Filed 9/29/26 P. v. Velasquez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B346680

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA415136)
v.

DANIEL VELASQUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
John Steinberg, 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, Scott A. Taryle and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
 INTRODUCTION

In 2013, appellant Daniel Velasquez was involved in a
shooting against a rival gang that resulted in the death of
Gerardo Lopez and the nonfatal injury of Bobby Rogers. After
Velasquez and the shooter (codefendant Juan Loera) were both
charged with murder and attempted murder, Velasquez pleaded
no contest to voluntary manslaughter and attempted murder. In
2021, Velasquez filed a petition for resentencing under former
Penal Code section 1170.95 (now section 1172.6).1 After an
evidentiary hearing, the superior court denied the petition,
finding beyond a reasonable doubt that Velasquez is guilty of
murder under aiding and abetting as well as implied malice
theories of liability, and that he is guilty of attempted murder as
an aider and abettor. Velasquez contends the superior court’s
findings are not supported by substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Crime
The following facts are taken from Velasquez and Loera’s
preliminary hearing. The superior court relied on the
preliminary hearing testimony in finding Velasquez guilty of
murder and attempted murder under currently valid theories.

1. Testimony of Witness Catrina Wisner
On July 13, 2013, at around 9:30 p.m., Wisner called 911
from her second-floor apartment after hearing “many gunshots.”
Immediately after hearing the gunshots, Wisner saw at least one

1 Undesignated statutory references are to the Penal Code.

2
male, who appeared to be Latino, running to a car. The car was
on Long Beach Avenue between 52nd and 53rd Street in Los
Angeles. The man got into the backseat of the car, and the car
sped off northbound.

2. Testimony of Witness Carlos Lopez2
At the time of the shooting, Carlos was with his daughter
at a child’s party on 53rd Street and Long Beach Avenue. The
party was held between two buildings at the Pueblo Del Rio
apartment complex. From the party, Carlos could see the
parking lot at 53rd Street and Long Beach Avenue. In the
parking lot, Carlos saw a young Latino man exit a burgundy
sedan. The sedan stayed parked as the young man walked
towards the party. The young man pulled out a gun and started
shooting toward the party. Carlos identified the shooter as
Velasquez’s codefendant, Loera.
Carlos did not see anyone get shot at the party, but he saw
Lopez’s child screaming, from which he inferred that Lopez had
been shot. Two days after the party, Carlos saw Rogers, an
African American man who was also at the party, and learned
that Rogers had also been shot at the party.

3. Testimony of Officer Joel Ruiz
Officer Joel Ruiz of the Los Angeles Police Department
testified that he previously had personal contact with Velasquez.
In 2007, Ruiz detained Velasquez, along with several 38th Street
gang members, and he served Velasquez with a gang injunction.
Velasquez told Officer Ruiz he was a member of the 38th Street
gang. Around 2008 or 2009, Ruiz saw gang tattoos on Velasquez,

2 Because Carlos Lopez has the same last name as the
homicide victim, we refer to him by his first name.

3
including a large “3” on his right arm and an “8” on his left arm.
In 2013, Ruiz saw Velasquez enter the driver’s seat of a maroon
car and drive it.

4. Testimony of Detective David Torres
Detective David Torres of the Los Angeles Police
Department was assigned to investigate the homicide of Lopez.
Torres interviewed codefendant Loera, who admitted he was the
shooter.
Torres also interviewed Velasquez, who admitted to owning
the burgundy car observed during the shooting. Velasquez also
admitted that he was the only person who drives that car, that he
drove the car to the shooting, and that he drove the car away
from the shooting because he could not leave a fellow gang
member behind. Velasquez explained the other gang members
were his responsibility. According to Velasquez, before the
passengers got out of the car, they saw several African American
people, and they told Velasquez they wanted him to stop the car,
so he stopped. When the passengers got back in the car, someone
in the car stated that they “got a pepto,” which is a derogatory
term for Pueblo Bishop gang members.3
Velasquez was surprised when Detective Torres told him
that the homicide victim had a Latino name (Gerardo Lopez).

