Opinion
NOT TO BE PUBLISHED
Charles R. McGrath, Judge Superior Court County of Ventura Super. Ct. No. 2008053356
Jolene Larimore, Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
David Benavidez Aguilar appeals from his conviction after jury trial of attempted willful, deliberate, premeditated murder. (Pen. Code, §§ 664/187.) The jury also convicted him of street terrorism and assault with a deadly weapon, and found true allegations that he committed the offenses for the benefit of a criminal street gang and personally used a handgun in committing the attempted murder. (§§ 186.22, subds. (a) & (b)(1)(C); 245, subd. (a)(1); 12022.5, subd. (a)(1).) The court sentenced him to 25 years to life, including 15 years to life for attempted murder, and a 10-year consecutive gang enhancement. The court stayed the sentence for the assault and street terrorism offenses pursuant to section 654.
All statutory references are to the Penal Code.
Appellant contends that there is insufficient evidence to support the attempted first degree murder conviction; that prejudicial gang expert testimony provided the only evidence that could establish an intent to kill; that trial counsel's failure to object to improper evidence and argument constituted ineffective assistance of counsel; and that the court erred in imposing the 10-year gang enhancement. Respondent concedes the sentencing error. We modify the sentence and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution
In 2008, appellant and Eric Curtis were members of the Bad Boyz gang in Santa Paula. Appellant's gang moniker is "Blackie" or "Negro." Two other gangs, the Santa Paula Crimies and the Locos, were rivals of the Bad Boyz.
At approximately 4:00 p.m., on December 21, 2008, John Rochelle walked to Ojai Road in Santa Paula to visit his neighbor, Anthony Hurtado, a former Crimies member. Rochelle was affiliated with the Locos gang but was not a member. Hurtado and Rochelle both knew appellant as "Blackie," and that he belonged to the Bad Boyz gang.
Rochelle and Hurtado were outside talking while Hurtado's daughter played nearby. Around the time that Rochelle started walking home, a dark "SUV" passed Hurtado's house and stopped in the middle of Cadway Street, near Rochelle's house. Curtis was driving the SUV and appellant jumped out.
Appellant asked Rochelle if he "still ran with the Locos." He said, "[f]uck" Locos," "Bad Boyz," and "[l]et's get down." Rochelle did not want to fight in front of his house. Appellant told Rochelle that he would get shot if he did not fight. Rochelle told appellant not to "disrespect" him in front of his house, and that they could "take care of it somewhere else." Rochelle turned his back and continued walking. He heard some gunshots. Two shots hit the ground near Rochelle. Another shot hit his right thigh. At the time, appellant was approximately 20 feet from Rochelle. After the shooting, appellant jumped back into the SUV and left the area quickly.
Upon hearing shots, Hurtado pushed his daughter inside his house before rushing to see Rochelle. Rochelle said, "It was Blackie. He blast[ed] me." Rochelle suffered two wounds, an exit and entrance wound, in his right thigh. He used crutches for a couple of weeks after the shooting.
Defense
Appellant testified and denied that he shot Rochelle. On December 21, 2008, he spent the whole day at the home of Michael and Janae Carrillo.
Carrillo testified that appellant arrived at her house in the late morning on December 21. She left in the early afternoon and returned at about 4:00 p.m. Appellant was still at her house and remained there until approximately 8:30 or 9:00 p.m.
Appellant's girlfriend, Janessa Hernandez, testified that appellant lived at her house and was there until about 12:00 or 1:00 p.m., on December 21. Later that day, at about 6:00 p.m., she and her mother went to the Carrillos' house to pick him up.
DISCUSSION
The Attempted Murder
Appellant contends that there is insufficient evidence to support the attempted murder conviction because there was no sufficient evidence that he intended to kill Rochelle. We disagree.
In assessing the sufficiency of evidence to support a conviction, we review the evidence and draw all reasonable inferences therefrom to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could have found guilt beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We do not reweigh the evidence nor do we determine witness credibility. (Ibid.) The standard is the same for circumstantial evidence of guilt. (Ibid.)
The "very act of firing a.22-caliber rifle toward the victim at a range and in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill...." (See People v. Lashley (1991) 1 Cal.App.4th 938, 945.) In People v. Morales (1992) 5 Cal.App.4th 917, 926-927, the court concluded that there was sufficient evidence of attempted murder where the defendant threatened to "get" the victim twice, before going home, loading his gun, driving to the victim's neighborhood, and hiding in a place that would give him a clear shot of the victim.
In appellant's case, the evidence, viewed in the light most favorable to the judgment, is sufficient to support the jury's finding that he had the specific intent to kill Rochelle. Appellant and Curtis went to Rochelle's neighborhood. Rochelle did not seek them out. Rochelle and Hurtado each knew appellant before December 21, 2008. Both men identified him as the person who jumped out of an SUV near Rochelle's house and shot him. Rochelle testified that just before the shooting, appellant asked if he still "ran with Locos," said "[f]uck Locos," and challenged Rochelle to a fight. When Rochelle declined to fight, appellant told him that he would be shot if he did not fight. Rochelle turned and walked toward his home. Appellant quickly fired three shots, from a distance of approximately 20 feet. Two shots landed near Rochelle and the third went through his right thigh.
