Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County No. NA074070, Richard R. Romero, Judge. Affirmed.
Victor B. Meyen for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
A jury found defendant Ramon Fennell Garcia guilty of attempted willful, deliberate, premeditated murder, and found to be true allegations that he personally used and discharged a firearm causing great bodily injury, and that the crime was committed for the benefit of a criminal street gang. He was sentenced to life in prison with the possibility of parole in 15 years, plus a consecutive term of 25 years to life. He appeals, raising numerous issues, none of which is persuasive. Accordingly, we affirm the judgment.
BACKGROUND
A. Police Interview Witnesses to a Shooting
On the evening of April 13, 2007, patrol officer Mario Banuelos and his partner responded to call regarding a shooting on Myrtle Avenue in the City of Long Beach. When he arrived at the scene, Banuelos spoke with Sarah Vaughn, the person who had called the police, about what happened, while his partner attended to a person who had been injured in the shooting.
1. Sarah Vaughn’s Statement
Vaughn told Banuelos that her friend, Christi Antwine, was visiting her and got into an argument with Vaughn’s neighbors, who were having a barbeque. One of the neighbors threw a piece of paper at Antwine’s face, which made Antwine upset. Antwine called her son, Jeffrey Tate, who arrived a few minutes later. Tate approached his mother, took her car keys, and pointed at the neighbors, saying, “I’ll be right back.” Tate drove off in his mother’s car. A few minutes later, Tate came back in his mother’s car with another person, who got out of the passenger side with a long black gun and started shooting at the group of neighbors. Vaughn said she recognized the shooter -- a tall slim Hispanic man with a tattoo on the side of his shaved head -- as “Dopey.” She said she recognized Dopey because she had seen him before. She knew him as a friend of Antwine who “hangs around” with Antwine’s son Tate, and she recognized his tattoo.
The next day, Banuelos presented Vaughn with a photographic lineup, and made clear to her that he was trying to identify the shooter. Vaughn identified defendant without hesitation, saying, “This looks like Dopey.”
2. Mario Cobian’s Statement
Later in the evening of the shooting, the police arrested Mario Cobian as he was parking Antwine’s car, a white Nissan Maxima. In a taped interview, Cobian told the police that he was with Tate at an In-N-Out restaurant when Tate got a call from his mother, Antwine. Antwine told Tate that some man was throwing stuff at her and calling her names. Tate asked Cobian to drive him over there and drop him off. Cobian dropped Tate off, and saw him talking to some man. Tate snatched Antwine’s car keys from her hand, hopped in the white Nissan and told the man, “I’ll be back.” Antwine then got into Cobian’s car and asked him to take her to her mother’s house. When they got there, Antwine realized that her purse was in her car, so she asked Cobian to take her back to Vaughn’s house. He drove her back and dropped her off. As he turned around to make a U-turn to go back to his house, he saw the white Nissan pull up. He saw Dopey get out from the passenger side and start shooting at a group of Black men. Tate, who was driving the white Nissan, stayed in the car. Cobian identified Dopey as Ramon Garcia, the defendant. He knew him from school and the neighborhood. He also knew that defendant was a member of the “Compton 155” gang, as was Tate.
Cobian left the scene as soon as the shooting started. A few hours later, Antwine called Cobian and asked if he would meet her at her mother’s house and drive her car (the white Nissan) to her cousin’s house. He agreed, and drove his car to Antwine’s mother’s house and parked it. He then got in Antwine’s car and followed Antwine, who was driving her mother’s car, to her cousin’s house. As he was parking Antwine’s car at that location, the police arrived and arrested him.
3. Christi Antwine’s Statement
At the same time the police arrested Cobian, they also arrested Antwine, who was sitting in her mother’s car, which was parked right in front of the white Nissan. Antwine spoke to police officer Chris Zamora that night. She told Zamora that she saw Dopey, who was a friend of her son and a member of the Compton Varrio 155 gang, holding a large rifle and shooting at a group of people in the vicinity of Myrtle Avenue. She shouted, “Dopey, No.” Dopey and her son then fled the scene in her car. She left with Cobian. Later, she drove her mother’s car to pick up Dopey and Tate in the City of Compton. She dropped Dopey off in the north Long Beach area. Dopey took the gun with him. She then dropped Tate off at his girlfriend’s house, which was also in the north Long Beach area. She was contacted by the police when she was returning, still driving her mother’s car, followed by Cobian, who was driving her car. She said the whole incident started when she got into an argument with a Black man at a barbeque and she called her son when it began to escalate.
4. Jeffrey Tate’s Statement
Tate was arrested the night of the shooting at his girlfriend’s house. In a taped interview with the police at 1:00 a.m. the next morning, Tate said that he was with Cobian when his mother called him, saying that someone was “talking smack to her” and throwing stuff in her face. He went to check on her and, as he was getting out of Cobian’s car, some man started walking toward him, said “something Crip,” and asked “did I want to catch one.” He got into his mother’s car and left. He called his friend Puppet, whom some people call Dopey.
