P. v. Avila 2/8/11 CA2/7

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B219748

Case Date: 05/19/2011

Preview:Filed 2/8/11 P. v. Avila CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO AVILA et al., Defendants and Appellants.

B219748 (Los Angeles County Super. Ct. No. VA 102440)

APPEALS from judgments of the Superior Court of Los Angeles County. Dewey L. Falcone, Judge. Reversed in part; affirmed in part. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Jose Alberto Avila. Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Avila. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant brothers Jose Avila and Jonathan Avila timely appealed from their convictions on several counts. Jose was convicted of first degree murder on count 1 and assault with a deadly weapon on counts 7 (a car) and 8 (a knife). The jury acquitted Jose on counts 3 and 4 (attempted murder) and count 6 (assault with a deadly weapon, a car). The jury found gang and personal deadly weapon use allegations were true. The court found Jose had suffered five prior prison terms. The court sentenced Jose to a total of 36 years to life. Jonathan was convicted of first degree murder on count 1, attempted murder on counts 3 and 4, and assault with a deadly weapon (a knife) on count 8. The jury found the attempted murders were not willful, deliberate and premeditated. The jury found the gang, deadly weapon and great bodily injury allegations were true. The court sentenced Jonathan to a total of 81 years to life. The convictions all stemmed from a fight between defendants and six teenagers. Defendants raise several claims mainly of insufficient evidence and instructional errors. We reverse Joses murder conviction on count 1 and remand for retrial on the premeditation and deliberation element (or resentencing as second degree murder); in all other respects, the judgments are affirmed. FACTUAL BACKGROUND I. Prosecution Case A. The Fight

On September 1, 2007, at about 11:30 p.m., Jonathan Sedano, Fernando Gutierrez, Fernando Hernandez, Miguel Lorenzana, Hernan Partida and Manuel Pasqual were at a party on Deeble Street in South Gate. The teenagers had graduated from high school in 2007 and played football together. Pasqual had driven the teenagers to the party in his white Impala. About 30 minutes to an hour later, the police shut down the party, and the host asked everyone to leave. The teenagers went to Pasquals car which was parked in front of the house. Pasqual was sitting in the drivers seat, and everyone else was standing 2

outside the car. The teenagers were talking about how to get home or what they were going to do next. Andy Reyes was talking to the teenagers with his back to the street. Sedano was not drunk; he had one drink at the party. None of the teenagers had a weapon or was a member of a gang. Cesar Cabrera, who was at the corner of Deeble and Southern, saw a brown twodoor car drive up; Jose and Jonathan were in the brown car. The car turned onto Deeble, and Jose, the driver, yelled out, ",,Compton Varrio Tortilla Flats, and this is our neighborhood." Cabrera had seen that gangs graffiti in the area. The car stopped in the middle of the street near the teenagers. Lorenzana saw Jonathan exit the car. Sedano heard Jonathan ask, ",,Wheres the party at?" Sedano did not say anything in response. Lorenzana did not hear Sedano respond to Jonathan; before Sedano had a chance to say anything, Jonathan threw a punch. Hernandez and Partida heard Jonathan ask where the party was at and then hit Sedano. Hernandez stated he heard Sedano say something to the effect that they did not know where the party was at. At the preliminary hearing, Hernandez stated he heard Sedano say, ",,Hit up somebody else." Partida heard Sedano respond by saying, ",,Who are you." Sedano turned around and saw Jonathan swinging his fist at him. Jonathan punched the left side of Sedanos head. Sedano and Partida recognized Jonathan from school. Sedano swung at Jonathan, and Jonathan "whip[ped] out," a knife and swung it at Sedano. The knife was curved and had a five or six inch long blade. Hernandez saw Jonathan pull a knife and stab Sedano in the stomach. Gutierrez helped Sedano fight Jonathan. Jonathan walked toward Hernandez carrying the knife. Hernandez backed away. Jonathan then approached Hernandezs friends. Jose exited his car and said, ",,You mess with my homie?" Jose claimed his gang by saying, ",,T Flats." Jose lifted his shirt, revealing gang tattoos on his stomach. Jose also had a tattoo on the back of his head. Jose approached Gutierrez and Hernandez in an

