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Armstrong v. Harris

United States District Court, E.D. California

July 6, 2017

KAMALA HARRIS, Respondent.



         Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on September 9, 2014 in the Sacramento County Superior Court on a count of second degree murder with a gun enhancement. He seeks federal habeas relief on the grounds that: (1) there was insufficient evidence to convict him of aiding and abetting; (2) counsel was ineffective for failing to object to gang evidence; (3) counsel was ineffective for failing to object to prosecutorial misconduct in closing argument; (4) instructional error; and (5) the cumulative effect of all errors violated due process.

         Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.


The victim, Jose Guerrero, lived on Lindley Drive in Sacramento, in an area known as the Flats. At the time of his death, he had lived there for about eight years with his wife, Celica Cardenas, and their children.[fn 1]
The Flats is predominantly controlled by two street gangs, the Norteños and the Bloods, both of which identify with the color red. The Norteños and the Bloods are known to associate with each other in the Flats. There are also Sureños in the area, however. The Sureño street gang, which identifies with the color blue, is the main rival of the Norteños. A Norteño gang member would take it as a sign of disrespect if a Sureño gang member wore blue in a Norteño neighborhood, and such an act could lead to a verbal or physical confrontation.
The house where Guerrero and Celica lived with their children was on the north side of Lindley between Grove Avenue to the east and Edgewater Road to the west. The house was known in the Flats as being associated with the Sureños. In fact, Celica's 21-year-old son, Federico, who had been living in the house off and on up until the time of the shooting, was a validated Sureño gang member.
Defendant is a validated member of the Del Paso Heights Bloods who goes by the nickname “T Blood.” Among others, he has a tattoo on his stomach that reads, “Hood Boss, ” a tattoo on his left forearm that reads, “Da Flats, ” and a tattoo on his back that reads, “Blood 4 Life.” Defendant was known to associate with Norteño gang members. In particular, he was friends with Noe Ortiz, a Norteño associate who lived on the northwest corner of Lindley and Edgewater, down the street from Guerrero's house. Defendant was also friends with Jose Gonzalez (also known as Pepe), a friend of Noe's who is a validated Norteño gang member. Defendant and Pepe sold “weed” back and forth to each other.
Noe and Pepe were part of a group of friends-all of whom are associated with the Norteño gang-who went to Grant High School and hung out together. The other members of the group were Pepe's brother, Juan Carlos Gonzalez (also known as Cho Che); Jaime Torres; Jaime's brother, Hugo Torres; Jaime and Hugo's uncle, Sergio Torres; and Mario Vargas. Jaime, Hugo, Sergio, and Vargas are all Norteño gang members (Vargas is validated), and Juan Carlos is a Norteño associate.
In the early evening on Memorial Day in 2008, Guerrero was sitting out in front of the open garage door of his house visiting with a friend and the friend's two children. One of the friend's children, Christian, who was 15 years old, was wearing a blue baseball cap and long blue shorts.
While they were sitting there, Christian noticed a Hispanic male drive by twice on a four-wheeled motorcycle, staring and “giving [them] a bad look.” Fifteen to 30 minutes later, Christian saw a blue car with four or five people in it driving past from east to west. The person in the front passenger seat, who was wearing a red bandana covering his nose and mouth, was leaning out of the car window flashing a gang sign-specifically, an “L” made with his thumb and forefinger, which Christian understood to be a Norteño gang sign signifying the “l” in Gardenland. The car was initially going fast as it approached Guerrero's house, but it slowed down for the speed bump in the street just beyond Guerrero's driveway, then sped away.
Around this same time (7:00 p.m.), down Lindley to the west, about three houses west of the intersection with Edgewater, Luis Cabrera was in his front yard barbecuing when he saw a blue Chevrolet four-door “going really fast” westward on Lindley with “somebody hanging out the window.” Cabrera could tell the driver was a black man, but could not tell more than that because the car was going too fast; he did, however, recognize the car as one defendant regularly drove. (Other evidence confirmed that the blue Chevrolet Lumina with the grey hood was defendant's car.) The person hanging out the front passenger window was a Hispanic male who had a “red rag” covering his face and was throwing gang signs. The car drove past Cabrera's house and out of sight.
Thinking that the guy wearing the red rag going by Guerrero's house might be some kind of gang challenge, Cabrera walked from near his front door, where he was standing when the car went by, to the sidewalk and looked back up the street. There, he saw two cars parked near the intersection of Lindley and Edgewater-a white car he did not recognize and a two-tone Chevelle he recognized as one that Pepe drove. He also saw four or five Hispanic males, including “the guy with the rag on his face, ” “[k]ind of like power walking” from out of his view on Edgewater, turning up Lindley toward Guerrero's house, pulling up their pants and cinching their belts as if they were preparing for a fight.[fn 2] Cabrera recognized Pepe as being among that group.
Cynthia Gutierrez, Noe's girlfriend at the time, lived on the south side of Lindley, approximately midway between Guerrero's house and the intersection of Lindley and Edgewater. She was sitting in a car in front of her house with a friend when she saw Pepe and Jaime, who had a red bandana on his face, walking fast up Lindley toward Guerrero's house. They looked mad and like they were about to fight. Gutierrez moved the car down the street and parked in front of the friend's house, which was across the street and two houses down from Guerrero's house. When she got out of the car, Gutierrez saw Jaime and Guerrero yelling at each other.
