Filed 8/12/26 P. v. Larrimore CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B341153
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA347367)
v.
LARON LEE LARRIMORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, George G. Lomeli, Judge. Affirmed.
Robert E. Boyce, 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, Assistant
Attorney General, Noah P. Hill, Heidi Salerno and David
Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
In 2006, Laron Lee Larrimore, a member of the Black P.
Stones gang, was driving a fellow gang member to a gang
meeting in a local park when Larrimore saw Cesar Avila in his
parked car. Thinking Avila was a member of the rival 18th
Street gang, Larrimore pulled up next to Avila’s car. Larrimore’s
passenger fired two gunshots at Avila and a third gunshot into
Avila’s car where his young daughters Kaitlyn and Cassey were
seated. The gunshots seriously wounded Avila and killed
Kaitlyn.
A jury convicted Larrimore of the second degree murder of
Kaitlyn and the attempted premeditated murder of Avila, after
the trial court instructed the jury on the natural and probable
consequences doctrine. Larrimore later petitioned for
resentencing under Penal Code1 section 1172.6 (former section
1170.95) as to both convictions. Following an evidentiary
hearing, the superior court denied the petition, finding the People
proved beyond a reasonable doubt that Larrimore was guilty of
murder and attempted murder under a theory of direct aiding
and abetting. On appeal, Larrimore argues substantial evidence
does not support the superior court’s determination as to his
murder conviction only. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Charges
The People jointly charged Larrimore and codefendant
Jonathan Banks with the murder of Kaitlyn (§ 187, subd. (a)), the
attempted willful, deliberate, and premeditated murder of Avila
(§§ 664 & 187, subd. (a)), and the attempted willful, deliberate,
1 Statutory references are to the Penal Code.
2
and premeditated murder of Cassey (§§ 664 & 187, subd. (a)).
The People alleged several firearm enhancements (§ 12022.53,
subds. (b)-(e)) and a gang enhancement (§ 186.22, subd. (b)) for
each offense.
Larrimore and Banks were jointly tried by a jury.
B. Prosecution Evidence at Trial
1. The shooting
On September 24, 2006, Avila parked his blue car in front
of his apartment building on Pinafore Street. Avila’s three-year-
old daughter Kaitlyn was seated in the rear passenger seat, and
his five-year-old daughter Cassey was seated next to her. Avila
stepped out of the car and was about to open Kaitlyn’s door when
a silver SUV stopped two feet beside him.
The front passenger window of the SUV was rolled down,
and the rear windows were tinted. A person in the front
passenger seat yelled, “ ‘Fuck 18.’ ” Avila turned around and saw
the passenger and the driver, who were both looking at him. The
passenger yelled, “ ‘Black P. Stones,’ ” pulled out a gun, and fired
one shot at Avila through the window, hitting him in the chest.
Avila immediately ran toward his apartment building. The SUV
passenger got out of his car and fired a second shot at Avila that
struck his hand. Avila continued to run into the building and
collapsed in the courtyard where his wife and neighbors came to
help him. At trial, Avila identified the shooter as Banks and the
SUV’s driver as Larrimore. Avila was not a member of any gang.
At the time of the shooting, Marvin Barahona was standing
about 36 feet from Avila’s blue car. Barahona saw a man get out
of Avila’s car while a silver SUV stopped next to Avila’s car.
Barahona heard a gunshot and saw a man exit the SUV from the
front passenger seat and chase after Avila. As the man chased
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Avila toward the apartment building, the man had his arm
extended as if he was holding a gun, and Barahona heard a
second gunshot. Barahona then saw the man run back to Avila’s
car, open the rear door, and fire a third gunshot into the car.
After the third shot, the man appeared to reach for an object on
the ground before getting back into the SUV. The SUV sped
away, running a stop sign. Barahona saw a little girl lying on the
ground next to Avila’s car and bleeding from the back. At trial,
Barahona identified the shooter as Banks.
Yenicelli Centeno lived in the same apartment complex as
Avila and knew Avila and his family. On the day of the shooting,
Centeno was in her apartment when she heard three gunshots.
