7, subd. (a)); and
a substantive gang enhancement (§ 186.22, subd. (a)).2
On June 4, 2024, Arguello was convicted by jury of second degree murder with a
criminal street gang enhancement, second degree robbery with the great bodily injury
enhancement, and the substantive gang offense.
On July 2, 2024, the trial court sentenced Arguello to prison for an indeterminate
term of 15 years to life for second degree murder, plus a determinate term of 10 years for
the criminal street gang enhancement. The court also imposed a concurrent term of eight
years for Arguello’s second degree robbery conviction and the attached great bodily
injury enhancement, and a stayed term of two years for the substantive gang offense.
A timely notice of appeal followed.
The Murder of Jace Decker
On August 10, 2019, at around 7:36 p.m., Decker, an elderly transient man, was
walking alone in the parking lot of the Stop n Save Liquor Mart, located across the street
from Garrison Park in Modesto. At that time, Ruben Rosales and Arguello, then 21 years
old, walked past Decker.
Shortly after they crossed paths with Decker, Arguello motioned towards Rosales.
The two of them stopped, turned to look in Decker’s direction, and began following him.
Decker was at the crosswalk heading westbound to the park. As they followed
him, Arguello retrieved his phone and began pointing it at Decker.
As Rosales got near Decker, he was “winding up” for a punch. Rosales hit Decker
in the head, causing Decker’s hat to “fl[y] off.” Decker immediately fell face first into
2 Rosales entered a plea resulting in a sentence of 25 years to life. He is not a party
to this appeal.
3.
the ground. As Decker fell, Rosales yelled at Decker, “Wassup [N-word], fuckin’ chomo
ass.”3
Arguello joined in the attack. Both Rosales and Arguello kicked Decker in the
head and neck. Rosales stomped on his head. Arguello shouted, “Fuck a chomo…what
the fuck? Norte, …” as he kicked Decker in the head or neck. Rosales stated, “Bitch ass
…” as he stomped Decker’s head.
Arguello continued filming as Rosales stole Decker’s drink from Decker’s pocket,
and stated, “Give me your fuckin’ cobra[.]” At the same time, Arguello kicked Decker in
the head.
As Decker lay motionless on the ground, Rosales kicked him in the side. As
Rosales and Arguello began to walk away, Arguello looked at Decker and shouted,
“Fuckin’ chomo ass…get the fuck of my park.”
After the first attack, Arguello and Rosales met up with Sam Cervantes, an active
Norteño gang member. The three drove down the street, not far from Garrison Park.
Once they stopped and got out of their car, they congregated in the street. While standing
there, at around 7:45 p.m., Rosales “stomp[ed] on the ground” and kicked the air,
“potentially reenacting” the attack on Decker.
At approximately 8:00 p.m. on August 10, 2019, Officer Charles Lockridge with
the Modesto Police Department was dispatched to Garrison Park in response to a report
of a man suffering injuries consistent with an assault. When Lockridge arrived, he found
Decker lying on a bench, injured. Decker’s left eye was black and blue and swollen shut.
His face was bloody, he had a laceration above the bridge of his nose, and his nose
appeared to be broken. Decker did not know who had attacked him or why. After
Decker declined medical assistance, Officer Lockridge left the scene.
3 The term “chomo” refers to a child molester. There was no showing that Decker
was convicted of child molestation or that he was on the Megan’s Law website.
4.
At around 8:20 p.m., Arguello, Rosales, and Cervantes got back into their car,
along with a fourth person, Eva Martinez. The group drove back to the Stop n Save
Liquor Mart parking lot across the street from Garrison Park. Once they arrived, the
group exited the vehicle and Rosales, Cervantes, and Martinez went inside the Stop n
Save Liquor Mart. Arguello remained outside.
At approximately 8:28 p.m., Arguello walked quickly toward Garrison Park.
Cervantes exited the Stop n Save Liquor Mart and hurried after Arguello.
Arguello recorded himself attacking Decker. The Snapchat video recording shows
Decker seated on a bench in the park. As Arguello got closer to Decker, Decker pleaded,
“Come on you guys.” Arguello struck Decker in the head. Arguello yelled at Decker,
“You’re on Megan’s Law, bitch?” and “Fuck a chomo, …what the fuck.” He continued,
“Get the fuck out of here” and “Fuckin’ with little kids, bitch?”