Meanwhile, about 10 minutes after the blue car drove past Guerrero's house, Christian saw “like 15” or “like 20 people” walking up to the house from the west. One of them, who was wearing a red bandana on his face and whom Christian thought was the same person who had leaned out of the blue car when it drove by, came onto the sidewalk, while the others remained in the street. (Based on Gutierrez's testimony, and other evidence, the person with the red bandana on the sidewalk was Jaime.) Jaime said, “where are your cousins, ” then began moving up the driveway cursing repeatedly, “where are the fucking scraps?” “Scrap” is a derogatory word for a Sureño. At some point, Jaime, who was in the middle of the driveway, stared at Christian, who was wearing blue, pulled out a gun and showed it to them, then put it back. Jaime then backed up.
When Guerrero saw the gun, he stood up and took out his cell phone and announced two or three times that he was calling the police. Jaime told him not to call the police, that they only wanted to talk to “the cousins”-which Christian understood to refer to Celica's sons, Roberto and Federico. When Guerrero did not put down the phone, Jaime took out his gun again and pointed it at Guerrero. Guerrero dropped his cell phone and rushed at Jaime, then grabbed him and started wrestling with him. The struggle moved from the driveway, onto the sidewalk, and into the street. As Guerrero struggled to get the gun, the bandana slipped from Jaime's face, and he struggled to pull it back up. Guerrero managed to hit the gun and knock it out of Jaime's grasp into the street, where the rest of the group was standing. One of the members of the group picked up the gun and approached to where Guerrero and Jaime were still struggling against each other. He pointed the gun at Guerrero and fired once, but missed. He fired a second time, and the bullet struck Guerrero in the head, penetrating through his brain into his neck. Guerrero immediately fell forward on his face and later died at the hospital from the gunshot wound.
Meanwhile, when Guerrero fell, Jaime and everyone else in the street ran back down Lindley toward Edgewater. Vargas (who testified at trial under a grant of immunity) admitted to police he was outside Noe's house with Noe, Pepe, Juan Carlos, Hugo, and Sergio. He claimed he remained at the corner, and while he said he did not remember whether his friends walked up the street, he did tell the police they came running back, and Jaime said “‘[m]an, that guy just shot.'”
According to Vargas, he, Pepe, Juan Carlos, Sergio, and Hugo fled in the Chevelle, while Jaime left in another car. On a nearby street (Arcade Boulevard), the Chevelle got stuck briefly on a tree stump that was in the road. When the two front occupants got out of the car, they were holding large beer bottles. They managed to free the car from the stump and drive away, but they left one of the beer bottles behind, as well as a trail of fluid from the car. The next morning, the police followed the trail to the home of Pepe and Juan Carlos.
Meanwhile, about three to five minutes after the Chevelle drove away leaving the beer bottle behind, a police car came by and the witness who saw the Chevelle pointed the police in the direction the car went. The police officer immediately departed without further conversation. A minute or so later, another police officer came by, and the witness told that officer what she had seen. The officer told her to watch the bottle, then left in the direction the other officer had gone.
Five or 10 minutes later, a black SUV came by. Defendant was one of the occupants of the SUV. As the SUV was driving down Arcade, defendant told the driver to stop. When the SUV stopped, defendant got out and picked up the beer bottle that had been left behind by the occupants of the Chevelle, then got back in the SUV. During the incident, the witness watching the bottle heard someone in the SUV say, “Get that bottle so they can't get any prints off it.”
In September 2008, the People charged defendant, Pepe, Juan Carlos, Noe, Hugo, Jaime, Sergio, and Vargas with Guerrero's murder. (The People later dropped the charge against Vargas and granted him immunity for his testimony.) The information included allegations that at least one principal intentionally and personally discharged a firearm, causing death, and that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang.
The prosecution's theory against defendant was that defendant aided and abetted the crime of fighting or challenging another person to fight by driving some of the Norteños by Guerrero's house just before the confrontation, and the murder of Guerrero was a natural and probable consequence of that target offense.
[fn 1] Together, Guerrero and Celica had two young daughters, and Celica had three other children of her own- a daughter and two sons.
Because many of the people involved in this case have the same surnames (e.g., Cardenas, Torres, Gonzales), to avoid confusion we will often refer to people by their first names or nicknames.
[fn 2] An aerial photograph of the neighborhood shows that after crossing Edgewater, Lindley bends southwest, then- about six houses past Cabrera's-turns 90 degrees to the northwest where, one house later, it dead ends into Redondo Avenue, such that the houses on the north side of Lindley (including Cabrera's) back up to the houses on the south side of Redondo. Following Redondo northeastward, the street bends to the east just before it crosses Edgewater two houses north of Edgewater's intersection with Lindley. The block on Redondo between Lindley and Edgewater consists of 12 houses. Thus, a car passing Cabrera's house could follow Lindley to its end, turn right on Redondo and be at the intersection of Redondo and Edgewater, two houses north of the intersection of Edgewater and Lindley, within a matter of moments.
In fact, Cabrera estimated that it was “within about two minutes” from the time he saw the blue car pass his house until he saw the group walking up Lindley toward Guerrero's house.

