People v. Arguello CA5

Opinion

Filed 9/8/26 P. v. Arguello CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F088294 Plaintiff and Respondent, (Super. Ct. No. CR-19-007728) v. MATTHEW DEREK JOSEPH ARGUELLO, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Dina Petrushenko and Rosanne Rust, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Appellant Matthew Derek Joseph Arguello was convicted by jury of second degree murder (Pen. Code,1 § 187, subd. (a)), second degree robbery (§ 211), and a substantive gang enhancement (§ 186.22, subd. (a)). In addition, the jury found true enhancements alleging the murder was committed for the benefit of, in association, or at the direction of a criminal street gang (§ 186.22, subd. (b)(1)), and that Arguello personally inflicted great bodily injury in the commission of the robbery (§ 12022.7, subd. (a)). He was sentenced to an aggregate term of 15 years to life, plus a determinate term of 10 years. Arguello raises multiple arguments on appeal. First, the trial court failed to adequately consider mitigating factors relating to his youth at the time of the offense. Arguello specifically contends the trial court should have considered his age at the time of the commitment offense—21 years old—in determining whether he acted with implied malice in the commission of the murder and in determining the appropriate sentence to impose. Second, Arguello challenges the sufficiency of the evidence supporting his second degree murder conviction. Finally, Arguello asserts, and the Attorney General agrees, that the abstract of judgment must be corrected. We will order the abstract of judgment corrected. We otherwise affirm the judgment of conviction. FACTUAL AND PROCEDURAL HISTORY On April 13, 2021, the Stanislaus County District Attorney charged Arguello and Ruben Anthony Rosales by information with the following: the first degree murder of Jace Decker (§ 187, subd. (a)), with a criminal street gang enhancement and two special circumstance allegations (§ 190.2, subd. (a)(18), (22)); second degree robbery (§ 211) with enhancements alleging the crime was committed for the benefit of a criminal street 1 All further undefined statutory citations are to the Penal Code unless otherwise indicated.

2. gang (§ 186.22, subd. (b)(1)) and inflicting great bodily injury (§ 12022.7, subd. (a)); and a substantive gang enhancement (§ 186.22, subd. (a)).2 On June 4, 2024, Arguello was convicted by jury of second degree murder with a criminal street gang enhancement, second degree robbery with the great bodily injury enhancement, and the substantive gang offense. On July 2, 2024, the trial court sentenced Arguello to prison for an indeterminate term of 15 years to life for second degree murder, plus a determinate term of 10 years for the criminal street gang enhancement. The court also imposed a concurrent term of eight years for Arguello’s second degree robbery conviction and the attached great bodily injury enhancement, and a stayed term of two years for the substantive gang offense. A timely notice of appeal followed.

The Murder of Jace Decker On August 10, 2019, at around 7:36 p.m., Decker, an elderly transient man, was walking alone in the parking lot of the Stop n Save Liquor Mart, located across the street from Garrison Park in Modesto. At that time, Ruben Rosales and Arguello, then 21 years old, walked past Decker. Shortly after they crossed paths with Decker, Arguello motioned towards Rosales. The two of them stopped, turned to look in Decker’s direction, and began following him. Decker was at the crosswalk heading westbound to the park. As they followed him, Arguello retrieved his phone and began pointing it at Decker. As Rosales got near Decker, he was “winding up” for a punch. Rosales hit Decker in the head, causing Decker’s hat to “fl[y] off.” Decker immediately fell face first into 2 Rosales entered a plea resulting in a sentence of 25 years to life. He is not a party to this appeal.

