THE PEOPLE v. ESTEBAN RUIZ (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Esteban Ruiz appeals from the judgment entered following his conviction by jury on count 1-first degree murder with personal and intentional discharge of a firearm causing great bodily injury or death, and a finding he committed the offense for the benefit of a criminal street gang, and Moises Lopez and Esteban Ruiz appeal from the judgments entered following their convictions by jury on count 2-first degree murder and count 3-attempted willful, deliberate, and premeditated murder, with findings as to each count that a principal personally and intentionally discharged a firearm causing great bodily injury or death, and appellants committed the offense for the benefit of a criminal street gang.   The court sentenced Ruiz to prison for life with the possibility of parole, plus 125 years to life.   The court sentenced Lopez to prison for life with the possibility of parole, plus 75 years to life.   We modify the judgment as to each appellant and, as modified, affirm it with directions.

FACTUAL SUMMARY

1. The Murder of Pablo Hernandez.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is not in dispute, established that on June 11, 2007, Ruiz, a member of the Florencia 13 criminal street gang (Florencia 13), murdered Pablo Hernandez (count 1) in an alley just east of Avalon and between 54th and 55th Streets in Los Angeles.   Ruiz shot Hernandez in territory claimed by the Playboys gang (Playboys).   Hernandez was not a member of that gang, but resembled his brother who was a member.   Ruiz committed the offense for the benefit of Florencia 13.

2. The Murder of Freddy Castro and the Attempted Murder of Frank Mariscal.

a. People's Evidence.

The evidence also established that on June 18, 2007, the driver of a Buick stopped near 4041 Morgan in Los Angeles, where Freddy Castro (the decedent) and Frank Mariscal were standing.   The front passenger in the Buick, holding a gun in his right hand, fired several shots at Castro and Mariscal, killing Castro (count 2) and wounding Mariscal (count 3).

There was substantial evidence from Armando Barragan, an eyewitness to the shooting, that Ruiz and Lopez were the driver and front passenger, respectively.   However, Barragan had viewed some of the events through his car's rear view mirror.   Los Angeles Police Detective Johnny Villa, a lead investigator, testified that, based on his investigation, Barragan might have reversed the positions of appellants in the Buick, and that in fact Lopez and Ruiz were the driver and front passenger, respectively.   Barragan obtained the license plate number of the Buick.   It was registered to Lopez's father and heat was emanating from its front grill.

Mariscal told Villa that, before shots were fired, someone in the Buick said, “ ‘What's 38th Street life like?’  “ Mariscal also told Villa that a passenger exited the Buick to shoot someone.   Villa saw several bullets and 14 casings on or near Castro's driveway.

Police arrested Lopez on July 12, 2007.   Villa interviewed him, and Lopez indicated as follows.   Lopez had been challenged at Mike's Tires (a location apparently in the territory of the Hang Out Boys gang (Hang Out Boys)).   Later, some of Lopez's homies argued about who was going to look for 38th Street gang (38th Street) members to catch them.   Lopez called a homie, then went with Straps and Snaps to look for members of the Hang Out Boys in that gang's territory.   Lopez, armed with a gun, rode in the backseat.

Later, Lopez, unarmed, drove Straps and Snaps to 40th and Morgan in 38th Street territory.   Lopez saw two males on the sidewalk and stopped.   Straps and Snaps were the front and rear passengers, respectively.   Snaps asked, “[W]hat's that 38th Street life[?]” and one of the victims replied he had family in 38th Street.   Snaps opened fire first and Straps joined in the shooting.   The Buick was driving slowly.   Lopez eventually drove away.