Tate picked Puppet up. Puppet asked to stop at his house, which was nearby. Tate drove there, and Puppet ran into his house while Tate stayed in the car. Tate did not see if he was carrying anything when he returned to the car. Tate then drove to Vaughn’s house. When they got there, they both got out of the car. Tate started to walk toward Vaughn’s house when he heard his mother scream “No.” He looked and saw Puppet shooting a gun toward Vaughn’s house. He described the gun as being about 24 inches long, black, with a slightly curved clip. Puppet fired about 10 times, then they both got back into Antwine’s car and took off. When Tate stopped at a stop sign a few blocks away, Puppet got out of the car and ran off.
B. Preliminary Hearing and Trial
Defendant, who knew the police were looking for him, turned himself in to the police about four weeks after the shooting. His preliminary hearing was held four months after the shooting.
1. Preliminary Hearing Testimony
Vaughn testified at the preliminary hearing, and her version of the events differed somewhat from the story she told Officer Banuelos the night of the shooting. For example, although she had told Banuelos that when Tate first left in his mother’s car he pointed to the neighbors and said, “I’ll be right back,” she testified at the preliminary hearing that Tate made that statement to his mother. She also changed her story regarding her identification of the shooter. Although she told Banuelos that she recognized the shooter as Tate’s friend Dopey because she recognized his tattoo, she testified at the preliminary hearing that there were two people she had seen before with Tate who could have been the shooter. She knew the name of one of those two people -- Dopey -- but did not know the name of the other person. When asked if there was anyone in the courtroom who got out of the car that day or who looked like Dopey, Vaughn said, of defendant, “he doesn’t look like the Dopey that I’ve known, that I knew at the time.”
Officer Banuelos later testified at the hearing that the person Vaughn had identified as Dopey from the photographic lineup was defendant.
Brian Everett, who was hit by gun shots during the shooting, also testified at the preliminary hearing. He testified that he was at a barbeque on Myrtle Avenue at around 6:45 p.m. on April 13, 2007, when he heard someone say, “Run. Gun.” He turned, looked, and took off running. When he stopped, he saw blood coming down his arm. He was taken to the hospital, where he was treated for gunshot wounds to his forearm and tricep.
Defendant was charged by information with one count of attempted willful, deliberate, premeditated murder. (Pen. Code, §§ 664/187, subd. (a).) The information also included special allegations under section 186.22, subdivision (b)(1), section 1203.075, subdivision (a), section 12022.7, and section 12022.53, subdivisions (b), (c), and (d).
Further undesignated statutory references are to the Penal Code.
The information originally referred to section 186.22, subdivision (b)(4), but the prosecutor and defense counsel agreed that the correct section was 186.22, subdivision (b)(1).
The information also included an allegation under section 12022, subdivision (a)(2), but that was dismissed on defendant’s motion at the close of the People’s case in chief. At the same time, the court also granted the People’s motion to add an allegation under section 12022.5, subdivision (a) based upon the testimony at trial.
Trial was by jury. Vaughn, Cobian, Antwine, and Tate testified as part of the prosecution’s case in chief.
2. Vaughn’s Trial Testimony
Vaughn’s testimony at trial was similar to her testimony at the preliminary hearing, although she added details about Antwine’s conduct before and after the argument and about the person Antwine had argued with. She testified that Antwine was talking to a group of Vaughn’s neighbors, who were setting up for a barbeque, when a man came up to sell drugs to Antwine. After the drug transaction, Antwine got into an argument with one of the neighbors named Took. Vaughn said that Took was not a member of a Long Beach gang, but she had heard him say that his father and family were part of a Los Angeles gang. She also said that she had seen Took with a gun earlier, before the argument.
Vaughn said that Took told Antwine to leave because she was causing problems, and he tore up a piece of paper or a leaf and tossed it at her. Antwine called Tate, and made it seem like people were assaulting her. She asked Tate to come over, and Tate arrived about three minutes later, driven by someone Vaughn did not know. Tate went up to Antwine and they said a few words to each other. Tate then took Antwine’s keys and left in her car, a white Nissan. He came back in the white Nissan three to five minutes later with a Hispanic man in the passenger seat. Both of them got out of the car with guns. She could not see what kind of gun Tate had because he was holding it down to his side, but it might have been a shotgun. The Hispanic man had a long black gun. When she saw the guns, she ran into her house. Although she heard the gun shots, which she described as rapid fire, she did not see who was shooting.