She looked out her window and saw a man bending down into
Avila’s blue car as if “searching for something.” The man stood
up and walked toward a silver car. On his way toward the car, he
picked up a small black object from the ground. The man then
got into the front passenger seat of the car, and the car sped
away.
Paramedics arrived and took Kaitlyn and Avila to the
hospital. Kaitlyn subsequently died of a single gunshot wound to
the chest. Avila was in the hospital for two weeks before he was
discharged.
2. Police investigation
Days after the shooting, the police received three
anonymous phone calls about the crime. In each of the calls the
caller said “Gambino” or “Bambino” was involved in the shooting.
Detectives consulted with a gang expert and determined that
Banks was known as “Gambino” or “Bambino.”
Detectives also interviewed Kerry Cahee, a known Black P.
Stones gang member. Cahee said two fellow Black P. Stones
4
members were involved in the shooting: Banks, who went by
“Bambino,” was the shooter, and Larrimore, who went by
“Boogie” or “Boogie Stone,” was the driver.
Cahee told detectives that Larrimore and Banks were
headed to a Black P. Stones gang meeting at Kenneth Hahn Park
before the shooting. The day after the shooting, Banks called
Cahee and said he had shot a rival gang member from the 18th
Street gang, that the shooting of the girl “was an accident,” and
that Larrimore was the driver. The next day, Larrimore also had
a telephone conversation with Cahee in which he confirmed that
he was the driver, that Banks shot a “Hispanic” man, and “that
the child was a mistake.”2
In October 2006, while Avila was still in the hospital, a
detective showed him photographic lineups that included
photographs of Larrimore and Banks. Avila identified Banks as
the shooter and Larrimore as the driver, but he noted he would
like to see Larrimore in person “to be sure.” At trial, Avila
testified he was certain that Larrimore was in fact the driver.
Later, a detective showed Centeno a photo lineup that included a
photograph of Banks. Centeno identified Banks as the person
she saw bending into Avila’s car.
In October 2006, detectives searched the motel room where
Larrimore had been staying. They found a firearm in a
nightstand, which they later determined not to be the murder
weapon. Officers also found car rental receipts in Larrimore’s
name showing he had returned a silver SUV the day after the
shooting.
2 Cahee testified at trial that he lied when he spoke to
detectives, and he denied any knowledge of the identify of the
perpetrators.
5
3. Gang expert testimony
Los Angeles Police Officer Brian Thayer testified as an
expert on the Black P. Stones gang. Avila’s apartment complex
was “right in the heart” of the Black P. Stones’ territory. Both
Larrimore and Banks were members of the Black P. Stones.
Larrimore’s gang moniker was “Boogie” or “Boogie Stone,” and
Banks’s moniker was “Gambino.”
The Black P. Stones’s “most hated” gang was a Hispanic
gang known as the 18th Street gang. The rivalry between the
two gangs was “pretty intense, to the point where [there were]
several shootings … between the two gangs.” According to
Thayer, it was “uncommon” and “very disrespectful” for an 18th
Street gang member “to be seen in the open, in the middle of the
day, in Black P. Stones area.” If a Black P. Stones member saw
somebody whom they thought was an 18th Street member in
Black P. Stones territory, the Black P. Stones member would
respond.
According to Thayer, there were different levels of
participation in the Black P. Stones gang. “[H]ard-core” gang
members were “very active” and “very involved” in the gang.
They were “out there making a name for the gang” and
“committing the burglaries, the robberies, the carjackings, the
murders, [and] the … assaults with deadly weapons.” “A lot of
times they’re the younger guys that have to prove themselves” to
the older members.
Black P. Stones frequently had gang meetings, especially
during September 2006. Around that time, an older member of
the Black P. Stones had been released from prison and “was
trying to get the gang … back into a violent active gang.” The
purpose of the meetings was to discipline members who “weren’t
6
living up to the standards of the gang,” tell members what areas
needed more criminal activity, and inspire members to stay
active in the gang lifestyle. It was important for younger
members to demonstrate at the meetings that they were active
members.