Los Angeles Police Detective Benavides, who also interviewed Lopez, indicated to Lopez that Lopez had misidentified the front passenger and that Ruiz had been the front passenger.   Lopez then indicated as follows.   About 6:00 p.m. on June 18, 2007, Ruiz accompanied Lopez in the Buick to “put some work” in with the Hang Out Boys. Lopez was angry because, during the previous week, 38th Street had shot one of his homies and had “smoked” one.   On June 18, 2007, Little Laughy drove with appellants to Mike's Tires on Martin Luther King. Lopez was armed.   Lopez denied Ruiz accompanied him during Lopez's later trip into 38th Street territory.

Lopez indicated he would die for Ruiz and would not tell the detectives even if Ruiz had been in the Buick.   If Lopez incriminated Ruiz, Lopez could be shanked.   Lopez believed he could incriminate Snaps because Snaps was a “punk” and was not in jail.

Los Angeles Police Detective Miguel Terrazas also interviewed Lopez.   Lopez acknowledged Florencia 13 and the Playboys were rivals.   If Lopez were with his homies and encountered a Playboys member, they would “hit him up.”   Lopez knew that Playboys congregated around 55th and Avalon.   A firearms examiner concluded that eight .40-caliber casings and three bullets involved in the Hernandez shooting, and seven .40-caliber casings involved in the Castro murder, were fired from the same firearm.

Los Angeles Police Officer Gilberto Rendon, a gang expert, testified as follows.   Lopez was an active member of Florencia 13.   Rendon based this testimony in part on a statement by Lopez that he wanted to “put in work” ¹ against enemy neighborhoods.   Lopez told detectives that 40th and Morgan was within 38th Street territory, and thereby let detectives know that he knew where his rivals' areas were located.   Lopez also had an F13 tattoo on his chest, and the crosspiece on the F depicted a gun, signifying the gang had several guns and was willing to use them, and suggesting Lopez was known as a gang member who carried a gun and liked shooting.²  Ruiz was also a Florencia 13 member.

Florencia 13, the Hang Out Boys, and 38th Street were rival gangs that hated each other.   Gang members would not drive into a rival gang's territory without guns, or by mistake.   The driver would know whether his passengers were armed.   Armed gang members entering a rival gang's territory would commit a shooting, given the opportunity.

If three Florencia 13 gang members drove to 4041 South Morgan Avenue, stopped or slowed, and a car's occupant said something like “ ‘What's that 38th Street life like[?]’ “ and two passengers fired at two young male Hispanics on the sidewalk, the crime was committed for the benefit of the Florencia 13 gang.   Rendon had not encountered Florencia 13 members named Straps, Snaps, or Little Laughy.   Castro was not a member of 38th Street.

b. Defense Evidence.

In defense, Lopez, a convicted felon, presented evidence that he was a Florencia 13 member, and there had been shootings between Florencia 13 and 38th Street.   On June 18, 2007, Straps and Snaps, Florencia 13 members, told Lopez they wanted to look for action.   Lopez thought this perhaps meant they wanted to look for girls or write graffiti.   He had seen Straps and Snaps possess guns before, but did not know they were armed on June 18, 2007.   None of the three discussed shooting anyone.   Lopez did not commit shootings;  he sold drugs for his gang.

The three entered a car and Lopez drove, intending to look for girls or write graffiti.   Straps and Snaps were the front and rear passengers, respectively.   Lopez drove to 40th and Morgan.   As Lopez drove on Morgan, Straps told him to stop and Lopez complied.   Lopez thought Straps knew someone.   Straps and Snaps began shooting.   This angered Lopez.   At trial, he denied he harbored ill-will towards 38th Street members, denied knowing Straps and Snaps would shoot anyone, and denied intending to shoot anyone.   Lopez immediately drove away after the shooting.

Lopez's initial statements to police were the same as his testimony, but Villa told Lopez that Lopez's statements were a lie.   Lopez subsequently began making things up because Villa wanted him to do this.   Lopez's statements to police differed from his testimony, and some people might have thought he was lying when testifying.   At the beginning of the interview, Villa talked to Lopez about taking his father and brother to jail.   The parties stipulated Lopez's cousin would testify that Lopez was left-handed.