Arguello continued to hit Decker in the head while Decker tried to put up his
hands to protect himself. Arguello then kicked Decker in the head while yelling at him,
“[B]ro shit, I don’t gots no sympathy for a bitch like you.”
After this second attack on Decker, Arguello and Cervantes walked back to the
Stop n Save Liquor Mart parking lot. There they met Rosales, and the three men
“huddle[d]” together, focusing their attention on something that appeared to be a “lit
object” consistent with a cellular phone.
At 8:31 p.m., Rosales headed back into the park by himself, while Arguello and
Cervantes got back in the car with Martinez.
By around 8:45 p.m., Rosales and Arguello had reconvened. While they were
hanging out, Arguello recorded another Snapchat video. In the video, Rosales showed
off what appeared to be blood covering one of his shoes. Rosales commented, “Damn, I
didn’t know I was fuckin’ stompin’ him that hard, bro.”
5.
Around 9:18 p.m., officers were dispatched again to Garrison Park. They found
Decker lying on the ground with swollen-shut, bruised eyes and a bloody face. He was
unresponsive.
Arguello, who was nearby, recorded another Snapchat video, capturing a front-
facing view of himself, in which sirens could be heard in the background. With a slight
grin on his face, Arguello looked into the camera and said, “I’m going to county. This
[N-word] died, I think. I swear to God. There’s like hella cops at the park. And fuckin’
hella ambulances.… I’m fucking going to jail for life. Send mines.”
Paramedics transported Decker to the hospital. He never regained consciousness.
Decker died approximately 10 days later. An autopsy later determined that Decker died
from blunt force injury to his head. The totality of injuries from blows to his face and
head caused excessive fatal brain injury.
Police Investigation
On August 16, 2019, officers interviewed Arguello. He initially told officers that
on August 10, 2019, he went to work, and after work he drove to his cousin’s house, and
then to his girlfriend’s. From there, while in the area of Garrison Park, he saw some
friends he knew from high school, and they decided to hang out. At no point did
Arguello disclose that he was in Garrison Park or that he was in the intersection outside
the Stop n Save Liquor Mart, across the street from the park.
Officers confronted Arguello with surveillance footage from outside Garrison
Park. The video captured the parking lot of the Stop N Save Liquor Mart, across the
street from Garrison Park, showing Arguello and Rosales leaving Garrison Park and
heading to the Stop n Save Liquor Mart before they turned around and started following
Decker.
After Arguello saw the video, he admitted he was at the park that day. He also
admitted that someone was with him, but claimed he did not know the person with whom
6.
he was walking. Arguello told officers that he went back into the park and “just chilled”
before leaving 20 minutes later.
When he was told that officers had his phone, Arguello claimed he did not record
anything on August 10th and that he “didn’t even see anything happen.” After Arguello
viewed a video on one of the officer’s laptops, he stated, “I didn’t touch him. I didn’t see,
I’m telling you guys.”
Arguello’s social media account data and text messages were subsequently
obtained through a warrant. In addition to Snapchat videos documenting portions of the
attack on Decker, Arguello exchanged text messages with his cousin about going to jail
on the night of the attack. Arguello’s cousin teased him about being “all scared last
night.” He added, “Thought you were going to jail.” Arguello responded, “Thought I
was done.” Arguello’s cousin replied, “You were just staying at the scene too like an
idiot.”
The Prosecution’s Case
Phillip Lopez, a high ranking Norteño gang member who knew Arguello
personally, testified for the prosecution in exchange for a mitigated prison sentence in an
unrelated case.
In 2019, Lopez was housed in the Stanislaus County Jail, where he held the
position of “N-Sol,” a leadership position in the gang. In custody, the Norteño gang was
run by a three-member panel comprised of N-Sols, one function of which was to conduct
investigative reports, or “IRs” to understand situations involving gang members and
determine how to handle them.
When Arguello was arrested and booked into the Stanislaus County jail, Lopez
questioned him during the intake process about why he had assaulted Decker. Arguello
told Lopez that Decker was supposedly “seen on Megan’s Law and he was a child
molester.”
7.
Garrison Park was considered Norteño gang territory, and members of the gang
would be expected to do something about suspected sex offenders in that territory.