When asked about the Hispanic man who arrived with Tate, Vaughn said that she did not recognize him at the time and did not notice whether he had tattoos. She said that she described him to Officer Banuelos as a young Hispanic, with a slim build and a shaved or short-cut hairstyle. She also told Banuelos that she knew of a person with a gun tattooed on his head, who went by the name Dopey, but she was not sure the shooter was him. She said that she knew two young Hispanic men who were close to Antwine and Tate who had the same stature and haircut, one of whom was Dopey, but she could not remember the other man’s name. She could not be sure that defendant is Dopey, because defendant’s hair was longer and he looked more grown up than the Dopey she knew.
Finally, Vaughn was asked about the photographic lineup she was shown the night after the incident. She admitted that she had circled one of the photos and signed the admonition card on which Banuelos had written “This looks like Dopey,” which is what she had told him. But she said that she chose the person in that photo because he was the youngest one of the six people in the lineup. She also said that she did not indicate that he was the shooter; she said Banuelos did not ask her to identify the shooter, but instead asked her to identify Dopey.
The other percipient witnesses who testified at trial -- Cobian, Antwine, and Tate -- also told stories at trial that differed, to varying degrees, from the stories they told the police.
3. Cobian’s Trial Testimony
Cobian testified that he was with Tate when Tate got a call from Antwine, that he drove Tate to where Antwine was, that Tate had an argument with the man who had been arguing with Antwine, and that Tate took Antwine’s keys, told the man “I’ll be back” after the man flashed some gang signs, and drove off in Antwine’s car. He said that he was about to drive off when Antwine got into his car and asked him to drive her home, which was a four or five minute drive away. When they got to Antwine’s home, she told him she had forgotten her purse, and asked him to take her back. He drove her back, but Antwine then realized that her purse was in her car, so she asked him to take her to her mother’s house. As he was pulling away from the curb, Antwine’s white Nissan pulled up and he heard a lot of gunshots. He took off in his car, and did not see the shooter.
When he was asked about his interview with the police the night of the incident, Cobian admitted that he told the police that he saw Dopey (which he said is one of defendant’s nicknames) get out of Antwine’s car and start shooting, but he explained that he was scared and confused when he spoke to the police. He testified that thought he heard Antwine tell him that she saw Dopey shooting, so he assumed that is what happened. The prosecution played the tape recording of the police interview, and Cobian identified his voice on the recording and confirmed what he told the police.
Cobian also testified that he was charged with a violation of section 32, accessory after the fact, and pled guilty. He was not given anything in exchange for his plea.
4. Tate’s Trial Testimony
At the start of Tate’s testimony at trial, Tate admitted that he knew a person who had the nickname Puppet, denied that Puppet was in court, and denied knowing anyone by the name of Dopey. He also admitted that he and Puppet were members of the Compton Varrio 155 gang and that he had Compton Varrio 155 tattoos. When asked about the events of April 13, 2007, he said he remembered his mother calling him and asking him to come pick her up, but he did not remember what happened when he got there.
The prosecution then played the tape recording of his interview with the police, and he generally confirmed the events he described on that recording. Thus, he confirmed that his mother called him and told him that someone threw something in her face, that when he went to where his mother was, a man started cursing at him, said something about “Crip” (which he said did not mean anything to him), and something about “wanting to catch one,” and that he took his mother’s keys and left in her car. He also confirmed that he called Puppet, picked him up, and took him to Puppet’s house, and that Puppet got out of the car, ran into his house, and came back to the car. Although he confirmed that they then drove over to Vaughn’s house, where both he and Puppet got out of the car, he would not confirm that Puppet had a gun; he would only confirm that he told the police officers that he saw Puppet with a gun and that it was Puppet who was shooting. He later testified, however, that Puppet was shooting toward Vaughn’s house, and that the man Tate had exchanged words with was in that general area. He also confirmed that the gun Puppet used was black and had a curved clip. Finally, he testified that there were no guns in Antwine’s car when he first got into it, before he picked up defendant.
Tate was shown the photographic lineup that Banuelos had shown Vaughn, and was asked whether he recognized the person that Vaughn had identified. He said that person “sort of” looked like someone he had met before, but he could not tell if it looked like Puppet. He also was asked if he recognized defendant, and he said that he did not. During cross examination, however, defense counsel asked Tate several questions that referred to defendant being the person in the car with him, and Tate answered those questions in the affirmative. On redirect, Tate admitted that defendant is Puppet.
5. Antwine’s Trial Testimony
Antwine’s trial testimony bore little resemblance to her statement to the police. She testified that she was having an argument with Vaughn’s daughter when a man she identified as Took got involved. She said Took threw something at her face, and she called Tate to come get her. When Tate arrived with Cobian, Took pulled a gun on Tate, saying something about this being his (Took’s) block. Tate took her keys and left in her car. She left with Cobian to try to find Tate, but came back to Vaughn’s house 15 or 20 minutes later. She was still in Cobian’s car when Tate came back, driving her car. Although there was someone in the car with Tate, she could not see who it was because she was facing sideways in Cobian’s car. She heard loud noises, and Cobian backed up and drove away. She testified that she did not see anyone firing a gun, she just heard it.