3. the ground. As Decker fell, Rosales yelled at Decker, “Wassup [N-word], fuckin’ chomo ass.”3 Arguello joined in the attack. Both Rosales and Arguello kicked Decker in the head and neck. Rosales stomped on his head. Arguello shouted, “Fuck a chomo…what the fuck? Norte, …” as he kicked Decker in the head or neck. Rosales stated, “Bitch ass …” as he stomped Decker’s head. Arguello continued filming as Rosales stole Decker’s drink from Decker’s pocket, and stated, “Give me your fuckin’ cobra[.]” At the same time, Arguello kicked Decker in the head. As Decker lay motionless on the ground, Rosales kicked him in the side. As Rosales and Arguello began to walk away, Arguello looked at Decker and shouted, “Fuckin’ chomo ass…get the fuck of my park.” After the first attack, Arguello and Rosales met up with Sam Cervantes, an active Norteño gang member. The three drove down the street, not far from Garrison Park. Once they stopped and got out of their car, they congregated in the street. While standing there, at around 7:45 p.m., Rosales “stomp[ed] on the ground” and kicked the air, “potentially reenacting” the attack on Decker. At approximately 8:00 p.m. on August 10, 2019, Officer Charles Lockridge with the Modesto Police Department was dispatched to Garrison Park in response to a report of a man suffering injuries consistent with an assault. When Lockridge arrived, he found Decker lying on a bench, injured. Decker’s left eye was black and blue and swollen shut. His face was bloody, he had a laceration above the bridge of his nose, and his nose appeared to be broken. Decker did not know who had attacked him or why. After Decker declined medical assistance, Officer Lockridge left the scene.

3 The term “chomo” refers to a child molester. There was no showing that Decker was convicted of child molestation or that he was on the Megan’s Law website.

4. At around 8:20 p.m., Arguello, Rosales, and Cervantes got back into their car, along with a fourth person, Eva Martinez. The group drove back to the Stop n Save Liquor Mart parking lot across the street from Garrison Park. Once they arrived, the group exited the vehicle and Rosales, Cervantes, and Martinez went inside the Stop n Save Liquor Mart. Arguello remained outside. At approximately 8:28 p.m., Arguello walked quickly toward Garrison Park. Cervantes exited the Stop n Save Liquor Mart and hurried after Arguello. Arguello recorded himself attacking Decker. The Snapchat video recording shows Decker seated on a bench in the park. As Arguello got closer to Decker, Decker pleaded, “Come on you guys.” Arguello struck Decker in the head. Arguello yelled at Decker, “You’re on Megan’s Law, bitch?” and “Fuck a chomo, …what the fuck.” He continued, “Get the fuck out of here” and “Fuckin’ with little kids, bitch?” Arguello continued to hit Decker in the head while Decker tried to put up his hands to protect himself. Arguello then kicked Decker in the head while yelling at him, “[B]ro shit, I don’t gots no sympathy for a bitch like you.” After this second attack on Decker, Arguello and Cervantes walked back to the Stop n Save Liquor Mart parking lot. There they met Rosales, and the three men “huddle[d]” together, focusing their attention on something that appeared to be a “lit object” consistent with a cellular phone. At 8:31 p.m., Rosales headed back into the park by himself, while Arguello and Cervantes got back in the car with Martinez. By around 8:45 p.m., Rosales and Arguello had reconvened. While they were hanging out, Arguello recorded another Snapchat video. In the video, Rosales showed off what appeared to be blood covering one of his shoes. Rosales commented, “Damn, I didn’t know I was fuckin’ stompin’ him that hard, bro.”

5. Around 9:18 p.m., officers were dispatched again to Garrison Park. They found Decker lying on the ground with swollen-shut, bruised eyes and a bloody face. He was unresponsive. Arguello, who was nearby, recorded another Snapchat video, capturing a front- facing view of himself, in which sirens could be heard in the background. With a slight grin on his face, Arguello looked into the camera and said, “I’m going to county. This [N-word] died, I think. I swear to God. There’s like hella cops at the park. And fuckin’ hella ambulances.… I’m fucking going to jail for life. Send mines.” Paramedics transported Decker to the hospital. He never regained consciousness. Decker died approximately 10 days later. An autopsy later determined that Decker died from blunt force injury to his head. The totality of injuries from blows to his face and head caused excessive fatal brain injury.

