P. v. Galarze







Filed 1/3/11 P. v. Galarze CA2/8







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. SWAN IAN GALARZE, Defendant and Appellant.

B215309 (Los Angeles County Super. Ct. No. BA326251)

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles F. Palmer, Judge. Affirmed.

Seymour I. Amster for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.


_________________________________


A jury convicted appellant Swan Ian Galarze of willful, deliberated, and premeditated attempted murder for his involvement in a drive-by shooting done for the benefit of a street gang. (Pen. Code, §§ 664, 187, subd. (a), 186.22, subd. (b)(1)(C).)
On appeal, appellant contends: (1) the record lacked substantial evidence to support the conviction; (2) the trial court abused its discretion in excluding impeachment evidence; (3) the trial court abused its discretion in excluding evidence that the victim’s stepfather was involved in the crime; (4) the trial court abused its discretion in admitting a photograph of gang graffiti; (5) the trial court erroneously instructed the jury on flight; (6) the trial court erroneously instructed the jury on aiding and abetting; and (7) his trial counsel provided ineffective assistance of counsel by failing to move to replace a juror, to cross-examine the victim’s stepfather on one point, to locate additional witnesses, and to consult and present a gang expert. We reject appellant’s contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
We review the evidence presented in the light most favorable to the prosecution. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
1. Munoz and Reyes’ Gang Affiliation
The victim, Anthony Munoz, lived on East Second Street in Los Angeles with his mother (Gloria Lisa Gallardo) and his stepfather (Narciso Reyes). Munoz belonged to a gang called Varrio Nuevo Estrada (VNE). He had gang tattoos on his right arm and left hand. Munoz did not live in VNE territory. However, VNE’s rivals, White Fence gang members and Evergreen gang members frequented the area, as it fell between their territories. White Fence had about 500 documented members. Two of Munoz’s uncles belonged to White Fence, but Munoz did not speak to them. Munoz’s stepfather, Reyes, denied belonging to White Fence. However, Reyes admitted associating with its members; Munoz believed Reyes was a White Fence member.
Cities Dopest Kings (CDK) had a tagging crew which had merged with White Fence. Officers testified that appellant admitted belonging to CDK. Appellant testified he belonged to CDK prior to 2004, but denied any affiliation with White Fence. “Swan” was not appellant’s gang moniker, it was his birth name. Munoz and appellant knew one another as they lived near one another and had gone to school together. Munoz knew appellant had a CDK tattoo on his hand and had seen appellant with other CDK members. Appellant knew Munoz had VNE tattoos.
2. The Shooting
On May 9, 2007, during the daylight hours, Munoz was at his grandmother’s home doing laundry. She lived on Third Street, a block from Munoz’s home. As Munoz waited, he walked back and forth outside his grandmother’s home, talking to his girlfriend on his cellular telephone. Munoz noticed a four-door burgundy Toyota Camry shadowing him. When Munoz walked forward, the car went forward; when he turned around and walked in the other direction, the car reversed direction. The driver’s side of the Camry was closest to him. Munoz hung up the telephone, walked toward the Camry, and looked inside. Munoz immediately recognized appellant who was a passenger in the car. Munoz asked appellant “what’s up‌” Appellant gave Munoz an “evil look;” Munoz then started to walk away. Munoz saw appellant for about ten to twelve seconds, from about ten to fifteen feet away. The Camry’s driver issued a challenge by inquiring about Munoz’s gang affiliation in asking where Munoz was “from”.
The Camry’s driver pointed a black Baretta at Munoz, looked at Munoz’s gang tattoos, yelled “White Fence” and fired a single shot at Munoz, hitting him in the stomach. As Munoz fell to the ground, he realized the Camry’s driver was a White Fence gang member known as “Dreamer.” The Camry sped away with appellant inside.
3. The Shooting Investigation and Prosecution Evidence
Munoz’s mother (Gallardo) and stepfather (Reyes) were at home when they heard about the shooting. Both raced to the scene, but Reyes arrived first. When Reyes arrived, Munoz was conscious and lying on the street. Munoz told Reyes that the “guys from White Fence” had shot him and appellant was present. Munoz stated “Swan,” referring to appellant’s first name, was involved.