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aggressive manner. Reyes saw Jose swinging at Gutierrez. Hernandez, Gutierrez and Sedano fought with Jose. Cabrera saw Jose approach the teenagers, he did not see Jonathan. Cabrera approached Jose and told Jose that he should leave the teenagers alone as they were younger than him (Jose). Hernandez and Cabrera heard Jose say, ",,Bring my heat, bring my heat"; they understood Jose to be referring to a gun. Partida heard Jose tell Jonathan to get Joses gun. Partida believed that at that point, Jonathan and Jose were outnumbered and losing badly. Reyes heard Jose yell, ",,You know what? Get the gun." Jonathan stabbed Cabrera in the neck. Jonathan ran to the passenger door of Joses car. Pasqual went to the car, pushed Jonathan away from it, and closed the door. Pasqual had his hand on the car door. Jonathan stabbed Pasqual three times in the stomach. Partida held Jonathan in a "bear hug," with Jonathans back to Partidas chest. Partida held Jonathans wrist of the hand with the knife. Jonathan, who resisted "a little," looked like he was "in a panic mode." Jonathan said, ",,Im sorry" several times. Partida told Jonathan, ",,You messed up" or ",,Whats done is done." Lorenzana saw Jonathan bleeding and believed Jonathan had cut himself. Pasqual walked to his Impala and fell. Partida saw Pasqual fall down, let Jonathan go, and ran toward Pasqual. The teenagers turned their attention to Pasqual. Jose and Jonathan ran to their car. Sedano and his friends surrounded the car and punched at Jose and Jonathan while they were seated in the car. Hernandez punched Jonathan a few times. Jonathan took the knife and stabbed upwards, stabbing Hernandez through his right arm. Cabrera put his hand on the gear box, which was on the steering column, so Jose and Jonathan could not leave. Jonathan tried to stab Cabreras hand. Cabrera let go, and Jose put the car in gear.

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B. After The Fight Jose drove the car forward at Hernandez, who had to move to avoid being hit. Jose put the car in reverse, and Sedano and Reyes had to move out of the way so they would not be hit by the car. Lorenzana pushed Sedano out of the way and had to move so they would not be hit. Jose then drove the car forward. Partida pulled up Pasqual, who was on the ground near the drivers door of the Impala. Partida noticed lights and heard an engine revving and the sound of a tire "peel." The car moved toward Partida and Pasqual and would have hit them if Partida had not moved. Jose collided with the Impala, near the drivers side door. Jose drove away. Reyes heard Cabrera say, ",,They stabbed me too." Gutierrez, Sedano and Hernandez ran after the car. Hernandez was able to get a partial license plate number; he gave the number to the police later. Sedano fell down on some grass. Sedano lifted up his shirt and saw he had been stabbed on the left side, above his waist and below his chest. Sedano was able to stick about two or three inches of two of his fingers in the wound. Partida and another man put Pasqual in the Impala to drive him to the hospital; they stopped near an auto parts store when they saw a police officer. The officer called for an ambulance. A man with a hat put Sedano in his car and drove Sedano to the hospital where Sedano had surgery and stayed for two and a half days. While at the hospital, Sedano gave the police a description of the assailants. Hernandez went to the hospital and received shots and stitches. At the time of trial, Cabrera had a scar on his neck from his wound, one of his nerves was damaged and part of his back was still numb. Pasqual died as a result of multiple sharp force injuries, which included: (1) a wound to the lower chest which was 15/16 of an inch in length and 4 and a half inches deep, penetrating his left lung and heart; (2) a wound to the lower chest which was 1/38 inches in length and 9/16 of an inch deep; (3) a wound to the lower chest which was 3/16 5

