P. v. Alcaraz

Filed 4/7/20 P. v. Alcaraz CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
USIEL ALCARAZ,
ANDRES FELIPE DIAZ-GUERRERO,
Defendants and Appellants.
G057009
(Super. Ct. No. 12NF1202)
O P I N I O N
Appeals from judgments of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant
and Appellant Usiel Alcaraz.
Mark D. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant Andres Felipe Diaz-Guerrero.
Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney
General, Susan Sullivan Pithey, William H. Shin and Idan Ivri, Deputy Attorneys
General, for Plaintiff and Respondent.

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A jury convicted appellants Usiel Alcaraz and Andres Felipe Diaz-Guerrero
of premeditated and deliberate attempted murder (Pen. Code, §§ 664 & 187),1 attempted
robbery (§§ 664 & 211), conspiracy to commit robbery (§§ 182, subd. (a)(1) & 211), and
active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found the
first three crimes were committed for the benefit of, at the direction of, and in association
with the “Anaheim Travelers City” criminal street gang. (§ 186.22, subd. (b).) On the
attempted murder and attempted robbery charges, the jury found Alcaraz personally
discharged a firearm causing great bodily injury and permanent paralysis. (§§ 12022.53,
subd. (d) & 12022.7, subd. (b).) On the conspiracy charge, the jury also found Alcaraz
used a firearm and caused permanent paralysis. (§§ 12022.5, subd. (a) & 12022.7, subd.
(b).) On the attempted murder and attempted robbery charges, the jury found Diaz-
Guerrero vicariously liable for Alcaraz’ gang-related firearm use. (§ 12022.53, subds. (d)
& (e)(1).) Both appellants were sentenced to lengthy indeterminate life terms and
additional determinate sentences, none of which is challenged on appeal.
Appellants contend the jury was prejudicially biased against them and the
trial court failed to adequately investigate this alleged bias. Both also claim the standard
jury instruction’s definition of premeditation for the attempted murder charge is
prejudicially flawed.
Diaz-Guerrero separately argues his convictions for attempted robbery and
conspiracy to commit robbery were not supported by sufficient evidence. As a result, he
also argues his derivative liability for attempted murder is similarly unsupported. He
additionally contends his conviction for being an active participant in a criminal street
gang cannot stand because the trial court allowed the prosecution to introduce improper
rebuttal evidence to prove that charge. Alternatively, he argues his attorney rendered
ineffective assistance by failing to object to this evidence. Finally, Diaz-Guerrero insists
1
All further statutory references are to the Penal Code unless otherwise indicated.

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his attempted murder conviction must be reversed because of statutory changes made
effective by the passage of Senate Bill 1437 (SB 1437).
We reject appellants’ claims. (1) Although the trial court excused a juror
based on her fear she could no longer be impartial, there was no evidence of bias among
the other jurors requiring the trial court to investigate further. (2) The premeditation
instruction given was unmodified from its standardized form and correctly describes the
mental state required for premeditated and deliberate attempted murder. (3) Substantial
evidence supported Diaz-Guerrero’s attempted robbery and conspiracy convictions and,
consequently, his derivative attempted murder conviction. (4) The prosecution’s limited
rebuttal evidence was properly admitted after Diaz-Guerrero opened the door to it in his
defense case. And because trial counsel had no basis for doing so, he was not ineffective
for failing to object to it. (5) Finally, SB 1437 relief, if any, must first be sought by Diaz-
Guerrero in the superior court, and not on direct appeal.
FACTS
Prosecution Case
John Doe 1 (JD1) and John Doe 2 (JD2) were walking together one night to
a 7-Eleven store in Anaheim. A black SUV drove up. JD1 saw four people inside the
SUV.2 The driver asked them, “Do you guys bang?” JD1 and JD2 responded, “No, we
don’t.” A passenger asked, “Where you from?” At least one of the occupants yelled,
“Anaheim Travelers City,” and the SUV drove away.
JD1 watched the SUV pull into the 7-Eleven parking lot. JD1 and JD2
walked into the store, where a surveillance camera recorded them entering. Once inside,
JD1 saw the same people who had spoken to him from the SUV. Some of them stood
behind him while he used a store ATM to withdraw cash, which he placed in his pocket.
JD1 identified one of them as Diaz-Guerrero. Diaz-Guerrero whispered something
2 Four persons were initially charged together in this case but appellants were tried separately. The
other two defendants’ cases are not before us.

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inaudible. JD1 asked him, “What was that?” Diaz-Guerrero again whispered something
that JD1 did not comprehend. The SUV driver left the 7-Eleven and began pacing
outside. Seeing this, JD1 got a “bad feeling,” and became nervous and fearful. As he left
the 7-Eleven, someone spat at his shoe.
JD1 and JD2 walked back the way they had come, and they were followed
by Diaz-Guerrero and Alcaraz. Both approached JD1, and when they were within five
feet, Diaz-Guerrero said, “Travelers City. We don’t fuck around.” Alcaraz pulled out a
gun, pointed it at JD1’s chest from a foot or so away, and said, “Give me everything you
have.” JD1 put his hands up and said, “I don’t have anything.” Alcaraz patted JD1’s
pockets and felt a phone, which he demanded. Instead, JD1 punched Alcaraz in the jaw.
Alcaraz immediately responded by opening fire. His first shot grazed the
top of JD1’s skull, who then turned and ran. Alcaraz “continued to fire,” and JD1 was hit
in the back by another gunshot and fell. This too was captured by surveillance video.
JD2 said he heard three or four gunshots and saw JD1 running, get hit, and fall down. A
semiconscious JD1 told JD2 to call police. Alcaraz and Diaz-Guerrero fled. A nearby
witness saw two persons running and get into a black SUV, which then sped away.
The parties stipulated JD1 suffered a grazing gunshot wound to the top of
his head and another gunshot wound to the back. The latter bullet fragmented into his
vertebrae, permanently paralyzing him from the waist down.
Later that night, Gang Investigator Daniel Gonzalez staked out a house
known to be associated with the Anaheim Travelers City gang. A black SUV matching
the one seen at the 7-Eleven drove away from the house and was stopped by police. The
driver, codefendant Anthony Manzo, was detained. Gonzalez reviewed surveillance
footage from the 7-Eleven and confirmed Manzo was also the SUV driver there.
Gonzalez and other officers returned to the house and secured it while
obtaining a search warrant. Alcaraz and a fourth defendant were found inside the house,
and Diaz-Guerrero in the garage. Also in the garage was a Milwaukee Brewers baseball

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cap and a work ID with the name Diaz. Inside the house, there was another Brewers cap
and a bulletproof vest.
Gang investigators Jeff Dodd and Ryan Blackburn re-interviewed JD1 at
the hospital. Dodd showed JD1 photographs of possible suspects. JD1 identified two
persons from the first set of photographs. He said one was the driver of the SUV who
had asked, “Do you bang?” He was also the one who had said “Anaheim Travelers City”
before driving away. The other, who JD1 identified at trial as Diaz-Guerrero, was the
same person who had accosted him while he was using the ATM inside the 7-Eleven, and
had asked JD1, “Am I big enough for you?” From a second set of photographs, JD1
again identified Diaz-Guerrero. He added Diaz-Guerrero was the man who confronted
him after he left the 7-Eleven and had said, “This [is] Travelers City, we don’t play, we
don’t mess around.” In a third set of photographs, JD1 identified Alcaraz as his shooter.
He also later identified him at trial. JD1’s hospital description of the incident to police
was generally consistent with his later trial testimony.
Diaz-Guerrero initially said he was not present at the 7-Eleven on the night
of the incident, but when shown photos from the surveillance video, he changed his story
and admitted he was one of the people depicted in the images. He denied any gang
affiliation, but said his father was a member of Anaheim Travelers City. Alcaraz
admitted being present at the 7-Eleven that night, and identified himself in video
surveillance stills, but denied shooting anybody and said he did not touch a gun.
Gang detective Jamie Pietras served a search warrant on a house associated
with SUV driver Anthony Manzo. A seized digital camera contained a shot of Manzo
wearing a hat with insignia associated with Anaheim Travelers City. A cell phone photo
showed Manzo making a hand sign associated with the gang. Pietras also found a box of
ammunition and various indicia of the Anaheim Travelers City gang.
The parties stipulated Anaheim Travelers City, also known as “Los Malos,”
is a criminal street gang as defined in section 186.22, subdivision (f), with territorial