Los Angeles Police Officer Frank Lopez and his partner were the first to arrive at the scene. They recovered a .380 caliber casing. Reyes identified himself to the officers as Munoz’s father and Gallardo as Munoz’s mother. Thereafter, both Reyes and Gallardo disappeared.
Munoz told Officer Lopez he was dying. Munoz also stated that before the shooting he saw two White Fence members, a driver and a passenger, in a red or burgundy four-door vehicle. Munoz did not identify appellant or the driver to Officer Lopez. Once Munoz arrived at the hospital, he “blanked out” and underwent a surgery.
After Munoz was taken to the hospital, Reyes went to appellant’s mother’s home. Reyes, who was angry, told appellant’s mother (Iliana Vega) that appellant had shot Munoz and asked where appellant could be located. Later that same evening, Reyes had another conversation with Vega in which Reyes tried to reassure her he would not seek retaliation for what had happened to Munoz.
After Munoz regained consciousness, Gallardo asked him who had shot him. Munoz wrote “Swan” on a piece of paper. When Munoz was able to speak, he told his mother and Reyes on more than one occasion that appellant and Dreamer were in the Camry when he was shot. Munoz stayed in the hospital for three months where he underwent a number of surgeries. He then spent two weeks at Rancho Los Amigos Rehabilitation Hospital. As a result of the shooting, Munoz was unable to walk on his own and was confined to a wheelchair. The bullet remained in Munoz’s body.
Los Angeles Police Detectives Jose Ramirez and Ronald Chavarria investigated the crime. They were unable to discuss it with Munoz immediately after the shooting because Munoz was in critical condition. On May 29, 2007, the officers met Gallardo and Reyes at the hospital and learned for the first time about statements Munoz had made to Reyes implicating appellant and about the piece of paper on which Munoz had written “Swan.” The officers interviewed Munoz for the first time on July 20, 2007. Munoz stated Swan was the passenger in the car and the driver was the shooter. Munoz reported that he did not see anyone in the back seat. The detectives showed Munoz a photographic line-up in which appellant’s photograph was located in position 5. Munoz circled photographs 5 and 6, stating that both looked like Swan. At trial, Munoz identified appellant as being the passenger in the Camry and testified he was positive photograph 5 was Swan. Gallardo and Reyes both testified that they picked appellant’s photograph out of the photographic line-up as being Swan.
On July 25, 2007, the police arrested appellant and executed a search warrant of his residence on East Second Street. Nothing related to the crime was found at the residence. Appellant, who had a CDK tattoo on one hand, admitted he was from CDK to Los Angeles Police Officer Mario Morales. A January 2007 police field interview card showed appellant had admitted to other officers he was in CDK. Sometime after the shooting, appellant admitted to Reyes that he was a member of White Fence.
Officer Morales testified as a gang expert. He testified that gangs used graffiti to mark their territories, instill fear, and intimidate community members. Officer Morales stated that White Fence gang territory bordered that of other gangs, including VNE. An area bordered by Second Street and Third Street did not belong to any particular gang, but fell between Evergreen and White Fence gang territories. Officer Morales used a photograph depicting graffiti to assist him in explaining the relationship between the CDK and White Fence. Officer Morales opined that the shooting was done for the benefit of, in association with, and at the direction of White Fence. He also offered the opinion that if a passenger in the Camry was a CDK member, he was a White Fence member because CDK had merged with White Fence.
Officers Morales and Ramirez knew of more than one White Fence member using “Dreamer” as a moniker. The police could not locate “Dreamer”.
4. The Defense Case
Appellant claimed Reyes covered up his own role in the shooting by implicating appellant. Appellant asserted there was animosity between Munoz and Reyes because they had rival gang affiliations.
Monica Garcia, the mother of four of Reyes’ children, testified for the defense that Reyes admitted lying about the incident. She further testified that Reyes knew appellant was not near the crime scene at the time of the shooting. According to Garcia, Reyes did not want to be imprisoned and thus, blamed appellant. Among other statements, Garcia testified Reyes had said, “It was either me going to jail or he goes.” Garcia also testified that Reyes was a liar, and appellant was neither violent nor a gang member.