People v. Armstrong, No. C063362, 2011 WL 3806154, at *2-4 (Cal.Ct.App. Aug. 29, 2011).[1]


         On July 28, 2009, a jury found defendant guilty of first degree murder and also found the firearm use and gang enhancement allegations true. The trial court imposed a sentence of 25 years to life on the murder charge and a consecutive sentence of 25 years to life on the firearm use enhancement. However, pursuant Penal Code § 12022.53, no sentence was imposed on the gang enhancement. See Armstrong, 2011 WL 3806154, at *4 n.3 (citing People v. Brookfield, 47 Cal.4th 583 2009)). And, the gang enhancement did not become part of the judgment. See Cal. Penal Code § 12022.53(e)(2).

         Petitioner raised five issues on appeal: (1) insufficient evidence of aiding and abetting; (2) the gang expert's testimony exceeded the scope of permissible opinion and counsel was ineffective for failing to object; (3) prosecutorial misconduct in closing argument and ineffective assistance of counsel for failing to object; (4) jury instructions on the natural and probable consequences doctrine violated due process; and (5) the cumulative effect of the errors in petitioner's trial violated due process. (See Lodged Doc. 15 (“LD 15”) Appellant's Opening Brief (“AOB”).[2]) The Court of Appeal for the Third Appellate District rejected petitioner's claims, with one exception. The Court of Appeal found the jury instructions erroneous because they did not allow the jury to consider whether petitioner may have been guilty of only second degree murder under the natural and probable consequences doctrine. The court reversed petitioner's conviction and remanded for a retrial unless the state accepted a reduction of the conviction to second degree murder. Armstrong, 2011 WL 3806154, at *18.