3 The testimony at the preliminary hearing was inconsistent
regarding how many people exited Velasquez’s car. Some
witnesses suggested that several gang members exited
Velasquez’s car then reentered it after the shooting, whereas
other witnesses stated that only Loera exited then reentered the
car. This inconsistency has no bearing on our analysis, and the
preliminary hearing testimony is consistent that Loera was the
sole shooter.

4
Velasquez believed there were only African American people at
the party. Velasquez explained there was a racial divide among
the warring gangs of 38th Street and Pueblo Bishop. The
attempted murder victim, Rogers, was affiliated with the Pueblo
Bishop gang.
Velasquez and Detective Torres also discussed a young man
named Sergio Cuevas, who was a victim of a previous shooting in
38th Street gang territory at Ross Snyder Park allegedly
perpetrated by individuals of African American descent.

5. Testimony of Officer Bryan Schilling
Officer Bryan Schilling of the Los Angeles Police
Department offered testimony regarding the gangs involved in
the shooting. At the time of the preliminary hearing, he was
assigned to monitor the 38th Street gang. The gang used Ross
Snyder Park as its main hangout, and feuded with other gangs,
including the Pueblos, also known as the Pueblo Bishop Bloods.
There had been multiple shootings and homicides during the feud
between the 38th Street and Pueblo Bishop gangs over a number
of years. Officer Schilling had numerous prior contacts with the
Pueblo Bishop gang at the Pueblo Del Rio housing complex.
Officer Schilling testified it is very uncommon to see 38th
Street gang members inside the Pueblo Del Rio housing complex
because that is the territory of their rival gang. He opined there
was no reason for 38th Street members to be at that complex
unless it was to “do something” in relationship to the gang
rivalry.4 38th Street gang members risked their own safety

4 Officer Schilling stated: “[T]here is no reason for 38th
Street to even cross over onto Long Beach and be between those
blocks, let alone stop the car right there. It’s a rival gang. If you
are stopping there, you are there to do something.”

5
merely by being there. He noted there is limited vehicle access
into the housing complex.
In response to a hypothetical consistent with the facts of
this case, Officer Schilling opined the driver would earn respect
from his gang by taking the shooter to commit the crimes, “[a]nd
like the shooter, [the driver would be] willing to put his life to go
to jail for the benefit of the gang [and] for recognition for the
gang.” Officer Schilling further opined there could be
repercussions against the shooter if the shooter did not inform
the other 38th Street gang members in the car of the shooter’s
plan, even if the crime committed is acceptable within the gang.
When asked whether retaliation is expected by 38th Street
members if Pueblo gang members had committed a shooting
against 38th Street inside Ross Snyder Park (38th Street gang
territory), Officer Schilling answered “Yes.”

B. Velasquez’s Plea Agreement and Sentence
In 2014, as relevant here, the Los Angeles County District
Attorney filed an information charging Velasquez and Loera with
murder (§ 187, subd. (a)) and attempted murder (§§ 187,
subd. (a), 664).5
In 2015, Velasquez pleaded no contest to attempted murder
and voluntary manslaughter.6 Velasquez admitted that a
principal personally and intentionally discharged a firearm in the

5 The information is not contained in the current appellate
record. On our own motion, we take judicial notice of the record
in Loera’s direct appeal (case No. B263932), which contains the
information. (Evid. Code, §§ 452, subd. (d), 459.)
6 Before Velasquez’s plea, the court ordered the information
amended by interlineation to add the voluntary manslaughter
count.

6
commission of the attempted murder, and he admitted the
offense was committed for the benefit of a criminal street gang.
(§ 12022.53, subds. (c) & (e).) He also admitted that he
personally inflicted great bodily injury on Rogers in the
commission of the attempted murder. (§ 12022.7, subd. (a).) The
trial court sentenced him to 34 years in state prison.