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claims in Anaheim, including the location of the 7-Eleven. As “Los Malos,” Anaheim
Travelers City members often identified themselves by wearing clothing displaying the
letter “M,” including Milwaukee Brewers baseball caps. The parties further stipulated
the gang’s primary activities include illegal weapons possession, robbery, and aggravated
assaults. Members of the gang had committed statutorily qualifying predicate crimes,
including their primary activities.
Pietras also testified as a gang expert.3 He told the jury gang members are
proud of their membership and non-members do not falsely claim to be gang members
because doing so could lead to gang retaliation. Respect is important in gang culture, and
members earn respect by committing acts of violence. Hispanic gangs tend to claim a
distinct territory and mark borders so the community and rival gangs are aware of them.
A “hit-up” occurs when gang members confront a rival or perceived rival
and ask where they are “from.” Most often, there is no correct answer, and the likely
result is violence. Even if the targeted individual is not a gang member, the gang
members hitting him up will still benefit from committing a violent act against him
because it increases and maintains the fear and intimidation the gang causes in the
community. Gang members commit group assaults, robberies, and shootings as a show
of force, to back each other up, and to outnumber and intimidate their victims.
There are different ways to join a gang, including being “jumped in,” i.e.,
beaten by other members, “crimed in” by committing crimes with associates, or being
“walked in,” based on legacy family ties to the gang. Significantly, gang members do not
commit crimes with non-members, and they only commit crimes with fellow gang
members with whom they have established trust.
3 In his briefing, Diaz-Guerrero characterizes Pietras as a “tool.” Whether this description is ad
hominem or utilitarian does not matter because he did not object at trial to Pietras’ qualifications, expertise, or his
opinions. Nor does it lend any weight to his argument. It was unprofessional and ill-advised.

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Guns are highly sought by gang members because they are relatively
difficult to obtain. Members know if one of them has a gun because the armed member is
expected to confront rivals and “take care of business” as necessary. Knowing who is
armed also allows the unarmed members to distract police while the armed one makes his
escape with the gun. When a gang member uses a gun, he shoots to kill because a killing
both increases the shooter’s level of respect in the gang and maximizes the fear it
inspires.
Turning to the instant case, Pietras opined the shooting here was gang-
related. He based this on the fact that JD1 and JD2 were walking in Anaheim Travelers
City territory and were hit up by at least one individual in the passing SUV. The SUV
occupants continued to the 7-Eleven, parked, went in, and stood behind and watched JD1
as he used an ATM to withdraw cash. They did not buy anything at the store and instead
appeared to be simply watching JD1 and JD2. Once outside, two of them — Alcaraz and
Diaz-Guerrero — confronted JD1 and JD2. One claimed Anaheim Travelers City and
said, “We don’t fuck around,” while the other demanded money from JD1, who had just
been using the ATM. When JD1 refused and fought back, he was shot and hit twice, and
Diaz-Guerrero and Alcaraz fled to the awaiting SUV containing the other two gang
members.
Furthermore, in Pietras’ opinion, Alcaraz was an active participant in
Anaheim Travelers City at the time of the shooting. He based this on Alcaraz’ past
contacts with police, his “Los Malos” tattoos, and his behavior in this case. Similarly,
Pietras opined Diaz-Guerrero was also an active participant in Anaheim Travelers City at
the time of the shooting. This too was based on Diaz-Guerrero’s prior contacts with
police in the gang’s territory and the facts of the instant case, including that he had
claimed Anaheim Travelers City when JD1 was accosted. Pietras also found it
significant Diaz-Guerrero had earlier warned a coworker about needing a “pass” to walk
through a particular neighborhood, which is something a gang member would do to assert

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and maintain control of territory. Finally, Pietras explained Diaz-Guerrero said his father
was an Anaheim Travelers City member, suggesting he had been admitted into the gang
based on his legacy status. Pietras further opined SUV driver Manzo was also an
Anaheim Travelers City member at the time of the shooting. He based this on Manzo’s
role in this case and the fact Manzo sported tattoos of “Anaheim TC” and “LM” on his
back. Moreover, Manzo had earlier pleaded guilty to a different attempted robbery
charge with a gang enhancement.
Finally, when presented with a hypothetical scenario based on the facts of
this case, Pietras’ expert opinion was the resultant charged crimes would have been
committed for the benefit of, in association with, or at the direction of a criminal street
gang. He explained it would benefit the gang because its members were attempting to
commit a robbery in their own territory, they were hitting up suspected rivals, and they
severely punished a disrespectful person by shooting and attempting to kill him. The
shooting would additionally demonstrate and promote the gang’s dominance in its
territory.
Diaz-Guerrero’s Defense Case
A registered nurse from the surgery department of the UCI Medical Center
testified she had known Diaz-Guerrero for about five years where he was a coworker.
She explained he was employed at the hospital as a helper who would clean up the
operating rooms and assist the nurses. She said he was an excellent worker, and she was
shocked when she heard he had been arrested. She had never seen him angry before, and
believed him to be soft-spoken. She thought Diaz-Guerrero’s friends took advantage of
him for money, and she had spoken to him about that. She knew he came from a tough
neighborhood, but did not believe his friends were gang members. She admitted she did
not know Diaz-Guerrero outside of work and did not socialize with him outside of a work
context. She had never been to the neighborhood where he lived and never met his
friends. Diaz-Guerrero did not testify.

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Alcaraz’ Defense Case
Alcaraz recalled JD1, who admitted posting several apparently gang-related
messages on social media, including: “Momma raised a G but not no fool,” where “G”
meant “gangster.” “It’s do or die on these streets so I pack my gun. I’d rather get caught
with it than caught without one. If you step out of line, you getting smashed up quick.
You don’t want to test me on this murderous tip.” In another post, JD1 said he wanted to
get a tattoo of “SS” on his chest, apparently a reference to “South Side.” He insisted
“SS” did not refer to the street gang “South Side Krooks,” but was a generic reference to
southern California. He had also once posted, “Krookin’ on this gloomy day,” and had
appeared in a photo with several other men, including his brother, some of whom were
members of South Side Krooks. JD1 admitted he owned a jacket with the number “13”
on it, supposedly a reference to the Mexican Mafia.
JD1 maintained he was not a gang member. He admitted one of his
brothers was a South Side Krooks member, his father was a member of “Santa Nita,” a
street gang based in Santa Ana, and some of his friends were gang members. He
explained that even though he had grown up in a gang neighborhood, and in a “gang
culture household,” he had consciously decided he did not want to become a gang
member.
Another post showed JD1 holding a gun. JD1 admitted he owned a rifle
and a handgun, and that his father also owned guns. He said he was long interested in
firearms, had always wanted to become a marine, and all his weapons were registered.
On the night he was shot, he was unarmed.
Alcaraz also recalled Pietras, who explained “South Side 13” is not a
reference to any specific local street gang, and instead is a generic reference to southern
California. He said if a person were to write he was “krookin,” it could suggest he was a
South Side Krooks gang member. However, in Pietras’ investigation of JD1 in
preparation for the trial, he found no indication JD1 was ever a gang member. Similarly,

