P. v.Aghazadeh

Filed 5/30/06  P. v.Aghazadeh CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

                        Joseph Aghazadeh appeals from his conviction after a jury trial on two counts of attempted murder of a peace officer, one count of second degree robbery, and the finding he committed these crimes to further gang activity.[1]  (Pen. Code, §§  664/187, 189, 211, 186.22, subd. (b)(1).)[2]  The jury further found that one of the principals in the robbery and attempted murders intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (e).  

                        Appellant was sentenced to the midterm of three years for robbery.  (§  211.)  He also received consecutive terms of life plus 20 years under section 12022.53, subdivisions (c) and (e)(1), for the attempted murder convictions.  The court imposed 10 years consecutive to these terms for the gang enhancement.  (§  186.22, subd. (b)(1).)  Each of these terms was made to run consecutive to the other terms and to each other.  Restitution and parole revocation fines were imposed, and appellant was awarded 1,718 actual days of custody plus 256 days of custody credits pursuant to section 2933.1.

                        Aghazadeh contends the court committed Wheeler error, improperly admitted testimony of a gang expert, and made various evidentiary errors.  (People v. Wheeler (1978) 22 Cal.3d 258.)  He also contends the evidence was insufficient to sustain the attempted murder charges either on a theory of vicarious liability or based on the theory he personally acted in a willful, deliberate and premeditated manner with specific intent to kill.  He contends the evidence was insufficient to sustain the gang allegations.  Lastly, he asserts he is entitled to one additional day of custody credit.

                        Aghazadeh is entitled to one additional day of credit.  In all other respects, we affirm.

FACTS

                        As Elias Bonilla left his home to go to work, early on the morning of July 4, 2000, he saw two men jump over a fence and approach an apartment building across the street.  He noticed that one of the men, later determined to be codefendant Mario Aleman, held what appeared to be a machine gun.  Bonilla sought shelter behind a car.  As codefendants Aleman and Maldonado peered into the windows of the apartment building, Bonilla saw another man sitting in the driver's seat of a running Honda automobile about 15 feet away from him.  Bonilla believed that the man in the Honda was a neighbor, so he motioned towards him to stay down and be quiet.  But, the man in the Honda had come with the other men and alerted them to Bonilla's presence.  The man in the Honda was Aghazadeh. 

                        Maldonado and Aleman approached Bonilla and asked him where he was " from."   Bonilla was frightened and answered, " Nowhere, I'm just going to work."   At gunpoint, one of the codefendants demanded that Bonilla give them his money.  Bonilla replied he did not have any.  The men took Bonilla's wallet and gold neck chain.  As the men walked away, Bonilla overheard the one with the gun say, " someone's gonna die."   The two men entered the Honda, and Aghazadeh drove them away from the scene.  Bonilla returned to his home, and his wife called the police.

                        When Los Angeles Police Officers Thomas Baker and Carlos Langarica received a radio report of the robbery, and a description of the suspects as three male Hispanics with machine guns in a gray Honda Accord, they spotted a car that matched the description.  The officers made a U-turn and followed the Honda.  Aghazadeh crossed two lanes of traffic, ran a red light, turned a corner and accelerated.  The officers followed the car, and a high-speed pursuit ensued. 

                        Aghazadeh led the officers into the territory of the Toonerville street gang.  As the officers approached the heart of the gang's territory, they saw a washing machine in the middle of the road.  The suspects' car slowed down considerably and the officers feared they were being ambushed.  A man appeared from behind a fence and threw a bicycle in front of the patrol car.  The officers hit the brakes, swerved to avoid the bicycle, and called for assistance.

                        Just as the patrol car swerved to avoid the bicycle, a sniper began shooting at the police car from behind.  Officer Baker called for help, stating they were under fire, as he tried to speed away from the sniper.  However, Aghazadeh continued to slow down his vehicle.  The men inside the Honda began firing at the officers.  Officer Langarica noticed that the front passenger of the Honda, later determined to be Aleman, was holding a gun out the window.  Officer Langarica saw muzzle flashes coming from Aleman's gun and he returned fire.