C. Section 1172.6 Proceedings
Velasquez filed a section 1172.6 petition. The People
conceded he made a prima facie case for relief, but opposed his
petition arguing that Velasquez is guilty of murder under direct
aider and abettor and implied malice theories, and guilty of
attempted murder as a direct aider and abettor. The prosecution
included various exhibits with its opposition, including the
transcript of Velasquez and Loera’s preliminary hearing.
Velasquez did not submit any evidence.
In March 2025, the superior court held an evidentiary
hearing under section 1172.6, subdivision (d). The court
considered the parties’ briefs, as well as the preliminary hearing
transcript, and heard arguments from the parties.
In May 2025, the court issued an order denying the
petition. Based on the preliminary hearing testimony, the court
concluded Velasquez was guilty beyond a reasonable doubt of
murder and attempted murder under currently valid theories.
The court found Velasquez was guilty of murder because he aided
and abetted the shooter while harboring the intent to kill. More
specifically, the court found Velasquez (1) aided the commission
of Lopez’s murder by driving his fellow gang members, including
the shooter, into rival gang territory; (2) knew of the shooter’s
unlawful purpose to commit murder; and (3) intended to facilitate
the murder while sharing the shooter’s intent to kill. The court
alternatively concluded Velasquez was guilty of murder under a

7
currently valid implied malice theory. In particular, the court
found that by driving his car into rival gang territory, then
complying with the shooter’s request for him to stop the car,
Velasquez engaged in an act dangerous to human life, was aware
of the danger, and consciously disregarded it.
The court also found Velasquez was guilty of attempted
murder under an aiding and abetting theory of liability. The
court explained Velasquez drove the shooter into rival gang
territory, knew of the shooter’s intent to kill, and intended to
facilitate the intended murder of Rogers.
Velasquez timely appealed.

DISCUSSION

A. Governing Law and Standard of Review
Effective 2019, the Legislature, through Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015), amended
section 188 to eliminate the natural and probable consequences
doctrine as it applies to murder and to require, with certain
exceptions under the felony murder rule, that a defendant act
with malice to be convicted of murder. (§ 188, subd. (a)(3).)
Effective 2022, through Senate Bill No. 775, the Legislature
amended section 1172.6 to apply to persons convicted of
attempted murder under the natural and probable consequences
doctrine, as well as individuals convicted of manslaughter.
(§ 1172.6, subd. (a).)7

7 “When the Legislature added manslaughter to the covered
crimes as part of Senate Bill No. 775[], it did so out of concern
that some defendants may have pled guilty to voluntary
manslaughter before 2019 to avoid being convicted of a charged

8
 Upon receipt of a facially sufficient section 1172.6 petition,
the superior court “shall appoint counsel” for petitioner if
requested (id., subd. (b)(3)), then the court assesses whether the
petitioner has made a prima facie showing he is eligible for relief.
(Id., subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 957.) If so,
the court must issue an order to show cause and hold an
evidentiary hearing at which the prosecution bears the burden to
prove, beyond a reasonable doubt, that the petitioner is guilty of
murder or attempted murder under a currently valid theory.
(§ 1172.6, subds. (c) & (d).) At the evidentiary hearing, the court
may consider evidence “previously admitted at any prior hearing
or trial that is admissible under current law.” (§ 1172.6,
subd. (d).) The court may rely on preliminary hearing evidence,
but it cannot consider hearsay evidence that was admitted at a
preliminary hearing under section 872, subdivision (b) unless
that evidence is admissible under another exception to the
hearsay rule. (§ 1172.6, subd. (d)(3); People v. Davenport (2023)
95 Cal.App.5th 1150, 1156.)8 The petitioner and the prosecutor

murder under one of the theories eliminated or narrowed by
Senate Bill No. 1437 in 2019.” (People v. Gaillard (2024)
99 Cal.App.5th 1206, 1213, fn. 4, citing Assem. Com. on Public
Safety, Analysis of Sen. Bill No. 775 (2021–2022 Reg. Sess.) as
amended July 6, 2021, p. 7 [“a petitioner may have pled guilty or
no contest to voluntary manslaughter in order to forego the risk
of being convicted of murder or attempted murder under one of
these subsequently abrogated theories of liability”].)
8 Section 872, subdivision (b) allows a qualified law
enforcement officer to relate hearsay statements when testifying
at a preliminary hearing, “[n]otwithstanding section 1200 of the
Evidence Code.” Velasquez did not argue in the superior court,