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even after listening to JD1’s testimony during the trial, including his testimony in the
defense case regarding his social media posts, Pietras still did not believe JD1 was a gang
member.
When posed with a hypothetical situation like the initial hit-up in this case,
and assuming the person being challenged was a South Side Krooks member, Pietras
agreed a violent encounter would likely occur, but stated it would have occurred during
the hit-up, and not later during the attempted robbery. He said South Side Krooks was a
small gang, but it was allied with “Anaheim Vatos Locos,” which is a rival of Anaheim
Travelers City. Alcaraz did not testify.
Prosecution Rebuttal
In response to the nurse’s testimony, Kevin S., another of Diaz-Guerrero’s
coworkers at UCI Medical Center, was recalled by the prosecutor.4 He testified he
believed Diaz-Guerrero was a “great guy” at work, but outside of work Diaz-Guerrero
was involved in gang activities. Kevin S. and other coworkers had tried to make Diaz-
Guerrero understand he had a good job with a potential for a good future if he did not
squander it by continuing to be involved with gangs.
DISCUSSION
The Jury Bias Claim
Appellants contend their convictions must be reversed because they were
denied a fair trial due to alleged jury intimidation from the audience during trial and the
trial court’s failure to adequately investigate that intimidation. We are not persuaded.
After Thursday closing arguments, the trial was recessed until the following
Monday, when the jury was to be instructed and begin deliberations. Before the trial
resumed, however, Juror No. 155 came to court early asking to be excused from the jury.
4 Kevin S. earlier testified Diaz-Guerrero told him that people “don’t take too kindly” to his walking
his dog in a certain location. He told Kevin S. he had spoken to his “homeboys,” and they would give him a “pass”
to enter the neighborhood, but warned him to be careful.

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The trial court, the prosecutor, and both defense counsel retired to the jury room for a
conference with the juror regarding her request.
Juror No. 155 disclosed for the first time she had been the victim of violent
crime in the past, including two “mugg[ings],” and was now afraid of becoming a victim
again. She feared JD1’s and appellants’ families would retaliate against her based on the
outcome of trial, and she did not want to suffer the stress of that possibility. She was “not
sure” what the “mindset” of “both parties’ families” might be after a verdict. The court
asked whether she could be impartial and render a fair verdict based on the evidence and
instructions if she were required to remain. She said she could not, claiming to have
“clouded judgment” based on her fear.
Diaz-Guerrero’s attorney asked whether there was a particular person or
event that had triggered her fears. She replied that because “this is gang-related on both
sides . . . no matter which way it goes, one party is not going to be very happy,” and she
thought neither side would be fair to her after the trial. She felt “intimidated” by “both
audiences.” Diaz-Guerrero’s attorney asked if she had discussed her fears with anyone
other than her husband, such as with the other jurors. She said she had not.
Alcaraz’ attorney asked her whether she thought “anyone else has these
feelings. Has anyone else . . . mentioned it or said Oh, My God?” She insisted, “No.
No. No.” She added she had actually avoided conversing with the other jurors. She had
only made one comment to another juror, asking her whether she had “noticed eyes on
you.” However, this unidentified juror did not respond. She was also disturbed because
her fellow jurors had learned her name, saying “I’m not sure everybody [on the jury] is
on the same page as far as how I feel about confidentiality.”
The prosecutor directly asked her whether Alcaraz’ family, Diaz-Guerrero’s
family, or JD1’s family had said or done anything specific that had intimidated her. She
cryptically responded, “I think those who tried to intimidate know that they themselves

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know, I think, so they know that they’re doing it. And — and I don’t want to point
anybody out.”
Juror No. 155 returned to the courtroom where her husband was waiting,
and the court met with counsel to determine how best to proceed. The court observed she
appeared quite distraught. The court also revealed she had called the court after the trial
had recessed on Thursday and said she did not want to come in at all on Monday unless
she could come in early, before any audience members were present.
The court explained: “[T]here are three options. One is to keep the juror on
the jury. The other one is to excuse her. And the third one of course is to ask more
questions.” Diaz-Guerrero’s counsel said, “I wish we were keeping her,” but he observed
she “wasn’t forthright with us” during voir dire by neglecting to mention that she had
twice before been mugged. Had she revealed she had been a crime victim, he likely
would have exercised a peremptory challenge. He thought her comments suggested she
could not be fair and would not constructively participate in deliberations. He therefore
had no objection to dismissing her from the jury. Alcaraz’ counsel agreed, noting she
was likely prejudiced against both defendants. The prosecutor also agreed to her
dismissal based on her statement she would not be able to follow the law or be fair.
The court concluded she should be excused because she was so fearful and
“immensely distracted,” and because she had withheld information during voir dire about
being a crime victim. In addition, she said she could not work with her fellow jurors and
render a verdict in accordance with the evidence and the instructions. She had also
refused the court’s suggestions of possible ameliorative steps, so the court concluded it
would dismiss her. This conference lasted about 40 minutes, after which Juror No. 155
was excused and an alternate placed in her seat. The newly-constituted jury then heard
instructions, deliberated, and returned their verdicts. Neither defense counsel asked for
additional inquiry of the other jurors.

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Appellants do not challenge the removal of Juror No. 155. Instead, they
assert the court erred by not conducting inquiry into whether the intimidation she said she
perceived might have also affected the other jurors. We disagree.
A criminal defendant has a constitutional right to trial by an impartial jury.
(U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; In re Hitchings (1993) 6
Cal.4th 97, 110.) “‘An impartial jury is one in which no member has been improperly
influenced [citations] and every member is “‘capable and willing to decide the case solely
on the evidence before it’” [citations].’ [Citations.]” (People v. Harris (2008) 43 Cal.4th
1269, 1303.)
“In a criminal case, any private communication, contact, or tampering
directly or indirectly, with a juror during a trial about the matter pending before the jury
is, for obvious reasons, deemed presumptively prejudicial. . . .” (Remmer v. United
States (1954) 347 U.S. 227, 229 (Remmer).) “The presumption is not conclusive, but the
burden rests heavily upon the Government to establish, after notice to and hearing of the
defendant, that such contact with the juror was harmless to the defendant.” (Ibid.; see
People v. Danks (2004) 32 Cal.4th 269, 302.) Thus, we apply a rebuttable presumption
of prejudice whenever a nonjuror has “tampering contact or communication with a sitting
juror . . . .” (In re Hamilton (1999) 20 Cal.4th 273, 295 (Hamilton).)
Whether prejudice arose from improper juror contact is a mixed question of
law and fact, subject to our independent appellate review. We accept the trial court’s
credibility determinations and factual findings if supported by substantial evidence.
(People v. Merriman (2014) 60 Cal.4th 1, 95-96.) Because criminal defendants have a
federal constitutional right to a trial free from juror bias, if there is error we must reverse
unless we are able to declare such error harmless beyond a reasonable doubt. (People v.
Aledamat (2019) 8 Cal.5th 1, 3 [the “usual” standard of review “for federal constitutional
error”]; see Chapman v. California (1967) 386 U.S. 18, 24.)

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Even so, “[a]ny presumption of prejudice is rebutted, and the verdict will
not be disturbed, if the entire record in the particular case, including the nature of the
misconduct or other event, and the surrounding circumstances, indicates there is no
reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors
were actually biased against the defendant. [Citations.] [¶] The standard is a pragmatic
one, mindful of the ‘day-to-day realities of courtroom life’ [citation] and of society’s
strong competing interest in the stability of criminal verdicts [citations].” (Hamilton,
supra, 20 Cal.4th at p. 296.) The substantial likelihood test is an objective standard
(ibid.), and is consistent with federal law. (People v. Loker (2008) 44 Cal.4th 691, 747).
Moreover, Remmer does “not stand for the proposition that any time
evidence of juror bias comes to light, due process requires the trial court to question the
jurors alleged to have bias.” (Tracey v. Palmateer (9th Cir. 2003) 341 F.3d 1037, 1044.)
Instead, Remmer has been construed as “providing a flexible rule.” (Ibid.) Thus, a full
“evidentiary hearing is not mandated every time there is an allegation of jury misconduct
or bias. [Citation.] Rather, in determining whether a hearing must be held, the court
must consider the content of the allegations, the seriousness of the alleged misconduct or
bias, and the credibility of the source.” (United States v. Angulo (9th Cir. 1993) 4 F.3d
843, 847.)
Significantly, unlike this case, the alleged juror bias in Remmer was not
discovered until after the verdict; there the affected juror sat on the jury, deliberated, and
returned a verdict. (Remmer, supra, 347 U.S. at p. 228.) In that context, the high court
concluded the trial court erred by ruling ex parte on whether there was juror misconduct
without first notifying the defendant. And its remand was limited to ordering a trial court
hearing in which all interested parties would be permitted to participate. (Id. at p. 230.)
Remmer is therefore only marginally applicable to the case before us.
Appellants do not complain they were excluded from a hearing on Juror
No. 155’s bias; indeed, there was a hearing, and all counsel fully participated. Juror No.