                        Suddenly, Aghazadeh hit the brakes.  Officer Baker rammed into the Honda several times, attempting to disrupt the suspects' gunfire and evade the apparent ambush.  Officer Baker testified that they were being attacked from both the front and back, and he felt he was " in no man's land."

                        Aleman jumped out from the front passenger door of the still-moving Honda, and sought to escape by running in the opposite direction from which the vehicles were traveling.  When he got to a point less than 10 feet away from Officer Langarica, Aleman pointed what appeared to be an Uzi assault rifle at him.  Officer Langarica fired at Aleman, who dropped his weapon and ran away. 

                        The Honda jumped the curb onto a sidewalk and crashed into a tall, chain link fence.  Maldonado, the rear seat passenger of the Honda, squirmed about in the car.  He appeared to be holding a submachine gun.  As Maldonado attempted to get out of the car, Officers Baker and Langarica fired at him.  Maldonado dropped down out of view.  The officers ran for cover behind a tree.

                        Finally, the shooting stopped and the officers directed the men in the Honda to raise their hands.  Maldonado and the driver, Aghazadeh, slowly complied.  The officers discovered they had hit Maldonado four times in the back.  Maldonado and Aghazadeh were taken into custody.  Meanwhile, Officer Mike Gilbert arrived and apprehended Aleman who was running down the middle of a street while removing black gloves from his hands.

                        Officers recovered a " Tech-9" semiautomatic handgun from the rear floorboard of the Honda, and an " M11" firearm from the sidewalk nearby, where Aleman had started to flee.  Investigators recovered Bonilla's wallet from the floorboard of the Honda.  In addition, they found three knit black ski caps and two more pairs of gloves.  Forensic experts recovered a number of rounds from the sidewalk which had been fired from the M11.  They also found Aleman's palm print on the magazine of the M11.  Bonilla identified Aleman from photographic six-packs at the preliminary hearing and at trial.

                        Police Officer Richard Gadsby, who had more than four years of personal experience with the Toonerville gang and its rival, the Rascals, testified that both groups were criminal street gangs as defined by section 186.22.  Officer Gadsby testified the primary activities of both gangs were murder, robbery, assault, and drug trafficking.  Officer Gadsby testified there was " a major rivalry," indeed a " war," between Toonerville and the Rascals that had lasted for more than a decade.  Detective Keith Soboleski, another gang expert, testified that these two gangs were at war with each other.  The gangs had previously engaged in planned shootings for the benefit of their respective gangs, including a recent " drive-by" shooting of Ryan Gonzalez, a member of the Rascals.  According to Officer Gadsby, such shootings earn one a great deal of respect from other gang members, but shootings of police officers garner the most respect.

                        Forensics experts determined that shell casings from the weapon that had been used to kill Gonzalez were fired from the same weapon used by the unknown sniper in this case. 

                        The officers testified that at one time, Allan (Boo Boo) Montoya, a member of the Rascals, had lived in the apartment building into which the codefendants were peering just before they robbed Bonilla.  Montoya had previously committed a " drive-by" shooting in Toonerville territory.  The Toonerville gang retaliated for that drive-by shooting by stealing, vandalizing, and crashing a van which belonged to the Montoya family.  That vandalism occurred only about a week before the instant incidents took place.  According to Clayton Hollopeter, an expert for the defense who had been the director of a local Boys and Girls Club for many years, such retaliation is commonplace between these gangs. 

                        Officer Gadsby testified he knew that all of these defendants were members of the Toonerville gang, and he knew that the robbery of Bonilla occurred in Rascals' territory.  Officer Gadsby explained that immediately asking someone from this area  where they are from indicates involvement in a gang.  Another indication that defendants were gang members was that each of them had gang tattoos on them.  Aleman had a tattoo which read " TVR" for Toonerville.  Detective Soboleski testified he personally knew each of the defendants and knew that they were all Toonerville gang members.