9
may also offer new or additional evidence “ ‘ “to meet their
respective burdens.” ’ ” (Id. at p. 1161, fn. 6.)
In assessing Velasquez’s appeal from an evidentiary
hearing, we review the record in the light most favorable to the
order below to determine if there is substantial evidence from
which a rational trier of fact could find beyond a reasonable doubt
that he is guilty of murder or attempted murder under current
law. (People v. Reyes (2023) 14 Cal.5th 981, 988.) Substantial
evidence includes circumstantial evidence and reasonable
inferences based on that evidence. (People v. Navarro (2021)
12 Cal.5th 285, 339.) We “presume in support of the judgment
the existence of every fact that the trier of fact could reasonably
deduce from the evidence.” (People v. Medina (2009) 46 Cal.4th
913, 919.) Accordingly, we do not substitute our own evaluation
of a witness’s credibility for that of the finder of fact. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.) “Because we must draw all
inferences in support of the judgment, [a] defendant ‘bears an
enormous burden’ when challenging the sufficiency of the
evidence.” (People v. Vasco (2005) 131 Cal.App.4th 137, 161.)

B. The Testimony from Velasquez’s Preliminary Hearing
Provides Substantial Evidence Supporting the Superior
Court’s Findings That Velasquez Is Guilty of Attempted
Murder Under Current Law as a Direct Aider and Abettor
Who Harbored the Intent To Kill
“Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward

nor does he argue on appeal, that any of the preliminary hearing
testimony the superior court relied on to deny him section 1172.6
was inadmissible hearsay.

10
accomplishing the intended killing.” (People v. Lee (2003)
31 Cal.4th 613, 623.) “Direct aiding and abetting remains a valid
theory of attempted murder after the enactment of Senate Bill
No. 775.” (People v. Coley (2022) 77 Cal.App.5th 539, 548.) “ ‘[T]o
be guilty of attempted murder as an aider and abettor, a person
must give aid or encouragement with knowledge of the direct
perpetrator’s intent to kill and with the purpose of facilitating the
direct perpetrator’s accomplishment of the intended killing—
which means that the person guilty of attempted murder as an
aider and abettor must intend to kill.’ ” (People v. Nguyen (2015)
61 Cal.4th 1015, 1054 (Nguyen).) “Direct evidence of intent to kill
is rare, and ordinarily the intent to kill must be inferred from the
statements and actions of the defendant and the circumstances
surrounding the crime.” (People v. Canizales (2019) 7 Cal.5th
591, 602.) Motive is often probative of intent to kill. (People v.
Smith (2005) 37 Cal.4th 733, 741.) Several factors may be
relevant in determining whether an individual acted as an aider
and abettor, including presence at the scene of the crime,
relationship to the direct perpetrator, and the individual’s
conduct before and after the offense. (Nguyen, at p. 1054.)
The preliminary hearing testimony provides substantial
evidence that Velasquez drove fellow gang members into rival
gang territory, parked his car near a rival gang hangout, waited
as codefendant Loera left the car and committed the attempted
murder of Rogers, then drove away once Loera returned.
Velasquez told Officer Torres that the other gang members,
including Loera, told Velasquez they wanted him to stop the car
after they saw several African American people at the rival gang
hangout. Velasquez said there was a racial divide among the
38th Street and Pueblo Bishop warring gangs. When Loera got

11
back in the car, he stated he had “got a pepto,” a derogatory term
for a Pueblo Bishop gang member. Rogers was affiliated with the
Pueblo Bishop gang. The People’s gang expert Schilling opined
38th Street gang members had no reason to risk their safety and
drive to the Pueblo Del Rio housing complex other than to “do
something” relating to the gang rivalry.9 Schilling further
opined, in response to a hypothetical consistent with the facts of
this case, that there could be repercussions against the shooter if
he did not inform the others in the car of his plan to shoot before
exiting the car to do so. This evidence suggests Velasquez had
knowledge of the shooter’s plan.
We conclude the facts surrounding Velasquez’s
participation in the shooting, coupled with the gang expert
testimony, provide sufficient circumstantial evidence of motive,
aiding, abetting, knowledge, and intent to kill supporting the
superior court’s finding Velasquez is guilty of attempted murder
under a currently valid theory. (See Nguyen, supra, 61 Cal.4th at
p. 1054 [relevant factors in determining whether an individual