Thayer testified that murder was the “ultimate crime” a
Black P. Stones member could commit for the gang because it
showed dedication to the gang. Committing a murder for the
gang would elevate a member’s status.
C. Defense Evidence at Trial
Banks testified that in September 2006, he was 17 years
old. He denied being a Black P. Stones member but admitted he
associated with the gang. He also admitted that his nickname
was “Bambino” or “Gambino.”
On the day of the shooting, Banks was planning to attend a
picnic at a park to celebrate someone who had just gotten out of
prison. Banks knew Black P. Stones members would be there but
denied it was a gang meeting. Larrimore and two other
individuals offered Banks a ride in their silver car. Larrimore,
whom Banks knew as “Boogie,” was driving; Smith, whom Banks
knew as “Little Marky Boy,” was in the front passenger seat; and
the third person, whom Banks knew only as “Little J-Hall,” was
seated in the back. Smith and “Little J-Hall” were both known
gang members. Banks got in the back seat.
When Larrimore turned onto Pinafore Street, Smith
pointed to a moving blue car and said, “ ‘Do you see that?’ ”
Larrimore said, “There you go, right there.” Larrimore turned
into an alley, stopped the car, and briefly got out, before driving
back onto Pinafore Street with a gun on his lap. Banks admitted
he told police that Larrimore “pointed out the Hispanic guy,”
7
“drove his car around through the alley,” and “positioned it next
to the blue [car].”
At that point, Banks asked to be taken home, and
Larrimore agreed. As Larrimore drove on Pinafore Street,
however, the car suddenly stopped. Banks heard three gunshots
and immediately ducked. He did not hear anyone say, “Fuck
18th Street” or “Black P. Stones.” He also did not see anyone
shooting from inside the car. After the car sped away, Banks saw
Smith holding a gun. Larrimore and the others took Banks
home, and Smith told Banks not to say anything.
D. Verdict and Sentencing
At trial, the court instructed the jury on two theories of
second degree murder: murder with malice aforethought and
murder under the natural and probable consequences theory. As
to the natural and probable consequences theory, the court
specifically instructed the jury that to find a defendant guilty of
murder, it had to find the defendant aided and abetted the
attempted murder of Avila, and “[t]he crime of murder was a
natural and probable consequences” of the attempted murder.
The jury found Larrimore guilty of the second degree
murder of Kaitlyn and guilty of the attempted willful, deliberate,
and premeditated murder of Avila. The jury also found true, as
to each count, the firearm enhancements (§ 12022.53, subds. (b)-
(e)) and the gang enhancements (§ 186.22, subd. (b)). The jury
was unable to reach a unanimous verdict on the count of
attempted murder of Cassey, and the court declared a mistrial as
to that count.3
3 The jury was also unable to reach a unanimous verdict as
to Banks on all counts, and a mistrial was declared for each count
8
The trial court sentenced Larrimore to a total term of
72 years to life in state prison. As to the second degree murder of
Kaitlyn, the court sentenced Larrimore to a term of 15 years to
life, plus 25 years to life based on the firearm enhancement
(§ 12022.53, subds. (d), (e)(1)). As to the attempted murder of
Avila, the court sentenced Larrimore to a consecutive term of
seven years to life, plus 25 years to life based on the firearm
enhancement (§ 12022.53, subd. (d)).4
Larrimore appealed from the judgment. This court struck
the gang and firearm enhancements for both counts.5 Otherwise,
the judgment was affirmed. (People v. Larrimore (June 5, 2012,
B221303) [nonpub. opn.].)
alleged against Banks. After a retrial, a jury found Banks guilty
on all counts and found all the allegations true.
4 The court did not impose an additional prison term based
on the gang enhancements. (§ 186.22, subd. (b)(5) [if the
underlying count is a felony punishable by imprisonment in the
state prison for life, the defendant is subject to a 15-year
minimum parole eligibility term]; People v. Lopez (2005)
34 Cal.4th 1002, 1004 [gang-related first degree murder is
punishable by a 15-year minimum parole eligibility term, not an
additional 10-year gang enhancement].)