                        Officer Gadsby opined that defendants came into the Rascals' territory this time as part of a gang mission to retaliate against Montoya.  Officer Gadsby opined that although the robbery of Bonilla apparently began as a crime of opportunity, it was carried out in a manner that was intended to assist the gang in completing their overall mission.  Officer Gadsby believed that the primary purpose of robbing Bonilla and saying someone was going to die, was to intimidate Bonilla from acting as a witness, not to get his valuables.  

                        Officer Gadsby testified that he knew the Toonerville gang held meetings to plan missions like this one.  Officer Gadsby testified that the placement of the washing machine, the throwing of the bicycle, and the stationing of a sniper near the street corner behind the police vehicle, all indicate prior planning by Toonerville gang members.  Clayton Hollopeter testified that the facts appeared to indicate that this crime began as " a planned event," and that the robbery of Bonilla was accomplished just for the purpose of intimidating him.

                        Officer Scott Reitz testified as an expert on the creation and impact of stress on one's perception during a gunfight.  He opined that in this case, the gang used the washing machine, the bicycle, the sniper, the shooter in the Honda, and the narrowness of the street to create an ambush against the police.  Such obstacles, and the narrow street, were purposefully used by the gang members to slow down the police vehicle, and to limit its mobility, thereby increasing the vulnerability of the police officers to their gunfire.  Another indicia of planning was the use of the circuitous route back to the heart of Toonerville territory, which provided time to set up the ambush. 

DISCUSSION

Wheeler Error

                        Appellant contends that the trial court erred by denying his Wheeler motion which asserted that the prosecutor had exhibited group bias against prospective Hispanic jurors.  (People v. Wheeler, supra, 22 Cal.3d 258.)[3]

                        A criminal defendant has a constitutional right to trial by a jury comprised of a representative cross-section of the community.  (People v. Wheeler, supra, 22 Cal.3d at p. 272; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §  16.)  The exercise of peremptory challenges to remove prospective jurors based on a group bias violates this fundamental right.  (Wheeler, supra, at pp. 276-277.)  Accordingly, Wheeler prohibits the use of peremptory challenges to exclude all or most members of a racially identifiable group, such as Hispanics.  (Id., at p. 280; Batson v. Kentucky (1986) 476 U.S. 79, 89; People v. Gutierrez (2002) 28 Cal.4th 1083, 1122-1123 [Hispanics are identifiable group for purposes of Wheeler]; accord, People v. Ramos (1997) 15 Cal.4th 1133, 1154-1155.)

                        In considering a Wheeler motion, courts begin with a rebuttable presumption that any peremptory challenge is made on constitutionally permissible grounds.  (People v. Wheeler, supra, 22 Cal.3d at p. 278; People v. Alvarez (1996) 14 Cal.4th 155, 193.)  To overcome this presumption, the party making the Wheeler motion must establish a prima facie case of group bias.  (People v. Box (2000) 23 Cal.4th 1153, 1187-1188; People v. Arias (1996) 13 Cal.4th 92, 134-135.)  The moving party must establish not only that the persons excluded are members of a cognizable group, but also that an inference has been raised that the exclusions were made because of impermissible group association.  (Box, supra, at pp. 1187-1188; see Johnson v. California (2005) 545 U.S. ___ [162 L.Ed.2d 129, 138, 141] overruling Wheeler's use of the strong likelihood standard.)  If just one of the peremptory challenges remains unjustified, the presumption is rebutted and a prima facie case of Wheeler error is established.  (People v. Granillo (1987) 197 Cal.App.3d 110, 123.)

                        If the defendant establishes a prima facie case of group bias, then " the burden shifts to the prosecution to provide 'a race-neutral explanation . . .' . . . . However, the explanation need not be sufficient to justify a challenge for cause. . . .  Jurors may be excused based on 'hunches,' and even 'arbitrary' exclusion is permissible, so long as the reasons are not based on impermissible group bias."   (People v. Turner (1994) 8 Cal.4th 137, 164-165, clarified on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)  The trial court must make " 'a sincere and reasoned attempt to evaluate the prosecutor's explanation,'" and to determine whether the prosecutor's stated reasons for exclusion are pretextual or untrue.  (People v. Silva (2001) 25 Cal.4th 345, 385; People v. Fuentes (1991) 54 Cal.3d 707, 720-721.)