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155 was excused before jury instructions, deliberations, and verdict, and took no part in
the deliberative phase of the trial. More importantly, there is no evidence any of the other
jurors were affected by, or even aware of, what Juror No. 155 stated she experienced.
Nor does the record show Juror No. 155 communicated her fears to any of the other
jurors, and she denied as much. If anything, the record shows she had isolated herself
from the other jurors and was even fearful of their attempts to become acquainted with
her.
“[D]ue process does not require a new trial every time a juror has been
placed in a potentially compromising situation. Were that the rule, few trials would be
constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and
protective instructions from the trial judge, are not infallible; it is virtually impossible to
shield jurors from every contact or influence that might theoretically affect their vote.
Due process means a jury capable and willing to decide the case solely on the evidence
before it, and a trial judge ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they happen.” (Smith v. Phillips (1982)
455 U.S. 209, 217.)
Moreover, “[t]he decision whether to investigate the possibility of juror
bias, incompetence, or misconduct — like the ultimate decision to retain or discharge a
juror — rests within the sound discretion of the trial court. [Citation.] The court does not
abuse its discretion simply because it fails to investigate any and all new information
obtained about a juror during trial.” (People v. Ray (1996) 13 Cal.4th 313, 343.) “The
specific procedures to follow in investigating an allegation of juror misconduct are
generally a matter for the trial court’s discretion. [Citation.]” (People v. Seaton (2001) 26
Cal.4th 598, 676.) Here, the court reasonably concluded that once it had found that Juror
No. 155 did not communicate her perceived fears to other jurors, there was no need to
question the remaining jurors. This decision was well within the court’s discretion.

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Instructive here is People v. Fuiava (2012) 53 Cal.4th 622 (Fuiava), in
which a very upset juror telephoned the trial court one morning because she “had
observed two female spectators in the courtroom who she believed were ‘aligned’ with
the defense, apparently talking about the jurors and pointing at several of them. Although
[the juror] did not perceive the pointing as intended to threaten the jurors, the incident
concerned her. The trial court confirmed with [the juror] that no one had approached her
or said anything to her. [She] stated, however, that as the jurors were walking through
the parking lot on their way home the previous evening, ‘some of the jurors talked about
this,’ and [another juror] suggested that ‘perhaps a note should be sent to the court.’” (Id.
at p. 701.) The trial court thought the juror should be excused, but was open to
suggestions from the parties regarding what additional action should be taken, if any.
And just as here, counsel did not ask for the remaining jurors to be questioned and the
trial resumed after the juror was replaced. (Ibid.)
On appeal, the defendant claimed the trial court breached its duty to
investigate whether other members of the jury had also been affected by the audience
members’ alleged conduct. Noting that “‘not every incident involving a juror’s conduct
requires or warrants further investigation,’” the Fuiava court held: “The trial court did not
abuse its discretion . . . by taking a ‘wait and see’ approach concerning whether any juror
other than [the first juror] might have been affected by any actions of the courtroom
spectators.” (Fuiava, supra, 53 Cal.4th at p. 702.) There was no indication there – or
here – that this had happened.
The Supreme Court emphasized the trial court had not itself observed any
possibly inappropriate behavior by any spectators at the trial. And “even assuming the
truth of what [the juror] had reported to the court — that two people associated with
defendant had been talking and pointing at various jurors in a nonthreatening manner, and
this had upset [the juror] — these circumstances did not suggest that other jurors were
similarly upset to the extent that they, too, might not have been able to perform their

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duties as impartial jurors.” (Fuiava, supra, 53 Cal.4th at p. 702.) “There is no support
for defendant’s speculation that the other jurors were ‘unsettled’ by the gestures of the
spectators, or, for that matter, that anyone other than [the juror] even saw the alleged
gestures at issue.” (Id. at pp. 702-703.) These observations apply equally here.
Similarly, defense counsels’ “acquiescence in the trial court’s decision
regarding how to handle the situation, without an assertion of possible misconduct or a
request for a hearing regarding the other jurors’ ability to continue on the case, further
supports our conclusion that a hearing was not warranted.” (Fuiava, supra, 53 Cal.4th at
p. 703.) “In sum, it was reasonable for the trial court to proceed on the belief that any
other juror who might have been affected by asserted spectator conduct would call that
circumstance to the court’s attention, rather than the court suspending the trial in the
midst of closing arguments to undertake an inquiry on the subject.” (Ibid.)
The Supreme Court concluded “there was no abuse of discretion in the trial
court’s decision not to conduct an inquiry of the remaining jurors. . . . [D]efendant has
pointed to nothing in the record that would indicate any remaining juror actually was
biased against defendant as a result of the [excluded] juror’s having seen spectators
talking and pointing at the jurors, such that we could conclude that there actually was
good cause to remove a juror on that ground, or that any failure to excuse such a juror
violated defendant’s constitutional right to an impartial jury.” (Fuiava, supra, 53 Cal.4th
at p. 703; see People v. Martinez (2010) 47 Cal.4th 911, 943 (Martinez) [a juror’s
inability to perform a juror’s functions must be shown by the record to be a
“demonstrable reality,” and a reviewing court will not presume bias].) So too here.
Appellants attempt to distinguish Fuiava, arguing “the Court in Fuiava was
dealing with nothing more than a sensitive juror. Here the trial court was perhaps dealing
with a sensitive juror – but it was a sensitive juror who told the court she had been
exposed to willful intimidation in the presence of other jurors.” We are not convinced
this is a distinction with a difference. The focus of our inquiry is not the legitimacy — or

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even the basis for — Juror No. 155’s fears. Instead, it is whether there is any reason to
believe the other jurors were “exposed to willful intimidation.” And there is none.
Appellants also argue, “the situation in the courtroom here caused the
bailiff to fear it would erupt in violence,” unlike Fuiava, “where no improper conduct
was observed in the courtroom.” However, there is nothing showing that the bailiff’s
earlier unrelated safety concerns were related to the alleged intimidation Juror No. 155
said she had perceived when she asked to be excused.5
Here, the question is not whether tensions were high in the courtroom. This
was a gang case involving rival gangs, where it appears family members of both the
victim and the defendants, and perhaps fellow gang members, were all present. It is hard
to imagine a gang-related trial like this where such tensions would not be present. Thus,
it is likely bailiffs in any such courtroom would be concerned and make precautionary
contingency plans for a possible outbreak of violence in the audience. The fact neither
the trial court nor the attorneys said they perceived any unusual behavior in the
courtroom supports this inference.
More importantly, the starting point of a reviewing court’s inquiry is not
whether “there is uncertainty in the record concerning what occurred because the trial
court did not conduct an inquiry,” but “whether the information the trial court was aware
of when it made its decision warranted further inquiry.” (Fuiava, supra, 53 Cal.4th at p.
703.) Our focus is whether any juror other than Juror No. 155 was intimidated by any
audience conduct to such an extent he or she was biased, and there is no evidence of that.
5 The incident with the bailiff occurred 12 days before Juror No. 155’s excusal. There, a different
juror complained that members of JD1’s family were “talking among one another and that it was distracting.” Diaz-
Guerrero’s counsel told the court “the bailiffs were cautioning the defense . . . that there was some tension” in the
audience, and a bailiff gave “a little briefing on how to handle things if things got out of hand . . . .” When the juror
was asked to explain, she said some spectators had been “chattering” in the audience, which distracted her. The
only statement she heard was someone asking, “Who’s that?” when pictures were being shown on a courtroom
screen. The court admonished the audience not to talk while court was in session or when jurors were present.