9 The Attorney General argues the preliminary hearing
evidence supports the inference that the shooting by Loera was in
retaliation for the death of Sergio Cuevas. But the superior court
concluded the preliminary hearing transcript “does not
sufficiently support an assertion that [Velasquez] had knowledge
of Cuevas’[s] murder and that [Velasquez] and his fellow gang
members intended to kill because they were seeking revenge
against the Pueblos for Cuevas’[s] murder . . . . In any event,
there is still evidence that [Velasquez] intended to kill . . . .”
Because other evidence supports the superior court’s findings, we
need not determine whether the preliminary hearing also
demonstrates the shooting was in retaliation for the death of
Cuevas.

12
acted as an aider and abettor include presence at the crime scene,
relationship to the direct perpetrator, and conduct before and
after the offense]; People v. Ramirez (2022) 13 Cal.5th 997, 1095
(Ramirez) [evidence of gang affiliation, including membership,
territory, beliefs and practices, and rivalries, is often relevant to
prove issues concerning guilt such as motive and intent]; Nguyen,
at pp. 1053-1055 [substantial evidence supported finding of direct
aiding and abetting express malice attempted murder where, in
the context of an ongoing gang rivalry, the car in which
defendant was riding pursued another car with rival gang
members, and passengers in defendant’s car fired at the other
car].)
Velasquez raises several challenges to the superior court’s
use of gang evidence to deny him section 1172.6 relief. We reject
these contentions and conclude the court’s use of gang evidence
was proper.
Velasquez argues reversal is required because “gang
evidence standing alone cannot prove a defendant is an aider and
abettor to a crime.” (People v. Guillen (2014) 227 Cal.App.4th
934, 992.) But here the superior court did not merely rely on
gang evidence to find Velasquez directly aided and abetted Loera
and had the intent to kill. The court also relied on Velasquez’s
actions, which provided additional circumstantial evidence that
he knew Loera intended to kill rival gang members and that he
aided Loera in the shooting. The superior court could reasonably
rely on the circumstances surrounding Velasquez’s actions (see
Nguyen, supra, 61 Cal.4th at p. 1054), coupled with the gang
testimony (see Ramirez, supra, 13 Cal.5th at p. 1095), to infer his
intent to aid and abet Loera in the attempted murder of Rogers.

13
 We reject Velasquez’s assertion the superior court was
prohibited under Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d
1041 (Kennedy), a federal case not involving section 1172.6, from
considering Officer Schilling’s gang testimony in assessing
Velasquez’s section 1172.6 eligibility. Kennedy states: “Evidence
of gang membership may not be introduced . . . to prove intent or
culpability.” (Id. at p. 1055.) Kennedy is not controlling. The
California Supreme Court has repeatedly held that “[t]he People
are generally entitled to introduce evidence of a defendant’s gang
affiliation and activity if it is relevant to the charged offense.”
(People v. Chhoun (2021) 11 Cal.5th 1, 31 (Chhoun).) Such
evidence is relevant because it “ ‘can help prove identity, motive,
modus operandi, specific intent, means of applying force or fear,
or other issues pertinent to guilt of the charged crime.’ ” (Ibid,;
accord, Ramirez, supra, 13 Cal.5th at p. 1095.)
Kennedy is also distinguishable. That federal habeas
corpus proceeding arose after Kennedy was tried twice in state
court for selling .08 grams of a substance that looked like an
illegal drug but was described only as an “off-white, rock-like
substance” to an undercover police officer. (Kennedy, supra,
379 F.3d at pp. 1042-1044.) Evidence of Kennedy’s gang
membership had been excluded from his first trial, which ended
in a hung jury. (Id. at pp. 1042-1043.) Before his second trial,
Kennedy requested a complete transcript of his first trial, but the
trial court denied his request, and instead provided only the
witness testimony, rather than the part of the transcript
containing the parties’ motions and the court’s rulings. (Id. at
pp. 1042-1044.) Aware that Kennedy’s new counsel did not have
the complete transcript of the first trial, the People introduced
evidence of Kennedy’s gang involvement at the second trial, and