                        We review Wheeler rulings with great deference to the trial court because the trial court observes the proceedings and personally knows the local conditions and prosecutors.  (People v. Catlin (2001) 26 Cal.4th 81, 117; People v. Box, supra, 23 Cal.4th at pp. 1189-1190; People v. Fuentes, supra, 54 Cal.3d at pp. 714-715.) 

                        Appellant points out that four of the prosecutor's first five peremptory challenges were made against prospective jurors who appeared to be Hispanic.  The court found that the defense stated a prima facie case of discriminatory exclusion of Hispanics from the prospective jury.  The court asked for an explanation of these challenges. 

                        The prosecutor responded that he had accepted the panel numerous times with prospective jurors who appeared to be Hispanic, and that the defense itself had used three of its peremptory challenges against prospective jurors who appeared to be Hispanic.  The prosecutor also pointed out that three of the prospective jurors remaining on the panel appeared to be Hispanic.  He argued that the panel appeared to be very diverse overall.

                        The prosecutor explained that he excused prospective juror number 11 because she suggested she was " prissy."   The prosecutor was concerned that she might have a hard time dealing with evidence of firearms and the substantial violence involved in this case.  The prosecutor dismissed several other prospective jurors due to their apparent bias against the police, and due to youth, sensitivity and lack of life experience.  In general, the prosecutor said he was looking for older jurors with substantial life experience.  He believed that the two prospective jurors remaining, one of whom was also Hispanic, appeared to be better suited to serve on this jury.

                        The court denied the Wheeler motion, explaining that the prosecutor had indeed accepted the prospective jury many times with people who appeared to be Hispanic, and the reasons given for excluding the prospective jurors in question seemed to be sincere and valid.

                        The next morning, the court announced that after reviewing the record more closely, it appeared that the excused juror who the prosecutor had described as " prissy" was not the one who had so characterized herself.  The court asked the prosecutor to justify excusing her.  The prosecutor responded that he believed he had been confused the previous day because he had been ill and had lost sleep.  He thought he may have confused this prospective juror with another woman seated nearby.  He explained that both women had given him the impression they were too sensitive to consider the evidence in this case and lacked sufficient life experience.  Both women had made similar comments about police work – one said she was too " prissy;" the other said she could not deal with all the pressure and would not be much of a match for assailants.  (See generally People v. Johnson (1989) 47 Cal.3d 1194, 1217-1218 [dismissal because juror seemed nervous, weird, or unable to relate to prosecutor]; People v. Perez (1994) 29 Cal.App.4th 1313, 1328 [limited life experience].)  Other nearby jurors also said they would not be a match for an assailant, they were " drawn to the arts and creativity," and one mentioned being more of a " pacifist."  

                        The court confirmed that it had adjourned proceedings the day before because the prosecutor was feeling ill.  The court found that the prosecutor had made an honest mistake and concluded that the evidence established no bias on the part of the prosecutor.  (See People v. Williams (1997) 16 Cal.4th 153, 188-189 [genuine mistake is non-discriminatory].)  The court reiterated that the prosecutor had accepted the panel numerous times, three of the remaining prospective jurors appeared to be Hispanic, and, overall, the panel was very diverse.  Accordingly, the court let stand its previous ruling denying the Wheeler motion.   We conclude that the court did not abuse its discretion in denying this motion. 

Expert Opinion Testimony Regarding Gangs

                        Appellant asserts that allowing expert testimony about gangs was prejudicial error because it permeated the trial.  Expert testimony is admissible whenever the subject at hand is sufficiently beyond common experience so that such testimony would assist the trier of fact.  (People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1227.)  " [I]n a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect."   (People v. Williams, supra, 16 Cal.4th at p. 193.)  Exclusion of gang evidence is not required when the evidence at issue is relevant and admissible both as to the underlying offense and any gang enhancement.  (People v. Hernandez  (2004) 33 Cal.4th 1040, 1048-1051;  People v. Martin (1994) 23 Cal.App.4th 76, 81-82.) 