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Juror No. 155’s concern was alleged intimidation by unspecified audience members, not
the presence of tension in the audience.
As noted, like the ultimate decision to retain or discharge a juror, whether
and to what extent to investigate alleged juror bias is a discretionary determination by the
trial court. (Fuiava, supra, 53 Cal.4th at p. 702.) Appellants have not shown a
“reasonable probability of prejudice, i.e., [a] substantial likelihood that one or more” of
the twelve jurors who deliberated and returned verdicts here “were actually biased”
against them. (People v. Pettie (2017) 16 Cal.App.5th 23, 79; Martinez, supra, 47
Cal.4th at p. 943, quoting People v. Jablonski (2006) 37 Cal.4th 774, 807, quoting People
v. Holt (1997) 15 Cal.4th 619, 659 [bias “‘“must be shown by the record to be a
‘demonstrable reality,’”’” and a reviewing court will not presume bias].)
Under any standard of review, we conclude the trial court here did not
abuse its discretion in the manner in which it handled the juror bias issue. Because we
find no error, we need not address the parties’ arguments about whether it was harmless
or whether trial counsels’ failure to raise the issue below forfeited their appellate claim.
Premeditation Jury Instruction Claim
Appellants next contend the trial court prejudicially erred by instructing the
jury with the standard jury instruction’s definition of “premeditation” as it related to the
attempted murder charge. 6 They argue CALCRIM No. 601 “does not correctly define
premeditation” because it “conflates the element of intentionally attempting to kill . . .
with the concept of carefully weighing the choice to kill before acting.” As a corollary,
Diaz-Guerrero further contends that, since his liability for the attempted murder is
derivative of Alcaraz’ under a natural and probable consequences theory, he could not be
convicted of that crime here because the prosecution failed to prove Alcaraz harbored the
6
“The California jury instructions approved by the Judicial Council are the official instructions for
use in the state of California.” (Cal. Rules of Court, rule 2.1050, subd. (a).) The CALCRIMs are such instructions.
(People v. Lucas (2014) 60 Cal.4th 153, 294, disapproved on other grounds in People v. Romero and Self (2015) 62
Cal.4th 1, 53, fn. 19.)

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requisite mental state. In other words, while Diaz-Guerrero’s own mental state is
irrelevant to his culpability for the attempted murder, Alcaraz’ is.7 Assuming Diaz-
Guerrero’s derivative liability syllogism is valid, we nonetheless reject appellants’ initial
premise that CALCRIM No. 601 is flawed.
“The independent or de novo standard of review is applicable in assessing
whether instructions correctly state the law[.]” (People v. Posey (2004) 32 Cal.4th 193,
218.) “In criminal cases, even in the absence of a request, a trial court must instruct on
general principles of law relevant to the issues raised by the evidence and necessary for
the jury’s understanding of the case.” (Martinez, supra, 47 Cal.4th at p. 953.) Even so,
“instructions are not considered in isolation. Whether instructions are correct and
adequate is determined by consideration of the entire charge to the jury.” (People v. Holt,
supra, 15 Cal.4th at p. 677; Estelle v. McGuire (1991) 502 U.S. 62, 72.) And even “[i]f
the charge as a whole is ambiguous, the question is whether there is a ‘“reasonable
likelihood that the jury has applied the challenged instruction in a way” that violates the
Constitution.’ [Citations.]” (Middleton v. McNeil (2004) 541 U.S. 433, 437.)
“Instructions should be interpreted, if possible, so as to support the judgment rather than
defeat it if they are reasonably susceptible to such interpretation.” (People v. Laskiewicz
(1986) 176 Cal.App.3d 1254, 1258.)
Here the trial court instructed the jury with the standard form instruction
CALCRIM No. 601: “If you find a defendant guilty of attempted murder . . ., you must
then decide whether the People have proved the additional allegation that the attempted
murder was done willfully and with deliberation and premeditation. [¶] A defendant
acted willfully if he intended to kill when he acted. A defendant deliberated if he
carefully weighed the considerations for and against his choice and, knowing the
7
See People v. Favor (2012) 54 Cal.4th 868 (Favor) [liability under natural and probable
consequence doctrine only requires one of the perpetrators to act with the necessary mental state]; People v. Lee
(2003) 31 Cal.4th 613, 616-617 [aider and abettor liability does not require personal willfulness, deliberation, and
premeditation by the aider and abettor].

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consequences, decided to kill. A defendant acted with premeditation if he decided to kill
before completing the act of attempted murder. [¶] . . . [¶] The length of time the person
spends considering whether to kill does not alone determine whether the attempted killing
is deliberate and premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to the circumstances. A
decision to kill made rashly, impulsively, or without careful consideration of the choice
and its consequences is not deliberate and premeditated. On the other hand, a cold,
calculated decision to kill can be reached quickly. The test is the extent of the reflection,
not the length of time. . . .”
Instructive here are the rules pertaining to a first degree murder
prosecution. Like an attempt, “‘[a] verdict of deliberate and premeditated first degree
murder requires more than a showing of intent to kill.’” (People v. Cage (2015) 62
Cal.4th 256, 275 (Cage), quoting People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
There, “‘“[d]eliberation” refers to careful weighing of considerations in forming a course
of action; “premeditation” means thought over in advance.’ [Citation.]” (People v.
Brooks (2017) 3 Cal.5th 1, 58; Cage, supra, 62 Cal.4th at p. 276.) In a murder case the
jury is instructed with CALCRIM No. 521, which provides: “The defendant is guilty of
first degree murder if the People have proved that (he/she) acted willfully, deliberately,
and with premeditation. The defendant acted willfully if (he/she) intended to kill. The
defendant acted deliberately if (he/she) carefully weighed the considerations for and
against (his/her) choice and, knowing the consequences, decided to kill. The defendant
acted with premeditation if (he/she) decided to kill before completing the act[s] that
caused death.” (Second italics added.) Thus, CALCRIM No. 521’s definitions of
deliberation and premeditation for murder are almost identical to those in CALCRIM No.
601.
Put another way, appellants’ criticism of CALCRIM 601’s definition of
premeditation for attempted murder equally applies to the standard instruction for murder

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and, to accept their argument, we must find both standard instructions are similarly
flawed. They provide no authority supporting such a sweeping claim, and we have found
no case that so suggests, let alone holds.
Appellants’ focus on CALCRIM No. 601’s definition of premeditation,
without reading it with the concomitant definition of deliberation, overlooks the fact the
crime is one of deliberate and premeditated attempt murder. The requisite mental state
consists of both components, not one in isolation. (See Favor, supra, 54 Cal.4th at p.
877, quoting People v. Lee, supra, 31 Cal.4th at p. 616 [“the premeditation penalty
provision of section 664(a) ‘must be interpreted to require . . . the murder attempted was
willful, deliberate, and premeditated . . . .’”].)
In his reply brief, Alcaraz acknowledges the two terms must be read
together, but still insists that, unlike CALJIC No. 8.20 (the predecessor to CALCRIM No.
521’s murder instruction),8 CALCRIM No. 601 is flawed because it confusingly “ties
premeditation to the making the decision to kill before acting — improperly equating
premeditation with rash decisions to kill as well as calculated decisions to kill.” Thus, he
contends CALCRIM No. 601 “can mislead the jury into focusing on the wrong aspect of
the attempted murder — whether the aimed-for killing was intentional — rather than the
actual relevant aspect — whether the attempted killing was the result of reflection.” We
disagree.
When CALCRIM No. 601 is read as a whole, its definitions of deliberation
and premeditation properly require the jury to determine the attempted murder was the
“result of reflection.” It correctly tells the jury a “defendant deliberated if (he/she)
8 Showing the interconnectedness of the terms, the current version of CALJIC No. 8.20 defines
premeditation by reference to deliberation: “The word ‘premeditated’ relates to when a person thinks and means
considered beforehand. One premeditates by deliberating before taking action.” (CALJIC No. 8.20 (Fall 2008
Revision).) An earlier version of CALJIC No. 8.20 (5th ed. 1988), stated less circularly: “The word ‘deliberate’
means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and
against the proposed course of action. The word ‘premeditated’ means considered beforehand.” This version was
held to be “a correct statement of law” in People v. Perez (1992) 2 Cal.4th 1117, 1124.