5 This court determined the prosecution presented
insufficient evidence to establish the primary activities element
of the gang enhancements. (People v. Larrimore (June 5, 2012,
B221303) at pp. 32-36 [nonpub. opn.].) Further, reversal of the
gang enhancements required reversal of the firearm
enhancements imposed pursuant to section 12022.53,
subdivisions (d) and (e). (Larrimore, at p. 36.)
9
E. Resentencing Proceedings
In 2021, Larrimore filed a petition for resentencing with
respect to his murder conviction. He filed a second petition for
resentencing as to his attempted murder conviction in 2022.
After appointing counsel and receiving memoranda from the
parties, the superior court issued an order to show cause on both
petitions.
In 2024, the court held an evidentiary hearing. Both
parties relied on the transcripts from Larrimore’s jury trial and
did not present any other evidence. The People argued Larrimore
was guilty of murder and attempted murder under a theory of
direct aiding and abetting. They contended the evidence showed
Larrimore believed rival gang members were in Avila’s car;
Larrimore wanted to kill rival gang members; and he “aided and
abetted … the shooting of … Avila” and “the shooting of whoever
was in the back seat of [Avila’s] car.” The defense argued that “at
a minimum,” Larrimore could not be found guilty of the murder
of Kaitlyn because there was no evidence Larrimore “had any
knowledge of … Banks’s intention to go back to [Avila’s] car and
shoot into the car,” killing Kaitlyn.
The court denied the petitions, finding beyond a reasonable
doubt Larrimore was guilty of murder and attempted murder
under a theory of direct aiding and abetting. The court found
Larrimore aided and abetted “the shooting” of Avila and “the
shooting of individuals that were in [Avila’s] car perceived as
rival gang members.”
Larrimore timely appealed.
10
DISCUSSION
A. Section 1172.6 and Standard of Review
Effective 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(SB 1437) substantially modified the law governing accomplice
liability for murder. (People v. Curiel (2023) 15 Cal.5th 433, 448;
People v. Strong (2022) 13 Cal.5th 698, 707-708.) Pertinent here,
it eliminated liability for murder as an aider and abettor under
the natural and probable consequences doctrine6 by amending
section 188. (People v. Patton (2025) 17 Cal.5th 549, 558; Curiel,
at p. 449.) “[U]nder prior law, a defendant who aided and abetted
an intended assault could be liable for murder, if the murder was
the natural and probable consequence of the intended assault.
[Citation.] The defendant need not have intended the murder or
even subjectively appreciated the natural and probable
consequences of the intended crime.” (Curiel, at p. 449.) Now,
section 188 provides that, except in cases of felony murder, “a
principal in a crime shall act with malice aforethought” to be
convicted of murder. (§ 188, subd. (a)(3).) “Malice shall not be
imputed to a person based solely on his or her participation in a
crime.” (Curiel, at p. 449.)
SB 1437 also added former section 1170.95 (now section
1172.6) to the Penal Code “to provide ‘a procedure for convicted
murderers who could not be convicted under the law as amended
to retroactively seek relief.’ ” (People v. Antonelli (2025)
17 Cal.5th 719, 724.) The resentencing procedure begins with the
filing of a petition containing a declaration that all requirements
6 The natural and probable consequences doctrine is also
sometimes referred to as “ ‘indirect’ ” aiding and abetting.
(People v. Soto (2020) 51 Cal.App.5th 1043, 1057.)
11
for eligibility are met. (§ 1172.6, subd. (b)(1)(A); People v. Strong,
supra, 13 Cal.5th at p. 708.) The superior court must then
determine whether the petitioner has made a prima facie
showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-
(c); Strong, at p. 708.) If the petitioner has made a prima facie
showing he or she is entitled to relief, the court must issue an
order to show cause and hold an evidentiary hearing to determine
whether to vacate the murder conviction and resentence the
petitioner on any remaining counts. (§ 1172.6, subd. (d)(1).) At
the evidentiary hearing the court may consider evidence
“previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony.”