                        " A person is qualified to testify as an expert if he [or she] has special knowledge, skill, experience, training, or education sufficient to qualify him [or her] as an expert on the subject to which his [or her] testimony relates."   (Evid. Code, §  720; and see id., at §  801, subd. (b); People v. Kelly (1976) 17 Cal.3d 24, 39; People v. Harvey, supra, 233 Cal.App.3d at pp 1226-1227.)  Qualified police officers may testify as experts on the sociology, psychology, customs and methods of operation of street gangs.  (People v. Gamez (1991) 235 Cal.App.3d 957, 966, disapproved on other grounds in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10; People v. McDaniels (1980) 107 Cal.App.3d 898, 905.)  

                        An expert's opinion may extend to fairly ordinary matters and events if the expert witness has knowledge or training about related matters that would tend to shed light on or explain the underlying reason for the behavior in question.  (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300 [why victims of child molestation refrain from reporting the crime]; People v. McDonald (1984) 37 Cal.3d 351, 367-369, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914-915 [factors re: eyewitness identification]; People v. Harvey, supra, 233 Cal.App.3d at pp. 1226-1227 [nature of drug transactions and roles of individuals].) 

                        The court held an Evidence Code section 402 hearing to determine whether to admit expert testimony regarding gangs.  During the hearing, Officer Gadsby testified that he had four and one-half years of experience working on the police gang detail where the Toonerville gang claims its turf.  He attended regular updates concerning gang activity, consulted other police departments, and spoke daily with many of the gang members about their activities so he could gain insight into their motivations and dress.  He testified that he constantly reviews and updates detailed police files on gang members.  In addition to daily discussions with gang members on the street, he had conducted hundreds of investigations and arrests of gang members.

                        The court found that Officer Gadsby qualified as a gang expert, his testimony was relevant and admissible, and it was more probative than prejudicial under Evidence Code section 352.  (Citing People v. Gardeley, supra, 14 Cal.4th at p. 613; People v. Champion (1995) 9 Cal.4th 879; People v. Valdez  (1997) 58 Cal.App.4th 494.)  The court did not abuse its discretion in so concluding.  This expert testimony was admissible to show whether and how these crimes were committed to benefit the gang, their intent, motivation, and modus operandi in committing these crimes, and the underlying milieu of the gang as shown by its culture, habits, composition, territory, activities, rivalries with other gangs, tattoos, signals, and attire.  (People v. Hernandez, supra, 33 Cal.4th at p. 1049; Gardeley, supra, at p. 617; People v. Williams, supra, 16 Cal.4th at p. 193; People v. Martinez (2003) 113 Cal.App.4th 400, 413; People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.)  This testimony was also admissible to assist the jury in determining the truth of the special gang enhancement allegations.  (See People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324; Gardeley, supra, at pp. 624-625; People v. Duran (2002) 97 Cal.App.4th 1448, 1458.) 

                        Officer Gadsby explained how the circuitous route of the chase, the placement of the washing machine, the throwing of the bicycle, and the stationing of a sniper indicated planning by the Toonerville gang to help carry out a retaliatory mission.  He explained how these tactics are regularly and deliberately used by gangs to evade and stymie the police.  For example, gangs tend to create surprise by using ambush techniques at a familiar corner which is near or adjacent to their usual meeting place. 

Use of Hollopeter Videotape by Prosecution at Trial

                        Before trial, the defense announced its intention to call Clayton Hollopeter as a gang expert.  Because he was scheduled to be out of town during trial, the parties agreed to videotape his testimony.  (§  1335 et seq.; and see esp. §§  1336, 1343, 1345.)  On the videotape, Hollopeter expressed the opinion that what occurred here appeared to be planned gang activity.  After the videotape was prepared, the prosecutor stated he might use it himself.  The defense objected on the ground that the tape contained leading questions.  The trial court disagreed and ruled that either side may use the videotape at trial, but allowed the defense to videotape further cross-examination of the witness.  The defense declined to do so, and renewed its objection to leading questions at trial.  The trial court overruled the objection, and cited section 1345.  Section 1345 states, in pertinent part, " that video-recording may be shown by either party at the trial if the court finds that the witness is unavailable . . . ."   In addition, the defense stipulated to the admissibility of the videotape at trial.  The trial court did not abuse its discretion in allowing the prosecution to present this evidence to the jury. 