Police Investigation On August 16, 2019, officers interviewed Arguello. He initially told officers that on August 10, 2019, he went to work, and after work he drove to his cousin’s house, and then to his girlfriend’s. From there, while in the area of Garrison Park, he saw some friends he knew from high school, and they decided to hang out. At no point did Arguello disclose that he was in Garrison Park or that he was in the intersection outside the Stop n Save Liquor Mart, across the street from the park. Officers confronted Arguello with surveillance footage from outside Garrison Park. The video captured the parking lot of the Stop N Save Liquor Mart, across the street from Garrison Park, showing Arguello and Rosales leaving Garrison Park and heading to the Stop n Save Liquor Mart before they turned around and started following Decker. After Arguello saw the video, he admitted he was at the park that day. He also admitted that someone was with him, but claimed he did not know the person with whom 6. he was walking. Arguello told officers that he went back into the park and “just chilled” before leaving 20 minutes later. When he was told that officers had his phone, Arguello claimed he did not record anything on August 10th and that he “didn’t even see anything happen.” After Arguello viewed a video on one of the officer’s laptops, he stated, “I didn’t touch him. I didn’t see, I’m telling you guys.” Arguello’s social media account data and text messages were subsequently obtained through a warrant. In addition to Snapchat videos documenting portions of the attack on Decker, Arguello exchanged text messages with his cousin about going to jail on the night of the attack. Arguello’s cousin teased him about being “all scared last night.” He added, “Thought you were going to jail.” Arguello responded, “Thought I was done.” Arguello’s cousin replied, “You were just staying at the scene too like an idiot.”

The Prosecution’s Case Phillip Lopez, a high ranking Norteño gang member who knew Arguello personally, testified for the prosecution in exchange for a mitigated prison sentence in an unrelated case. In 2019, Lopez was housed in the Stanislaus County Jail, where he held the position of “N-Sol,” a leadership position in the gang. In custody, the Norteño gang was run by a three-member panel comprised of N-Sols, one function of which was to conduct investigative reports, or “IRs” to understand situations involving gang members and determine how to handle them. When Arguello was arrested and booked into the Stanislaus County jail, Lopez questioned him during the intake process about why he had assaulted Decker. Arguello told Lopez that Decker was supposedly “seen on Megan’s Law and he was a child molester.”

7. Garrison Park was considered Norteño gang territory, and members of the gang would be expected to do something about suspected sex offenders in that territory. Meaning, they would be expected to assault or even kill a suspected sex offender. Lopez stated that while the gang normally considers assaulting an elderly person an act of cowardice, forbidden by the gang, attacking a child molester would be viewed as “ ‘taking out the trash in the neighborhood.’ ” According to Lopez, controlling the park was important because the gang sold drugs there, and the use of violence would keep “people quiet.” Lopez explained that yelling “Norte” in the middle of an attack sent the message that “this is Norte area.… This is us. Don’t fuck with us.” Arguello told Lopez he was not worried about the charges he faced and that all the cameras in Garrison Park “face outward,” so they did not depict his role in the assault. Although Arguello minimized his role in the attack, he admitted to Lopez that he “had hit and kicked [Decker] a few times.” Modesto Police Department Detective Michael Rokaitis testified as an expert on the Stanislaus County area Norteño criminal street gang. Assuming a hypothetical mirroring the facts of the instant case, Rokaitis opined that a similar murder was committed by active Norteño gang members, and that the crime was committed for the benefit of the Norteño criminal street gang. Rokaitis explained that the Norteños control Garrison Park and protect the area through violence. The use of violence also prevents witnesses from reporting gang activity within the territory, for fear of reprisal. This allows the gang to commit drug and weapons sales and robberies, unimpeded by law enforcement intervention.

The Defense’s Case On August 10, 2019, Martinez, a longtime friend of Arguello’s, drove Arguello, Rosales, and Cervantes to the Stop n Save Liquor Mart by Garrison Park. Martinez 8. stated that she did not know what the three men had discussed while they were standing outside the store. She explained that because Arguello and his companions were all active gang members, she did not participate in their conversations. Martinez also told a detective that she knew Arguello had visited Garrison Park, but did not know what he did while he was there. Martin Flores, a non-law enforcement expert on criminal street gangs from Los Angeles County, opined that Decker’s murder was not gang related. On cross- examination, Flores admitted that he was not familiar with what was happening at Garrison Park, or the Stanislaus County area Norteños in 2019, and that the instant case was his first time testifying as an expert in the County. DISCUSSION I. ARGUELLO IS NOT ENTITLED TO RELIEF BASED ON HIS AGE AT THE TIME OF THE OFFENSE Arguello, who was 21 years old at the time of the offense, contends the trial court failed to adequately consider mitigating factors related to his youth. According to Arguello, the case must be remanded back to the lower court so that the court may reconsider not only his sentence, but his murder conviction. We are not persuaded.

