Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA048385, Charles L. Peven, Judge.
Verna Wefald, 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, Jason C. Tran and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
A jury found defendant Rafael Gonzalez guilty of the first degree murder of Fidel Hernandez (Pen. Code, § 187, subd. (a)) and found defendant committed the offense by personally and intentionally firing a handgun (§ 12022.53, subds. (c) & (d)). He was also convicted of felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury found both offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court imposed separate indeterminate prison terms of 25 years to life for the murder and firearm enhancement, plus determinate terms of one year eight months for the weapon possession offense (one-third the middle term) and one year for the second gang enhancement.
All statutory references are to the Penal Code unless otherwise specified.
In his timely appeal, defendant contends (1) his trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to object to testimony of the prosecution’s gang expert, (2) the evidence was constitutionally insufficient to support the jury’s finding of first degree murder, and (3) imposition of the 25 years to life firearm enhancement violated the California and federal constitutional proscriptions against double jeopardy.
We affirm.
STATEMENT OF FACTS
On October 16, 1999, at approximately 8:00 p.m., 18-year-old Sandra Mora was with her 25-year-old boyfriend, Fidel “Fish” Hernandez. Hernandez was a member of the Pacoima South Side street gang. He and Mora were attending the Quinceanera for the sister of Hernandez’s friend, Mario Barron. Hernandez drove Mora to the party in the Toyota Camry they shared. After parking on Remington Street, they walked a short distance to the home where the party was being held. Hernandez wore jeans and an untucked white button-down shirt. They sat in the backyard for approximately 30 minutes before Mora told Hernandez that she wanted to leave. They walked back to their car. The two began to argue as they stood outside the car. She wanted to go home, but he wanted to stay at the party and find a ride home with someone else. She and Hernandez were standing in front of the Camry and behind a white car that was parked in front of it. He was standing closer to the street; she was closer to the sidewalk.
Mora heard loud female voices and music coming from a green car driving towards them from the opposite direction of Remington. Another white car drove down Remington, stopped, and backed up so that it was stopped along side the green car. Mora heard a male voice yell, “It’s the homey’s party.” The green car accelerated forward, past Mora. She saw that the persons inside were female. A grey car pulled forward and stopped along side Hernandez. The grey car was five to six feet away from Mora. There were five males inside, including the driver—two in the front, three in the back. The front windows were rolled down completely; the back windows were halfway down. Defendant, who was the front seat passenger, asked Hernandez, “what Homey was throwing the party”? Hernandez said, “It’s my friend’s sister’s Quinceanera.” Defendant became angry and responded: “I know that, but I asked you what home boy is throwing the party.”
It was stipulated that defendant was a convicted felon in 1999.
Hernandez had previously taken off his jacket and placed it inside the Camry. He had no weapon in his hands, just a set of keys. At no time did he reach into his waistband. As Hernandez leaned into the grey car’s front passenger window, Mora could see the front passenger holding something that looked like a black revolver down by his lap. She saw a “big flash” and a loud “bang” from the direction of defendant in the front passenger seat. There was a street light next to the white car parked in front of the Camry. The grey car immediately drove away. Hernandez had fallen face down on the street. Mora turned Hernandez over and saw him bleeding and gasping for air. Barron and others from the party drove Hernandez to the hospital, where Hernandez died from the gunshot wound that entered his lower lip and pierced his jugular vein. There were skin burns, or stippling, around the entrance wound, indicating that the distance from the end of the weapon’s barrel to the victim’s skin was approximately one half inch to two feet.
At approximately 9:00 p.m., Officer Gregory Crowe arrived at the shooting scene. Search of that area uncovered no spent bullet casings, indicating that Hernandez was shot by a revolver. Examination of a bullet jacket recovered from Hernandez’s body showed the ammunition was either .38 or .357 (or less likely a 9-millimeter) caliber of a type most likely used in a revolver.
Erik “Brains” or “Brain Dead” Avina testified for the prosecution pursuant to a grant of immunity. At the time of trial, he was in federal custody awaiting trial on a separate matter. He had a number of prior state convictions, including drug sales in 2000 and felon in possession of a firearm in 2003. He had also entered guilty pleas to various federal offenses, including racketeering, with a potential life sentence. He became a member of the Vineland Boys street gang in 1993. In 1999, the Vineland Boys were “green lighted,” meaning they were targeted for violence when discovered by any Southern California Mexican gang affiliated with the Mexican Mafia. Vineland Boys therefore carried firearms at all times on the streets.