Appellant testified in his own defense that he was not in the Camry on the day of the shooting and he did not know Dreamer. Rather, he testified, he spent May 9, 2007 with his friends. He denied identifying himself as a CDK member to officers who interviewed him in the field. Appellant admitted he had been a member of CDK, but claimed he had disaffiliated with the gang and had taken a number of steps to change his life. Appellant testified he had disaffiliated with CDK around 2004 when he went to the Dream Center Community Outreach Church, a program designed for at-risk youths. Appellant also testified that he did charitable work with an organization called TELACU.
To support appellant’s defense, Tony Mays testified appellant had been working with the Dream Center since 2004. Guadalupe John Gonzales, a youth social worker at TELACU, also testified as to appellant’s good character and that appellant had been looking to better his life. Appellant’s mother testified appellant was no longer affiliated with CDK.
5. The Verdict and Sentence
The jury convicted appellant of attempted murder. (Pen. Code, §§ 664/187, subd. (a).) The jury found the murder was done willfully, and with deliberation and premeditation, and found true the Penal Code section 186.22, subdivision (b)(1)(C) allegation that the crime was committed for the benefit of a street gang. Further, the jury found that a principal used and discharged a firearm causing great bodily injury. (Pen. Code, § 12022.53, subds. (a)(1), (b), (c), (d), and (e)(1).)
The trial court sentenced appellant to life with the possibility of parole, plus 25 years to life pursuant to Penal Code section 12022.53, subdivision (d). Appellant timely appealed from the judgment.



DISCUSSION
I. Substantial Evidence Supported the Convictions.
Appellant contends the record lacked substantial evidence to support the verdict. Specifically, he asserts there was insufficient evidence to identify him as the passenger in the Camry. We disagree.
In addressing a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether a reasonable jury could have found the essential elements of the crime beyond a reasonable doubt. (People v. Zamudio, supra, 43 Cal.4th at p. 357.) We do not reweigh the evidence or resolve evidentiary conflicts. “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” (Ibid.)
Here, victim Munoz knew appellant prior to the shooting as they both lived in the same neighborhood and had gone to school together. Munoz was aware of appellant’s gang affiliation and tattoo. At the time of the shooting, Munoz had ample time to recognize appellant because appellant had given Munoz an evil look from approximately 10 to 15 feet away in daylight, and Munoz had ten to twelve seconds to look at appellant. Munoz repeatedly identified appellant as being the passenger in the car. Immediately after being shot, Munoz told Reyes that appellant was involved and identified appellant by his first name, Swan. While in the hospital, Munoz wrote appellant’s name on a piece of paper. When Munoz could speak, he told his mother and Reyes on a number of different occasions that appellant was in the Camry. Later, Munoz told investigating officers that appellant was in the front passenger seat. At trial, Munoz testified that he previously selected appellant’s photograph from a photographic line-up as depicting the Camry’s passenger. Also, at trial, Munoz identified appellant as being the passenger in the car.
This identification testimony provided substantial evidence supporting the jury’s implicit finding appellant was the passenger in the Camry at the time of the shooting and therefore guilty. (People v. Boyer (2006) 38 Cal.4th 412, 480 [identification by single eyewitness and out-of court identification both provided sufficient evidence to prove defendant’s identity]; People v. Cuevas (1995) 12 Cal.4th 252, 275 [out-of-court identifications may provide substantial evidence].)
Appellant argues that the police investigation, including the minimal efforts taken to locate Dreamer and the lack of forensic evidence, demonstrate the evidence is insufficient to prove he was in the Camry. Appellant also argues the prosecution witnesses could not be believed. By these arguments, appellant asks that we reweigh the evidence. However, it was for the jury to evaluate the credibility and persuasiveness of the evidence. (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)
Thus, there was substantial evidence proving appellant was a passenger in the Camry, supporting the conviction and findings.
II. The Trial Court Did Not Abuse its Discretion in Excluding Impeachment Evidence.
Appellant contends that the trial court erred in excluding impeachment evidence regarding Reyes. We review the admission or exclusion of evidence for abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 821 (Jablonski) [admissibility of evidence turning on state of mind exception to hearsay rule subject to abuse of discretion standard].)
