People v. Velasquez CA2/7

Opinion

Filed 9/29/26 P. v. Velasquez CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B346680

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

DANIEL VELASQUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent. ________________________ INTRODUCTION In 2013, appellant Daniel Velasquez was involved in a shooting against a rival gang that resulted in the death of Gerardo Lopez and the nonfatal injury of Bobby Rogers. After Velasquez and the shooter (codefendant Juan Loera) were both charged with murder and attempted murder, Velasquez pleaded no contest to voluntary manslaughter and attempted murder. In 2021, Velasquez filed a petition for resentencing under former Penal Code section 1170.95 (now section 1172.6).1 After an evidentiary hearing, the superior court denied the petition, finding beyond a reasonable doubt that Velasquez is guilty of murder under aiding and abetting as well as implied malice theories of liability, and that he is guilty of attempted murder as an aider and abettor. Velasquez contends the superior court’s findings are not supported by substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

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

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

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

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

3. Testimony of Officer Joel Ruiz Officer Joel Ruiz of the Los Angeles Police Department testified that he previously had personal contact with Velasquez. In 2007, Ruiz detained Velasquez, along with several 38th Street gang members, and he served Velasquez with a gang injunction. Velasquez told Officer Ruiz he was a member of the 38th Street gang. Around 2008 or 2009, Ruiz saw gang tattoos on Velasquez, 2 Because Carlos Lopez has the same last name as the homicide victim, we refer to him by his first name.

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

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

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

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

5. Testimony of Officer Bryan Schilling Officer Bryan Schilling of the Los Angeles Police Department offered testimony regarding the gangs involved in the shooting. At the time of the preliminary hearing, he was assigned to monitor the 38th Street gang. The gang used Ross Snyder Park as its main hangout, and feuded with other gangs, including the Pueblos, also known as the Pueblo Bishop Bloods. There had been multiple shootings and homicides during the feud between the 38th Street and Pueblo Bishop gangs over a number of years. Officer Schilling had numerous prior contacts with the Pueblo Bishop gang at the Pueblo Del Rio housing complex. Officer Schilling testified it is very uncommon to see 38th Street gang members inside the Pueblo Del Rio housing complex because that is the territory of their rival gang. He opined there was no reason for 38th Street members to be at that complex unless it was to “do something” in relationship to the gang rivalry.4 38th Street gang members risked their own safety 4 Officer Schilling stated: “[T]here is no reason for 38th Street to even cross over onto Long Beach and be between those blocks, let alone stop the car right there. It’s a rival gang. If you are stopping there, you are there to do something.”

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

B. Velasquez’s Plea Agreement and Sentence In 2014, as relevant here, the Los Angeles County District Attorney filed an information charging Velasquez and Loera with murder (§ 187, subd. (a)) and attempted murder (§§ 187, subd. (a), 664).5 In 2015, Velasquez pleaded no contest to attempted murder and voluntary manslaughter.6 Velasquez admitted that a principal personally and intentionally discharged a firearm in the 5 The information is not contained in the current appellate record. On our own motion, we take judicial notice of the record in Loera’s direct appeal (case No. B263932), which contains the information. (Evid. Code, §§ 452, subd. (d), 459.) 6 Before Velasquez’s plea, the court ordered the information amended by interlineation to add the voluntary manslaughter count.