On the night of the Hernandez killing, Avina was in the grey car with three other males. “Beaver” drove; he was not a Vineland Boy, but he knew about the party. Avina and gang member Jason Lazano were in the backseat. Defendant, known to Avina as a Vineland Boy called “Santos,” was the front seat passenger. He had a chrome Smith and Wesson .38 caliber revolver with a short barrel in his lap. When their car stopped next to Mora to speak to her, Hernandez approached them instead and Mora walked away. Defendant asked Hernandez, “Where is the party at?” Hernandez responded that it was a “South Side” party. Avina understood the statement as a representation that Hernandez was a member of the Pacoima South Side Locos gang, which were rivals of the Vineland Boys.
Defendant had “VBS” tattooed on his back, which stands for Vineland Sun Valley and shows his affiliation with the Vineland Boys.
Defendant referred to Hernandez with a derogatory remark. Hernandez reacted by pulling his hand back as if to punch defendant. In response to Hernandez’s “aggressive gesture,” defendant fired the handgun at him. There was no weapon in Hernandez’s hand. By shooting Hernandez, defendant would have increased his standing within the Vineland gang and the notoriety of the gang itself. Such violent actions discouraged retaliation from rivals, by showing that Vineland would kill its enemies. Approximately one week after the killing, Avina saw two lines of graffiti at a nearby location: “RIP FISH” at the top and “PSSL” beneath, meaning “Rest in Peace, Fish” and “Pacoima South Side Locos.” On November 11, 1999, Avina and defendant were stopped by the police for grand theft of an automobile.
In 2004, Officer Claude Guiral was part of a task force directed at arresting members of the Vineland Boys. He had an expertise in street gangs based on his training and experience with gangs in general and the Vineland gangs in particular. The Hernandez shooting took place outside Vineland Boys’ territory. The area was claimed by the Pacoima gangs. Officer Guiral confirmed the Vineland Boys were “green lighted” by the Mexican Mafia in 1999, making them targets for drive-by shootings, stabbings, and beatings by other Southern California gangs. He testified as to predicate crimes committed by known Vineland members. At the time of his arrest in 2004, defendant was a known, admitted, and active Vineland Boy. The Pacoima gangs have always been “arch rivals” of the Vineland Boys. In July 2004, Officer Guiral participated in the search of defendant’s residence. When officers served the search warrant, they found defendant in a converted room in the garage area. Defendant tried to run away when he saw the officers.
Based on the facts adduced by the prosecution witnesses, Officer Guiral opined that the Hernandez shooting was committed for the benefit of, or in association with, the Vineland Boys. He based that opinion on the evidence that (1) three known Vineland Boys were in the grey car, at least one of whom was armed, (2) the car had been driven into a rival gang’s territory, (3) the victim identified himself as a gang member before the shooting, (4) the manner of the shooting—a drive-by shooting—was typical of gang behavior, and (5) commission of the crime would elevate defendant’s prestige and respect within the gang. A member of the Vineland Boys would have perceived Hernandez’s reference to “South Side” as a gang insult. If, as Mora testified, defendant had asked “what homeboy is throwing the party,” that would likely have been a form of gang challenge.
Officer Guiral testified that Hernandez was a member of the Pacoima Trece (13) gang. “South Side” Pacoima is a “break off of Pacoima 13.”
While defense counsel did not object to the opinion, he cross-examined Officer Guiral thoroughly as to potential bias. Officer Guiral admitted there might be circumstances in which a gang member would not be acting for the benefit of a gang while shooting in self-defense. He also questioned the expert in detail concerning factors impacting the reliability of the prosecution witnesses, as well as Avina’s testimony that they were not on a “mission” when they drove to the party.
Defense Case
Defendant testified on his own behalf. He was born in the San Fernando Valley in 1977. He was convicted of receiving stolen property in 1996. The following year, he was convicted of felon in possession of a firearm. In 1999, he was living in Sun Valley with his mother, having recently moved there from Reseda. He had two young children at the time and lived with them in his mother’s converted garage. Defendant began associating with the Vineland Boys when he was 12 or 13 years old. He was “jumped into” the gang when he was 15 years old. Defendant stopped hanging out with the Vineland Boys in 1998, when his girlfriend became pregnant and he took a regular job. Defendant was undergoing laser treatments to remove his gang tattoos.