                        On appeal, Aghazadeh raises a different assignment of error.  Now, he asserts that showing the videotape at trial denied him due process.  The defense did not raise this objection in the trial court, so it is waived.  (People v. Hart (1999) 20 Cal.4th 546, 615; see generally People v. Dessauer (1952) 38 Cal.2d 547, 552; People v. Rudd (1998) 63 Cal.App.4th 620, 628-629.)    

                        Nonetheless, appellant opines that such use violated the holding announced in People v. Wash (1993) 6 Cal.4th 215, 250.  We disagree.  Wash is a pre-Proposition 115 case that is inapposite here.  (People v. Welch (1972) 8 Cal.3d 106, 114-115; Wash, supra, at p. 252, fn. 16.)  Wash simply precluded the prosecution from obtaining and using an expert psychologist's notes.  The use of the videotape by the prosecution comports with statutory procedures, Proposition 115, and the stipulation of the parties for its use at trial.   

Sniper's Weapon

                        Forensic experts determined that some cartridge casings recovered from the scene of these attempted murders had been fired from the gun used to kill Rascals' gang member Ryan Gonzalez in 2000.  Defense counsel objected to the introduction of this evidence as too attenuated and prejudicial.  (Evid. Code, §  352.)  The defense argued that other evidence had already established retaliation for Montoya's drive-by shooting, thereby rendering unnecessary the use of this evidence.  The trial court permitted its use at trial because the evidence supported the prosecution's theory that this was a crime of retaliation; an integral part of an escalating series of incidents in the rivalry between the Toonerville and Rascals gangs. 

                        We review the court's ruling for abuse of discretion.  (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)  Evidence that the sniper's gun was used both in this crime and to kill Gonzalez was relevant to show that members of Toonerville and the Rascals were involved in ongoing retaliation, which included attempted murders.  The court did not abuse its discretion by permitting this evidence.  

Involvement of Aleman's Brother

                        Aghazadeh contends that the prosecution's implication of Aleman's brother, Efran Aleman, as the person who threw the bicycle in the path of the police car, is without substantiation.  

                        The prosecution asked Officer Langarica if, during the initial phase of the investigation, he had seen anyone aside from Mario Aleman in police custody.  Langarica answered, " Yes, I did."   Then the prosecution asked whether he saw Efran Aleman.  Defense counsel objected on the ground of relevance.  The court overruled the objection and Langarica answered, " Yes."   The prosecution then asked Langarica if he had considered the possibility that Efran might have been the person who threw the bicycle.  Without objection, Langarica answered, " Yes, I did."

                        But, when asked what he told officers in the field about Efran, Langarica told them he was not sure Efran was the person who threw the bicycle.  The prosecution kept pressing Langarica on whether he was sure Efran was not the person involved.  Defense counsel objected again, and this time the objection was sustained.

                        Although Officer Langarica positively identified Mario Aleman as the man who ran past him pointing the gun, he was not sure Efran was involved at all in this ambush.  If anything, Officer Langarica's stalwart expression of doubt tended to dispel the notion that Efran was involved.  

                        Nonetheless, appellant argues that prejudice ensued because the prosecution continued to suggest, during closing argument, that Efran might have been the fourth person involved in these crimes, consistent with the four knit caps found in the trunk of the Honda.  We disagree.  Indeed, the prosecution specifically suggested to the jury that it rule out Efran by saying, " [t]here is no evidence it was Efran, could have been anyone."   The brief mention of Efran during trial, coupled with this comment during closing argument, does not constitute error.