Meaning, they would be expected to assault or even kill a suspected sex offender. Lopez
stated that while the gang normally considers assaulting an elderly person an act of
cowardice, forbidden by the gang, attacking a child molester would be viewed as
“ ‘taking out the trash in the neighborhood.’ ”
According to Lopez, controlling the park was important because the gang sold
drugs there, and the use of violence would keep “people quiet.” Lopez explained that
yelling “Norte” in the middle of an attack sent the message that “this is Norte area.…
This is us. Don’t fuck with us.”
Arguello told Lopez he was not worried about the charges he faced and that all the
cameras in Garrison Park “face outward,” so they did not depict his role in the assault.
Although Arguello minimized his role in the attack, he admitted to Lopez that he “had hit
and kicked [Decker] a few times.”
Modesto Police Department Detective Michael Rokaitis testified as an expert on
the Stanislaus County area Norteño criminal street gang. Assuming a hypothetical
mirroring the facts of the instant case, Rokaitis opined that a similar murder was
committed by active Norteño gang members, and that the crime was committed for the
benefit of the Norteño criminal street gang.
Rokaitis explained that the Norteños control Garrison Park and protect the area
through violence. The use of violence also prevents witnesses from reporting gang
activity within the territory, for fear of reprisal. This allows the gang to commit drug and
weapons sales and robberies, unimpeded by law enforcement intervention.
The Defense’s Case
On August 10, 2019, Martinez, a longtime friend of Arguello’s, drove Arguello,
Rosales, and Cervantes to the Stop n Save Liquor Mart by Garrison Park. Martinez
8.
stated that she did not know what the three men had discussed while they were standing
outside the store. She explained that because Arguello and his companions were all
active gang members, she did not participate in their conversations. Martinez also told a
detective that she knew Arguello had visited Garrison Park, but did not know what he did
while he was there.
Martin Flores, a non-law enforcement expert on criminal street gangs from Los
Angeles County, opined that Decker’s murder was not gang related. On cross-
examination, Flores admitted that he was not familiar with what was happening at
Garrison Park, or the Stanislaus County area Norteños in 2019, and that the instant case
was his first time testifying as an expert in the County.
DISCUSSION
I. ARGUELLO IS NOT ENTITLED TO RELIEF BASED ON HIS AGE AT
THE TIME OF THE OFFENSE
Arguello, who was 21 years old at the time of the offense, contends the trial court
failed to adequately consider mitigating factors related to his youth. According to
Arguello, the case must be remanded back to the lower court so that the court may
reconsider not only his sentence, but his murder conviction. We are not persuaded.
A. Background
In his sentencing brief, trial counsel represented that Arguello was abused as a
child and had been removed from his home twice by Child Protective Services. Although
Arguello had prior convictions, they were for nonviolent offenses, including auto theft
and receipt of stolen property.
Arguello told his probation officer that he was removed from the custody of his
mother when he was a child and stated that he lived with his paternal aunt during this
time. Although he stated that he was physically abused by his aunt and his parents, he
could not recall any specific instances of abuse. He described his childhood as “not the
best.”
9.
B. The Trial Court Had No Independent Duty to Reconsider the Jury’s
Finding that Arguello Acted with Malice
Arguello seeks relief from his conviction for second degree murder, arguing the
trial court was required to reevaluate the jury’s finding that he acted with malice,
considering his age at the time of the offense. The record does not indicate that trial
counsel raised this issue below. On appeal, Arguello fails to identify the statutory
mechanism by which the court was required to reconsider the jury’s finding on malice,
sua sponte.
Prior to the submission of the case to the jury, the court may make its own motion
for entry of a judgment of acquittal (§ 1118.1), but “nothing in the language of section[]
… 1118.1 suggest[s] the trial court has a duty, absent a request, to review the prosecution
case at its close to determine its evidentiary sufficiency.” (People v. Smith (1998) 64
Cal.App.4th 1458, 1467.) Alternatively, the defense may challenge a verdict by a motion
filed in the trial court, but that challenge is made pursuant to a request for a new trial and
requires the defendant to affirmatively demonstrate error. (See § 1181 [grounds for
motion for new trial]; People v. Clair (1992) 2 Cal.4th 629, 667 [a new trial can be
granted only on the defendant’s motion and a demonstration of reversible error].) No
such motion was filed here, and no error has been shown upon the instant record.