On October 16, 1999, defendant had a grey mid-sized 1985 Buick, which he drove to Avina’s house with Beaver and Lazano. Defendant was familiar with Avina and Lazano; they were Vineland Boys. Defendant knew very little about Beaver, who was a longtime associate of Lazano. All of them except Beaver drank beer at Avina’s house. They agreed to go to a “kick back party” in the Arleta neighborhood. Beaver drove because he was the one who had heard about the party. Defendant knew about the Vineland Boys having been “green lighted,” but they had no gang purpose in going to the party. Defendant, Lazano, and Avina were armed with handguns. Defendant had a fully loaded .38 caliber chrome revolver with a short barrel; he carried it for self-protection. He sat in the front passenger seat and placed the gun in the passenger side door panel. Lazano sat behind defendant, with Avina behind Beaver.
Defendant was not familiar with the streets where the party was located. While trying to find the party, they pulled up to a green Honda Accord containing four females who were “acting like party girls.” Defendant asked them about the party. The females confirmed there was a party, but told defendant they were leaving it. Defendant heard music and saw a number of cars parked in that area, but he suggested to Beaver they make sure they were going to the right party. Beaver drove slowly. Defendant saw Hernandez and Mora standing by a parked car and arguing with each other. He had not met them before. Defendant told Beaver he would ask them about the party. As they approached, defendant lost sight of Hernandez, while Mora walked toward the sidewalk. Defendant grabbed his gun from the door panel and held it on his thigh, so it was not visible from the street. He did not intend to shoot anyone; the gun was for protection. From a distance of less than 10 feet, Mora made eye contact with him, but turned away when he tried to address her.
Suddenly, Hernandez approached the car from the sidewalk. He was very large, bald, wore a white T-shirt, and appeared angry. Hernandez was approximately five feet away from defendant. Beaver had stopped the car. Through his open window, defendant asked him where the party was. In an angry tone, Hernandez replied, “Hey, it’s a Quinceanera.” Defendant, having lost sight of Hernandez, turned to Beaver and said, “Hey, we’re in the wrong party.” Seconds later, defendant turned back and saw Hernandez rushing toward him. Hernandez pulled his fist back with something shiny in his hand and lunged at defendant. Defendant was afraid and “in shock.” Not knowing what to do and fearful for his life, he raised his gun in Hernandez’s direction and fired one round. When defendant shot the weapon, Hernandez’s head was inside the window frame, a “couple of inches” away. Defendant, however, was not trying to kill him. Beaver drove them away immediately afterwards. At that time, defendant did not know that he had shot Hernandez. He denied making any provocative statements, gang-related or otherwise, prior to the shooting. Hernandez made no gang-related statements either.
DISCUSSION
Ineffective Assistance of Counsel Claim
Defendant contends his trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to object to testimony of the prosecution’s gang expert in which he offered his opinion on the ultimate issue under section 186.22, subdivision (b)(1)—whether defendant committed the shooting for the benefit of, or in association with, a criminal street gang. Because the testimony of Officer Guiral was admissible under this state’s well established evidence law and did not infringe upon the jury’s role as fact finder, defense counsel’s performance cannot be faulted on this point.
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694; Williams v. Taylor (2000) 529 U.S. 362, 390-391; People v. Kraft (2000) 23 Cal.4th 978, 1068.) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
“A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
Considering the trial record and the governing case law, defense counsel had no good reason to believe an objection to the gang expert’s testimony would have been successful. A trial court has discretion concerning the admission of evidence, including gang expert testimony. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166, 1194.) An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact. (Evid. Code, § 801, subd. (a); People v. Ochoa (2001) 26 Cal.4th 398, 438, abrogated on another point as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) Expert testimony “concerning the culture, habits, and psychology of gangs” meets this criterion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506; see People v. Gardeley, supra, 14 Cal.4th at p. 617.)
Accordingly, expert testimony has repeatedly been offered to prove the “motivation for a particular crime, generally retaliation or intimidation” and “whether and how a crime was committed to benefit or promote a gang.” (People v. Killebrew, supra, 103 Cal.App.4th p. 657.) An expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, when these matters are beyond the jury’s common experience. (People v. Valdez, supra, 58 Cal.App.4th at pp. 507-509.) Indeed, courts have repeatedly found the admission of similar examples of expert testimony proper. (E.g., People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1209 [expert could properly opine that the defendant committed shooting to reestablish and bolster his reputation within the gang, reestablish the gang within the community, and send a message to the community and rival gangs]; People v. Valdez, supra, 58 Cal.App.4th at pp. 508-510 [trial court properly admitted gang expert’s testimony that a caravan of members from seven gangs had acted on the date of the charged offense for the benefit of all seven gangs]; People v. Gardeley, supra, 14 Cal.4th at p. 619 [approving gang expert’s testimony that hypothetical attack based on the facts of the case was a classic example of gang-related activity, in that gangs rely on such assaults to frighten residents].)
