Filed 7/22/26 P. v. Herrera CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B343752
(Super. Ct. No. BA414327)
Plaintiff and Respondent, (Los Angeles County)
v.
MICHAEL HERRERA,
Defendant and Appellant.
Michael Herrera pleaded guilty to attempted murder in
2015. He petitioned for resentencing under Penal Code1 section
1172.6 around the time of his release on parole. The trial court
denied the petition after an evidentiary hearing. On appeal,
appellant contends the evidence was insufficient to prove beyond
a reasonable doubt that he was guilty of attempted murder under
current law. We will affirm.
1 Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Preliminary Hearing
Four witnesses testified at the preliminary hearing: the
two victims (A.B. and G.R.), an LAPD gang officer, and an LAPD
criminologist. A.B. drove his girlfriend G.R. to a McDonald’s
restaurant in the early morning hours of August 1, 2013. They
returned to G.R.’s house afterward. A.B. pulled his car partly
into the driveway so G.R. could get out. A white taxi with three
men inside drove behind and past their car a few feet and
stopped in the street. A man later identified as Johnathan
Pereida opened the taxi’s front passenger door and approached
A.B.’s open car window. As he approached, Pereida raised his
right arm with a pistol in his hand and said, “Where are you
from, puto?” He appeared to pull the trigger repeatedly, but the
pistol did not fire. Pereida exclaimed “oh, fuck!” and slowly
walked back to the taxi. It drove away.
Officers spotted the taxi about an hour later. It crashed
into a fence after a short pursuit. Appellant and Pereida fled on
foot but were soon caught with the help of K-9s. Police brought
A.B. and G.R. to the scene for a show-up. They identified Pereida
as the gunman and appellant as the taxi’s back seat passenger.
A third suspect (the driver) was never identified.
A.B. testified he saw appellant looking out the taxi’s rear
passenger window while Pereida got out, confronted them with
the pistol and walked back to the taxi. G.R. saw appellant
watching from the back passenger seat, open his door and stick
“almost half of his body” out of the taxi. She noticed a “smirk on
his face” while he watched Pereida and the victims.
The gang officer described himself as an expert on the
“Toonerville” gang in Los Angeles. G.R. lived in the territory of
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the rival “Avenues” gang. The officer drove to a neighborhood
controlled by Toonerville so he could monitor the area for the
suspects. He spotted a white taxi driving towards him and
illuminated it with a spotlight. He recognized the occupants as
Pereida and appellant. Both were documented Toonerville gang
members. The officer saw them run in opposite directions after
the crash. He found a pistol containing seven live rounds on the
floor of the abandoned taxi. A.B. later recognized the pistol as
the one Pereida pointed at him. The LAPD criminologist testified
that it malfunctioned when he tried to fire it.
The gang officer also testified about the rivalry between the
Toonerville and Avenues gangs. He described how committing
crimes or spray-painting graffiti in an Avenues stronghold would
earn a Toonerville gang member the respect of his colleagues.
Driving a taxi into the territory would enable them to maintain a
low profile. It also showed that the crime that followed “was
planned out and thought out. It was thoroughly thought out.” A
phrase like “Where are you from, puto?” would be seen as a direct
challenge to a rival gang member. He then discussed the role of a
passenger watching the confrontation. “By being inside of the
taxicab with the door open,” he testified, “you’re acting as a
lookout. You’re there backing up your buddy to make sure
nothing goes wrong, whether it be a rival gang rolling up on them
or law enforcement. You are there to have his back and make
sure he’s going to be okay.” “You’re not going to go into a rival
gang neighborhood and do graffiti and do any kind of crime
without having backup with you and having even a firearm with
you, just in case stuff goes wrong and you have to fight your way
out of that neighborhood.”
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He also explained why gang members generally do not
commit murders by themselves. “In case something goes wrong,
in case they go commit the murder and as a gun – a gunshot’s
pretty loud, so that gunshot is going to be heard and it’s going to
bring people out. So if they’re not quick enough to get away
before that gunshot is heard, they’re going to need help to get
out.” A fellow gang member could also serve as an eyewitness
who could confirm “that the crime did occur.”