In defense, Ruiz's mother testified that Ruiz and Lopez were friends.   Ruiz could not drive a car, never had a license, and was left-handed.

c. Rebuttal Evidence.

In rebuttal, Villa testified as follows.   Florencia 13 and 38th Street were mortal enemies.   It would be suicide for Florencia 13 members to enter 38th Street territory to look for women.   Villa found no record of a person named Straps belonging to Florencia 13.   There were two Florencia 13 members from Huntington Park named Snaps.   One was in custody at the time of the June 2007 shootings.   The other was 14 years old, and his field identification card had not been entered into the system until October 2007.   It would be highly unlikely for Florencia 13 members from 59th Street to join with Florencia 13 members from Huntington Park.

Villa was left-handed but fired his handgun with his right hand.   Most firearms were designed for right-handed persons, and it was easier to fire a gun from the passenger window of a car with the right hand than with the left hand.   The location of 4041 Morgan was on the west side of the street;  therefore, if a car were traveling southbound on Morgan, the passenger, not the driver, would be closest to the sidewalk at that address.

CONTENTIONS

Appellants claim (1) the trial court erred as to counts 2 and 3 by refusing Lopez's request that the court modify CALJIC No. 3.01 to reflect the requisite criminal intent for an accomplice must exist before or during the commission of the crime, (2) the trial court erred by imposing the Penal Code section 12022.53, subdivision (d) enhancements, and (3) appellants are entitled to additional precommitment credits.   Lopez also claims there was insufficient evidence supporting his convictions on counts 2 and 3. In a supplemental letter brief, Lopez claims the trial court erroneously failed to instruct as to count 2 that in order for the jury to convict him of first degree murder, the jury had to find that he personally acted willfully, deliberately, and with premeditation.

DISCUSSION

1. The Court Properly Gave CALJIC No. 3.01.

a. Pertinent Facts.

CALJIC No. 3.01, on accomplice liability, states, “[a] person aids and abets the commission of a crime when he:  [¶] (1) With knowledge of the unlawful purpose of the perpetrator, [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime.  [¶] A person who aids and abets the commission of a crime need not be present at the scene of the crime.  [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.  [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”

Prior to the giving of CALJIC No. 3.01 to the jury, Lopez requested that the court modify the instruction by the addition, after the third above enumerated paragraph, of the following language:  “ ‘[t]he act or advice occurred prior to or during the commission of the offense by the perpetrator.’  “ Lopez's counsel explained the language “specifically indicates that the aiding and abetting must exist prior to the commission of the offenses.”   The court denied the request.   Ruiz posed no objection to CALJIC No. 3.01, and the court gave it to the jury.

b. Analysis.

Lopez claims the trial court erred by failing to grant his modification request because, absent the modification, the jury was not adequately apprised that the requisite intent of an accomplice must exist prior to or during the commission of the crime;  therefore, CALJIC No. 3.01 failed to adequately distinguish between accomplice and accessory liability.   Lopez argues the error was prejudicial because the only undisputed assistance that he provided to perpetrators occurred when he drove away, at which time he knew about the crimes, but “they were over.”   Ruiz joins in this claim.

However, Ruiz waived the above instructional issue by failing to request modification of the instruction which, as discussed below, correctly stated the law and which was responsive to the evidence.  (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156.) ³  Moreover, even if the issue of the timing of the requisite intent and the commission of the crime was not waived, the first three enumerated sentences of CALJIC No. 3.01 essentially track the elements of accomplice liability as set forth in People v. Beeman (1984) 35 Cal.3d 547, 561, and constitute a correct statement of the law.  (People v. Tillotson (2007) 157 Cal.App.4th 517, 532.)  “Beeman presupposes that, if a person in fact aids, promotes, encourages or instigates commission of a crime, the requisite intent to render such aid must be formed prior to or during ‘commission’ of that offense.  [Citations.]  It is legally and logically impossible to both form the requisite intent and in fact aid, promote, encourage, or facilitate commission of a crime after the commission of that crime has ended.”  (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)