A. Background In his sentencing brief, trial counsel represented that Arguello was abused as a child and had been removed from his home twice by Child Protective Services. Although Arguello had prior convictions, they were for nonviolent offenses, including auto theft and receipt of stolen property. Arguello told his probation officer that he was removed from the custody of his mother when he was a child and stated that he lived with his paternal aunt during this time. Although he stated that he was physically abused by his aunt and his parents, he could not recall any specific instances of abuse. He described his childhood as “not the best.”

9. B. The Trial Court Had No Independent Duty to Reconsider the Jury’s Finding that Arguello Acted with Malice Arguello seeks relief from his conviction for second degree murder, arguing the trial court was required to reevaluate the jury’s finding that he acted with malice, considering his age at the time of the offense. The record does not indicate that trial counsel raised this issue below. On appeal, Arguello fails to identify the statutory mechanism by which the court was required to reconsider the jury’s finding on malice, sua sponte. Prior to the submission of the case to the jury, the court may make its own motion for entry of a judgment of acquittal (§ 1118.1), but “nothing in the language of section[] … 1118.1 suggest[s] the trial court has a duty, absent a request, to review the prosecution case at its close to determine its evidentiary sufficiency.” (People v. Smith (1998) 64 Cal.App.4th 1458, 1467.) Alternatively, the defense may challenge a verdict by a motion filed in the trial court, but that challenge is made pursuant to a request for a new trial and requires the defendant to affirmatively demonstrate error. (See § 1181 [grounds for motion for new trial]; People v. Clair (1992) 2 Cal.4th 629, 667 [a new trial can be granted only on the defendant’s motion and a demonstration of reversible error].) No such motion was filed here, and no error has been shown upon the instant record. Because the trial court had no independent duty to reconsider the jury’s finding of malice, we reject Arguello’s challenge to his conviction on this basis. Despite the growing recognition that adolescent brain development affects impulse control and risk assessment (People v. Gutierrez (2014) 58 Cal.4th 1354, 1375–1376), the trial court had no independent duty to reconsider the jury’s verdict on malice based on Arguello’s age at the time of the commitment offense. Arguello’s argument is therefore forfeited for failing to timely raise this issue below. (Sander v. Superior Court (2018) 26 Cal.App.5th 651, 670, citing Kern County Dept. of Child Support Services v. Camacho (2012) 209 10. Cal.App.4th 1028, 1038 [“ ‘It is axiomatic that arguments not raised in the trial court are forfeited on appeal’ ”].) In arguing otherwise, Arguello directs this court to cases that pertain to whether an offender’s youthful age supported a finding of implied malice or reckless indifference to human life in the context of section 1172.6 resentencing proceedings, a recently enacted sentencing statute (§ 1170, subd. (b)(6)(B)), and a statute governing youth offender parole hearings (§ 4801, subd. (c)). His reliance upon these authorities is misplaced. In People v. Pittman (2023) 96 Cal.App.5th 400, one of the cases cited by Arguello, the court considered whether there was a reasonable possibility that the court’s failure to consider the appellant’s youth impacted the trial court’s decision finding that he acted with the requisite mental state as an aider and abettor to an implied malice murder. (Id. at pp. 417–418.) But the court considered this issue in the context of a section 1172.6 petition for resentencing, which is collateral proceeding. (Pittman, supra, at pp. 411–412.) Section 1172.6 requires the court to determine whether the petitioner has made a prima facie case for resentencing relief, and following an evidentiary hearing, to determine whether the evidence shows, beyond a reasonable doubt, that the petitioner is guilty of murder under current law. Once the petitioner has made a prima facie case for relief, the trial court, as the trier of fact, is statutorily required to assess the petitioner’s continued culpability for murder. (§ 1172.6, subd. (d)(1)–(3).) By contrast, at a defendant’s original prosecution, the trial court has no comparable responsibility to determine the defendant’s guilt because, absent a valid jury waiver, that determination is entrusted to the jury, not the judge. Arguello also relies on People v. Jimenez (2024) 103 Cal.App.5th 994, another appeal from the denial of a section 1172.6 petition proceeding. Like Pittman, Jimenez stands in a different procedural posture from the instant case.