         Both parties petitioned for review before the California Supreme Court. On November 30, 2011, the court denied petitioner's petition and granted respondent's. (See LD 18, court docket in People v. Armstrong, No. S196985.) The court deferred further briefing in the case pending disposition of a related issue in People v. Favor, No. S189317. (Id.) On October 31, 2012, the court again deferred briefing pending the disposition of People v. Chiu, No. S202724. (Id.) On August 13, 2014, the court dismissed respondent's petition based on the decision in People v. Chiu, 59 Cal.4th 155 (2014).[3] (Id.)

         On September 9, 2014, the superior court, noting that the state accepted the reduction of the crime, modified petitioner's judgment to reflect a conviction for second degree murder. Petitioner was then sentenced to 15 years-to-life for second degree murder, plus an additional and consecutive 25 years-to-life for the gun enhancement. (LD 19.)

         It does not appear that petitioner raised any claims through the state habeas corpus process.


         An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.'” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 567 U.S. 37 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct.” Id. at 1451. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is “clearly established Federal law” governing that issue. Carey v. Musladin, 549 U.S. 70, 76-77 (2006).

         A state court decision is “contrary to” clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634');">538 U.S. 634, 640 (2003) (quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e] [Supreme] Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.'” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411; see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (“It is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous.” (Internal citations and quotation marks omitted.)). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

         There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). He may show the state court's findings of fact “were not supported by substantial evidence in the state court record” or he may “challenge the fact-finding process itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004)); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir. 2014) (If a state court makes factual findings without an opportunity for the petitioner to present evidence, the fact-finding process may be deficient and the state court opinion may not be entitled to deference.). Under the “substantial evidence” test, the court asks whether “an appellate panel, applying the normal standards of appellate review, ” could reasonably conclude that the finding is supported by the record. Hibbler, 693 F.3d at 1146 (9th Cir. 2012).

         The second test, whether the state court's fact-finding process is insufficient, requires the federal court to “be satisfied that any appellate court to whom the defect [in the state court's fact-finding process] is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004)). The state court's failure to hold an evidentiary hearing does not automatically render its fact finding process unreasonable. Id. at 1147. Further, a state court may make factual findings without an evidentiary hearing if “the record conclusively establishes a fact or where petitioner's factual allegations are entirely without credibility.” Perez v. Rosario, 459 F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)).

         If a petitioner overcomes one of the hurdles posed by section 2254(d), this court reviews the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”). For the claims upon which petitioner seeks to present evidence, petitioner must meet the standards of 28 U.S.C. § 2254(e)(2) by showing that he has not “failed to develop the factual basis of [the] claim in State court proceedings” and by meeting the federal case law standards for the presentation of evidence in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S. 170, 186 (2011).

         The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the reasoning of the last decision.'” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be overcome by showing “there is reason to think some other explanation for the state court's decision is more likely.” Id. at 99-100 (citing Ylst, 501 U.S. at 803). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 133 S.Ct. 1088, 1091 (2013).

         A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853 (citing Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000)). This court “must determine what arguments or theories . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of th[e] [Supreme] Court.” Richter, 562 U.S. at 102. The petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the state court to deny relief.'” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

         When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).


         Petitioner raises five claims for relief: (1) there was insufficient evidence to convict him of aiding and abetting; (2) the gang expert's testimony was improper and counsel was ineffective for failing to object to it; (3) the prosecutor committed misconduct in closing argument and counsel was ineffective for failing to object it; (4) instructional error; and (5) the cumulative effect of all errors violated due process.

         I. Sufficiency of the Evidence

         Petitioner's first claim is that the evidence was insufficient to show he intended to aid and abet Jaime, the man in the bandana, or others in fighting or challenging someone to a fight. (Pet. (ECF No. 1 at 5-7, 46-55).)