14
the jury returned a guilty verdict. (Id. at p. 1043.) The gang
evidence was apparently excluded from the first trial because it
was irrelevant to the crime for which Kennedy was charged and
convicted, and it was introduced by the People at the second trial
to suggest that Kennedy might be involved in a gang. (See id. at
p. 1044.) The Ninth Circuit granted habeas relief, concluding the
trial court improperly withheld the complete transcript of the
first trial from Kennedy’s new counsel and that the error
prejudiced Kennedy. (Id. at pp. 1057-1058.)
Unlike in Kennedy, where the gang evidence was not
relevant to whether the habeas petitioner was guilty of selling
drugs, here, the gang evidence was directly relevant to whether
Velasquez was guilty of attempted murder under a currently
valid theory. (See Ramirez, supra, 13 Cal.5th at p. 1095
[evidence of gang affiliation, territory, practices, beliefs, and
rivalries, is often relevant to prove motive and intent]; People v.
Didyavong (2023) 90 Cal.App.5th 85, 98 (Didyavong) [substantial
evidence supporting superior court’s finding that petitioner was
ineligible for section 1172.6 relief included expert testimony on
gang culture and practices]; People v. Vargas (2022)
84 Cal.App.5th 943, 954 (Vargas) [superior court’s section 1172.6
ineligibility finding was supported by substantial evidence,
including gang association as circumstantial proof of aiding and
abetting].) Kennedy therefore does not undermine our conclusion
that the superior court here was authorized to rely on Officer
Schilling’s gang testimony in assessing whether Velasquez
harbored the intent to kill.
Nor are we persuaded by Velasquez’s argument that
reversal is warranted under Mitchell v. Prunty (9th Cir. 1997)
107 F.3d 1337 (Mitchell), overruled on another ground in

15
Santamaria v Horsley (9th Cir. 1998) 133 F.3d 1242, 1248. In
Mitchell, the defendant, a gang member, was involved in a
fistfight with several rival gang members. (Id. at p. 1338.) After
the fistfight ended, Mitchell was in a car with his fellow gang
members. (Ibid.) Someone in the car fired a gun, injuring Jerry
Knox, a rival gang member with whom Mitchell’s gang had just
fought. (Ibid.) As the conflict continued, Knox suffered another
gunshot injury, and the car containing Mitchell ran over and
killed him. (Id. at p. 1339.)10 The Ninth Circuit held there was
insufficient evidence to support Mitchell’s conviction for murder
as an aider and abettor because the jury found Mitchell had not
driven the car responsible for Knox’s death, and there was no
other evidence that Mitchell encouraged or assisted either the
shootings or the fatal car collision. (Id. at pp. 1340-1343.) Here,
by contrast, there is ample evidence supporting the superior
court’s finding Velasquez aided and abetted Loera and also
harbored the intent to kill. Velasquez drove Loera into rival gang
territory, stopped his car near a rival gang hangout, waited as
Loera shot Rogers (and killed Lopez), then Velasquez drove Loera
away after the shooting. As stated, this evidence supports the
superior court’s finding that Velasquez knew of Loera’s intent to
kill, shared that intent, and directly aided and abetted Loera’s
attempted murder of Rogers.
We also reject Velasquez’s contention, citing People v. Vang
(2011) 52 Cal.4th 1038, 1047-1048, that the superior court erred

10 At Mitchell’s trial, a medical examiner testified Knox’s
gunshot wounds would have been nonfatal, and that the injury to
his chest from being run over would have caused death within
one or two minutes even if it had been his only injury. (Mitchell,
supra, 107 F.3d at p. 1339.)