of an inch long and 1/8 of an inch deep; (4) a defensive wound to the right middle finger on the palm side of his hand which was 1/4 of an inch in length and 1/16 of an inch deep; and (5) a defensive wound to the left thumb. C. The Investigation Deputy sheriffs collected damaged car parts and blood evidence from the crime scene. Detective Steve Lankford interviewed some of the witnesses, and based on the partial license plate number, descriptions of the suspects and the car, Lankford determined Jose was a possible suspect. On September 2, Lankford went to Joses address, where a brown Buick Regal was parked. Car parts recovered from the crime scene matched the Buick. DNA evidence showed that blood stains found in the Buick matched blood belonging to some of the teenagers. Jose and Jonathan fled to Mexico where they were detained in December, deported to the United States, and taken into custody by the Sheriffs Department. D. Gang Evidence Los Angeles County Sheriff Detective Paul Merino had been part of a gang unit for nine years. Merino was part of a task force that focused on the Compton Varrio Tortilla Flats (Tortilla Flats) gang and had testified as an expert about that gang. At the time of the instant crimes, there were about 500 documented members and 200 non-documented members of Tortilla Flats. Documented members had been interviewed by officers in the field and included in a gang database. Increasingly, gang members disavow gang membership and do not get gang tattoos or have shaved heads because of state laws with enhanced penalties for gang crimes. Merino noted Tortilla Flats had several cliques and described its territory and rivals; Merino had identified Tortilla Flats members in South Gate. Murder, shootings, extortion, narcotics sales, vehicle thefts and firearms possession were the primary activities of Tortilla Flats and "every gang -- criminal gang." 6

Merino had investigated those types of crimes involving Tortilla Flats; over the past two years, Merino had investigated three or four murders committed by Tortilla Flats members. Certified court records showed that two Tortilla Flats members (Erick Yanez and Jesus Gallardo) had been convicted of robbery and possession of a firearm respectively. Merino described how a person would join the gang and what "wannabes" and "associates" were. "Respect" was important to Tortilla Flats members; respect was "everything" to a gang. Tortilla Flats "lives off" respect and puts fear in the neighborhood. With respect and fear, no one would testify against the gang or turn on them. If a gang member is disrespected, he would retaliate with violence. A gang would lose respect if its members did not stand up for themselves. Individuals expect other members to stand up for them. Given a hypothetical based on the facts of this case, Merino opined that such acts of violence benefitted or promoted Tortilla Flats. Announcing the name of the gang while driving to the crime scene and then repeatedly announcing the gang during the fight would promote the gang by showing they stabbed and killed somebody; it would create fear in the streets. In Merinos opinion, someone who was driving around yelling out their gang name was looking for a confrontation. Gang members typically announce who they are or ask, ",,Where you from" to see if anyone is going to challenge them. Merino had investigated "a lot" of crimes in which Tortilla Flats members had committed crimes against non-gang members. Non-gang members were easy targets who did not have weapons to retaliate. It was common for a Tortilla Flats member to commit a crime with someone who was not a known gang member. Merino knew Jose was a member of Tortilla Flats.

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II. Defense Case A. Jonathan's Defense Jonathan testified in his own defense. On the day of the crimes, Jonathan was at a family party in Whittier. Jonathan had a knife and cell phone. Jonathan found out about the party on Deeble from a friend named "George." Jonathan convinced Jose to drive him to the party on the condition Jonathan would find his own way home. Jonathan gave Jose directions to the party. When they arrived, Jonathan saw a lot of people outside a house and noticed a lot of traffic in the street. Jonathan believed the party was over and exited the car to see if there might be another party. Jonathan approached Sedano, who was with a group of about six people. Jonathan asked Sedano, ",,Do you know where the next party is at?" Sedano, responded, ",,Who the fuck are you?" Sedano had a "rude, aggressive attitude." Jonathan felt threatened by the way Sedano "came at" him and believed Sedano, who was bigger, was going to punch him so he punched Sedano. Sedano started hitting Jonathan. Jonathan saw two people coming toward him. Jonathan felt like six people were hitting him; he was hit "a lot." Jonathan "balled up" and started walking back to the car and said, ",,Stop, stop. Thats it." Jonathan pulled out his knife, thinking that if he showed it, then the other people would "back off." Jonathan showed the knife to Sedano. Initially, Jonathan did not open the knife. After "they" kept on approaching, Jonathan opened the knife. Jonathan covered his face with his left arm and swung the knife with his right arm. Jonathan made his way to the car. Jonathan heard Jose say something about his gang. Jonathan did not hear Jose say anything about a gun. Jonathan noticed his attackers back away. Jonathan ran to the car. When Jonathan got to the door, someone pushed him. Jonathan noticed other people approaching, pulled out the knife and started swinging it. Someone wrapped up Jonathan from behind. Jonathan saw blood and said, ",,Im sorry for what happened." 8