Substantial Evidence Supports Attempted Murder Conviction

                        Appellant argues the evidence is insufficient to show he specifically intended to murder the officers.  He asserts this is so because he was merely the driver of the vehicle involved, and no personal firearm use allegations were pled against him.  He claims the evidence was insufficient to support a finding of guilt against him for the willful, deliberate and premeditated attempt to murder the officers.  He asserts there is no substantial evidence of planning, motive, or manner to support the conviction.  Indeed, appellant asserts the evidence does not show he led police into an ambush.  He claims  the evidence only shows his attempt to escape or thwart a police chase.  He argues the evidence also does not support his attempted murder conviction on a vicarious liability theory.  He argues there is no showing he aided and abetted or conspired to commit the attempted murders.  We disagree with each of these contentions. 

                        Attempted murder requires evidence of specific intent to kill, and the use of direct but ineffectual acts toward its commission.  (People v. Lee (1987) 43 Cal.3d 666, 670; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)  Such intent may be inferred from the surrounding circumstances.  (Chinchilla, supra, at p. 690.)

                        " Willful" means intentional, deliberate means deciding to act after thoughtful consideration, and premeditated means the act was considered beforehand.  (People v. Sanchez (2001) 26 Cal.4th 834, 849; People v. Memro (1995) 11 Cal.4th 786, 863; People v. Herrera (1999) 70 Cal.App.4th 1456, 1463-1464.)  One can quickly premeditate and deliberate.  (Memro, supra, at p. 863.)  And, the intent to kill need not be directed at any particular individual; it is sufficient if that intent is directed at a group.  (People v. Orabuena (1976) 56 Cal.App.3d 540, 545.)  Evidence of planning, a motive to kill from prior relationships, encounters or conduct with a victim, and circumstances surrounding the attempted killing can all support a finding of premeditation and deliberation.  (See generally People v. Anderson (1968) 70 Cal.2d 15, 26-27.) 

                        To support the conviction under an aiding and abetting or conspiracy theory, one must establish that the defendant instigated it, advised its commission, or was present for the purpose of assisting in its commission, while possessing the requisite intent.  Under either an aiding and abetting theory or a conspiracy theory, one must show the intent to facilitate or encourage the commission of the target crime.  Under these theories, one is also guilty as a principal for any other reasonably foreseeable offense, that is, any other crime which is a natural and probable consequence of the target crime the principal commits, no matter how slight the degree of involvement.  (See People v. Mendoza (1998) 18 Cal.4th 1114, 1123; People v. Prettyman (1996) 14 Cal.4th 248, 254, 259-263; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5; People v. Nguyen (1993) 21 Cal.App.4th 518, 530.) 

                        We do not reweigh the evidence.  Instead, we review the entire record in the light most favorable to the judgment to determine whether it discloses any credible, substantial evidence through which a reasonable trier of fact could have found the essential elements of attempted murder beyond a reasonable doubt.  (People v. Kipp, supra, 26 Cal.4th at p. 1128.)  For other crimes committed, we consider whether a reasonable person in defendant's position would have or should have known that the other charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant.  (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.)  What constitutes the natural and probable consequences of a conspiracy is a question of fact for the jury to decide.  (People v. Godinez (1992) 2 Cal.App.4th 492, 499-500.)  Thus, we only determine whether substantial evidence supports the judgment, considering the circumstantial evidence and any reasonable inferences that would support the conviction.

                        The evidence showed that Aleman and Maldonado possessed the intent to kill the police.  Aleman actually fired rounds at the patrol vehicle; Maldonado tried to fire at the officers, but his firearm jammed when several rounds compacted together in the firing chamber.  This evidence shows willful, premeditated and deliberate acts on the part of Aleman and Maldonado in attempting to murder these police officers.   

                        The evidence shows that Aghazadeh also possessed this specific intent, and acted in a willful, premeditated and deliberate manner to trap and ambush the police officers.  Aghazadeh was at each scene and assisted in the commission of each of these crimes.  He alerted Aleman and Maldonado to Bonilla's presence.  Then he drove the Honda in a circuitous route back to Toonerville, past the washing machine, the bicycle being thrown, and the sniper who was stationed near the corner, while slowing and maneuvering down a narrow street to enable his compatriots to shoot at the officers at close range. 