Further, in People v. Williams (1997) 16 Cal.4th 635 (Williams ), the defendant made essentially the same claim as Lopez.  Williams indicated an appellate court evaluates claims of instructional error in the context of the overall charge to the jury.   In Williams, in addition to the instruction on aiding and abetting (advising the jury that a person aids and abets the commission of a crime if he or she “ ‘shares the intent of the perpetrator’ ”), the trial court instructed that in each of the charged crimes of murder “ ‘there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and unless such specific intent exists the crime to which it relates is not committed.’  (CALJIC No. 3.31 (rev.1980).)”  (Williams, supra, at p. 675.)

The trial court in Williams also instructed that the intent necessary for murder was “ ‘malice aforethought’ (CALJIC No. 8.10 (rev.1984))” and instructed that that meant “ ‘the required mental state must precede rather than follow the act’ (CALJIC No. 8.11.2 (1983 rev.))[.]” (Williams, supra, 16 Cal.4th at p. 675.)   The trial court further instructed that all murder “ ‘perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder in the first degree’ and that ‘ “premeditated” means considered beforehand’ (CALJIC No. 8.20.1 (1979 rev.)).”  (Ibid.) That instruction also provided:  “ ‘[i]f you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant 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 murder in the first degree.’  “ (Ibid.)

Williams concluded that, considered together, these instructions told the jury that an aider and abettor who shares the actual perpetrator's intent to kill must have formed that intent beforehand.  (Williams, supra, 16 Cal.4th at pp. 675-676.)

In the present case, the trial court also gave the above discussed instructions to the jury.⁴  We believe that, considered together, they told the jury that the requisite intent of an accomplice must be formed before or during the commission of the crime.   The court did not err, in violation of Lopez's right to due process or otherwise, by refusing his modification request.

Moreover, we review any error by the trial court in failing to grant Lopez's modification request under the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836.  (Cf. People v. Perez (1987) 194 Cal.App.3d 525, 530.)   We reject, in part 2 of our Discussion, Lopez's claim that there was insufficient evidence supporting his conviction.   Based on the People's evidence, there was ample evidence that Lopez was a principal and an accomplice to the crimes at issue in counts 2 and 3, and had the requisite criminal intent of an accomplice before and during the commission of those crimes.   The jury reasonably could have concluded that much of Lopez's defense evidence, including that pertaining to his mental state when he drove away, was fabricated.

Ruiz does not challenge the sufficiency of the evidence as to count 2 or 3. There was ample evidence that he was a principal and, to the extent he was an accomplice, that he had the requisite criminal intent before or during the commission of the crimes.   The jury found as to each appellant that the murder of Castro and attempted murder of Mariscal were willful, deliberate, and premeditated.   Any instructional error was harmless under any conceivable standard.  (Cf. People v. Watson, supra, 46 Cal.2d at p. 836;  Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)

2. There Was Sufficient Evidence Supporting Lopez's Convictions on Counts 2 and 3.

Lopez claims there is insufficient evidence supporting his convictions on counts 2 and 3. He concedes he drove the car to the scene, and concedes there was evidence, and does not dispute, that he drove the perpetrator(s) away from scene.   He does not dispute that his driving the car to and from the scene with the perpetrator(s) aided them, but essentially argues he lacked the requisite criminal intent of an accomplice.