11. In Jimenez, the appellate court held the petitioner was entitled to a new evidentiary hearing so that the court could “consider and apply the rapidly developing case law on youth and brain development in determining whether he acted with malice.” (People v. Jimenez, supra, 103 Cal.App.5th at p. 1008.) Jimenez did not address whether, and to what extent, the factfinder in an original prosecution must consider the defendant’s age in determining whether he or she acted with malice, particularly when the issue is not raised by trial counsel. “Cases are not authority for propositions they do not consider.” (People v. Martinez (2000) 22 Cal.4th 106, 118.) As distinct from Pittman and Jimenez, there was no independent statutory basis requiring the trial court here to reconsider the jury’s finding on malice. The jury determined, from the trial evidence, that Arguello had acted with malice in the commission of Decker’s murder, notwithstanding his status as a youthful offender. We will not engraft onto the statutory scheme a duty requiring the trial court to revisit that finding where the Legislature has imposed no such obligation.

C. The Trial Court Adequately Considered Youth-Related Factors at Sentencing Arguello’s assertion that the trial court erred to give due consideration to his age at sentencing fares no better. Arguello was sentenced to a prison term of 15 years to life for his conviction for second degree murder, plus a determinate term of 10 years for the attached criminal street gang enhancement. There was no sentencing discretion for the court to exercise with respect to Arguello’s conviction for second degree murder. The court did have discretion to strike the 10-year criminal street gang (§ 186.22, subd. (b)(1)) and great bodily injury (§ 12022.7, subd. (a)) enhancements, and to impose the low term sentence on Arguello’s convictions for second degree robbery (§ 211) and the substantive gang offense (§ 186.22, subd. (a)). But Arguello’s argument that his overall sentence was improper based on the court’s alleged failure to give due consideration to youth-mitigating factors is not tantamount to a claim that the court 12. specifically abused its discretion by declining to strike the enhancements, or by declining to impose the low-term sentences on Arguello’s non-murder convictions. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘ “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” ’ [Citation.] ‘We are not bound to develop appellants’ argument for them’ ”].) In any event, any such claim would fail on the merits. With respect to the court’s decision declining to strike enhancements, that decision is reviewable for an abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) No such showing has been made here. In declining to strike the 10-year criminal street gang enhancement, the court explained, “I do believe I have the power, given the statements that were made about Mr. Arguello’s upbringing, to strike that enhancement. I know the law does require the Court to consider the things about a young person’s background.” The trial court acknowledged that Arguello likely experienced past trauma or mistreatment but stated that such circumstances do not excuse criminal conduct or eliminate accountability. Thus, contrary to Arguello’s assertions, the record demonstrates the court considered Arguello’s youth and the mitigating circumstances associated with it but reasonably concluded those factors did not warrant striking the enhancement.4 With respect to the court’s decision not to impose low-term sentences on certain counts, Arguello likewise fails to demonstrate that the court was unaware of the low-term sentencing presumption under section 1170, subdivision (b)(6)(B). Section 1170, subdivision (b)(6)(B) “establishes a presumption [that the court must impose] the lower 4 Neither the parties nor the court explicitly discussed striking the great bodily injury enhancement applied to count 2. But absent evidence to the contrary, we presume the court was aware that the law authorized it to strike that enhancement but declined to do so. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)

13. term if the defendant’s youth was ‘a contributing factor’ in his or her commission of [a] crime ‘unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice. ...’ ” (People v. Flores (2022) 73 Cal.App.5th 1032, 1039; see also § 1016.7, subd. (b) [“A ‘youth’ for purposes of this section includes any person under 26 years of age on the date the offense was committed”]; Cal. Rules of Court, rule 4.420(e).) Assuming Arguello made some initial showing that section 1170, subdivision (b)(6) applied, “the record does not raise serious doubts or show that the court was unaware of, or failed to apply, section 1170(b)(6).” (People v. Nielsen (2026) 119 Cal.App.5th 816, 823.) We presume that the court knew and applied the law, absent evidence to the contrary. The burden is on Arguello to show otherwise. (Ibid.; see People v. Knowles (2024) 105 Cal.App.5th 757, 764–765; People v. Fredrickson (2023) 90 Cal.App.5th 984, 988.) Nothing in the instant record suggests that the court failed to consider the application of section 1170, subdivision (b)(6) to Arguello’s determinate term sentences. Based on the foregoing, we reject Arguello’s assertion that the court erred in sentencing Arguello without considering youth-related mitigating factors.