                        Even if there were not evidence of his personal intent to kill, the evidence supports Aghazadeh's conviction for attempted murder on a theory of conspiracy.  A conspiracy exists when there is an agreement between two or more people with the specific intent to commit an offense, and an overt act by one or more of the conspirators towards the commission of the offense.  (People v. Alleyne (2000) 82 Cal.App.4th 1256, 1260; People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20-21 [gang evidence related to a conspiracy].)  There is substantial evidence that Aghazadeh agreed with other Toonerville gang members, including the codefendants, to engage in this gang mission, and he is responsible for all of the natural and probable consequences of the common plan, including acts that were not originally part of the plan.  (People v. Luparello (1986) 187 Cal.App.3d 410, 442.)  

                        The evidence showed that Toonerville and the Rascals had a bitter rivalry for years, during which there was an escalating series of violent, retaliatory attacks, including the recent assault on Montoya.  Aghazadeh kept the car running as he looked out for Aleman and Maldonado while they were peering into the apartment building where Montoya previously lived.  When Bonilla tried to signal him to keep down, Aghazadeh signaled his compatriots of Bonilla's presence so they could confront and rob Bonilla, and intimidate him.  Then, Aghazadeh drove the vehicle on a high-speed chase over a convoluted route heading back to the heart of Toonerville where he drove slowly in an effort to make effective the elaborate ambush which had been arranged.  

                        Whether by dint of his personal involvement in the perpetration of each of these crimes, or by assisting the principals with the requisite intent, or because he agreed to encourage and facilitate these events, substantial evidence shows Aghazadeh is guilty of the offenses charged. 

The Evidence Supports the Gang Enhancement

                        Section 186.22, subdivision (b) states that any person convicted of a felony which was  " committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall . . . be punished [in addition and consecutive to the punishment prescribed for the felony or attempted felony] . . . ."   (People v. Morales (2003) 112 Cal.App.4th 1176, 1197.)

                        Aghazadeh contends there is no showing that he committed these crimes at the direction of, for the benefit of, or in association with any criminal street gang within the meaning of section 186.22, subdivision (b).  Aghazadeh asserts there is no competent evidence he committed these offenses in connection with gang activity rather than merely for personal gain or to support his drug dependency.  He points out there was no evidence that either he or his companions were dressed in gang clothing, shouted any gang slogans or flashed any gang signs.  

                        The evidence established that appellant and the codefendants were in Rascals' territory on a mission looking for Montoya for the purpose of exacting retribution as part of an ongoing and escalating war between the Toonerville and Rascals criminal street gangs.  The testimony of Gadsby and others provided evidence that the robbery of Bonilla was perpetrated not for personal gain in the form of valuables, but to assist the gang by intimidating Bonilla.  The evidence of the elaborate, planned ambush also shows this was a mission done at the direction of the gang, which was intended both for its benefit and to further its criminal conduct and objectives.  (See People v. Morales, supra, 112 Cal.App.4th at p. 1197.)

A Day of Presentence Custody Credit

                        Custody credit is determined according to section 2933.1 which provides for the accrual of conduct credits equal to no more than 15 percent of actual time served.  (People v. Ramos (1996) 50 Cal.App.4th 810, 815-817.)  Aghazadeh served 1,718 days of actual time.  Fifteen percent of that is 257.7.  Rounded down to 15 percent, appellant is entitled to 257 days of conduct credit.  (Ibid.)  He was erroneously awarded 256 days of conduct credit.

                        The judgment is amended to provide an additional day's custody credit so that the total presentence conduct credit is 257 days.  In all other respects, the judgment is affirmed. 

                        NOT TO BE PUBLISHED.

                                                                        PERREN, J.

We concur:

                        GILBERT, P.J.

                        COFFEE, J.

Larry P. Fidler, Judge

Superior Court County of Los Angeles

______________________________

                        David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

                        Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] The appeal of codefendants, Raymond Maldonado and Mario Aleman, was severed from this case after Aghazadeh's sentence was recalled for resentencing by the superior court. 

[2] All statutory references are to the Penal Code unless otherwise stated. 

[3] From the outset of trial, defense counsel informed the court they had agreed any motions or objections made by any of them should be deemed to have been joined in by all of them, unless otherwise stated on the record.