Jonathan fled the scene for his own safety and left the country because he was scared. Jonathan threw the knife away as he left the scene. Jonathan did not consider himself a gang member at the time; he knew Jose was a gang member. Jose was 11 years older. Jose put a tattoo on Jonathans back while they were in Mexico. Jonathan did not call 9-1-1 on his cell phone; he "must have dropped it" and did not have it. After Jonathan and Jose left the scene, Jonathan did not call the police to tell them he ",,got jumped by a bunch of guys." Jonathan usually carried a knife for protection; he used the knife for work. Jonathan had no reason to carry the knife with him to the family party. As Jonathan and Jose drove to the party, Jose did not yell out his gangs name. Jonathan was not going to walk away from Sedano, who had given him a "mouthful of attitude." Jonathan started the fight; he hit Sedano first. Sedano had insulted Jonathan. Jonathans agreement with Jose was that Jose was going to drop him off at the party if Jonathan had a ride home; Jonathan knew he had a ride home because his friend George had agreed to take him home. There was no need for Jose to wait around because Jonathan had a ride home. The front passenger door of the Buick was left open. Jonathan agreed that whoever left the door open was going to return soon and had exited the car in a hurry. Jonathan did not intend to go back to the car. Jonathan knew that stabbing a person in the stomach could kill that person and that waving a knife during a fight was dangerous. Jonathan did not realize he had stabbed Sedano; Jonathan stabbed Pasqual by accident; Jonathan did not remember stabbing Cabrera. The day after the fight, Jonathan went to a nephews birthday party in Yucaipa. Jonathan told Maricela, his godmother, who had cleaned his knife wound, that he had been in a fight. Jonathan said a "gang of football players" had attacked him; he denied telling Maricela that one of the players had stabbed him. 9

B. Jose's Defense Jose, who testified in his own defense, was a member of Tortilla Flats and had been convicted of multiple theft offenses, false imprisonment and possession of a firearm. At about 6 p.m., on September 1, Jose was at a party at his aunts house in Whittier. Jose drank about 12 beers at the party and half a bottle of hard liquor. Jose had been drinking since 9 or 10 in the morning. After Jonathan asked him several times for a ride to a party, Jose finally agreed to take him. Jose drove to South Gate. As he approached the party, Jose passed by a group of people on a corner and yelled his gang name out of his window and ",,Whats the Compton life like?" Jose was drunk and being a "smartass." Jose did not intend to intimidate the people on the corner. As Jose drove up Deeble, he saw a lot of people in the street. Jose parked behind a white Impala. Jose asked Jonathan if he was going to be all right. Jonathan responded, ",,Yeah, Im going to be cool." Jose gave Jonathan $20. Jonathan exited the car. Jose backed up in order to drive around the Impala. Jose saw Jonathan fighting "one-on-one" with a guy. A second person joined the fight against Jonathan. Jose jumped out of his car, took off his shirt, and said, "T Flats" or "Compton T Flats." Jose intended to fight with the guys and help out Jonathan. Jonathan was losing the fight and had "balled up." Jose took off his shirt and shouted out his gang name in order to intimidate everyone there and make them back up. Jose walked to the trunk of his car. There were two or three guys there. One of them told Jose, ",,Hey the problem aint with you." Jose responded, ",,What the [are you] fucking with me? . . . Thats my brother." The guy said, ",,Just get out of here." Jose and the guy cursed at each other. The guy approached Jose, and they started fighting. Jose could not remember who struck the first blow. Two other people also fought with Jose. Someone kicked Jose. Jose yelled to Jonathan to "get the heat." Jose yelled loudly because he wanted to scare everyone. Jose knew how to get himself out of sticky situations and how to 10