We have set forth the pertinent facts in our Factual Summary, including evidence provided by Barragan, Lopez's statements to detectives, and Rendon's expert testimony.   The jury reasonably could have concluded that Lopez was a principal in a garden-variety drive-by shooting, and that he drove the perpetrator(s) to the shooting scene and acted as a getaway driver.   There was sufficient evidence that Lopez committed the crimes of which he was convicted in counts 2 and 3, including sufficient evidence that he harbored the requisite criminal intent.  (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

3. Imposition of the Penal Code Section 12022.53, Former Subdivision (d) Enhancements Was Proper.

The jury found true beyond a reasonable doubt as to Ruiz the Penal Code section 12022.53, subdivision (d) allegation pertaining to count 1 and the Penal Code section 12022.53, subdivision (d) and section 12022.53, subdivision (e)(1) allegations pertaining to count 2. Ruiz's sentence as to each of counts 1 and 2 included a term of 25 years to life pursuant to subdivision (d).

Ruiz claims imposition of those terms violated double jeopardy principles and Penal Code section 654, and suggests they violated the rule prohibiting multiple convictions for greater, and lesser-included, offenses.   He raises these issues to preserve them for federal review.   Lopez joins in the claim.   We reject it.  (People v. Izaguirre (2007) 42 Cal.4th 126, 134;  People v. Sloan (2007) 42 Cal.4th 110, 123;  People v. Palacios (2007) 41 Cal.4th 720, 727-728;  Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

4. Appellants Are Entitled to Additional Precommitment Credit.

Police arrested appellants on July 12, 2007, and they remained in custody until the court sentenced them on February 27, 2009, a total of 597 days, inclusive.   The court awarded each appellant a total of 577 days of precommitment credit, consisting of 577 days of custody credit pursuant to Penal Code section 2900.5, subdivision (a).   Respondent concedes that, under subdivision (a), each appellant is entitled to an additional 20 days of custody credit.   We will modify the judgments accordingly.

5. The Trial Court Did Not Err by Giving CALJIC No. 8.20.

Lopez, citing People v. Concha (2009) 47 Cal.4th 653 (Concha ), claims the trial court erred by failing to instruct the jury that in order to convict him of first degree murder on count 2, the jury had to find that he personally acted willfully, deliberately, and with premeditation.   We conclude otherwise.

The trial court without objection gave CALJIC No. 8.20, which instructed on deliberate and premeditated murder.⁵  That instruction expressly stated, inter alia, “[i]f you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant 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 murder of the first degree.”  (Italics added.)

The above quoted language adequately informed the jury that they had to find that Lopez personally acted willfully, deliberately, and with premeditation.⁶  Lopez does not claim the trial court erred by giving CALJIC No. 8.20.   It is a correct statement of the law (People v. Perez (1992) 2 Cal.4th 1117, 1123-1124) and was responsive to the evidence.

Lopez notes CALJIC No. 8.20 refers to the fact that the “slayer” must weigh and consider the question of killing, and Lopez suggests the jury might have read this reference to indicate that only the actual killer and not an accomplice had to act willfully, deliberately, and with premeditation.   However, Lopez waived the above instructional issue by failing to request modification of the instruction.  (People v. Palmer, supra, 133 Cal.App.4th at p. 1156.)

As to the merits, in light of the previously quoted portion of CALJIC No. 8.20 and the instruction as a whole, the jury reasonably would have understood the instruction to indicate that Lopez had to act willfully, deliberately, and with premeditation.   Finally, there was overwhelming evidence from the People's evidence that Lopez murdered Castro willfully, deliberately, and with premeditation.   Lopez presented evidence, not that he committed unpremeditated murder, but that he did not commit murder.   The jury reasonably could have concluded much of his defense evidence was fabricated and they rejected it by their verdict and findings as to count 2. Any instructional error was harmless under any conceivable standard.  (Cf. People v. Watson, supra, 46 Cal.2d at p. 836;  Chapman v. California, supra, 386 U.S. at p. 24.) ⁷

DISPOSITION

The judgment of each appellant is modified by the addition, to his custody credit award, of 20 days of custody credit pursuant to Penal Code section 2900.5, subdivision (a), resulting in a total precommitment credit award of 597 days and, as modified, is affirmed.   The trial court is directed to forward to the Department of Corrections an amended abstract of judgment as to each appellant reflecting the above modification.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Villa testified that, in gang culture, “putting in some work” meant shooting or robbing someone, or doing something “pretty heavy” to further the gang's interest, spread the gang's name, and spread fear in the community..  FN1. Villa testified that, in gang culture, “putting in some work” meant shooting or robbing someone, or doing something “pretty heavy” to further the gang's interest, spread the gang's name, and spread fear in the community.