Appellant sought to introduce evidence that Reyes was on felony probation at the time of trial stemming from a 2000 grand theft conviction (Pen. Code, § 487, subd. (c).) Additionally, he had two arrests that had not resulted in criminal charges. Reyes suffered an August 1999 arrest for violating Penal Code section 422, criminal threat, and a January 2000 arrest for violating Penal Code section 243, subdivision (e)(1), battery on a cohabitant or spouse. The battery arrest involved Garcia. Pursuant to Evidence Code section 352, the trial court refused appellant’s request to introduce evidence of the arrests.
Appellant contends the facts underlying Reyes’s arrest for battery upon a spouse or cohabitant constituted an act of moral turpitude and, contrary to the court’s ruling, was admissible to impeach. (People v. Rodriguez (1992) 5 Cal.App.4th 1398 [corporal injury on spouse or cohabitant conviction properly admitted to impeach as constituted crime of moral turpitude]; compare with People v. Lopez (2005) 129 Cal.App.4th 1508, 1522 [simple battery not crime of moral turpitude].) We need not reach this issue. Even if the trial court could have permitted the use of the arrest to impeach Reyes, the court did not abuse its discretion in excluding it, as discussed below.
“ ‘Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court’s discretion under Evidence Code section 352.’ [Citations.]” (People v. Smith (2007) 40 Cal.4th 483, 512, citing among others, People v. Wheeler (1992) 4 Cal.4th 284, 295-296.) We will not disturb the trial court’s Evidence Code section 352 ruling unless the court acted arbitrarily, capriciously, or in a patently absurd manner resulting in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The defense presented a wide variety of information impeaching Reyes’ character and credibility. The jury was informed Reyes had been convicted of grand theft, a crime reflecting on Reyes’s veracity, and he was on probation at the time of trial. Garcia, the father of four of Reyes’s children, testified at length about Reyes’s lack of trustworthiness and his purported scheme to avoid prosecution. She testified that during their lengthy relationship, Reyes “was just pure lies . . . .” She testified Reyes was not believable. According to Garcia, Reyes told her he was blaming appellant to avoid his own culpability even though he knew appellant was not near the crime scene.
Given the amount of evidence presented to the jury attacking Reyes’s credibility, we cannot conclude the trial court abused its discretion in excluding the cumulative impeachment evidence that Reyes had been arrested for battery on a spouse or cohabitant. (Evid. Code, § 352.) Further, had there been error, given the overwhelming evidence proving appellant was in the Camry, appellant was not prejudiced thereby. (People v. Watson (1956) 46 Cal.2d 818, 836.) Lastly, any such evidentiary error did not implicate the Federal Constitution. (People v. Cudjo (1993) 6 Cal.4th 585, 611 [exclusion of evidence does not ordinarily implicate the federal Constitution].)
Therefore, the trial court’s evidentiary ruling does not warrant reversal.
III. The Trial Court Did Not Abuse its Discretion in Excluding Evidence that Reyes was Involved in the Crime.
Appellant contends the trial court abused its discretion in excluding testimony from Munoz that he suspected his stepfather, Reyes, played a role in the shooting. Again, we review the trial court’s evidentiary rulings under the deferential abuse of discretion standard. (Jablonski, supra, 37 Cal.4th at p. 821.) We disagree with appellant’s contention that the trial court abused its discretion in denying Munoz’s testimony.
The prosecutor disclosed to the defense and to the court a statement by Munoz that Munoz believed Reyes “may have set him up.” Outside the presence of the jury, Munoz explained why he held this belief: “Well, we had a confrontation a while back and he still held a grudge against me and I think I know he had something to do with it.” Munoz further testified this confrontation happened before the shooting and included Reyes’s threat to harm Munoz. However, Munoz admitted Reyes never said anything in the confrontation to the effect that he was going to have Munoz shot, nor did Reyes say anything after the shooting to lead Munoz to believe Reyes was involved in the shooting. Specifically, appellant sought to introduce this evidence to prove Reyes lied and was trying to divert attention from himself.