Gang Expert Testimony
Appellant challenges portions of the gang expert testimony and argues that the prosecution relied on the gang evidence and the expert opinion to "fill the gap in their proof of appellant's intent." We disagree.
This argument concerns gang expert Ryan Smith's testimony. Smith testified that the primary activities of the Bad Boyz included murder, assault with a deadly weapon, carrying loaded weapons, resisting police officers and theft. He further explained that by committing violent crimes, gangs use fear and intimidation, and acquire a kind of respect, and that more violent crimes command more respect. The prosecutor asked a hypothetical question based on the facts of the case and Smith responded that the crimes were committed to benefit the Bad Boyz. He opined that if the shooter's first two shots hit the ground and the third shot hit the victim, "the rounds coming up hit, hit, hit, would be consistent with someone pulling the trigger and raising the gun." He also testified that the shooting was "the attempted murder of someone who associates with a rival criminal street gang." The prosecutor referred to the gang evidence, as well as other evidence, during argument. For example, she argued that "the motivation for the defendant going into that cul-de-sac was to tag himself a Locos...."
Appellant did not object to the cited questions or argument below, or request the striking of the evidence he now challenges. However, even had he done so, neither the argument nor admission of the evidence would constitute reversible error. Courts consistently approve the use of expert testimony to determine "whether and how a crime was committed to benefit or promote a gang" (People v. Killebrew (2002) 103 Cal.App.4th 644, 657), as well as testimony regarding gang culture and psychology (People v. Valdez (1997) 58 Cal.App.4th 494, 506). In challenging the expert opinion, appellant misplaces his reliance on Killebrew, a case where only one gang member in a car possessed a gun. The court disapproved expert testimony that every other gang member in that car knew of and constructively possessed that gun. (Killebrew, supra, at p. 658.) There was no comparable testimony in appellant's case.
The words appellant uttered before the shooting ("[f]uck" Locos," etc.) established the crime's gang connection. In addition, appellant, Hurtado and Rochelle each testified that appellant belonged to the Bad Boyz. The evidence of appellant's intent to kill, without Smith's testimony, was beyond substantial, as we have already discussed. In addition, the jury was instructed that it was not bound by an expert opinion, but that it should decide the weight to be given an opinion, and could disregard any opinion that it found to be unreasonable. To the extent that Smith testified about appellant's intent, it is not reasonably probable that the jury would have returned a different verdict absent such testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Ineffective Assistance of Counsel Claim
Appellant also argues that counsel's failure to object to certain evidence and argument constituted ineffective assistance of counsel. We disagree.
In claiming that counsel was ineffective, appellant cites his failure to object to (1) Santa Paula Police Sergeant Ryan Smith's testimony providing "irrelevant profile evidence" regarding the Bad Boyz gang; (2) the prosecution's reliance on gang evidence in urging the jurors to find that appellant formulated the intent to kill because he was a gangster from a violent gang that routinely engaged in attempted murders; and (3) the admission of appellant's uncharged prior bad acts, including an incident in which he shot someone in the head, while an infant who sat nearby was almost hit by a bullet.
"The burden of proving ineffective assistance of counsel is on the defendant. [Citation.]" (People v. Babbitt (1988) 45 Cal.3d 660, 707.) First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687.) In determining whether counsel was deficient, we measure counsel's performance against the standard of a reasonably competent attorney. (People v. Kipp (1998) 18 Cal.4th 349, 366.) "A defendant must prove prejudice that is a '"demonstrable reality," not simply speculation.' [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, at p. 694.)
"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,... that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697.) Here, we need not consider whether counsel was deficient in not objecting to the cited evidence and prosecution argument. With the exception of the testimony regarding appellant's prior bad acts, we have already addressed the lack of prejudice from the evidence and argument that counsel did not challenge. We are not convinced that the verdict would have been any different absent the evidence of appellant's prior bad acts, either. Appellant has failed to "show that there is a reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
Sentencing
The parties agree that the trial court erred in imposing a 10-year gang enhancement under section 186.22, subdivision (b)(1), because that enhancement does not apply to an indeterminate sentence such as appellant's 15-year-to-life sentence. They further agree that the 15-year minimum parole eligibility provision of section 186.22, subdivision (b)(5) applies. They are correct. (People v. Harper (2003) 109 Cal.App.4th 520, 525.)
DISPOSITION
The judgment is affirmed. The 10-year gang enhancement imposed pursuant to section 186.22, subdivision (b)(1) is ordered stricken. The superior court is directed to amend the abstract of judgment to reflect the striking of the enhancement and to show that the 15-year minimum parole eligibility provision in section 186.22, subdivision (b)(5) applies and to forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J. YEGAN, J.