intimidate the people. Jose said to "get the heat" in order to intimidate the people he was fighting with and to make them back off. There was no gun in Joses car. The guys backed off, and Jose ran to his car. Jose did not see Jonathan with a knife, did not see him stab anybody and did not know Jonathan had a knife. Jose had never seen Jonathan carry a knife and did not know that Jonathan carried a knife for protection. When Jose entered the car, a guy reached in and tried to choke Jose. Jose pushed him off and tried to start the car. Jose turned the car on and was trying to put it into gear to drive away. The same guy reached in, and Jose fought with him. The guy let go, and Jose accelerated and put the car in reverse. Jose struck a light pole. Jose could not see because the guys arm was blocking his vision. Jose put the car in drive. Jose saw two guys by the trunk of the Impala. Jose did not try to hit them; he pulled to the left to avoid hitting them. Jose hit the door of the Impala. Jose did not see anyone jump out of the way. Jose drove away. Jose left for Mexico because he found out the police were looking for him. Jose did not call the police because he did not know what had happened and wanted to get his facts straight. Jose was confused about what had happened and was still confused about the whole situation at the time of trial. Jose was not acting as a representative of Tortilla Flats at any point that evening. C. Defense Gang Expert Dr. James Vigil was a professor at the University of California, Irvine who taught on the subject of gangs and urban youth. Dr. Vigil had developed a theoretical model explaining why youth join gangs. Gang members do leave gangs. Gangs engage in intimidation tactics usually directed at rival gangs, but sometimes at the general public. Vigil was familiar with Tortilla Flats. The primary activities of Tortilla Flats are drug sales and intimidation of other gangs in order to protect drug trafficking "turf." Types of intimidation used included verbal threats, showing of weapons, putting up 11

graffiti, and committing murder, attempted murder, robbery, carjacking, possession of a firearm, theft, and other offenses involving force or violence. Hypothetically, if a gang member went to a party, got involved in a fight, and while getting beat up, took off his shirt and displayed gang tattoos on his chest, that gang member was not necessarily acting in association with his gang. Hypothetically, if a gang member was acting in self defense, he might throw out his gang sign in an effort to keep his aggressor away. III. Rebuttal Maricela Pelayo was Jonathans godmother; Jose and Jonathan were her nephews. On September 2, Pelayo was at a lake in Yucaipa for a family picnic; Jonathan and Jose were there. Later on, at Pelayos house, she noticed a cut on Jonathans arm. Pelayo cleaned the cut. Jonathan told Pelayo that someone had stabbed him. Jonathan said he went to a party and football players were there, he got into a fight with them, and one of the players had a knife and stabbed him. Jonathan never said he stabbed himself. DISCUSSION I. Sufficiency of the Evidence A. Standard of Review Appellants raise several claims of insufficient evidence to support their convictions. "The standard of review is well established. The appellate court ,,"must review the whole 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 defendant guilty beyond a reasonable doubt." The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ",,isolated bits of evidence." The standard of review is the same in cases in which the People rely primarily upon circumstantial evidence. ,,"Although it is the duty of the jury to acquit a 12

defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. ,,"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."" ,,"Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt."" (Citations & italics omitted.) (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) This standard also applies to gang enhancement findings. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) B. Premeditation and Deliberation (Jonathan) Jonathan contends there was insufficient evidence his killing of Pasqual was premeditated and deliberate. "A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. ,,Deliberation refers to careful weighing of considerations in forming a course of action; ,,premeditation means thought over in advance." (Citation omitted.) (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) "Evidence concerning planning, motive, and manner of killing are pertinent to this determination, but these factors are not exclusive nor are they invariably determinative." (People v. Marks (2003) 31 Cal.4th 197, 230.) Jonathan posits that at most the evidence showed a spontaneous act as there was no evidence of planning or a preexisting motive. "The process of premeditation and deliberation does not require any extended period of time. ,,The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." (People v. Mayfield (1997) 14 Cal.4th 668, 767.) Jonathan admitted he started the fight by hitting Sedano. When Sedano, later joined by others, started hitting Jonathan, Jonathan pulled out his knife and showed it to 13