II. SUBSTANTIAL EVIDENCE SUPPORTS ARGUELLO’S CONVICTION FOR SECOND DEGREE MURDER Arguello asserts the evidence was insufficient to support his conviction for second degree murder as a direct perpetrator or an aider and abettor. He is incorrect. Viewing the evidence in the light most favorable to the judgment, as we must (People v. Zamudio (2008) 43 Cal.4th 327, 357), we find substantial evidence supports Arguello’s conviction.

A. Applicable Law on Second Degree Murder “Second degree murder is ‘the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.’ [Citation.] Malice 14. may be either express, i.e. when a defendant manifests an intention to kill, or implied. [Citation.] ‘ “Malice is implied when the killing is proximately caused by ‘ “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” ’ ” ’ ” (People v. Clements (2022) 75 Cal.App.5th 276, 299.) A defendant may be liable for second degree murder as a direct perpetrator (§§ 187, subd. (a), 189), or an aider and abettor. (People v. Coley (2022) 77 Cal.App.5th 539, 546 [direct aiding and abetting remains a valid theory of murder liability after Senate Bill No. 1437]; People v. Reyes (2023) 14 Cal.5th 981, 990–991 [aiding and abetting implied malice murder is a valid theory of second degree murder liability].)

B. Standard of Review “When considering a challenge to the sufficiency of the evidence ..., we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27, italics added.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “The reviewing court presumes in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence.” (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) “Reversal is not warranted ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction.]” ’ ” (People v. Thomas (2023) 14 Cal.5th 327, 378.) “Given this deferential 15. standard of review, a ‘defendant bears an enormous burden in claiming there is insufficient evidence’ to support a conviction.” (People v. Wear (2020) 44 Cal.App.5th 1007, 1020.)

C. Analysis 1. Direct Perpetrator of an Implied Malice Murder To prove Arguello was guilty of murder as a direct perpetrator, the prosecutor was required to establish both that Arguello acted with implied malice and that his conduct was a substantial factor in causing Decker’s death. Murder is committed with implied malice when “the killing is proximately caused by ‘ “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 143.) A defendant’s conduct is a proximate cause of death if it was a substantial factor contributing to the death, rather than an insignificant or merely theoretical cause. (People v. Jennings (2010) 50 Cal.4th 616, 643.) Here, the record shows that Decker died not from a single injury, but from the “totality of [the] injuries” to his head, including skull fractures, brain contusions, and hemorrhages, that were caused by “multiple blows.” The Snapchat videos establish that both Rosales and Arguello kicked and stomped Decker’s head and neck. The jury could therefore reasonably conclude that Arguello’s own conduct was a substantial factor contributing to Decker’s death. The evidence also supports the conclusion that Arguello acted with implied malice. Decker was an elderly man who, by all appearances, posed no threat. He never saw the first blow coming, and lay unconscious as Rosales and Arguello kicked and stomped on his head and neck. A person who repeatedly strikes an unconscious, elderly victim in the head and neck is not acting in ignorance of the mortal danger such conduct poses.