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carefully weighed the considerations for and against (his/her) choice and, knowing the
consequences, decided to kill. . . . [and a] defendant acted with premeditation if (he/she)
decided to kill before completing the act[s] of attempted murder.”9 (CALCRIM No. 601.)
Moreover, far from allowing the jury to “equat[e] premeditation with rash
decisions to kill,” the instruction specifically tells the jury that “[a] decision to kill made
rashly, impulsively, or without careful consideration of the choice and its consequences is
not deliberate and premeditated.” (Italics added.) Consequently, CALCRIM No. 601
properly focuses the jury on the decision-making process, and not simply the defendant’s
intent to kill.
Although not a direct attack on the jury instruction, in his reply brief
Alcaraz argues that because he “did not shoot the victim until the victim punched him in
the face,” the evidence here actually points to a conclusion he “acted rashly, in response
to being punched, and did so without premeditation and deliberation.” While better
addressed to the jury than to us, this argument still suffers from the fact Alcaraz fired at
least twice, and the temporal interval between shots was long enough for the second shot
to strike the fleeing JD1 in the back. Indeed, JD2 testified he heard three or four
gunshots before he saw JD1 get hit and fall down. (Cf. People v. Silva (2001) 25 Cal.4th
345, 369 [“The manner of killing — multiple shotgun wounds inflicted on an unarmed
and defenseless victim who posed no threat to defendant — is entirely consistent with a
premeditated and deliberate murder”].) Even though the interval between the shots may
have been brief, that fact is not determinative. (Cf. People v. Gomez (2018) 6 Cal.5th
243, 282, quoting People v. Koontz, supra, 27 Cal.4th at p. 1080 [“‘“‘The true test is not
9 CALJIC No. 8.67 (Fall 2012 Rev.), also emphasized the necessity of reading the two terms
together: “‘Deliberate’ relates to how a person thinks, and means formed or arrived at or determined upon as a result
of careful thought and weighing of considerations for and against the proposed course of action. [¶] ‘Premeditated’
relates to when a person thinks, and means considered beforehand. [¶] A person premeditates by deliberating before
taking action. [¶] If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent
to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing
reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt
to commit willful, deliberate, and premeditated murder.” (Italics added.)

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the duration of time as much as it is the extent of the reflection. Thoughts may follow
each other with great rapidity and cold, calculated judgment may be arrived at
quickly’”’”].)
In the end, “[a] single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall charge.” (Boyde v. California
(1990) 494 U.S. 370, 378.) “Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that lawyers might.
Differences among them in interpretation of instructions may be thrashed out in the
deliberative process, with commonsense understanding of the instructions in the light of
all that has taken place at the trial likely to prevail over technical hairsplitting.” (Id. at
pp. 380-381.)
Here, when the definitions of the terms are read in conjunction, and the
instruction is read as a whole, CALCRIM No. 601 adequately instructed the jury on the
interdependent meanings of “willful,” “deliberation,” and “premeditation.” There was no
instructional error. In light of this conclusion, it is unnecessary to reach the parties’
additional arguments regarding prejudice.
Diaz-Guerrero’s Sufficiency of the Evidence Claim
Diaz-Guerrero maintains his conspiracy and attempted robbery convictions
must be reversed because they were not supported by sufficient evidence. Specifically,
he contends “[t]here is no evidence in the record that [he] knew Alcaraz intended to rob
[JD1], or intended to assist Alcaraz in the commission of that crime.” (Capitalizations
omitted.) As a result, because his attempted murder conviction is predicated on it being
a natural and probable consequence of the attempted robbery, his derivative liability for
the attempted murder must also be reversed. Again, we are not convinced.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is
a limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738.) We “evaluate the whole
record in the light most favorable to the judgment to determine whether it discloses

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substantial evidence — 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. [Citations.]” (People v. Ramos (2016) 244 Cal.App.4th 99, 104; Jackson v.
Virginia (1979) 443 U.S. 307, 318-319.) If more than one inference may reasonably be
drawn from the evidence, we accept the inference supporting the judgment. (People v.
Manibusan (2013) 58 Cal.4th 40, 87 (Manibusan).)
Similarly, even if there is contrary evidence, “[w]e resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]”
(People v. Maury (2003) 30 Cal.4th 342, 403 (Maury).) It is the jury that weighs the
evidence, assesses witness credibility, and resolves conflicts in the testimony. (People v.
Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) “A reversal for insufficient
evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.) Simply put, an appellant “bears an enormous
burden” to prevail on a sufficiency of the evidence claim. (Sanchez, supra, 113
Cal.App.4th at p. 330.)
“Robbery is defined as ‘the felonious taking of personal property in the
possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.’ [Citation.] Robbery requires the ‘specific
intent to permanently deprive’ the victim of his or her property. [Citations.].” (People v.
Mora and Rangel (2018) 5 Cal.5th 442, 489 (Mora and Rangel).) “An attempted robbery
requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere
preparation) toward its commission.” (People v. Medina (2007) 41 Cal.4th 685, 694
(Medina).) Moreover, for an attempted robbery, actual “commission of an element of the
crime [of robbery] is not necessary. [Citation.] As such, neither [is] a completed theft
. . . .” (Ibid.) Thus, sufficient evidence can support an attempted robbery conviction
where a defendant demands the victim’s property at gunpoint, even when a shooting

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immediately occurs, and no property is subsequently taken. (See Mora and Rangel,
supra, 5 Cal.5th at pp. 489-490.)
A criminal conspiracy is defined as two or more persons agreeing to
commit a crime. (§ 182.) A conviction for conspiracy requires proof the defendant
agreed with another to commit an offense, had the specific intent to commit the offense,
and there was at least one overt act by at least one of the coparticipants in furtherance of
the conspiracy. (People v. Morante (1999) 20 Cal.4th 403, 416-417 (Morante).)
Here there is no question Alcaraz attempted to rob JD1. He pointed his gun
at JD1 and demanded he “[g]ive me everything you have.” When JD1 put his hands up
and said, “I don’t have anything,” Alcaraz patted JD1’s pockets, felt his phone, and
demanded JD1 hand it over. Diaz-Guerrero does not deny there was an attempted
robbery. Instead, his claim is there was insufficient evidence he knew of Alcaraz’ plan,
shared an intent to rob JD1, and had agreed to rob JD1.
“‘[E]vidence of a defendant’s state of mind is almost inevitably
circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a
conviction.’ [Citations.].” (Manibusan, supra, 58 Cal.4th at p. 87.) Thus, “‘“‘[t]he
standard of review is the same in cases in which the prosecution relies mainly on
circumstantial evidence. [Citation.] . . . [citations].’”’” (People v. Ghobrial (2018) 5
Cal.5th 250, 277.) “Where the circumstances support the trier of fact’s finding of guilt,
an appellate court cannot reverse merely because it believes the evidence is reasonably
reconciled with the defendant’s innocence.” (People v. Meza (1995) 38 Cal.App.4th
1741, 1747.)
A person aids and abets a crime if he or she aids, promotes, encourages, or
instigates the commission of the crime, with knowledge of the perpetrator’s unlawful
purpose and the intent to facilitate the commission of the crime. (People v. Nguyen
(2015) 61 Cal.4th 1015, 1054 (Nguyen).) “The actual perpetrator must have whatever
mental state is required for each crime charged . . . . An aider and abettor, on the other