(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may
also offer new or additional evidence. (Ibid.)
On appeal from an order denying a petition under section
1172.6 following an evidentiary hearing, we apply the substantial
evidence standard of review. (People v. Emanuel (2025)
17 Cal.5th 867, 885.) “Under this standard, ‘we review the record
“ ‘ “in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such
that a reasonable trier of fact” ’ ” ’ could find [the necessary fact]
beyond a reasonable doubt.” (Ibid.) “ ‘ “ ‘While the trial judge
must review all the relevant evidence, evaluate and resolve
contradictions, and make determinations as to credibility, all
under the reasonable doubt standard, our job is 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. Pittman (2023) 96 Cal.App.5th
400, 414.) “ ‘ “Substantial evidence includes circumstantial
12
evidence and any reasonable inferences drawn from that
evidence.” ’ ” (People v. Navarro (2021) 12 Cal.5th 285, 339.)
B. Substantial Evidence Supports the Superior Court’s
Finding Larrimore Is Guilty of Murder on a Theory of
Direct Aiding and Abetting Implied Malice Murder
Larrimore contends the evidence only supported a finding
that he aided the shooter in attempting to kill Avila. He asserts
he “did nothing to aid and abet [the shooter’s] separate actions of
going to Avila’s car and shooting and killing a three-year-old girl
seated inside Avila’s car.” However, substantial evidence
supports his second degree murder conviction of Kaitlyn based on
a theory of direct aiding and abetting implied malice murder.
1. Legal principles
“Second degree murder is an unlawful killing with malice
aforethought, but without the premeditation or deliberation
required for first degree murder. [Citation.] Malice may be
express or implied. [Citation.] Malice is express when a
defendant intends to kill and implied when a defendant
consciously disregards danger to human life.” (In re Ferrell
(2023) 14 Cal.5th 593, 600; see People v. Knoller (2007) 41 Cal.4th
139, 143, 151, 156-157; People v. Gudiel (2024) 107 Cal.App.5th
848, 859.)
“ ‘[A] person who aids and abets a crime is guilty of that
crime even if someone else committed some or all of the criminal
acts.’ ” (People v. Hin (2025) 17 Cal.5th 401, 455.) Direct aiding
and abetting implied malice murder remains a valid theory of
murder liability after SB 1437. (See People v. Reyes (2023)
14 Cal.5th 981, 990 (Reyes) [“a defendant may directly aid and
abet an implied malice murder”]; People v. Gentile (2020)
10 Cal.5th 830, 848, 850 [“notwithstanding Senate Bill 1437’s
13
elimination of natural and probable consequences liability for
second degree murder, an aider and abettor who does not
expressly intend to aid a killing can still be convicted of second
degree murder if the person knows that his or her conduct
endangers the life of another and acts with conscious disregard
for life”].)
“ ‘[D]irect aiding and abetting is based on the combined
actus reus of the participants and the aider and abettor’s own
mens rea. [Citation.] In the context of implied malice, the actus
reus required of the perpetrator is the commission of a life-
endangering act. For the direct aider and abettor, the actus reus
includes whatever acts constitute aiding the commission of the
life-endangering act. Thus, to 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. The 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.’ ”
(Reyes, supra, 14 Cal.5th at pp. 990-991.) “ ‘The relevant act is
the act that proximately causes death.’ ” (Id. at p. 991.) The act
“must not merely be dangerous to life in some vague or
speculative sense; it must ‘ “involve[ ] a high degree of probability
that it will result in death.” ’ ” (Id. at p. 989.)
2. Substantial evidence of direct aiding and abetting
implied malice murder
Larrimore does not dispute that the shooting in this case
“was the act that proximately caused Kaitlyn’s death.” When a
shooting is the life-endangering act, the aider and abettor must
14
“kn[o]w that [the shooter] intended to shoot at the victim,
[intend] to aid him in the shooting, kn[o]w that the shooting was
dangerous to life, and [act] in conscious disregard for life.”