The trial court ruled this evidence was inadmissible pursuant to Evidence Code section 352. However, the court stated that the evidence might be admissible if the defense could thereafter lay the proper foundation. Thus, the trial court indicated it would permit the defense to prove the existence of preliminary facts that would have made the evidence relevant. (Evid. Code, § 350, § 403, subd. (a).)
The trial court did not abuse its discretion in so ruling. The fact that Munoz and Reyes had had a confrontation does not reasonably lead to the conclusion Reyes was trying to hide his own culpability. Thus, while Munoz interpreted Reyes’s statement as a threat, and as a suggestion Reyes was involved in planning the drive-by shooting, this interpretation is conjecture unsupported by fact. As such, the trial court properly exercised its discretion to exclude this speculative evidence as it lacked foundation. (Evid. Code, § 403; People v. Thornton (2007) 41 Cal.4th 391, 429 [ruling questions calls for speculation reviewed for abuse of discretion]; People v. Cornwell (2005) 37 Cal.4th 50, 81 [excluding evidence producing only speculation is not abuse of discretion].) Also, this evidentiary ruling did not implicate appellant’s Constitutional rights. (People v. Cudjo, supra, 6 Cal.4th at p. 611.) Nor did the ruling preclude appellant from presenting to the jury the theory that Reyes was trying to hide his own culpability by placing blame on appellant. In fact, this theory was presented through the testimony of Garcia. As a result, the trial court’s evidentiary ruing was not prejudicial to appellant. Thus, the trial court did not abuse its discretion by limiting Munoz’ testimony.
IV. Even if a Photograph of Gang Graffiti was Inadmissible, Appellant was
Not Prejudiced by its Introduction.
Over defense objections, the trial court admitted a photograph showing White Fence and CDK graffiti. The graffiti had the names of the gangs, the names of two clicks in White Fence, including CDK, as well as six monikers. The photograph was used by the prosecution’ gang expert, Officer Morales, to demonstrate his opinion regarding the relationship of CDK to White Fence.
Appellant acknowledges that gang experts, like other experts, may rely upon admissible and inadmissible evidence to render an opinion so long as it is reliable and “material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Evid. Code, § 801, subd. (b); [Citations].)” (People v. Gardeley (1996) 14 Cal.4th 605, 618; accord, People v. Duran (2002) 97 Cal.App.4th 1448, 1463.) This includes inadmissible hearsay. (People v. Gardeley, supra, at p. 619.) Appellant contends, however, that these evidentiary rules do not mean that the inadmissible evidence upon which the expert relies is admitted into evidence. Thus, appellant contends the trial court erred in admitting the photograph.
Even if appellant is correct, there can be no harm here. The facts were undisputed that gangs used graffiti to mark territories and to intimidate. The facts were undisputed that CDK had merged with White Fence. Thus, the photograph did not add anything to the discussion and could not possibly have harmed appellant. (People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California (1967) 386 U.S. 18, 24.) Nor could the evidentiary ruling implicate appellant’s Constitutional rights. (People v. Cudjo, supra, 6 Cal.4th at p. 611.) Accordingly, the trial court’s evidentiary ruling does not warrant reversal.
V. The Trial Court Properly Instructed the Jury on Flight.
Appellant contends he was denied due process because the trial court instructed on flight. This contention is not persuasive.
Penal Code section 1127c directs trial courts to instruct on flight “[i]n any criminal trial . . . where evidence of flight of a defendant is relied upon as tending to show guilt . . .” Over appellant’s objection, the jury was instructed with CALCRIM No. 372 as follows: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
“ ‘In general, a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” ’ [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
The record supported the inferences for the flight instruction. Appellant immediately left the scene of the drive-by shooting. That he was not driving the car was a fact for the jury to weigh in light of the permissive language of the instruction. Moreover, the circumstances gave rise to an inference of consciousness of guilt. Appellant did not attempt to help Munoz, nor did appellant attempt to call for or seek assistance. From this evidence, the jury could conclude that the circumstances of appellant’s departure evidenced his guilt as an aider and abettor in the drive-by-shooting. The facts suggested appellant fled to avoid being observed or arrested and supported the court’s decision to instruct on flight. (People v. Abilez (2007) 41 Cal.4th 472, 521-522 [jury can infer guilt when defendant chose not to stay in house where victim killed].)