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

C. Section 1172.6 Proceedings Velasquez filed a section 1172.6 petition. The People conceded he made a prima facie case for relief, but opposed his petition arguing that Velasquez is guilty of murder under direct aider and abettor and implied malice theories, and guilty of attempted murder as a direct aider and abettor. The prosecution included various exhibits with its opposition, including the transcript of Velasquez and Loera’s preliminary hearing. Velasquez did not submit any evidence. In March 2025, the superior court held an evidentiary hearing under section 1172.6, subdivision (d). The court considered the parties’ briefs, as well as the preliminary hearing transcript, and heard arguments from the parties. In May 2025, the court issued an order denying the petition. Based on the preliminary hearing testimony, the court concluded Velasquez was guilty beyond a reasonable doubt of murder and attempted murder under currently valid theories. The court found Velasquez was guilty of murder because he aided and abetted the shooter while harboring the intent to kill. More specifically, the court found Velasquez (1) aided the commission of Lopez’s murder by driving his fellow gang members, including the shooter, into rival gang territory; (2) knew of the shooter’s unlawful purpose to commit murder; and (3) intended to facilitate the murder while sharing the shooter’s intent to kill. The court alternatively concluded Velasquez was guilty of murder under a 7 currently valid implied malice theory. In particular, the court found that by driving his car into rival gang territory, then complying with the shooter’s request for him to stop the car, Velasquez engaged in an act dangerous to human life, was aware of the danger, and consciously disregarded it. The court also found Velasquez was guilty of attempted murder under an aiding and abetting theory of liability. The court explained Velasquez drove the shooter into rival gang territory, knew of the shooter’s intent to kill, and intended to facilitate the intended murder of Rogers. Velasquez timely appealed.

DISCUSSION

A. Governing Law and Standard of Review Effective 2019, the Legislature, through Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015), amended section 188 to eliminate the natural and probable consequences doctrine as it applies to murder and to require, with certain exceptions under the felony murder rule, that a defendant act with malice to be convicted of murder. (§ 188, subd. (a)(3).) Effective 2022, through Senate Bill No. 775, the Legislature amended section 1172.6 to apply to persons convicted of attempted murder under the natural and probable consequences doctrine, as well as individuals convicted of manslaughter. (§ 1172.6, subd. (a).)7 7 “When the Legislature added manslaughter to the covered crimes as part of Senate Bill No. 775[], it did so out of concern that some defendants may have pled guilty to voluntary manslaughter before 2019 to avoid being convicted of a charged 8 Upon receipt of a facially sufficient section 1172.6 petition, the superior court “shall appoint counsel” for petitioner if requested (id., subd. (b)(3)), then the court assesses whether the petitioner has made a prima facie showing he is eligible for relief. (Id., subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 957.) If so, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under a currently valid theory. (§ 1172.6, subds. (c) & (d).) At the evidentiary hearing, the court may consider evidence “previously admitted at any prior hearing or trial that is admissible under current law.” (§ 1172.6, subd. (d).) The court may rely on preliminary hearing evidence, but it cannot consider hearsay evidence that was admitted at a preliminary hearing under section 872, subdivision (b) unless that evidence is admissible under another exception to the hearsay rule. (§ 1172.6, subd. (d)(3); People v. Davenport (2023) 95 Cal.App.5th 1150, 1156.)8 The petitioner and the prosecutor murder under one of the theories eliminated or narrowed by Senate Bill No. 1437 in 2019.” (People v. Gaillard (2024) 99 Cal.App.5th 1206, 1213, fn. 4, citing Assem. Com. on Public Safety, Analysis of Sen. Bill No. 775 (2021–2022 Reg. Sess.) as amended July 6, 2021, p. 7 [“a petitioner may have pled guilty or no contest to voluntary manslaughter in order to forego the risk of being convicted of murder or attempted murder under one of these subsequently abrogated theories of liability”].) 8 Section 872, subdivision (b) allows a qualified law enforcement officer to relate hearsay statements when testifying at a preliminary hearing, “[n]otwithstanding section 1200 of the Evidence Code.” Velasquez did not argue in the superior court, 9 may also offer new or additional evidence “ ‘ “to meet their respective burdens.” ’ ” (Id. at p. 1161, fn. 6.) In assessing Velasquez’s appeal from an evidentiary hearing, we review the record in the light most favorable to the order below to determine if there is substantial evidence from which a rational trier of fact could find beyond a reasonable doubt that he is guilty of murder or attempted murder under current law. (People v. Reyes (2023) 14 Cal.5th 981, 988.) Substantial evidence includes circumstantial evidence and reasonable inferences based on that evidence. (People v. Navarro (2021) 12 Cal.5th 285, 339.) We “presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.) Accordingly, we do not substitute our own evaluation of a witness’s credibility for that of the finder of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “Because we must draw all inferences in support of the judgment, [a] defendant ‘bears an enormous burden’ when challenging the sufficiency of the evidence.” (People v. Vasco (2005) 131 Cal.App.4th 137, 161.)