the teenagers in order to get them to "back off." When that did not work, Jonathan opened the knife and swung it at the teenagers with whom he was fighting. Jonathan stabbed Sedano on the left side; the wound was two or three inches deep. After that and after Jose yelled at Jonathan to get the gun, Jonathan ran back to Joses car. At some point, Jonathan stabbed Cabrera, who had tried to get Jose to stop fighting, in the neck. When Jonathan got to the car, Pasqual pushed Jonathan away from the car and closed the passenger door, which had been left open. When Pasqual had his hand on the car door, Jonathan stabbed Pasqual three times in the stomach; one of the wounds was four and a half inches deep and penetrated Pasquals left lung and heart; Pasqual also had defensive wounds. Pasqual died as a result of his injuries. In other words, the encounter started out with words between Jonathan and Sedano. Jonathan escalated the encounter to a physical assault by hitting Sedano. After Jonathan was being hit by at least two of the teenagers, Jonathan again escalated the encounter by taking out his knife, at first just displaying it, and then opening it and "swinging" it and then using it to stab Sedano and Cabrera. Thus, though occurring over a short period of time, the events showed Jonathan had time to plan to and did use his knife -- twice before he stabbed Pasqual a number of times indicating the stabbing was not accidental. Afterwards, Jonathan stabbed Hernandez (and tried to stab Cabrera) when Hernandez (and others) were hitting the brothers when they finally got into the car. Even though Jonathan denied hearing his brother call for him to get the gun, a reasonable juror could infer Jonathan ran to the car in response to Joses request. There was a reasonable inference that at the time Jonathan stabbed Pasqual, Jonathans motive was that he was trying to escape. Also, the manner of stabbing, including the nature and number of Pasquals wounds, show an intent to kill as according to witnesses, Jonathan thrust the knife rather than just swinging it. (See People v. Pride (1992) 3 Cal.4th 195, 247-248.) Jonathan claims that the stabbing was a spontaneous reaction to the fight and that the fact he was running away from the fight shows the stabbing of Pasqual was not 14

premeditated. Those claims are simply alternate views of the evidence and do not show the evidence was insufficient. (See People v. Earp (1999) 20 Cal.4th 826, 887-889 & fn. 10.) Thus, substantial evidence supports Jonathans conviction for first degree murder. C. Premeditation and Deliberation (Jose) As Jose was not the person who stabbed Pasqual, he was convicted of first degree murder based on two theories -- (1) aiding and abetting and (2) natural and probable consequences; his conviction can be upheld if substantial evidence supports either theory. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Jose contends there was insufficient evidence under either theory to support his conviction. ",,A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Hill (1998) 17 Cal.4th 800, 851.) "[T]he test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures." (Citations & internal quotation marks omitted.) (People v. Booth (1996) 48 Cal.App.4th 1247, 1255.) ",,It is settled that if a defendants liability for an offense is predicated upon the theory that he or she aided and abetted the perpetrator, the defendants intent to encourage or facilitate the actions of the perpetrator "must be formed prior to or during ,,commission of that offense." However, ,,it is essential to distinguish the act and intent that constitute "aiding and abetting" the commission of a crime, from conduct that will incur the lesser liability of an "accessory" to the crime -- defined as conduct by one who, "after a felony has been committed, . . . aids a principal in such felony . . . ." In this respect, not only must the subjective intent to encourage or facilitate the actions of the perpetrator be formed prior to or during the commission of the offense, if there is no 15

participation in the planning, the aider and abettor must take affirmative action at the time the offense is committed. ,,To be an abettor the accused must have instigated or advised the commission of the crime or been present for the purpose of assisting in its commission." (Citations & italics omitted.) (People v. Joiner (2000) 84 Cal.App.4th 946, 967.) ",,Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment. [

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