VI. The Trial Court Properly Instructed on Aiding and Abetting.
Appellant contends the trial court erred in further instructing the jury as to aiding and abetting. We disagree.
The court gave CALCRIM Nos. 400 and 401 with regard to aiding and abetting, as well as CALCRIM Nos. 600 and 601 addressing attempted murder. CALCRIM No. 601 stated in part, “If you find the defendant guilty of attempted murder under Count 1, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. [¶] . . . [¶] The attempted murder was done willfully and with deliberation and premeditation if either the defendant or the defendant’s principal or both of them acted with that state of mind.”
During deliberations, the jury asked for clarification about CALCRIM No. “601 [and] the verdict form . . . about the attempted murder being done with deliberation [and] premeditation.” After examining the verdict form, the court asked the jury to “be more specific as to what its question is‌” In response, the jury posed a second question noting that the first allegation only mentioned attempted murder, whereas CALCRIM No. 601 discussed the defendant or principal, and asking which instruction it was to follow.
The prosecutor opined that the jury was asking if an aider and abettor had to have the same mental state as the principal, i.e., the requisite premeditation. After discussion with the parties and referring to People v. Lee (2003) 31 Cal.4th 613 (Lee), 622-623, the court further instructed that an “attempted murder is done willfully and with deliberation and premeditation if either the aider or abettor or the aider and abettor’s principal acted willfully and with deliberation and premeditation.”
Contrary to appellant’s suggestion, the court’s further instruction is an accurate statement of law. In a discussion addressing Penal Code section 664, subdivision (a), “People v. Lee (2003) 31 Cal.4th 613 (Lee) holds that a person may be convicted of premeditated attempted murder as an aider and abettor even if he or she did not personally act with willfulness, deliberation and premeditation. (Id. at pp. 624 & 627.)” (People v. Curry (2007) 158 Cal.App.4th 766, 791.) The Supreme Court in People v. Concha (2009) 47 Cal.4th 653 (Concha) recently approved of the language in CALCRIM No. 601 quoted above and reaffirmed its holding in Lee. Concha stated in part: “[F]or an attempted murder that is willful, deliberate, and premeditated, . . . although each defendant must have the intent to kill, a defendant may be vicariously liable for the premeditated and deliberate component of the mens rea of an accomplice.” (People v. Lee[, supra,] 31 Cal.4th [at p.] 626.” (Concha, supra, 47 Cal.4th at p. 665.) Therefore, the court did not err in its aiding and abetting instruction.
VII. Appellant Did Not Receive Ineffective Assistance of Counsel.
Appellant contends his counsel was ineffective for four reasons. We find each argument unpersuasive.
“A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.]’ ” (People v. Holt (1997) 15 Cal.4th 619, 703; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 333.)
“Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at p. 333; accord, People v. Ferraez (2003) 112 Cal.App.4th 925, 935.)



1. Defense Counsel was Not Ineffective in Failing to Move to
Replace a Juror.
During trial, Juror No. 5 informed the court that she had seen a man on more than one occasion in a wheelchair at a bus station who she thought looked similar to the victim, Munoz. The juror stated she had no conversations and no interactions with the man at the bus station and she had no positive or negative experience with him. Additionally, she informed the court that these experiences would not: (1) affect her view of the case; (2) cause her to believe she could not be fair and impartial; (3) cause her to be more sympathetic to the victim; and, (4) cloud her judgment in reviewing the evidence. Neither counsel asked for the juror to be excused. The court indicated it saw nothing improper and concluded no action was warranted.
Appellant contends his counsel was ineffective in failing to ask that Juror No. 5 be dismissed during trial. We disagree.