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hand, must ‘act with knowledge of the criminal purpose of the perpetrator and with an
intent or purpose either of committing, or of encouraging or facilitating commission of,
the offense.’ [Citation.]” (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) “‘Whether
defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in
the evidence and reasonable inferences must be resolved in favor of the judgment.’
[Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Thus, to be guilty as an aider and abettor to an attempted robbery, a
defendant must know of the perpetrator’s intent to permanently deprive the victim of his
or her property, intend that the perpetrator do so, and promote or encourage the crime in
some way. In the closely related context, a defendant is guilty of a conspiracy to commit
robbery when he or she agreed with another person to commit a robbery, had the specific
intent to commit the offense, and there was an overt act committed by one of the
coparticipants furthering the conspiracy. (Morante, supra, 20 Cal.4th at pp. 416-417.)
“‘Whether a person has aided and abetted in the commission of a crime
ordinarily is a question of fact. . . . [¶] . . . [¶] Among the factors which may be
considered in making the determination of aiding and abetting are: presence at the scene
of the crime, companionship, and conduct before and after the offense.’ [Citation.]”
(Nguyen, supra, 61 Cal.4th at p. 1054.) All three are present here.
Diaz-Guerrero was present from the initial gang hit-up. He watched JD1
use the ATM to withdraw cash, followed JD1 and JD2 as they left the 7-Eleven, stood
close beside Alcaraz as he attempted to rob JD1 and then shot him, fled with Alcaraz and
met up with his fellow gang members to make good their escape. While it is true “‘“mere
presence alone at the scene of the crime is not sufficient to make [him] a participant,’” his
behavior “‘may be [a] circumstance[ ] that can be considered by the jury with the other
evidence in passing on his guilt or innocence.’” [Citation.]” (Nguyen, supra, 61 Cal.4th
at p. 1055.) These same facts demonstrate “companionship,” and Pietras’ testimony
showed Diaz-Guerrero, Alcaraz, and Manzo were all members of the same gang; a gang

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known to commit robberies as part of their primary activities. Pietras’ expertise
established gang members typically work together in the commission of their crimes,
back each other up, and do not commit crimes with non-members or others who they do
not trust. Although “gang evidence standing alone cannot prove a defendant is an aider
and abettor to a crime” (Id. at p. 1055), Pietras’ testimony did not stand alone. It
strengthened inferences arising from the other evidence specific to Diaz-Guerrero’s role
in the crimes. Finally, as to the conduct itself, the suspects worked together before and
after the unsuccessful robbery attempt. From the hit-up to the conduct inside the 7-
Eleven and the two-man confrontation; from the robbery attempt to the coordinated group
SUV escape, the jury could reasonably have inferred the entire course of conduct here
evidenced a shared knowledge, planning, agreement, and intent to commit a robbery.
Specifically, “[m]indful of the standard of review on appeal for sufficiency
of evidence questions [citation], we conclude that, although no direct evidence showed
[Diaz-Guerrero] acted with the required knowledge and purpose [to be an aider and
abettor], there was substantial evidence from which a rational trier of fact could have
found he in fact possessed such a mental state.” (People v. Hill (1998) 17 Cal.4th 800,
851.) The four suspects accosted JD1 and JD2 inside the 7-Eleven and all were aware
JD1 had used the ATM. Diaz-Guerrero stood next to Alcaraz as they both confronted
him and told JD1, “Travelers City. We don’t fuck around.” Alcaraz immediately pulled
out his gun and demanded JD1’s property. From these facts, the jury could reasonably
infer Diaz-Guerrero and Alcaraz were working together. “Certainly their behavior
immediately prior to the crimes . . . suggests a preconceived plan of attack. We conclude
the evidence of aiding and abetting was sufficient.” (Id. at pp. 851-852.)
Diaz-Guerrero argues the evidence more strongly points to a theory he and
his cohorts intended to commit an assault rather than a robbery. First, the two crimes are
not mutually exclusive — robbery is most often accomplished by means of assault. (Cf.
Medina, supra, 41 Cal.4th at p. 694 [robbery “combines elements of theft and assault”];

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People v. Sutton (1973) 35 Cal.App.3d 264, 270 [“Robbery is a compound felony which
includes all the elements of both theft and assault”].) Second, his argument the evidence
could have supported a contrary finding regarding his knowledge and intent
“misconstrue[s] and/or misappl[ies] the substantial evidence standard of review.”
(People v. Ortiz (2012) 208 Cal.App.4th 1354, 1366, fn. omitted.)
Even if the evidence might support Diaz-Guerrero’s assault theory, we are
not free to reform the verdict simply because another theory is plausible. (People v.
Jackson (2016) 1 Cal.5th 269, 345, quoting People v. Albillar (2010) 51 Cal.4th 47, 60
[“‘If the circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding’”].) “Whether a reasonable trier of fact could reach a
different conclusion based upon the same facts does not mean the verdict is not supported
by sufficient evidence.” (Mora and Rangel, supra, 5 Cal.5th at p. 490.)
The record here contains substantial evidence from which the jury could
have found beyond a reasonable doubt that Diaz-Guerrero knew of and shared Alcaraz’
intent to rob JD1, and acted to further the robbery. (Nguyen, supra, 61 Cal.4th at p.
1056.) Similarly, this same evidence permits a reasonable inference he had agreed to
support Alcaraz in the thwarted robbery, and that an overt act was committed in
furtherance of that agreement. Diaz-Guerrero’s convictions for conspiracy and attempt to
commit robbery are amply supported. (Ibid.)
Diaz-Guerrero’s Rebuttal Evidence Claim
Diaz-Guerrero next contends his conviction for actively participating in a
criminal street gang must be reversed because the trial court prejudicially erred by
permitting the prosecution to introduce evidence of his gang membership through the
rebuttal testimony of his erstwhile coworker, Kevin S. Acknowledging his trial counsel
did not object below, he alternatively claims his attorney was constitutionally ineffective
for failing to object. We reject both claims.

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The prosecutor proposed to recall Kevin S. to rebut the UCI nurse’s
testimony and testify he had heard that Diaz-Guerrero once tried to start a fight with a
motorist, had to dissuade his “homies” from stealing the car, and had admitted to Kevin
S. he was a gang member. The prosecutor argued the evidence was admissible under
Evidence Code section 1102 to rebut the character evidence Diaz-Guerrero had presented
in his defense case through the nurse’s testimony.10
Diaz-Guerrero’s counsel objected, arguing the proposed testimony involved
multiple layers of hearsay. The court asked whether he would object if the prosecutor
simply asked Kevin S. about Diaz-Guerrero’s “character for violence or truthfulness” or
“trustworthiness.” Defense counsel agreed that, if so limited, the testimony would be
proper rebuttal evidence. However, he insisted that if Kevin S. attempted to “buttress”
his opinion with any specific prior incidents, he would seek to call the individuals
involved.
The court asked the prosecutor how Diaz-Guerrero’s prior acts of
misconduct were admissible under Evidence Code section 1102. He replied they
provided a non-hearsay foundation for Kevin S.’s opinion of Diaz-Guerrero’s reputation
and character. The court was not convinced, and ruled Kevin S. would not be permitted
to testify about any “specific instance of conduct which would clearly be hearsay . . . .”
Nonetheless, Kevin S.’s opinion of Diaz-Guerrero’s reputation remained admissible:
“[O]f course you are permitted to ask the witness . . . his opinion. Again, I think that kind
of [Evidence Code §] 1102 [evidence] works best with people who know somebody
really well and recently because that opinion can matter even without specific instances
of conduct to buttress it, but if you’d like, you can definitely do that.” The court warned
Diaz-Guerrero’s counsel that if his cross-examination delved too far into the basis for
10
“[E]vidence of the defendant’s character or a trait of his character in the form of an opinion or
evidence of his reputation is [admissible] if such evidence is: [¶] (a) Offered by the defendant to prove his conduct
in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced
by the defendant . . . .” (Evid. Code, § 1102.)