Although Antwine admitted that she was interviewed by a police officer the night of the shooting, she denied telling the police that Tate returned with Dopey, that Dopey was a member of Compton Varrio 155, that he held a large rifle-type firearm and began shooting at the people there, that she yelled “No,” and that Dopey and Tate got back into her car and fled the scene. She also denied telling the police that she picked up Tate and Dopey in her mother’s car, that Dopey had the big gun with him, that she drove them to Dopey’s cousin’s house in north Long Beach, where Dopey got out with the gun, that she dropped Tate off at his girlfriend’s house, and that Cobian followed her in her white Nissan Maxima. Finally, she denied telling Cobian about what she saw regarding the shooting.
6. Testimony by Police Officers
In addition to the percipient witnesses, the prosecution called several police officers and detectives as part of its case in chief.
The officer who interviewed Vaughn and the officer who interviewed Antwine were called to testify about statements that Vaughn and Antwine made to them that were inconsistent with their trial testimony. Also, the detective who interviewed Tate and the detective who interviewed Cobian were called to authenticate the tape recordings of Tate’s and Cobian’s interviews.
In addition to authenticating the tape recording of Cobian’s interview, the detective who interviewed him, Hector Gutierrez, also testified as a gang expert. He testified about the criminal activities of the Compton Varrio 155 gang, identified defendant as an active member of that gang, and identified a recent conviction of another Compton Varrio 155 gang member on gang-related activities. He was given a hypothetical of the facts of this case, and was asked whether such a shooting was for the benefit of the Compton Varrio 155 gang. He said that it was, in his opinion. He based his opinion on the fact that the crime was committed by members of the gang, it was committed with a rifle, there were 19 shell casings found, and the word “Crip” was used. He testified that these facts show that there was a challenge and a rivalry, and a threat in that area, which is considered part of Compton Varrio 155 territory. He explained that the violence of the crime would elevate the reputation of the gang member who committed the crime, which would benefit the gang because people in the community would fear the gang, and it would send a message to rival gangs that Compton Varrio 155 is not to be messed with.
Officer Alvino Herrera, the officer who prepared a diagram of the scene of the shooting that noted where the 19 shell casings were found and where bullet holes were located, testified to authenticate the diagram. He also identified photographs of the shell casings, and testified that all of the casings found at the scene appeared to be the same. Finally, he testified that he looked throughout the area to locate all the bullet holes, and that none of the holes were consistent with holes made by a shotgun.
Detective Steven Buchheim, a firearms expert, testified the casings found at the scene were 7.62 caliber. He explained that assault rifles and automatic weapon can fire 7.62 caliber bullets, but revolvers cannot. He also testified about how casings are ejected from firearms, and noted on the diagram of the crime scene where the shooter would have been standing based upon the location of the casings. He was shown photographs of the bullet holes found at the scene, and testified that they were consistent with 7.62 caliber rounds. Finally, he testified that whether a person who has been hit by a 7.62 caliber round would require a hospital stay would depend upon whether the bullet hit soft tissue or internal organs or bones; if it hit only soft tissue, that person could be treated at the hospital and released the same day.
Detective Onorio Galvan, who conducted a search of defendant’s bedroom 11 days after the shooting, testified about the items he found there, including a gun cleaning kit for an M-16 assault rifle and letters and papers that had gang-related writings or drawings.
Finally, two officers testified regarding the victim of the shooting, Brian Everett, who was unavailable at the time of the trial. Officer Eduardo Urquiza, who was Officer Banuelos’ patrol partner, spoke to Everett at the scene of the shooting. He testified that Everett, who asked for an ambulance, had two small bullet entry wounds on his left arm that were about the size of a 7.62 caliber shell casing. Detective Todd Johnson testified about the efforts that were made to locate Everett to have him testify at trial. Johnson, who was assigned to the Gang Unit of the Long Beach Police Department, also testified that a member of the Compton Varrio 155 gang had been sitting in the back of the courtroom since the first day of trial, and that it is common for witnesses in gang-related shooting cases to give testimony in front of the defendant at trial that is different from the statements they gave to the police.
Defense counsel later conceded that he would not challenge the prosecution’s showing of due diligence, and Everett’s testimony from the preliminary hearing was read to the jury.
7. Defendant’s Testimony
Defendant took the stand in his defense. He testified that he got a call on the day of the incident. He would not give the name of the caller, but said it was someone who had already testified. He said that he was at home when he received the call, setting up a fish tank he had just bought. The caller came to pick him up at his house driving a white Nissan Maxima. He got in the passenger seat, and noticed there were two guns in the back seat, one of which looked like an AK-47 assault rifle. The other gun was a.12 gauge single barrel pump shotgun. As they were driving, the caller told him that they were going to go have a fight because someone had punched the caller’s mother.