(Reyes, supra, 14 Cal.4th at p. 992.) Larrimore contends “there is
simply no substantial evidence that [he] had the requisite
knowledge or intent.” As Larrimore states, “the shooting of
Kaitlyn was unintended.” He points to evidence in the record
that Larrimore and Banks said Kaitlyn’s shooting was “an
accident” and “a mistake.”
Even if Kaitlyn was not the shooter’s specific target, that
fact is not determinative. Implied malice does not require
awareness of a life-threatening risk “to a particular person.”
(People v. Albright (1985) 173 Cal.App.3d 883, 887; accord, People
v. Taylor (2004) 32 Cal.4th 863, 868.) “Instead, implied malice
may be found … whenever … the facts establish a defendant’s
awareness and conscious disregard that his conduct poses a high
probability of death to some person.” (Albright, at p. 887; accord,
Taylor, at p. 868 [“It is plain that implied malice aforethought
does not exist in the perpetrator only in relation to an intended
victim. Recklessness need not be cognizant of the identity of a
victim or even of his existence.”].) “There is no requirement the
defendant specifically know of the existence of each victim.”
(Taylor, at p. 868; see, e.g., ibid. [“if a gunman simply walked
down the hall of an apartment building and fired through the
closed doors, he would be liable for the murder of all the victims
struck by his bullets—including … an infant concealed by the bed
covers”].) Thus, Larrimore is guilty of aiding and abetting
implied malice murder if he knew the shooter intended to shoot
at some person and Larrimore intended to aid in that shooting.
15
As to Kaitlyn’s shooting, there is substantial evidence
Larrimore knew the shooter intended to shoot at rival gang
members, and Larrimore intended to aid in the shooting of rival
gang members. “ ‘[E]vidence 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. Manibusan (2013) 58 Cal.4th 40, 87.) “ ‘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 offense.’ ”
(People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).)
Larrimore’s conduct before the shooting, his presence at the
scene, and his conduct after the shooting all support the
conclusion that he aided and abetted the shooting.
First, the evidence shows that before the shooting,
Larrimore, a member of Black P. Stones, was driving to a Black
P. Stones meeting with Banks, another fellow gang member, and
potentially two other members. Around the time of the shooting,
an older gang member was pushing the gang to become more
violent, and one of the purposes of the meeting was to discipline
underperforming gang members. This evidence supports an
inference that as Larrimore drove to the gang meeting, there
were pressures on him and the other occupants of the car to
engage in more violent acts for the gang. (See Nguyen, supra,
61 Cal.4th at p. 1055 [“Although ‘gang evidence standing alone
cannot prove a defendant is an aider and abettor to a crime,’ ”
gang expert testimony can strengthen “inferences arising from
other evidence specific to [a] defendant’s role in the crime at
issue.”].)
16
On the way to the meeting, the front passenger pointed at
Avila’s blue car, and Larrimore said, “There you go, right there”
while the blue car was still on the street. The trial court as
factfinder could reasonably conclude from Larrimore’s statement
that he identified Avila’s car as a potential target. After making
the statement, Larrimore turned into an alley, retrieved a gun,
and then circled back to Avila’s car. By obtaining a gun,
Larrimore “considered the possibility of a violent encounter.”
(People v. Lee (2011) 51 Cal.4th 620, 636 [evidence defendant
brought a loaded handgun “makes it ‘ “reasonable to infer that he
considered the possibility of homicide from the outset” ’ ”].)
Larrimore then stopped close to Avila’s car and stared at Avila
while the front passenger pointed a gun at Avila and shouted,
“Fuck 18” and “Black P. Stones.” Because the passenger shouted,
“Fuck 18,” and did not expressly call out any specific person, the
court could infer that Larrimore knew his confederate planned to
confront Avila and any other 18th Street gang members in the
car.