Because the trial court had no independent duty to reconsider the jury’s finding of
malice, we reject Arguello’s challenge to his conviction on this basis. Despite the
growing recognition that adolescent brain development affects impulse control and risk
assessment (People v. Gutierrez (2014) 58 Cal.4th 1354, 1375–1376), the trial court had
no independent duty to reconsider the jury’s verdict on malice based on Arguello’s age at
the time of the commitment offense. Arguello’s argument is therefore forfeited for
failing to timely raise this issue below. (Sander v. Superior Court (2018) 26 Cal.App.5th
651, 670, citing Kern County Dept. of Child Support Services v. Camacho (2012) 209
10.
Cal.App.4th 1028, 1038 [“ ‘It is axiomatic that arguments not raised in the trial court are
forfeited on appeal’ ”].)
In arguing otherwise, Arguello directs this court to cases that pertain to whether an
offender’s youthful age supported a finding of implied malice or reckless indifference to
human life in the context of section 1172.6 resentencing proceedings, a recently enacted
sentencing statute (§ 1170, subd. (b)(6)(B)), and a statute governing youth offender
parole hearings (§ 4801, subd. (c)). His reliance upon these authorities is misplaced.
In People v. Pittman (2023) 96 Cal.App.5th 400, one of the cases cited by
Arguello, the court considered whether there was a reasonable possibility that the court’s
failure to consider the appellant’s youth impacted the trial court’s decision finding that he
acted with the requisite mental state as an aider and abettor to an implied malice murder.
(Id. at pp. 417–418.) But the court considered this issue in the context of a section
1172.6 petition for resentencing, which is collateral proceeding. (Pittman, supra, at pp.
411–412.)
Section 1172.6 requires the court to determine whether the petitioner has made a
prima facie case for resentencing relief, and following an evidentiary hearing, to
determine whether the evidence shows, beyond a reasonable doubt, that the petitioner is
guilty of murder under current law. Once the petitioner has made a prima facie case for
relief, the trial court, as the trier of fact, is statutorily required to assess the petitioner’s
continued culpability for murder. (§ 1172.6, subd. (d)(1)–(3).) By contrast, at a
defendant’s original prosecution, the trial court has no comparable responsibility to
determine the defendant’s guilt because, absent a valid jury waiver, that determination is
entrusted to the jury, not the judge.
Arguello also relies on People v. Jimenez (2024) 103 Cal.App.5th 994, another
appeal from the denial of a section 1172.6 petition proceeding. Like Pittman, Jimenez
stands in a different procedural posture from the instant case.
11.
In Jimenez, the appellate court held the petitioner was entitled to a new evidentiary
hearing so that the court could “consider and apply the rapidly developing case law on
youth and brain development in determining whether he acted with malice.” (People v.
Jimenez, supra, 103 Cal.App.5th at p. 1008.) Jimenez did not address whether, and to
what extent, the factfinder in an original prosecution must consider the defendant’s age in
determining whether he or she acted with malice, particularly when the issue is not raised
by trial counsel. “Cases are not authority for propositions they do not consider.” (People
v. Martinez (2000) 22 Cal.4th 106, 118.)
As distinct from Pittman and Jimenez, there was no independent statutory basis
requiring the trial court here to reconsider the jury’s finding on malice. The jury
determined, from the trial evidence, that Arguello had acted with malice in the
commission of Decker’s murder, notwithstanding his status as a youthful offender. We
will not engraft onto the statutory scheme a duty requiring the trial court to revisit that
finding where the Legislature has imposed no such obligation.
C. The Trial Court Adequately Considered Youth-Related Factors at
Sentencing
Arguello’s assertion that the trial court erred to give due consideration to his age at
sentencing fares no better. Arguello was sentenced to a prison term of 15 years to life for
his conviction for second degree murder, plus a determinate term of 10 years for the
attached criminal street gang enhancement. There was no sentencing discretion for the
court to exercise with respect to Arguello’s conviction for second degree murder.