They drove directly to where the caller’s mother was. When they got there, he saw eight or nine people. He and his friend got out of the car, but as they took a few steps, one of the men there lifted up his shirt to show them a gun in his waistband. They ran back to the car, and defendant reached in through the back passenger window and took out the shotgun; his friend reached in through the driver’s side window and took out the assault rifle. Defendant fired one shot from the shotgun toward a car; there were no people near that car. He did not fire the gun that ejected 7.62 caliber casings. He testified that he only went with his friend to have a fight, and he did not intend to kill or hurt anyone.
8. Verdict, Sentence, and Appeal
The jury found defendant guilty of attempted willful, deliberate, premeditated murder, and found all of the special allegations to be true. The court imposed a life sentence with the possibility of parole after 15 years for the attempted murder, plus a consecutive 25 years to life under section 12022.53, subdivision (d). The court also imposed and stayed the sentences for the remaining special allegations. Defendant timely filed a notice of appeal from the judgment.
DISCUSSION
On appeal, defendant contends there was insufficient evidence (1) that he intended to kill; (2) that the attempted murder was willful, deliberate, and premeditated; (3) that the offense was committed for the benefit of a street gang; (4) that the victim suffered great bodily injury; and (5) that defendant intentionally discharged a firearm that caused great bodily injury. Defendant also contends that the trial court abused its discretion by denying his motions to continue the trial and to appoint a ballistics expert, that he had ineffective assistance of counsel, and that his sentence constituted cruel and unusual punishment in violation of the federal and state Constitutions. We find no merit in any of his contentions.
A. Sufficiency of the Evidence
Our role in reviewing sufficiency of the evidence claims “is a limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”’ [Citations.] [¶] ‘“Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” [Citation.]’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
1. Intent to Kill
Defendant argues there was insufficient evidence that he intended to kill Everett or anyone else in the group of people present at the scene. He bases this assertion on the fact that no evidence was presented that he knew Everett or anyone else in the group, or that he threatened to kill or injure anyone. He also notes that, even though many bullets were fired, only one person was slightly wounded, which defendant asserts shows that the shooter intended to scare rather than kill anyone in the group. Finally, he contends the fact that the witnesses who told the police that defendant was the shooter changed their stories at trial casts doubt on their statements to the police, particularly in light of defendant’s testimony that he only fired a shotgun into the side of a car. Defendant misapprehends both the intent to kill element of attempted murder and the substantial evidence standard of review.
To be guilty of attempted murder, the evidence must establish that defendant harbored express malice toward the victim. (People v. Smith, supra, 37 Cal.4th at p. 739.) “Express malice requires a showing that the assailant ‘“‘either desire[s] the result [ i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’ [Citations.]” (Ibid.) “[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive.... Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive -- the very act of firing a weapon ‘“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.” (Id. at p. 742.)
In this case, there was substantial evidence that defendant fired a lethal weapon at a group of people at close range: Cobian, Antwine, and Tate all told the police that defendant got out of the car and started firing at the group, and Vaughn told the police that she saw defendant get out of the car with a gun and then heard rapid fire gunshots. By firing 19 large caliber rounds at the group in a matter of seconds, defendant created a “kill zone,” from which the jury reasonably could infer that defendant intended to kill all who were within that zone. (People v. Bland (2002) 28 Cal.4th 313, 330.)
Defendant’s assertion that the eyewitness accounts should not be believed because those witnesses changed their stories at trial ignores the substantial evidence standard of review. It is up to the jury to determine the witnesses’ credibility; we do not reassess a witness’s credibility. (People v. Smith, supra, 37 Cal.4th at p. 739; see also People v. Lindberg (2008) 45 Cal.4th 1, 38 [“we note that, contrary to these settled principles [of the substantial evidence standard of review], defendant views the evidence in a light unfavorable to the judgment and, in effect, urges this court to reevaluate the credibility of certain witnesses”].) The jury here reasonably believed the eyewitnesses’ statements to the police and disbelieved their conflicting testimony at trial. That evidence is sufficient to support the jury’s finding that defendant harbored the requisite intent to kill to sustain the attempted murder charge.
2. Willful, Deliberate, and Premeditated
Based entirely upon his own version of the events that led to the shooting -- i.e., that he agreed to go with Tate to fight with someone who had hit Tate’s mother and that he only picked up the shotgun after that person showed his gun -- defendant contends there was no evidence that the attempted murder of Everett was willful, deliberate, and premeditated. Once again, defendant misapprehends the substantial evidence standard of review. His argument is based upon a view of the evidence in a light most favorable to defendant; we must view the evidence in a light most favorable to the judgment. (People v. Lindberg, supra, 45 Cal.4th at p. 37.)
