There was sufficient evidence to support defendant’s conviction for shooting at an inhabited dwelling under an aider and abetter theory even though he did not share the direct perpetrator’s particular intent to shoot at the building. White and Gales, Tree Top Piru gang members, encountered rival gang members Diaz and Ayah in contested territory. Gales handed White a gun and told White to “Go get them.” Instead of firing at Diaz or Ayah, White, who did not want to injure either, fired three shots at an apartment behind Diaz. A jury convicted Gales of multiple offenses with gang enhancements, including shooting at an inhabited dwelling (Pen. Code, § 246). Gales appealed arguing that there was insufficient evidence to support his section 246 conviction under an aider and abettor theory because he did not know of, and share, White’s intent to shoot at the building. Held: Affirmed. “Outside of the natural and probable consequences doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) When the charged offense is a general intent crime, “the aider and abettor need only knowingly and intentionally facilitate the direct perpetrator’s commission of the crime, without intending some additional result or consequence not required for the crime.” Shooting at an inhabited dwelling is a general intent crime and the required mental state is a conscious indifference to the probable consequence that one or more bullets will strike the building. Here, there was sufficient evidence that Gales knowingly and intentionally encouraged White to shoot a gun under circumstances showing that he was consciously indifferent to the probable consequence that one of the bullets would miss Diaz and strike the apartment building. Proof that Gales knew of, and shared, White’s particular intent to shoot at the building was not required.
Sufficient evidence supported the gang enhancement (Pen. Code, § 186.22, subd. (b)) accompanying the conviction for shooting at an inhabited dwelling. Gales also argued that there was insufficient evidence that he possessed the specific intent required for the gang enhancement. The court disagreed. Generally, the commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. Here, there was sufficient evidence that Gales and White belong to the Tree Top Piru gang. The evidence also showed that Gales acted in concert with White, as it established that Gales aided and abetted White’s offense of shooting at an inhabited dwelling.