The court did have discretion to strike the 10-year criminal street gang (§ 186.22,
subd. (b)(1)) and great bodily injury (§ 12022.7, subd. (a)) enhancements, and to impose
the low term sentence on Arguello’s convictions for second degree robbery (§ 211) and
the substantive gang offense (§ 186.22, subd. (a)). But Arguello’s argument that his
overall sentence was improper based on the court’s alleged failure to give due
consideration to youth-mitigating factors is not tantamount to a claim that the court
12.
specifically abused its discretion by declining to strike the enhancements, or by declining
to impose the low-term sentences on Arguello’s non-murder convictions. (See Cahill v.
San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘ “When an appellant
fails to raise a point, or asserts it but fails to support it with reasoned argument and
citations to authority, we treat the point as waived.” ’ [Citation.] ‘We are not bound to
develop appellants’ argument for them’ ”].)
In any event, any such claim would fail on the merits. With respect to the court’s
decision declining to strike enhancements, that decision is reviewable for an abuse of
discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) No such showing has
been made here.
In declining to strike the 10-year criminal street gang enhancement, the court
explained, “I do believe I have the power, given the statements that were made about Mr.
Arguello’s upbringing, to strike that enhancement. I know the law does require the Court
to consider the things about a young person’s background.” The trial court
acknowledged that Arguello likely experienced past trauma or mistreatment but stated
that such circumstances do not excuse criminal conduct or eliminate accountability.
Thus, contrary to Arguello’s assertions, the record demonstrates the court considered
Arguello’s youth and the mitigating circumstances associated with it but reasonably
concluded those factors did not warrant striking the enhancement.4
With respect to the court’s decision not to impose low-term sentences on certain
counts, Arguello likewise fails to demonstrate that the court was unaware of the low-term
sentencing presumption under section 1170, subdivision (b)(6)(B). Section 1170,
subdivision (b)(6)(B) “establishes a presumption [that the court must impose] the lower
4 Neither the parties nor the court explicitly discussed striking the great bodily
injury enhancement applied to count 2. But absent evidence to the contrary, we presume
the court was aware that the law authorized it to strike that enhancement but declined to
do so. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
13.
term if the defendant’s youth was ‘a contributing factor’ in his or her commission of [a]
crime ‘unless the court finds that the aggravating circumstances outweigh the mitigating
circumstances [such] that imposition of the lower term would be contrary to the interests
of justice. ...’ ” (People v. Flores (2022) 73 Cal.App.5th 1032, 1039; see also § 1016.7,
subd. (b) [“A ‘youth’ for purposes of this section includes any person under 26 years of
age on the date the offense was committed”]; Cal. Rules of Court, rule 4.420(e).)
Assuming Arguello made some initial showing that section 1170, subdivision
(b)(6) applied, “the record does not raise serious doubts or show that the court was
unaware of, or failed to apply, section 1170(b)(6).” (People v. Nielsen (2026) 119
Cal.App.5th 816, 823.) We presume that the court knew and applied the law, absent
evidence to the contrary. The burden is on Arguello to show otherwise. (Ibid.; see
People v. Knowles (2024) 105 Cal.App.5th 757, 764–765; People v. Fredrickson (2023)
90 Cal.App.5th 984, 988.) Nothing in the instant record suggests that the court failed to
consider the application of section 1170, subdivision (b)(6) to Arguello’s determinate
term sentences.
Based on the foregoing, we reject Arguello’s assertion that the court erred in
sentencing Arguello without considering youth-related mitigating factors.
II. SUBSTANTIAL EVIDENCE SUPPORTS ARGUELLO’S CONVICTION
FOR SECOND DEGREE MURDER
Arguello asserts the evidence was insufficient to support his conviction for second
degree murder as a direct perpetrator or an aider and abettor. He is incorrect. Viewing
the evidence in the light most favorable to the judgment, as we must (People v. Zamudio
(2008) 43 Cal.4th 327, 357), we find substantial evidence supports Arguello’s conviction.
A. Applicable Law on Second Degree Murder
“Second degree murder is ‘the unlawful killing of a human being with malice
aforethought but without the additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree murder.’ [Citation.] Malice
14.
may be either express, i.e. when a defendant manifests an intention to kill, or implied.
[Citation.] ‘ “Malice is implied when the killing is proximately caused by ‘ “an act, the
natural consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of another and who
acts with conscious disregard for life.” ’ ” ’ ” (People v. Clements (2022) 75 Cal.App.5th
276, 299.)