Appellant Pleads Guilty to Attempted Murder
Appellant and Pereida were charged with two counts of
attempted willful and deliberate murder. Appellant negotiated a
guilty plea to one count of attempted murder without
premeditation and deliberation. He did not stipulate to a factual
basis for the plea. He did not admit a specific theory of guilt nor
did he plead to any type of malice. The court imposed a low term
sentence of five years plus a ten-year armed principal
enhancement. Pereida went to trial. He received two 25-to-life
prison terms after a jury convicted him on both attempted
murder counts.2
Petition for Resentencing
Appellant petitioned for resentencing in 2023. The People
conceded the petition made a prima facie showing under section
1172.6, subdivision (c).3 (People v. Estrada (2024) 101
2 This division affirmed Pereida’s conviction in People v.
Pereida (B271443, June 21, 2017) [nonpub. opn]. His conviction
is not revisited here.
3 A person convicted of attempted murder under the
natural and probable consequences doctrine is entitled to have
his conviction vacated. (§ 1172.6, subd. (a).) Upon a prima facie
showing of resentencing eligibility the prosecution has the
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Cal.App.5th 328, 338 [a generic plea to attempted murder that
did not admit any malice or specific theory of guilt, did not make
the defendant “ineligible for relief at the prima facie stage as a
matter of law”].) The trial court held an evidentiary hearing in
2025. The parties argued but did not introduce new evidence,
choosing instead to submit on the preliminary hearing transcript
and exhibits.
The trial court denied the petition. It stated: “So as an
independent fact finder, and based upon the testimony that was
presented at the preliminary hearing, I do find that the People
have met their burden of proof by establishing beyond a
reasonable doubt that Mr. Herrera is a direct aider and abettor
and harbored express malice. This is somewhat of a summary,
but I do find that [appellant and Pereida] were active Toonerville
gang members who went into The Avenues territory, or rival
gang territory, that borders theirs with the express purpose of
having an armed confrontation and shooting an individual. They
confronted the victims, who were not gang members. And
[Pereida] had the gun; it is uncontested. He challenged the
victims in a very specific gang manner. And he pulled the trigger
on the gun, which was pointed directly at the victims, while he
was in close range. It is also uncontested that Mr. Herrera was
in the car, and that he, in fact, was looking out, whether or not he
had his body partially out the car or not during the encounter.”
The trial court agreed with the gang officer that a taxi
would allow gang members to “be less conspicuous” when
burden to “prove, beyond a reasonable doubt, that the petitioner
is guilty of murder or attempted murder under California law as
amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (Id., subd. (d)(3).)
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venturing into a rival gang’s territory. “As far as [appellant]
being the lookout,” it stated, “the court does not find that to be
the ultimate fact. The ultimate fact would be whether or not Mr.
Herrera shared the intent to kill or had express malice.” The
court gave “a lot of weight” to his conduct after the confrontation.
It concluded: “[Appellant’s] continued association with [Pereida]
immediately after the shooting, in the same vehicle, driving
around their own hood at that particular point, and then the
flight from the police, both the high-speed car chase and then the
flight on foot, and the hiding in someone’s yard or private
property afterwards just goes to further show that he had the
express malice and was in with all of the actions taken that
might [sic] by [Pereida]. They were all out capering, looking to do
these actions together. It was not thwarted because of anything
anyone did, anyone who tried to stop it, it was simply the
malfunction of the gun.”
The court’s minute order summarized the ruling as follows:
“The Court finds, beyond a reasonable doubt, that the witnesses
at the preliminary hearing are credible, that there is no evidence
of a natural and probable consequences theory of liability, and
that Defendant is liable for attempted murder as a direct aider
and abettor.”
DISCUSSION
Appellant contends the trial court erred when it denied his
petition for resentencing because there was insufficient evidence
that he aided and abetted the attempted murder of A.B. and G.R.