Moreover, according to Thayer, Avila’s apartment building
was in Black P. Stones territory, and Black P. Stones and 18th
Street were extreme rivals, “to the point where [there were]
several shootings … between the two gangs.” If a Black P. Stones
member saw an 18th Street gang member in Black P. Stone
territory, it would provoke a reaction from the Black P. Stones
member. The “ultimate” reaction for the Black P. Stones gang
was a murder.
From this evidence, the court could conclude that
Larrimore knew his cohort planned to shoot rival gang members
in Avila’s car and intended to aid in the shooting. (Cf. Nguyen,
supra, 61 Cal.4th at pp. 1053-1055 [substantial evidence of direct
17
aiding and abetting express malice murder where, in the context
of an ongoing gang war, the car in which defendant was riding
pursued another car with rival gang members and a passenger in
defendant’s car fired at the other car].)
In addition to Larrimore’s conduct before the shooting,
Larrimore was present during every stage of the shooting. He
waited in the car, two feet away from Avila’s car, while his cohort
shot Avila twice, fired a third shot into Avila’s car, and then
returned to Larrimore’s car. Although Larrimore’s “ ‘ “mere
presence alone at the scene of the crime is not sufficient to make
[him] a participant,” ’ his presence in the car ‘ “may be [a]
circumstance[ ] that can be considered by the [trier of fact] with
the other evidence in passing on his guilt or innocence.” ’ ”
(Nguyen, supra, 61 Cal.4th at p. 1055.)
Larrimore’s conduct after the shooting further supports the
court’s finding that Larrimore directly aided and abetted the
shooting of Kaitlyn. After the shooting, Larrimore did nothing to
help Kaitlyn, who was lying on the ground next to Avila’s car,
and instead fled the scene with the shooter. (People v. Lara
(2017) 9 Cal.App.5th 296, 322 [flight is relevant to whether a
defendant aided and abetted the commission of the crime]; see
also People v. Bonilla (2007) 41 Cal.4th 313, 329 [flight and
failure to call for assistance may imply consciousness of guilt].)
Larrimore also spoke about the crime the next day and did not
express any remorse or surprise about the shooting in general.
Therefore, considering Larrimore’s conduct all together, there is
substantial evidence that he directly aided and abetting the
second degree murder of Kaitlyn.
Larrimore exclusively relies on Reyes to argue the evidence
was insufficient to support the superior court’s finding. His
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reliance on that case is misplaced. In Reyes, the defendant
appealed the superior court’s denial of his section 1172.6 petition
as to his second degree murder conviction. (Reyes, supra,
14 Cal.5th at p. 984.) It was undisputed that the defendant was
not the shooter. Rather, he had joined other fellow gang
members on bikes as they chased a car; another gang member
shot the car’s driver. (Id. at pp. 984-985.) The Supreme Court
determined there was insufficient evidence on a direct perpetrator
theory to support the trial court’s conclusion that the defendant
was guilty of implied malice murder, because the defendant’s acts
of bicycling into rival territory and chasing after the victim’s car
with fellow gang members were “too attenuated in the chain of
events to have proximately caused the killing.” (Id. at p. 989.)
However, as to the direct aiding and abetting theory, the
Supreme Court determined the trial court had misunderstood the
legal requirements of direct aiding and abetting implied malice
murder. The Supreme Court held the trial court “should have
asked whether [the defendant] knew that [the shooter] intended
to shoot at the victim, intended to aid him in the shooting, knew
that the shooting was dangerous to life, and acted in conscious
regard for life.” (Reyes, supra, 14 Cal.5th at p. 992.) The
Supreme Court remanded the matter for the trial court to
properly consider whether the defendant was guilty under this
theory, and “express[ed] no view on the merits of [the
defendant’s] resentencing petition under a proper application of
the elements of implied malice murder on a direct aiding and
abetting theory.” (Id. at p. 992.) Accordingly, Reyes does not
speak to the issue before us, which is whether there is sufficient
evidence to support implied malice murder under a direct aiding
and abetting theory.
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DISPOSITION
The judgment is affirmed.
STONE, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
20