B. The Testimony from Velasquez’s Preliminary Hearing Provides Substantial Evidence Supporting the Superior Court’s Findings That Velasquez Is Guilty of Attempted Murder Under Current Law as a Direct Aider and Abettor Who Harbored the Intent To Kill “Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward nor does he argue on appeal, that any of the preliminary hearing testimony the superior court relied on to deny him section 1172.6 was inadmissible hearsay.

10 accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) “Direct aiding and abetting remains a valid theory of attempted murder after the enactment of Senate Bill No. 775.” (People v. Coley (2022) 77 Cal.App.5th 539, 548.) “ ‘[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing— which means that the person guilty of attempted murder as an aider and abettor must intend to kill.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).) “Direct evidence of intent to kill is rare, and ordinarily the intent to kill must be inferred from the statements and actions of the defendant and the circumstances surrounding the crime.” (People v. Canizales (2019) 7 Cal.5th 591, 602.) Motive is often probative of intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 741.) Several factors may be relevant in determining whether an individual acted as an aider and abettor, including presence at the scene of the crime, relationship to the direct perpetrator, and the individual’s conduct before and after the offense. (Nguyen, at p. 1054.) The preliminary hearing testimony provides substantial evidence that Velasquez drove fellow gang members into rival gang territory, parked his car near a rival gang hangout, waited as codefendant Loera left the car and committed the attempted murder of Rogers, then drove away once Loera returned. Velasquez told Officer Torres that the other gang members, including Loera, told Velasquez they wanted him to stop the car after they saw several African American people at the rival gang hangout. Velasquez said there was a racial divide among the 38th Street and Pueblo Bishop warring gangs. When Loera got 11 back in the car, he stated he had “got a pepto,” a derogatory term for a Pueblo Bishop gang member. Rogers was affiliated with the Pueblo Bishop gang. The People’s gang expert Schilling opined 38th Street gang members had no reason to risk their safety and drive to the Pueblo Del Rio housing complex other than to “do something” relating to the gang rivalry.9 Schilling further opined, in response to a hypothetical consistent with the facts of this case, that there could be repercussions against the shooter if he did not inform the others in the car of his plan to shoot before exiting the car to do so. This evidence suggests Velasquez had knowledge of the shooter’s plan. We conclude the facts surrounding Velasquez’s participation in the shooting, coupled with the gang expert testimony, provide sufficient circumstantial evidence of motive, aiding, abetting, knowledge, and intent to kill supporting the superior court’s finding Velasquez is guilty of attempted murder under a currently valid theory. (See Nguyen, supra, 61 Cal.4th at p. 1054 [relevant factors in determining whether an individual 9 The Attorney General argues the preliminary hearing evidence supports the inference that the shooting by Loera was in retaliation for the death of Sergio Cuevas. But the superior court concluded the preliminary hearing transcript “does not sufficiently support an assertion that [Velasquez] had knowledge of Cuevas’[s] murder and that [Velasquez] and his fellow gang members intended to kill because they were seeking revenge against the Pueblos for Cuevas’[s] murder . . . . In any event, there is still evidence that [Velasquez] intended to kill . . . .” Because other evidence supports the superior court’s findings, we need not determine whether the preliminary hearing also demonstrates the shooting was in retaliation for the death of Cuevas.