This was not a case in which the expert exceeded the proper bounds of gang testimony by opining as to defendant’s subjective knowledge and intent. For instance, in In re Frank S. (2006) 141 Cal.App.4th 1192, 1199, the gang expert improperly opined as to the minor’s intent regarding knife possession without any supporting evidence of gang motive. In that case, “[t]he prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.” (Ibid.)
As detailed in our statement of facts, Officer Guiral’s opinion was based on the kind of evidence missing in Frank S. As defendant’s counsel would have recognized, Officer Guiral testified to the Vineland Boys’ culture, habits, size, composition, territory, and primary activities. His opinion was not conclusory. Rather, it was based on five factors drawn from admissible and substantial aspects of the prosecution’s case, which supported the reasonable inference that defendant’s conduct was consistent with a gang motive. (See People v. Killebrew, supra, 103 Cal.App.4th at pp. 657-658; People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931 [gang expert’s testimony properly admitted to explain to the jury how a gang’s reputation was enhanced through drug sales and how the gang may use drug proceeds].)
Having concluded the gang evidence was admissible, defendant’s Sixth Amendment claim must fail. It is axiomatic that the failure to object to admissible evidence does not constitute inadequate assistance of trial counsel. Such an omission is inherently reasonable and nonprejudicial. We also note that while defense counsel did not object to the expert’s opinion, he cross-examined the expert thoroughly as to potential bias and questioned the expert in detail concerning factors impacting the reliability of the prosecution witnesses, as well as Avina’s testimony that he and his comrades were not on a “mission” when they drove to the party.
Insufficiency of the Evidence Claim
Defendant contends the evidence was constitutionally insufficient to support the jury’s finding of first degree murder, based either on premeditation and deliberation or on the theory of an intentional murder by shooting out of a vehicle with intent to kill. As we explain, the evidence to support both theories was reasonable, credible, and solid.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.)
“Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ [Citation.]” (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
Here, the jury was correctly instructed that a finding of first degree murder could be premised either on premeditation and deliberation or on intentional murder by shooting out of a vehicle with intent to kill. (§ 189 [“any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree”]; see People v. Rodriguez (1998) 66 Cal.App.4th 157, 164.) Under the latter aspect of first degree murder, there is no requirement of premeditation, but “a specific intent to kill is required. And, as is well established, proof of an unlawful intent to kill is the functional equivalent of express malice.” (People v. Chavez (2004) 118 Cal.App.4th 379, 386-387.)
Neither party argued for or against the latter theory.
The evidence of defendant’s specific intent to kill was very strong. Indeed, as the Attorney General points out, the manner of the killing—a single shot to the victim’s face at extremely close range—suffices to establish that required finding. (See People v. Smith (2005) 37 Cal.4th 733, 742 [“the 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”].)
The evidence of premeditation and planning was also strong. There are three general, nonexhaustive categories of evidence that tend to prove premeditation: planning activity, motive, and manner of killing. (E.g., People v. Perez (1992) 2 Cal.4th 1117, 1125.) Here, the record shows defendant placed a loaded firearm in his hand as he was driven toward Hernandez. It was undisputed that defendant was a Vineland Boy in the company of at least two others. They had travelled into rival gang territory, and the victim was a member of that rival gang. There was testimony of statements indicative of a gang challenge, as well as evidence that such a challenge would be regarded as a deadly provocation in defendant’s gang culture. This evidence of planning and motive, bolstered by the strong evidence of specific intent to kill from the manner of killing, adds up to credible, solid evidence on which a reasonable trier of fact could find defendant guilty beyond a reasonable doubt of murder in the first degree. (People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.)
Double Jeopardy Claim
Defendant’s final contention is that state and federal constitutional proscriptions against double jeopardy precluded the trial court from imposing the firearm-related enhancement because the fact of firearm use had already been established through his conviction of first degree murder—at least if the jury had relied on the theory that he intentionally killed by firing out of a vehicle, rather than by premeditating and deliberating. Defendant acknowledges that our Supreme Court rejected this argument in People v. Izaguirre (2007) 42 Cal.4th 126, 134. We are bound under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 to follow the decision of our Supreme Court and do so here.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.