Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. Nos. TA078462 & TA078384
ORDER MODIFYING OPINION AND DENYING THE PETITION FOR REHEARING.
It is ordered that the opinion filed herein on January 23, 2008, be modified as follows: On pages 9 through 11, section 2 titled “Marquez’s Aiding and Abetting” is deleted and replaced with the following:
2. Marquez’s Aiding and Abetting
The jury convicted Marquez of murder, attempted murder, and shooting at an occupied vehicle through evidence that showed him to be an aider and abettor to Garcia, the actual gunman. At trial, Salamanca testified that only two of the three people he saw standing at the corner approached Eduardo G.’s truck; the third person, whom Salamanca identified as resembling Marquez, hid behind some cars as Garcia approached the truck.
Marquez’s criminal liability for murder, attempted murder, and shooting at an occupied vehicle was vicarious because he did not shoot at Eduardo Gutierrez’s truck – Garcia did. Marquez cannot, however, be guilty of aiding and abetting Garcia commit crimes against Eduardo G. and Cesar G. if Garcia committed no crime. (People v. McCoy (2001) 25 Cal.4th 1111, 1117-1118; People v. Prettyman, supra, 14 Cal.4th at p. 268 [“each juror must be convinced . . . the defendant aided and abetted the commission of a criminal act”] (italics in original).) Because we are remanding this matter for the People to retry Garcia, Marquez is likewise entitled to a retrial of his culpability as an aider and abettor.
Marquez notes that aiding and abetting requires more than that the aider and abettor know of the principal’s criminal intent. The aider and abettor must also promote, encourage, or instigate the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 560.) Marquez contends there was insufficient evidence that he aided and abetted Garcia and that we should reverse his convictions without a new trial. He concedes that a reasonable inference from his trying to hide behind a car is he knew of Garcia’s criminal intent and did nothing to stop him. But, Marquez correctly notes, one’s presence at a crime scene where one knows another intends to commit a crime is not enough to impose criminal liability as an aider and abettor. (People v. Stankewitz (1990) 51 Cal.3d 72, 90.)
Marquez’s concession does not, however, end the matter because there was enough other evidence in addition to his hiding behind a car from which a reasonable jury could find beyond a reasonable doubt that he aided and abetted Garcia. (People v. Holt (1997) 15 Cal.4th 619, 667-668.) A few hours before Cesar G.’s murder, Marquez had joined fellow gang member Garcia in invading Jose Gutierrez’s home and kidnapping Pedro Montalvo, during which Montalvo came within one trigger pull of serious injury or death but for the intervention of Garcia’s and Marquez’s female companion. Instead of breaking away from Garcia following those crimes, Marquez elected to stand on a street corner with Garcia and a third person in their gang territory. When Eduardo G. drove his truck into the neighborhood and stopped on the street near Marquez and his two companions, the three men surrounded the truck on both sides, with Marquez going to the truck’s left and the other two to its right. At that point, Marquez hid behind a parked car. Marquez emphasizes his position safely behind the car as purportedly proving his detachment from Garcia’s murderous plan. But the evidence also supports a contrary inference that Marquez placed himself strategically to act as a lookout or backup for Garcia. Under that scenario, crouching behind a car to avoid getting shot was a sign of prudence, not a sign of innocence. Moreover, after the shooting stopped, Marquez fled the scene with Garcia, suggesting a consciousness of guilt. (In re Juan G. (2003) 112 Cal.App.4th 1, 5 [“Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense.”].) Based on Marquez’s behavior before, during, and after the shooting, we conclude there was sufficient evidence for the jury to conclude Marquez aided and abetted Garcia in shooting at an occupied vehicle, attempting to murder Eduardo G., and murdering Cesar G. Thus, Marquez is not entitled to an outright reversal for insufficiency of the evidence.
[End of modification.]
The petition for rehearing is denied.
COOPER, P. J. RUBIN, J. FLIER, J.