To determine “whether a trial court correctly denied a section
1172.6 petition following an evidentiary hearing, ‘“‘we review the
factual findings for substantial evidence and the application of
those facts to the statute de novo.’”’” (People v. Arnold (2023) 93
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Cal.App.5th 376, 383.) We review the record in the light most
favorable to the trial court’s decision, “to determine whether
there is any substantial evidence, contradicted or uncontradicted,
to support a rational fact finder’s findings beyond a reasonable
doubt.” (People v. Clements (2022) 75 Cal.App.5th 276, 298.)
Attempted murder requires proving “‘specific intent to kill
and the commission of a direct but ineffectual act toward
accomplishing the intended killing.’” (People v. Falaniko (2016)
1 Cal.App.5th 1234, 1242-1243; § 21a.) A defendant aids and
abets a crime by “acting with (1) knowledge of the unlawful
purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the
offense, (3) by act or advice aids, promotes, encourages or
instigates, the commission of the crime.” (People v. Beeman
(1984) 35 Cal.3d 547, 561.)
We conclude sufficient evidence supports the trial court’s
findings. Appellant arrived at the scene in the same white taxi
as Pereida. They stopped within two or three feet of the victims’
car. Appellant opened his door, stuck his body out, and watched
Pereida as he walked with a pistol toward the victims’ vehicle,
pointed the pistol at A.B. and G.R., yelled a gang challenge, and
attempted to fire. G.R. described appellant “smirking” as he
watched. He watched as Pereida then slowly walked back to the
taxi. The three suspects then fled together when Pereida’s pistol
failed to fire. When police spotted the taxi later that morning,
only appellant and Pereida were in the car. The two men led
police on a chase. Appellant emerged from the driver’s seat after
crashing the taxi and fled on foot. The pistol used in the
attempted shooting was found on the floor of the crashed taxi.
The officer identified appellant and Pereida as active members of
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the Toonerville criminal street gang based on “multiple contacts”
with them in the past. He testified the attempted shooting took
place in the territory of the Toonerville’s rival gang.
Appellant contends these facts are insufficient to prove the
required mental state or actus reas to convict him of attempted
murder on an aiding or abetting theory. He argues the evidence
portrays him as a passive observer of Pereida’s attempted killing
rather than as a co-participant. We disagree.
“Aiding and abetting may be shown by circumstantial
evidence. It is well settled that the presence at the scene of the
crime and failure to prevent it, companionship and conduct before
and after the offense, including flight, are relevant to
determining whether a defendant aided and abetted in the
commission of the crime.” (People v. Glukhoy (2022) 77
Cal.App.5th 576, 599.) While mere presence at the scene of a
crime is alone insufficient to constitute aiding and abetting, facts
showing a defendant served as a lookout can evidence culpability.
(In re White (2018) 21 Cal.App.5th 18, 26, aff’d by In re White
(2020) 9 Cal.5th 455.) Similarly, gang evidence alone cannot
prove a defendant is an aider and abettor to a crime. (People v.
Guillen (2014) 227 Cal.App.4th 934, 992.) It may, however, show
motive for the crime, which is often probative of intent to kill.
(People v. Smith (2005) 37 Cal.4th 733, 740-741; People v. Iraheta
(2017) 14 Cal.App.5th 1228, 1252-1253; People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1167-1168.) “That the evidence
might also reasonably be reconciled with a contrary finding” does
not show the evidence was insufficient. (People v. Ewing (2016)
244 Cal.App.4th 359, 380.)
The trial court could reasonably conclude based upon the
evidence at trial that appellant aided and abetted Pereida’s
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attempted murder. Appellant’s proximity to the victims, his
opening of the taxi door, his watching Pereida approach the
victims with a pistol, and even his facial expression showed he
shared Pereida’s intent to kill the victims and would assist his
Toonerville colleague if they resisted.
DISPOSITION
The order denying the section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
BALTODANO, Acting P. J.
McKAIG, J.*
* Judge of the Superior Court for Ventura, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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Charlaine Olmedo, Judge
Superior Court County of Los Angeles
______________________________
Bess Stiffelman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Thomas C. Hsieh, and David Glasman, Deputy
Attorneys General, for Plaintiff and Respondent.
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