Viewed in that light, the evidence showed that Tate, a member of Compton Varrio 155, called defendant, a member of that same gang, after Tate had a confrontation with a rival gang member. Defendant had Tate pick him up and take him to his house. When Tate picked up defendant, there were no guns in the car. Defendant ran into his house and then came back to the car, and they drove to Vaughn’s house, where Tate had encountered the rival gang member. When they got there, defendant got out of the car with a gun and fired in the direction of the rival gang member, leaving behind 19 large caliber shell casings. A reasonable jury could conclude from this evidence that defendant committed a willful, deliberate, and premeditated murder.
A willful, deliberate, and premeditated attempted murder is an attempted murder that is intentional, considered beforehand, and the result of careful thought and weighing of considerations for and against the proposed course of action. (People v. Perez (1992) 2 Cal.4th 1117, 1123.) “‘Premeditation and deliberation can occur in a brief interval. “The test is not time, but reflection. ‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’”’ [Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834, 849.) Factors that may establish premeditation and deliberation include planning activity, motive, and the manner of the attempted killing. (People v. Perez, supra, 2 Cal.4th at p. 1125.)
Here, there was substantial evidence from which the jury could conclude that defendant planned the attempted murder, because he told Tate to take him to his house before going over to Vaughn’s house. The jury reasonably could infer that he did so in order to obtain a gun, since there was evidence that there was no gun in the car before then. There also was substantial evidence of motive, i.e., retaliation against a rival gang member who confronted a member of defendant’s gang. This evidence of defendant’s planning and motive for the attempted murder is sufficient to support the jury’s finding that the attempted murder was willful, deliberate, and premeditated.
3. Committed for the Benefit of a Street Gang
Defendant argues there was insufficient evidence that the attempted murder was committed for the benefit of a street gang because (1) the evidence indicated that he was an inactive gang member; (2) there was evidence that his conduct may have been motivated by his personal relationship to Antwine; and (3) there was no direct evidence that rival gang members were present or that Tate had told defendant that there were rival gang members there.
Defendant’s first argument not only is incorrect on the law, it ignores the substantial evidence that defendant was an active member of Compton Varrio 155. Defendant’s reliance on People v. Garcia (2007) 153 Cal.App.4th 1499 to support his assertion that section 186.22, subdivision (b) requires a finding of active participation in a gang is misplaced. While the court in that case did discuss the requirement of active participation, that discussion was in the context of subdivision (a) of section 186.22, not subdivision (b). (Id. at pp. 1508-1511.) With regard to the section 186.22, subdivision (b) gang enhancement, there is no requirement to prove that defendant is a current active member of the gang. (In re Ramon T. (1997) 57 Cal.App.4th 201, 206.) In any event, there was substantial evidence that defendant was an active member of the Compton Varrio 155 gang at the time of the shooting. Defendant had several tattoos relating to that gang, the police found numerous letters and papers in his bedroom with gang-related writing and/or drawings, a gang expert testified that defendant was active in the gang, and another active member of the gang sat in the audience during most of the trial.
Defendant’s second and third arguments ignore the substantial evidence standard of review. Even if there was evidence from which a jury could conclude that defendant’s conduct was motivated by his personal relationship with Antwine, the jury found otherwise, and we are bound by that finding if it is supported by substantial evidence. (People v. Farnam (2002) 28 Cal.4th 107, 143 [“Simply put, if the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding”].) Moreover, even if there was no direct evidence that Tate told defendant that there was a rival gang member who confronted him, we must presume the existence of every fact the jury reasonably could deduce from the evidence. (People v. Smith, supra, 37 Cal.4th at p. 739.)
In this case, there was evidence that Tate and defendants were members of the Compton Varrio 155 gang, that Tate was challenged by someone who said “Crip” and made gang signs, that Tate called and picked up defendant, stopped by defendant’s house where defendant armed himself and then returned to the scene of the confrontation, and that defendant got out of the car and immediately began shooting at the crowd. The gang expert testified that when a person throws out the word “Crip” during an argument, he is telling the other person that he is a member of that gang. He also testified that argument took place in Compton Varrio 155 territory, that Compton Varrio 155 and the Crips are rivals, that it is important to gang members that they not be disrespected or appear weak, and that it is common for one gang member to protect another member of the same gang. Finally, he testified that, in his opinion, where a member of Compton Varrio 155 opens fire on someone who challenged a fellow member of that gang by saying “Crip” and making gang signs, that member did the shooting for the benefit of the Compton Varrio 155 gang. The jury reasonably could infer from the expert testimony and defendant’s conduct that Tate told defendant about the rival gang member and that defendant’s motivation was gang-related, rather than related to his personal relationship with Antwine. Thus, substantial evidence supports the jury’s finding that defendant committed attempted murder for the benefit of a gang.
4. Great Bodily Injury
Defendant challenges the jury’s finding that Everett suffered great bodily injury, arguing that a gunshot wound is not automatically considered great bodily injury, and there was little evidence regarding the nature or severity of Everett’s wounds. The definition of “great bodily injury” is found in section 12022.7: it is “a significant or substantial physical injury.” (§ 12022.7, subd. (f).) Whether the harm resulting to a victim constitutes great bodily injury is a question of fact for the jury. (People v. Escobar (1992) 3 Cal.4th 740, 750.) “‘“If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.’”’ (Ibid., quoting People v. Wolcott (1983) 34 Cal.3d 92, 107.)