16. The jury could also reasonably infer that Arguello subjectively appreciated that danger. After participating in the initial beating, Arguello returned and assaulted Decker a second time, despite Decker’s severe and readily visible facial injuries. Although Decker had regained consciousness by then, the video shows he was unable to defend himself. From these circumstances, the jury could reasonably conclude that Arguello understood the lethal risk posed by repeatedly kicking Decker’s head yet continued the assault with conscious disregard for human life. 2. Aider and Abettor of an Implied Malice Murder “ ‘[T]o be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. [And,] [t]he mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.’ ” (People v. Reyes, supra, 14 Cal.5th at p. 991.) Substantial evidence supports a finding that Arguello personally harbored the mental state required for aider and abettor liability. “Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.” (People v. Bloom, supra, 48 Cal.3d at p. 1208.) As discussed above, the jury could reasonably conclude that Arguello knew the assaults on Decker were life-endangering and nonetheless acted with conscious disregard for that risk. The remaining question is whether he intentionally aided Rosales’s commission of the life-endangering act. We conclude that the record amply supports that finding. Arguello and Rosales acted together throughout the attacks. They followed Decker into the park together, participated in the initial beating together, and afterward, reconvened with Cervantes, where they reenacted the stomping. Arguello later returned 17. to the park with Cervantes and assaulted Decker a second time. Shortly thereafter, Rosales entered the park and carried out the final assault. Arguello argues that because Rosales delivered the fatal blows during the third assault, after Arguello had left the park, he cannot be liable for Decker’s murder. But this argument misapprehends aider and abettor liability, and the evidence adduced at trial. Preliminarily, we take issue with Arguello’s characterization of Rosales’s final beating as the “fatal” beating. Decker died from the “totality of [the] injuries” to his head, meaning no single blow killed him. Because Arguello also kicked Decker’s head and neck, he too was a substantial factor in Decker’s death. (People v. McCoy (2001) 25 Cal.4th 1111, 1120 [“When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator”].) In any event, Arguello’s absence during the third assault does not absolve him from liability for Decker’s murder. Physical presence at the moment of the final injury was not required. What was required is that Arguello, acting with the requisite mental state, intentionally facilitated, promoted, or encouraged Rosales’s commission of the life- endangering act. (People v. Reyes, supra, 15 Cal.5th at p. 991.) The jury could reasonably find that Arguello did exactly that. The three assaults on Decker were not independent, disconnected acts. They were part of a single course of conduct in which Arguello and Rosales acted in concert, each attack encouraging the next and escalating the violence. They followed Decker into the park together. They attacked him together during the first assault. They regrouped afterward, meeting up with Cervantes, where they reenacted the stomping. Arguello then returned to the park with Cervantes for the second assault, leaving Decker in an even more vulnerable state. Arguello’s second attack encouraged Rosales to “up the ante,” resulting in the third and final beating.

18. Arguello further contends “there was no showing whatsoever that [he] intended to kill Decker.” Assuming arguendo the evidence was insufficient to establish that he acted with express malice, there was substantial evidence showing that he acted with implied malice. Finally, Arguello submits that the record also lacks evidence showing he acted with reckless indifference to human life. However, that theory only applies in the context of felony murder prosecutions (§ 189, subd. (e)(3)). Arguello was not prosecuted under the felony murder doctrine.

III. THE ABSTRACT OF JUDGMENT MUST BE CORRECTED Arguello was sentenced on July 2, 2024. On count 1, Arguello’s conviction for second degree murder, the trial court sentenced him to 15 years to life, plus a consecutive 10-year term for the attached gang enhancement. On count 2, his conviction for second degree robbery, the court imposed the upper term of five years, plus a three-year term for the great bodily injury enhancement, concurrent with count 1. On count 3, the court imposed a two-year term for the substantive gang offense, representing one-third of the middle term, but stayed the sentence pursuant to section 654. Arguello argues the abstract of judgment contains the following errors: First, the abstract does not reflect that the five-year term for robbery (count 2) and the attached great bodily injury enhancement were imposed concurrent to count 1. Second, the abstract reflects that a three-year term was imposed on count 3, rather than the two-year term imposed by the court. The Attorney General contends that Arguello’s first claim has merit, but the remaining claims do not. We agree with the Attorney General. Arguello’s conviction for second degree robbery must be corrected to reflect that imposition of that term is concurrent to count 1. But there is no way to amend the abstract of judgment to reflect that the attached enhancement for great bodily injury was also imposed concurrently. Logically, however, amending the abstract to reflect that the 19. “TOTAL TIME” imposed under section 8 reflects eight years rather than five years, will make that clear. Finally, with respect to Arguello’s contention that the abstract improperly reflects a three-year term on count 3, rather than the two-year stayed term that was imposed, the record does not support Arguello’s assertion. The abstract of judgment correctly reflects that the middle term was imposed but does not include a particular term. The middle term sentence for section 186.22, subdivision (a) is two years. We will order the abstract of judgment corrected accordingly. DISPOSITION The judgment is affirmed. The trial court is ordered to amend the abstract of judgment to reflect that a concurrent term was imposed on count 2, that the stayed term on count 3 was a term of two years, and that Section 8, designating the “TOTAL TIME” imposed, is eight years. The trial court shall forward the amended abstract of judgment to the appropriate authorities.

FRANSON, Acting P. J. WE CONCUR:

DE SANTOS, J.

HARRELL, J.

20.