16
by relying on Officer Schilling’s testimony because a gang expert
may not offer an opinion on the defendant’s guilt. Officer
Schilling did not offer testimony opining that Velasquez was
guilty of murder or attempted murder under current law. He
offered testimony and answered hypothetical questions regarding
gang affiliation and practices, which the superior court
permissibly used in making its independent determination that
Velasquez is ineligible for section 1172.6 relief. (See Ramirez,
supra, 13 Cal.5th at p. 1095 [gang evidence is relevant to prove
intent]; Didyavong, supra, 90 Cal.App.5th at p. 98 [gang expert
testimony supported superior court’s section 1172.6 ineligibility
finding].)
In sum, the preliminary hearing evidence, which included
the testimony describing the circumstances of the shooting as
well as the gang testimony, reasonably supports the superior
court’s finding that Velasquez is guilty of attempted murder
under current law.

C. The Preliminary Hearing Testimony Also Provides
Substantial Evidence Supporting the Superior Court’s
Finding That Velasquez Is Guilty of Murder Under Current
Law as a Direct Aider and Abettor Who Harbored the Intent
To Kill
Direct aiding and abetting remains a viable theory of
murder liability because a direct aider and abettor to murder
must possess malice aforethought. (People v. Gentile (2020)
10 Cal.5th 830, 848, superseded by statute on another ground as
stated in People v. Wilson (2023) 14 Cal.5th 839, 869.) Malice
may be express or implied. (§ 188, subd. (a).) “Malice is express
when there is manifested a deliberate intention” to unlawfully

17
kill. (§ 188, subd. (a)(1).) “The primary difference between
express malice and implied malice is that the former requires an
intent to kill but the latter does not.” (People v. Soto (2018)
4 Cal.5th 968, 976.) A defendant is liable as a direct aider and
abettor of express malice murder if the defendant aided or
encouraged the murder with knowledge of the perpetrator’s
unlawful purpose and with the intent or purpose of committing,
encouraging, or facilitating the commission of the murder. (In re
Lopez (2023) 14 Cal.5th 562, 579.)
The same facts that support the superior court’s attempted
murder finding also support the court’s finding that Velasquez
directly aided and abetted Loera in the murder of Lopez,
especially because the murder of Lopez and attempted murder of
Rogers were both accomplished through the same shooting.
Velasquez drove his fellow gang members into rival gang
territory then complied with their request to stop the car when
they saw several African Americans. Velasquez waited as Loera
shot victims Lopez and Rogers, then drove away once Loera
returned. Officer Schilling opined 38th Street gang members had
no reason to endanger themselves by driving to the Pueblo Del
Rio housing complex except to engage in conduct relating to the
gang rivalry. He further opined, in response to a hypothetical
consistent with the facts of this case, that the shooter could face
repercussions from his own gang if he did not inform the others
in the car of his plan to shoot before doing so. The circumstantial
evidence surrounding Velasquez’s participation in the shooting,
coupled with the gang testimony, reasonably support the superior
court’s finding that he is guilty of directly aiding and abetting
express malice murder. (See Nguyen, supra, 61 Cal.4th at
pp. 1053-1055 [substantial evidence supported finding that

18
defendant aided and abetted the shooter while harboring the
intent to kill where, in the context of a gang rivalry, the car in
which the defendant was riding pursued another car with rival
gang members, and passengers in defendant’s car fired at the
other car]; Ramirez, supra, 13 Cal.5th at p. 1095 [gang evidence
is often relevant to prove intent]; Didyavong, supra,
90 Cal.App.5th at p. 98 [gang expert testimony may be used to
prove that a section 1172.6 petitioner is guilty of murder under a
currently valid theory]; Vargas, supra, 84 Cal.App.5th at p. 954
[gang association may be relevant in assessing whether a
petitioner is ineligible for section 1172.6 relief as an aider and
abettor to murder].)11

DISPOSITION

The order denying Velasquez’s section 1172.6 petition is
affirmed.

MARTINEZ, P. J.

We concur:

SEGAL, J. STONE, J.

11 Having concluded substantial evidence supports the trial
court’s finding that Velasquez is guilty of aiding and abetting
express malice murder, we need not also address whether
substantial evidence supports the court’s alternative finding
Velasquez is guilty of implied malice murder.

19