Pettie

*32 A jury found defendants Philip Garcia, Andrew Lanford, and Vincent Pettie guilty of attempted murder, assault, and witness *176 dissuasion, with gang and firearm enhancements, as the result of an attack on Joseph Delgadillo. The trial court imposed aggregate terms of 42 years to life on Garcia, and 29 years to life on Lanford and Pettie. 1

At the time of the assault, defendant Garcia was dating victim Delgadillo's ex-wife. At some point, Delgadillo's daughter came to his home with bruises and complained that Garcia had hit her. Delgadillo called the police, but they did not arrest Garcia at that time. Three weeks later, as Delgadillo was watching football with defendant Lanford, Lanford questioned Delgadillo about calling the police and invited him out to smoke. Once outside, Delgadillo saw Garcia, defendant Pettie, and another man. Someone called Delgadillo a "cop caller" and some or all of the men attacked Delgadillo. Delgadillo saw Garcia point a pistol at him during the attack, but otherwise Delgadillo did not specifically identify which of the men personally participated in the attack. After suffering injuries, Delgadillo managed to run away. He heard four or five…

I agree with the majority's opinion in all respects but one: As to defendant Vincent Pettie, I would hold that the prosecution failed to present sufficient evidence to support his conviction for attempted murder.

The victim never testified to a single act or word by Pettie that would have furthered or encouraged an attempted murder. The victim merely testified that he saw Pettie with the other men outside just before the attack. The prosecution's sole theory of liability for attempted murder by Pettie hinged on the expert's opinion that members of a gang are expected to participate in a "beat down." The majority concludes this opinion supports an inference by a reasonable juror that Pettie must have played some role in the attack sufficient to constitute attempted murder.

I respectfully disagree with this conclusion. I find the required inference far too tenuous and speculative as grounds to find Pettie guilty of attempted murder beyond *219 a reasonable doubt. I find it particularly weak given that the trial court ruled out any argument that the "beat down" portion of the assault could have formed the actus reus of the attempted murder. The jury must have found, as the…