We note that defendant purports to cite to evidence that Everett’s wounds were minor, but those citations are to argument, not evidence.
In this case, the police officer who first came to Everett’s aid testified that he observed two bullet entry wounds to Everett’s arm. Everett testified that he was bleeding after he was shot in the forearm and tricep, and was treated and given morphine at the hospital. This evidence is sufficient to support a finding the Everett suffered great bodily injury. (See, e.g., People v. Lopez (1986) 176 Cal.App.3d 460 [great bodily injury finding supported by evidence that one victim was shot in the cheek of the hip and other victim shot in the leg, even though there was no evidence that either victim sought or received treatment for their injuries].)
5. Intentional Discharge of Firearm Causing Great Bodily Injury
In addition to challenging the jury’s general finding that defendant inflicted great bodily injury upon Everett, defendant also challenges the jury’s specific finding that defendant intentionally discharged a firearm, which caused great bodily injury to Everett, within the meaning of section 12022.53, subdivision (d). He argues there was insufficient evidence to show (1) that Everett suffered great bodily injury; (2) that defendant specifically intended to injure Everett; and (3) that defendant’s discharge of a firearm caused the injury Everett suffered.
Defendant’s first argument fails because, as discussed above, there was substantial evidence to support the jury’s finding that Everett suffered great bodily injury.
Defendant’s second argument fails because section 12022.53, subdivision (d) does not require a showing of specific intent to injure the victim. Section 12022.53, subdivision (d) provides that any person who, in the commission of one of the enumerated felonies (which includes attempted murder), “personally and intentionally discharges a firearm and proximately causes great bodily injury” shall be punished by an additional and consecutive 25-years-to-life term of imprisonment. Thus, the only intent that need be shown is the intent to discharge a firearm. As discussed above, numerous witnesses testified that defendant fired multiple rounds into the group of people outside of Vaughn’s house. Thus, substantial evidence supports the finding that defendant intentionally discharged a firearm.
Substantial evidence also supports the finding that defendant’s intentional discharge of a firearm proximately caused Everett’s injury. All of the eyewitnesses told police that only defendant fired a gun. The officer who attended to Everett testified that Everett had bullet entry wounds on his arm. The firearms expert testified that the kind of wounds he suffered were not inconsistent with being wounded by a 7.62 caliber round that hits only soft tissue. The jury reasonably could conclude from this evidence that Everett was hit by bullets fired from defendant’s gun.
B. Denial of Defendant’s Motions
On the day set for trial, defendant filed two motions: a motion to continue the trial and a motion for appointment of a defense expert. Both motions were based upon the medical records for Everett that defense counsel received from the prosecution two days earlier. Counsel explained that he needed a ballistics expert to show that the wounds Everett suffered could not have been caused by 7.62 caliber rounds, and that a continuance was needed to allow him time to obtain the opinion of the ballistics expert. The trial court denied the motions, finding that the extent of Everett’s injuries were known to defendant from the police reports, and that defendant had not shown that appointment of a ballistics expert was necessary.
Defendant contends that the trial court abused its discretion by denying his motions. We find no such abuse.
A continuance in a criminal case may be granted only for good cause. (§ 1050, subd. (e).) “A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The trial court has broad discretion to determine whether good cause exists, and the court’s denial of a motion for continuance is reviewed for abuse of discretion. (Ibid.)
In this case, defendant contended there was good cause for the continuance because his counsel did not receive the medical records for Everett until two days before the trial date. But as the trial court noted, defendant already had information indicating the extent of Everett’s injuries. Moreover, as the prosecutor explained, defendant could have subpoenaed the medical records long before trial. Thus, the court did not abuse its discretion by finding that defendant did not establish good cause for the requested continuance.
The court also did not abuse its discretion by denying defendant’s motion for appointment of a ballistics expert. Although it is well established that an indigent defendant has a statutory and constitutional right to ancillary services, such as experts, that are reasonably necessary to prepare a defense, the defendant has the burden of demonstrating that those services are necessary to his defense. (People v. Guerra (2006) 37 Cal.4th 1067, 1085; People v. Gaglione (1994) 26 Cal.App.4th 1291, 1304, disapproved on another ground in People v. Martinez (1995) 11 Cal.4th 434, 452.) “The trial court should view a motion for assistance with considerable liberality, but it should also order the requested services only upon a showing they are reasonably necessary. [Citation.] On appeal, a trial court’s order on a motion for ancillary services is reviewed for abuse of discretion.” (People v. Guerra, supra, 37 Cal.4th at p. 1085.) An order denying such a motion based on a finding that the services are not reasonably necessary will be reversed “only when ‘the circumstances shown compelled the [trial] court to exercise its discretion only in one way, namely, to grant the motion.’ [Citation.]” (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 323.)