         A. Applicable Legal Standards

         1. Federal Standards for Sufficiency of the Evidence

         The United States Supreme Court has held that when reviewing a sufficiency of the evidence claim, a court must determine whether, viewing the evidence and the inferences to be drawn from it in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A reviewing court “faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. State law provides “for ‘the substantive elements of the criminal offense, ' but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Coleman v. Johnson, 566 U.S. 650, 32 S.Ct. 2060, 2064 (2012) (quoting Jackson, 443 U.S. at 324 n.16).

         The Supreme Court recognized that Jackson “makes clear that it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). Moreover, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'” Id. (citing Renico v. Lett, 559 U.S. 766 (2010)). The Supreme Court cautioned that “[b]ecause rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.” Id.

         2. State Law Standards

         In California, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime, the target crime, but also for any other offense that is a natural and probable consequence of the target crime. See People v. Prettyman 14 Cal.4th 248, 254, 261 (1996). An aider and abettor is one who “act[s] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” People v. Beeman, 35 Cal.3d 547, 560 (1984) (emphasis in original); see People v. McCoy 25 Cal.4th 1111, 1117-18 (2001). In addition to the requisite intent, an aider and abettor is only liable if he “by act or advice aids, promotes, encourages or instigates, the commission of the crime.” Beeman, 35 Cal.3d at 561. The act and the intent must be coupled. McCoy, 25 Cal.4th at 1117 (“guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state” (emphasis in original)). “The test for an aider and abettor's liability for collateral criminal offenses . . . is objective; it is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.” People v. Nguyen, 21 Cal.App.4th 518, 535 (1993).

         Petitioner was convicted of aiding and abetting the crime of fighting or challenging to fight. Pursuant to California Penal Code §415(1), the crime is a misdemeanor defined as: “Any person who unlawfully fights in a public place or challenges another person in a public place to fight.”

         B. State Court Decision

Defendant contends his murder conviction must be reversed because there was insufficient evidence he aided and abetted the target offense of fighting or challenging another person to fight (Pen.Code, § 415, subd. (1)).[fn 4] More specifically, defendant asserts “there was grossly insufficient evidence ... that [he] had knowledge of the perpetrator's purpose to commit the target offense, that [he] had the intent of at least encouraging or facilitating commission of the target crime and that [he] acted to aid, promote, encourage or instigate the commission of the crime.”
As we will explain, we disagree. Although the evidence was circumstantial, that evidence, when viewed in the light most favorable to the jury's verdict, was nonetheless sufficient to allow the jury to conclude three things beyond a reasonable doubt. First, the jury could have reasonably concluded that defendant aided, promoted, or encouraged his Norteño gang member friends to commit the offense of fighting or challenging another person to fight when he drove some of them by Guerrero's house, then dropped them off just down the block, from where they immediately proceeded to Guerrero's house for the confrontation that resulted in Guerrero's death. Second, the jury could have reasonably concluded that when defendant drove by Guerrero's house and dropped his cohorts off nearby, he knew they intended to pick a fight with Guerrero or with other persons at the house. And third, the jury could have reasonably concluded that when he drove by Guerrero's house and dropped his companions off, defendant intended to aid, encourage, or facilitate their commission of the crime of fighting or challenging another person to fight. Accordingly, the evidence was sufficient to convict defendant of murder as an aider and abettor under the natural and probable consequences doctrine.


         Standard Of Review

“Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact. [Citations.] Consequently, ‘ “all intendments are in favor of the judgment and a verdict will not be set aside unless the record clearly shows that upon no hypothesis whatsoever is there sufficient substantial evidence to support it.” ' ” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)
“ ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ' [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence.” (People v. Young (2005) 34 Cal.4th 1149, 1175, italics omitted.)
“ ‘ “If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ' ” (People v. Bean (1988) 46 Cal.3d 919, 933.) “ ‘An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.' ” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
“Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction.” (People v. Redrick (1961) 55 Cal.2d 282, 289-290.)
Aiding And Abetting ...

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