FN2. Villa testified that when a gang member carried a gun, eventually one of the “bigger homies” would make him “put in some work,” meaning commit a shooting..  FN2. Villa testified that when a gang member carried a gun, eventually one of the “bigger homies” would make him “put in some work,” meaning commit a shooting.

FN3. Although respondent does not raise the issue, we might have concluded that Lopez too waived the issue by failing to request an appropriate modification.   Lopez's requested modification language pertained to the timing of the requisite act or advice, i.e., the actus reus (People v. Thompson (2010) 49 Cal.4th 79, 116-117) and the commission of the crime.   His argument here pertains to the timing of the requisite intent, i.e., the mens rea (ibid.) and the commission of the crime..  FN3. Although respondent does not raise the issue, we might have concluded that Lopez too waived the issue by failing to request an appropriate modification.   Lopez's requested modification language pertained to the timing of the requisite act or advice, i.e., the actus reus (People v. Thompson (2010) 49 Cal.4th 79, 116-117) and the commission of the crime.   His argument here pertains to the timing of the requisite intent, i.e., the mens rea (ibid.) and the commission of the crime.

FN4. The trial court in the present case used CALJIC No. 3.31.5 instead of CALJIC No. 3.31 as given in Williams, CALJIC No. 8.11 instead of former CALJIC No. 8.11.2, and CALJIC No. 8.20 instead of former CALJIC No. 8.20.1..  FN4. The trial court in the present case used CALJIC No. 3.31.5 instead of CALJIC No. 3.31 as given in Williams, CALJIC No. 8.11 instead of former CALJIC No. 8.11.2, and CALJIC No. 8.20 instead of former CALJIC No. 8.20.1.

FN5. That instruction stated, in relevant part, “[a]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.  [¶] The word ‘willful,’ as used in this instruction, means intentional.  [¶] 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.  [¶] If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant 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 murder of the first degree.  [¶] ․ [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.”.  FN5. That instruction stated, in relevant part, “[a]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.  [¶] The word ‘willful,’ as used in this instruction, means intentional.  [¶] 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.  [¶] If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant 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 murder of the first degree.  [¶] ․ [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.”

FN6. Concha is therefore distinguishable since, in that case, the trial court failed to instruct that first degree murder required that the defendant personally acted willfully, deliberately, and with premeditation.  (Concha, supra, 47 Cal.4th at pp. 659, 666.).  FN6. Concha is therefore distinguishable since, in that case, the trial court failed to instruct that first degree murder required that the defendant personally acted willfully, deliberately, and with premeditation.  (Concha, supra, 47 Cal.4th at pp. 659, 666.)

FN7. To the extent Lopez claims there was insufficient evidence as to count 2 that he willfully, deliberately, and with premeditation murdered Castro, we conclude not only that there was sufficient evidence that he was an accomplice to that murder (see part 2 of our Discussion, ante ) but that there was sufficient evidence Lopez committed it willfully, deliberately, and with premeditation.  (People v. Ochoa, supra, 6 Cal.4th at p. 1206.).  FN7. To the extent Lopez claims there was insufficient evidence as to count 2 that he willfully, deliberately, and with premeditation murdered Castro, we conclude not only that there was sufficient evidence that he was an accomplice to that murder (see part 2 of our Discussion, ante ) but that there was sufficient evidence Lopez committed it willfully, deliberately, and with premeditation.  (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

CROSKEY, Acting P.J. ALDRICH, J.