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

13 We reject Velasquez’s assertion the superior court was prohibited under Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041 (Kennedy), a federal case not involving section 1172.6, from considering Officer Schilling’s gang testimony in assessing Velasquez’s section 1172.6 eligibility. Kennedy states: “Evidence of gang membership may not be introduced . . . to prove intent or culpability.” (Id. at p. 1055.) Kennedy is not controlling. The California Supreme Court has repeatedly held that “[t]he People are generally entitled to introduce evidence of a defendant’s gang affiliation and activity if it is relevant to the charged offense.” (People v. Chhoun (2021) 11 Cal.5th 1, 31 (Chhoun).) Such evidence is relevant because it “ ‘can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.’ ” (Ibid,; accord, Ramirez, supra, 13 Cal.5th at p. 1095.) Kennedy is also distinguishable. That federal habeas corpus proceeding arose after Kennedy was tried twice in state court for selling .08 grams of a substance that looked like an illegal drug but was described only as an “off-white, rock-like substance” to an undercover police officer. (Kennedy, supra, 379 F.3d at pp. 1042-1044.) Evidence of Kennedy’s gang membership had been excluded from his first trial, which ended in a hung jury. (Id. at pp. 1042-1043.) Before his second trial, Kennedy requested a complete transcript of his first trial, but the trial court denied his request, and instead provided only the witness testimony, rather than the part of the transcript containing the parties’ motions and the court’s rulings. (Id. at pp. 1042-1044.) Aware that Kennedy’s new counsel did not have the complete transcript of the first trial, the People introduced evidence of Kennedy’s gang involvement at the second trial, and 14 the jury returned a guilty verdict. (Id. at p. 1043.) The gang evidence was apparently excluded from the first trial because it was irrelevant to the crime for which Kennedy was charged and convicted, and it was introduced by the People at the second trial to suggest that Kennedy might be involved in a gang. (See id. at p. 1044.) The Ninth Circuit granted habeas relief, concluding the trial court improperly withheld the complete transcript of the first trial from Kennedy’s new counsel and that the error prejudiced Kennedy. (Id. at pp. 1057-1058.) Unlike in Kennedy, where the gang evidence was not relevant to whether the habeas petitioner was guilty of selling drugs, here, the gang evidence was directly relevant to whether Velasquez was guilty of attempted murder under a currently valid theory. (See Ramirez, supra, 13 Cal.5th at p. 1095 [evidence of gang affiliation, territory, practices, beliefs, and rivalries, is often relevant to prove motive and intent]; People v. Didyavong (2023) 90 Cal.App.5th 85, 98 (Didyavong) [substantial evidence supporting superior court’s finding that petitioner was ineligible for section 1172.6 relief included expert testimony on gang culture and practices]; People v. Vargas (2022) 84 Cal.App.5th 943, 954 (Vargas) [superior court’s section 1172.6 ineligibility finding was supported by substantial evidence, including gang association as circumstantial proof of aiding and abetting].) Kennedy therefore does not undermine our conclusion that the superior court here was authorized to rely on Officer Schilling’s gang testimony in assessing whether Velasquez harbored the intent to kill. Nor are we persuaded by Velasquez’s argument that reversal is warranted under Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337 (Mitchell), overruled on another ground in 15 Santamaria v Horsley (9th Cir. 1998) 133 F.3d 1242, 1248. In Mitchell, the defendant, a gang member, was involved in a fistfight with several rival gang members. (Id. at p. 1338.) After the fistfight ended, Mitchell was in a car with his fellow gang members. (Ibid.) Someone in the car fired a gun, injuring Jerry Knox, a rival gang member with whom Mitchell’s gang had just fought. (Ibid.) As the conflict continued, Knox suffered another gunshot injury, and the car containing Mitchell ran over and killed him. (Id. at p. 1339.)10 The Ninth Circuit held there was insufficient evidence to support Mitchell’s conviction for murder as an aider and abettor because the jury found Mitchell had not driven the car responsible for Knox’s death, and there was no other evidence that Mitchell encouraged or assisted either the shootings or the fatal car collision. (Id. at pp. 1340-1343.) Here, by contrast, there is ample evidence supporting the superior court’s finding Velasquez aided and abetted Loera and also harbored the intent to kill. Velasquez drove Loera into rival gang territory, stopped his car near a rival gang hangout, waited as Loera shot Rogers (and killed Lopez), then Velasquez drove Loera away after the shooting. As stated, this evidence supports the superior court’s finding that Velasquez knew of Loera’s intent to kill, shared that intent, and directly aided and abetted Loera’s attempted murder of Rogers. We also reject Velasquez’s contention, citing People v. Vang (2011) 52 Cal.4th 1038, 1047-1048, that the superior court erred 10 At Mitchell’s trial, a medical examiner testified Knox’s gunshot wounds would have been nonfatal, and that the injury to his chest from being run over would have caused death within one or two minutes even if it had been his only injury. (Mitchell, supra, 107 F.3d at p. 1339.)