In this case, defendant argued that the medical records indicated that Everett had bullet fragments lodged in his body, and that a ballistics expert was necessary to show that the kind of rounds defendant allegedly fired could not have produced those fragments. But defendant’s argument was based upon a faulty premise -- i.e., that the possible fragments resulted from the events at issue. As the prosecutor noted, the medical reports did not show any entry wounds that corresponded to those fragments. The court found that, without evidence that the fragments penetrated Everett’s body at the time the shooting at issue occurred, defendant could not show that a ballistics expert was reasonably necessary. Because the circumstances shown by defendant failed to establish that a ballistics expert was necessary to his defense, we find the trial court did not abuse its discretion by denying the motion for appointment of an expert.
C. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, “‘“a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness... under prevailing professional norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when 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.’”’ [Citation.] [¶] Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.]... ‘“Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.”’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Defendant fails to make either showing -- deficient performance or prejudice -- in his opening brief on appeal. Instead, he simply lists a litany of alleged deficiencies, such as trial counsel’s failure to object more often or his “allowing” the prosecution to present the testimony of nine police officers, without attempting to show how those decisions fell below an objective standard of reasonableness. Nor does he attempt to show prejudice from those alleged errors. Indeed, many of the claimed deficiencies were not deficiencies at all, or they could not have prejudiced defendant.
For example, he contends that trial counsel should have objected to the prosecution calling nine police officers because “much of [their testimony] was cumulative.” In fact, very little of the police officers’ testimony was cumulative. Each officer was called to testify as to discrete issues, and there was very little overlap between them. Similarly, he argues that trial counsel made only two or three objections to evidence over the course of the trial, but he fails to point to any specific instance in which a successful objection could have been made but was not, or that any failure to object resulted in the improper admission of prejudicial evidence. In short, defendant has failed to overcome the “‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” (People v. Lucas, supra, 12 Cal.4th at p. 437.) Thus, his ineffective assistance of counsel claim necessarily fails.
D. Cruel and/or Unusual Punishment
Defendant was sentenced to consecutive terms of life with the possibility of parole after 15 years for the attempted murder and 25 years to life for the section 12022.53, subdivision (d) gun enhancement. On appeal, he contends that this sentence violates the prohibition against cruel and unusual punishment under the federal and state Constitutions. (See U.S. Const., 8th Amend. [prohibiting imposition of cruel and unusual punishment]; Cal. Const., art. I, § 17 [prohibiting imposition of cruel or unusual punishment].) We disagree.
The federal and state Constitutions prohibit a sentence that is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424; see also Ewing v. California (2003) 538 U.S. 11, 20-23.) The federal constitutional standard is one of gross disproportionality. (Ewing, at p. 21.)
The California Supreme Court has instructed that, when reviewing a claim of cruel or unusual punishment, courts should examine the nature of the offense and offender, compare the punishment with the penalty for more serious crimes in the same jurisdiction, and measure the punishment against the penalty for the same offense in different jurisdictions. (People v. Dennis (1998) 17 Cal.4th 468, 511; In re Lynch, supra, 8 Cal.3d at pp. 425-427.) In the present case, however, defendant does not assert that the punishment is disproportionate to the punishment for more serious crimes in California or in other jurisdictions. Therefore, we limit our review in this case to the nature of the offense and the offender. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214, 1216.)
In reviewing the nature of the offense and the offender, we evaluate the totality of the circumstances surrounding the commissions of the offense, including defendant’s motive, the manner of commission of the crime, the extent of defendant’s involvement, the consequences of his acts, and his individual culpability, including factors such as his age, prior criminality, personal characteristics, and state of mind. (People v. Dillon (1983) 34 Cal.3d 441, 479.) In this case, defendant obtained a firearm and fired 19 large caliber rounds into a group of people because one member of the group was a member of a rival gang and/or disrespected a fellow member of Compton Varrio 155.
That only one person was injured is not determinative. Defendant created a kill zone, intending to kill everyone within that zone, and the fact that no one actually was killed does not lessen the seriousness of the offense. (People v. Morales (1992) 5 Cal.App.4th 917, 930.) Nor is it determinative that defendant did not have a prior criminal record. (People v. Martinez (1999) 76 Cal.App.4th 489, 497.) And although defendant was only 19 years old at the time of the offense, “there was no evidence he was unusually immature emotionally or intellectually.” (Ibid.)
In short, we conclude that defendant’s sentence of life with the possibility of parole in 15 years plus a consecutive term of 25 years to life does not “‘shock the conscience’” on this record. (In re Lynch, supra, 8 Cal.3d at p. 424.) Therefore, we hold that defendant’s sentence does not violate either the federal or the state Constitution.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.