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Kevin S.’s opinion, it might open the door to the prior instances of misconduct it had just
excluded.
The prosecutor asked Kevin S. about Diaz-Guerrero’s reputation. He
responded, “At work he was a great guy.” When asked, “What about . . . your opinion of
him outside of work?” he replied, “Outside of work I know he was involved in a gang,
outside of work.” Asked whether he had any other opinion, Kevin S. stated, “Just — it
kind of hurt because a lot of us spent time talking with him and dealing with him at work
trying to get him to straighten out, trying to get him to understand that he had a good job
that could lead to a career with great benefits and why throw it away on something that
doesn’t matter in the end that would only hurt you.” Diaz-Guerrero’s counsel did not
object to this testimony.
While Diaz-Guerrero had succeeded in preventing the prosecutor from
introducing his admission of gang membership to Kevin S., the elicited testimony did not
violate that exclusion. Diaz-Guerrero’s briefing mischaracterizes Kevin S.’s testimony,
repeatedly criticizing the trial court and trial counsel for “allowing [Kevin S.] to testify
[Diaz-Guerrero] admitted he was involved in a gang.” But that is not what Kevin S. said.
Instead, when asked, “[W]hat’s your opinion of [Diaz-Guerrero] outside of work?” Kevin
S. said, “Outside of work I know he was involved in a gang . . . .” (Italics added.) Kevin
S. was not asked how he knew this to be true, and the jury was never told Diaz-Guerrero
had admitted gang involvement. Indeed, it appears trial counsel was careful not to ask
Kevin S. how he obtained that knowledge, because of the trial court’s earlier warning it
could open the door to the much more damaging fact: Diaz-Guerrero had admitted his
gang involvement. Neither the prosecutor’s questions, nor Kevin S.’s answers, violated
the trial court’s earlier ruling.
Because Diaz-Guerrero placed his character and reputation into dispute
through the nurse’s testimony, the prosecutor was permitted to offer evidence to rebut
Diaz-Guerrero’s reputation and character evidence. (Evid. Code, § 1102, subd. (b).)

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This underlying predicament for trial counsel also makes unpersuasive Diaz-Guerrero’s
alternative argument his trial attorney’s failure to object to Kevin S.’s rebuttal testimony
constituted constitutionally ineffective assistance of counsel.
A claim of ineffectiveness of counsel comprises a two-pronged inquiry.
First, Diaz-Guerrero must show his counsel’s performance fell below an objective
standard of reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 687–688,
694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Second, he must
also demonstrate prejudice, i.e., it is reasonably probable, not merely possible, “‘“that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.”’ [Citations.]” (People v. Yates (2018) 25 Cal.App.5th 474, 488.)
“‘Surmounting Strickland’s high bar is never an easy task.’ [Citation.]”
(Harrington v. Richter (2011) 562 U.S. 86, 105 (Richter).) This is because “[a]n
ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture
and raise issues not presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very
adversary process the right to counsel is meant to serve. [Citation.]” (Richter, supra, 562
U.S. at p. 105.) “[W]e start with a presumption that [trial counsel] was conscious of his
duties to his clients and that he sought conscientiously to discharge those duties. The
burden of demonstrating the contrary is on his former clients.” (United States v. Cronic
(1984) 466 U.S. 648, 658, fn. 23.) Specifically, as to the prejudice prong, “[i]t is not
enough ‘to show that the errors had some conceivable effect on the outcome of the
proceeding.’ [Citation.]” (Richter, supra, 562 U.S. at p. 104.) Rather, “[t]he likelihood
of a different result must be substantial, not just conceivable.” (Id. at p. 112, italics
added.)
Consequently, we review trial counsel’s performance with deferential
scrutiny, indulging a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” and recognizing the many choices that

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attorneys make in handling cases and the danger of second-guessing an attorney’s
decisions. (Maury, supra, 30 Cal.4th at p. 389.) Trial counsel is not ineffective for
failing to make or pursue meritless objections. (People v. Weaver (2001) 26 Cal.4th 876,
931; People v. McCutcheon (1986) 187 Cal.App.3d 552, 558-559 [“Defense counsel need
not make futile objections . . . merely to create a record impregnable to attack for claimed
inadequacy of counsel”].) “The decision whether to object to the admission of evidence
is ‘inherently tactical,’ and a failure to object will rarely reflect deficient performance by
counsel.” (People v. Castaneda (2011) 51 Cal.4th 1292, 1335, abrogated on other
grounds in People v. Hardy (2018) 5 Cal.5th 56, 100.) “Although trial counsel may have
the duty to protect the record when their client’s trial interests are truly at stake, they have
no duty to object simply to generate appellate issues. Sometimes, the best action an
attorney can take regarding an available objection is not to make it.” (People v. Riel
(2000) 22 Cal.4th 1153, 1202.)
“If the record ‘sheds no light on why counsel acted or failed to act in the
manner challenged,’ an appellate claim of ineffective assistance of counsel must be
rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.’ [Citations.]” (People v. Ledesma
(2006) 39 Cal.4th 641, 746.) Rather, “[a] claim of ineffective assistance in such a case is
more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267.) This is such a case.
Diaz-Guerrero’s trial counsel was faced with a decision whether he should
introduce the nurse’s positive character evidence supporting his client to counter the
otherwise substantial evidence of his guilt. Diaz-Guerrero’s identity and involvement in
crimes resulting in a permanently-paralyzed victim were not in dispute. Counsel was
able to minimize the ramifications of the strategy he chose by successfully excluding his
client’s gang admissions, and opened the door only slightly to Kevin S.’s limited rebuttal
testimony. We cannot reasonably conclude trial counsel had no basis for the choices he

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made or for the strategy he used in defense of his client. Diaz-Guerrero has not shown
his trial counsel’s representation was constitutionally ineffective.
Diaz-Guerrero’s SB 1437 Claim
Finally, Diaz-Guerrero argues his attempted murder conviction must be
reversed after the 2019 statutory changes made by SB 1437. We find the claim is not ripe
for our consideration.
SB 1437 changed the definition of malice and the elements of the crime of
murder. It also created a statutory procedure, codified in new section 1170.95, by which
defendants who have been convicted of murder based on a felony murder or a natural and
probable consequences theory of liability may petition the sentencing court to hear
additional evidence and, if appropriate, vacate the murder conviction if inconsistent with
the now-governing law. (See People v. Martinez (2019) 31 Cal.App.5th 719, 722.)
Whether SB 1437 applies to attempted murder convictions, despite plain language
limiting its application to murder convictions, is a question currently pending in our
Supreme Court. (People v. Lopez (2019) 38 Cal.App.5th 1087 (Lopez), review granted
November 13, 2019, S258175.)
What is clear is that whether a defendant is “entitled to the benefits of [SB]
1437 . . . must be considered in the first instance by the trial court . . . , pursuant to the
procedures created by section 1170.95, not on direct appeal.” (Lopez, supra, 38
Cal.App.5th at p. 1113; accord, People v. Munoz (2019) 39 Cal.App.5th 738, 750-751,
review granted November 26, 2019, S258234; People v. Carter (2019) 34 Cal.App.5th
831, 835; People v. Anthony (2019) 32 Cal.App.5th 1102, 1147; People v. Martinez,
supra, 31 Cal.App.5th at p. 729; but see People v. Medrano (2019) 42 Cal.App.5th 1001,
1018, petitions for review filed January 3, 2020, S259948 [because section 1170.95 does
not apply to attempted murder, an SB 1437 claim is reviewable on direct appeal, and it
does extend to attempted murder].)

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Diaz-Guerrero asks us to address the issue “in light of the need for
guidance on whether [SB 1437] applies to attempted murder.” But we conclude the
question must first be raised in the trial court. Diaz-Guerrero’s SB 1437 claim is not
properly before us and must instead be raised in the superior court in a section 1170.95
petition. We express no opinion how it should rule on any such petition.
DISPOSITION
The judgments are affirmed. Our rejection of Diaz-Guerrero’s SB 1437
claim is without prejudice to his filing a section 1170.95 petition in the superior court.
BEDSWORTH, ACTING P. J.
WE CONCUR:
THOMPSON, J.
GOETHALS, J.

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