A defendant may be liable for second degree murder as a direct perpetrator
(§§ 187, subd. (a), 189), or an aider and abettor. (People v. Coley (2022) 77 Cal.App.5th
539, 546 [direct aiding and abetting remains a valid theory of murder liability after
Senate Bill No. 1437]; People v. Reyes (2023) 14 Cal.5th 981, 990–991 [aiding and
abetting implied malice murder is a valid theory of second degree murder liability].)
B. Standard of Review
“When considering a challenge to the sufficiency of the evidence ..., we review the
entire record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27, italics added.) “In deciding the
sufficiency of the evidence, a reviewing court resolves neither credibility issues nor
evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34
Cal.4th 1149, 1181.)
“The reviewing court presumes in support of the judgment the existence of every
fact the jury could reasonably deduce from the evidence.” (People v. Bloom (1989) 48
Cal.3d 1194, 1208.) “Reversal is not warranted ‘unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction.]” ’ ” (People v. Thomas (2023) 14 Cal.5th 327, 378.) “Given this deferential
15.
standard of review, a ‘defendant bears an enormous burden in claiming there is
insufficient evidence’ to support a conviction.” (People v. Wear (2020) 44 Cal.App.5th
1007, 1020.)
C. Analysis
1. Direct Perpetrator of an Implied Malice Murder
To prove Arguello was guilty of murder as a direct perpetrator, the prosecutor was
required to establish both that Arguello acted with implied malice and that his conduct
was a substantial factor in causing Decker’s death. Murder is committed with implied
malice when “the killing is proximately caused by ‘ “an act, the natural consequences of
which are dangerous to life, which act was deliberately performed by a person who
knows that his conduct endangers the life of another and who acts with conscious
disregard for life.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 143.) A defendant’s
conduct is a proximate cause of death if it was a substantial factor contributing to the
death, rather than an insignificant or merely theoretical cause. (People v. Jennings (2010)
50 Cal.4th 616, 643.)
Here, the record shows that Decker died not from a single injury, but from the
“totality of [the] injuries” to his head, including skull fractures, brain contusions, and
hemorrhages, that were caused by “multiple blows.” The Snapchat videos establish that
both Rosales and Arguello kicked and stomped Decker’s head and neck. The jury could
therefore reasonably conclude that Arguello’s own conduct was a substantial factor
contributing to Decker’s death.
The evidence also supports the conclusion that Arguello acted with implied malice.
Decker was an elderly man who, by all appearances, posed no threat. He never saw the
first blow coming, and lay unconscious as Rosales and Arguello kicked and stomped on
his head and neck. A person who repeatedly strikes an unconscious, elderly victim in the
head and neck is not acting in ignorance of the mortal danger such conduct poses.
16.
The jury could also reasonably infer that Arguello subjectively appreciated that
danger. After participating in the initial beating, Arguello returned and assaulted Decker
a second time, despite Decker’s severe and readily visible facial injuries. Although
Decker had regained consciousness by then, the video shows he was unable to defend
himself. From these circumstances, the jury could reasonably conclude that Arguello
understood the lethal risk posed by repeatedly kicking Decker’s head yet continued the
assault with conscious disregard for human life.
2. Aider and Abettor of an Implied Malice Murder
“ ‘[T]o be liable for an implied malice murder, the direct aider and abettor must,
by words or conduct, aid the commission of the life-endangering act, not the result of that
act. [And,] [t]he mens rea, which must be personally harbored by the direct aider and
abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the
perpetrator in the commission of the act, knowledge that the act is dangerous to human
life, and acting in conscious disregard for human life.’ ” (People v. Reyes, supra, 14
Cal.5th at p. 991.)
Substantial evidence supports a finding that Arguello personally harbored the
mental state required for aider and abettor liability. “Evidence of a defendant’s state of
mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as
direct evidence to support a conviction.” (People v. Bloom, supra, 48 Cal.3d at p. 1208.)
As discussed above, the jury could reasonably conclude that Arguello knew the
assaults on Decker were life-endangering and nonetheless acted with conscious disregard
for that risk. The remaining question is whether he intentionally aided Rosales’s
commission of the life-endangering act. We conclude that the record amply supports that
finding.
Arguello and Rosales acted together throughout the attacks. They followed
Decker into the park together, participated in the initial beating together, and afterward,
reconvened with Cervantes, where they reenacted the stomping. Arguello later returned
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to the park with Cervantes and assaulted Decker a second time. Shortly thereafter,
Rosales entered the park and carried out the final assault.