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

C. The Preliminary Hearing Testimony Also Provides Substantial Evidence Supporting the Superior Court’s Finding That Velasquez Is Guilty of Murder Under Current Law as a Direct Aider and Abettor Who Harbored the Intent To Kill Direct aiding and abetting remains a viable theory of murder liability because a direct aider and abettor to murder must possess malice aforethought. (People v. Gentile (2020) 10 Cal.5th 830, 848, superseded by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869.) Malice may be express or implied. (§ 188, subd. (a).) “Malice is express when there is manifested a deliberate intention” to unlawfully 17 kill. (§ 188, subd. (a)(1).) “The primary difference between express malice and implied malice is that the former requires an intent to kill but the latter does not.” (People v. Soto (2018) 4 Cal.5th 968, 976.) A defendant is liable as a direct aider and abettor of express malice murder if the defendant aided or encouraged the murder with knowledge of the perpetrator’s unlawful purpose and with the intent or purpose of committing, encouraging, or facilitating the commission of the murder. (In re Lopez (2023) 14 Cal.5th 562, 579.) The same facts that support the superior court’s attempted murder finding also support the court’s finding that Velasquez directly aided and abetted Loera in the murder of Lopez, especially because the murder of Lopez and attempted murder of Rogers were both accomplished through the same shooting. Velasquez drove his fellow gang members into rival gang territory then complied with their request to stop the car when they saw several African Americans. Velasquez waited as Loera shot victims Lopez and Rogers, then drove away once Loera returned. Officer Schilling opined 38th Street gang members had no reason to endanger themselves by driving to the Pueblo Del Rio housing complex except to engage in conduct relating to the gang rivalry. He further opined, in response to a hypothetical consistent with the facts of this case, that the shooter could face repercussions from his own gang if he did not inform the others in the car of his plan to shoot before doing so. The circumstantial evidence surrounding Velasquez’s participation in the shooting, coupled with the gang testimony, reasonably support the superior court’s finding that he is guilty of directly aiding and abetting express malice murder. (See Nguyen, supra, 61 Cal.4th at pp. 1053-1055 [substantial evidence supported finding that 18 defendant aided and abetted the shooter while harboring the intent to kill where, in the context of a gang rivalry, the car in which the defendant was riding pursued another car with rival gang members, and passengers in defendant’s car fired at the other car]; Ramirez, supra, 13 Cal.5th at p. 1095 [gang evidence is often relevant to prove intent]; Didyavong, supra, 90 Cal.App.5th at p. 98 [gang expert testimony may be used to prove that a section 1172.6 petitioner is guilty of murder under a currently valid theory]; Vargas, supra, 84 Cal.App.5th at p. 954 [gang association may be relevant in assessing whether a petitioner is ineligible for section 1172.6 relief as an aider and abettor to murder].)11

DISPOSITION

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

MARTINEZ, P. J.

We concur:

SEGAL, J. STONE, J.

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