Arguello argues that because Rosales delivered the fatal blows during the third
assault, after Arguello had left the park, he cannot be liable for Decker’s murder. But this
argument misapprehends aider and abettor liability, and the evidence adduced at trial.
Preliminarily, we take issue with Arguello’s characterization of Rosales’s final
beating as the “fatal” beating. Decker died from the “totality of [the] injuries” to his
head, meaning no single blow killed him. Because Arguello also kicked Decker’s head
and neck, he too was a substantial factor in Decker’s death. (People v. McCoy (2001) 25
Cal.4th 1111, 1120 [“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”].)
In any event, Arguello’s absence during the third assault does not absolve him
from liability for Decker’s murder. Physical presence at the moment of the final injury
was not required. What was required is that Arguello, acting with the requisite mental
state, intentionally facilitated, promoted, or encouraged Rosales’s commission of the life-
endangering act. (People v. Reyes, supra, 15 Cal.5th at p. 991.) The jury could
reasonably find that Arguello did exactly that.
The three assaults on Decker were not independent, disconnected acts. They were
part of a single course of conduct in which Arguello and Rosales acted in concert, each
attack encouraging the next and escalating the violence. They followed Decker into the
park together. They attacked him together during the first assault. They regrouped
afterward, meeting up with Cervantes, where they reenacted the stomping. Arguello then
returned to the park with Cervantes for the second assault, leaving Decker in an even
more vulnerable state. Arguello’s second attack encouraged Rosales to “up the ante,”
resulting in the third and final beating.
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Arguello further contends “there was no showing whatsoever that [he] intended to
kill Decker.” Assuming arguendo the evidence was insufficient to establish that he acted
with express malice, there was substantial evidence showing that he acted with implied
malice.
Finally, Arguello submits that the record also lacks evidence showing he acted
with reckless indifference to human life. However, that theory only applies in the context
of felony murder prosecutions (§ 189, subd. (e)(3)). Arguello was not prosecuted under
the felony murder doctrine.
III. THE ABSTRACT OF JUDGMENT MUST BE CORRECTED
Arguello was sentenced on July 2, 2024. On count 1, Arguello’s conviction for
second degree murder, the trial court sentenced him to 15 years to life, plus a consecutive
10-year term for the attached gang enhancement. On count 2, his conviction for second
degree robbery, the court imposed the upper term of five years, plus a three-year term for
the great bodily injury enhancement, concurrent with count 1. On count 3, the court
imposed a two-year term for the substantive gang offense, representing one-third of the
middle term, but stayed the sentence pursuant to section 654.
Arguello argues the abstract of judgment contains the following errors: First, the
abstract does not reflect that the five-year term for robbery (count 2) and the attached
great bodily injury enhancement were imposed concurrent to count 1. Second, the
abstract reflects that a three-year term was imposed on count 3, rather than the two-year
term imposed by the court. The Attorney General contends that Arguello’s first claim
has merit, but the remaining claims do not. We agree with the Attorney General.
Arguello’s conviction for second degree robbery must be corrected to reflect that
imposition of that term is concurrent to count 1. But there is no way to amend the
abstract of judgment to reflect that the attached enhancement for great bodily injury was
also imposed concurrently. Logically, however, amending the abstract to reflect that the
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“TOTAL TIME” imposed under section 8 reflects eight years rather than five years, will
make that clear.
Finally, with respect to Arguello’s contention that the abstract improperly reflects
a three-year term on count 3, rather than the two-year stayed term that was imposed, the
record does not support Arguello’s assertion. The abstract of judgment correctly reflects
that the middle term was imposed but does not include a particular term. The middle
term sentence for section 186.22, subdivision (a) is two years. We will order the abstract
of judgment corrected accordingly.
DISPOSITION
The judgment is affirmed. The trial court is ordered to amend the abstract of
judgment to reflect that a concurrent term was imposed on count 2, that the stayed term
on count 3 was a term of two years, and that Section 8, designating the “TOTAL TIME”
imposed, is eight years. The trial court shall forward the amended abstract of judgment
to the appropriate authorities.
FRANSON, Acting P. J.
WE CONCUR:
DE SANTOS, J.
HARRELL, J.
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