Courts have broad discretion to investigate and remove jurors during trial. However, a juror’s inability to perform must appear in the record as a demonstrable reality. Bias may not be presumed. (People v. Bennett (2009) 45 Cal.4th 577, 621.) Here, Juror No. 5 acted honestly and diligently in informing the court that outside the courtroom she had seen a man resembling Munoz, even though she was uncertain as to whether or not the man was Munoz. Juror No. 5 provided assurances that her encounters with this man would not affect her ability to be fair and impartial. Thus, there was nothing before the court suggesting Juror No. 5 should be removed. Had appellant’s counsel made a motion to discharge the juror, the motion would have been futile. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1252-1253 [counsel is not required to make futile motions or indulge in idle acts to appear competent]; People v. Ferraez, supra, 112 Cal.App.4th at p. 934 [failure to object to evidence not ineffective assistance of counsel where objection would have been futile].)



2. Defense Counsel was Not Ineffective in Cross-Examining Reyes.
Appellant argues his counsel should have cross-examined Reyes about his calm attitude at the scene of the crime. This argument is based upon Officer Lopez’s testimony that Reyes was “very calm” after the shooting. Appellant suggests this attitude evidenced Reyes’s guilt and would have supported his theory that Reyes was the mastermind behind the shooting. We disagree.
It is entirely speculative to conclude from Reyes’s “calm” attitude that he participated in the crime. Rather, the facts suggest Reyes acted as a concerned parent. He rushed to the scene of the crime and he spoke with Munoz and police officers. He then went to appellant’s mother’s home and confronted appellant’s mother, looking for appellant. These acts suggest that although Reyes may have been “calm” at the scene, his subsequent conduct suggests that he was not quite so “calm.”
Further, defense counsel cross-examined Reyes at length, discussing everything from Reyes’s relationship with appellant to what had occurred the night of the crime and thereafter. Defense counsel elicited information from Garcia implicating Reyes. Thus, defense counsel presented through other witnesses the theory that Reyes was involved in the crime and not appellant. Counsel cannot be considered ineffective for making the tactical choice to develop this theory through other evidence rather than through Reyes’s “calm” attitude. (People v. Bolin, supra, 18 Cal.4th at p. 333.)
3. Appellant Failed to Demonstrate his Counsel was Ineffective
in Not Locating Additional Witnesses.
Appellant claims his counsel was ineffective by failing to locate “Dreamer” and failing to investigate whether there was a third person in the Camry. We disagree.
First, the record does not indicate whether defense counsel tried to locate Dreamer or how Dreamer’s testimony might have assisted appellant. Thus, the appellate record
“ ‘sheds no light on why counsel acted or failed to act in the manner challenged.’ ” We must affirm the judgment unless there could be “ ‘no satisfactory explanation’ ” for counsel’s actions. (People v. Ledesma (2006) 39 Cal.4th 641, 746, quoting People v. Pope (1979) 23 Cal.3d 412, 426.) In that Dreamer might have implicated appellant, counsel would have had a “satisfactory explanation” for not trying to find Dreamer. Additionally, there is nothing in the record to suggest Dreamer could be found, as the police could not do so. Thus, assuming his counsel never tried to locate Dreamer, appellant cannot demonstrate he was prejudiced thereby.
Appellant also argues his counsel was ineffective in failing to find a third person who was in the Camry. To support this argument, appellant points to testimony from Detective Ramirez and Reyes seemingly contradicting a segment of Munoz’s testimony. Detective Ramirez and Reyes testified that at the crime scene Munoz had told Reyes that Dreamer was in the front passenger seat, appellant was in the back seat, and an older man was driving the vehicle. The record does not disclose whether defense counsel tried to locate any older third man, why counsel might have failed to do so, or how additional evidence from a third man would have assisted appellant. Additionally, the statements referencing a third passenger in the car support the conclusion that appellant was in the Camry, and thus, without knowing what the “third person” might say, appellant cannot show prejudice. (People v. Holt, supra, 15 Cal.4th at p. 703; In re Lucas (2004) 33 Cal.4th 682, 721 [ineffective assistance of counsel requires different outcome but for counsel’s decision].)
4. Appellant Failed to Demonstrate his Counsel was Ineffective
in Not Presenting a Gang Expert.
Appellant suggests a gang expert was required to demonstrate appellant had disaffiliated with the gang and his tattoo did not prove gang membership. Appellant contends his attorney was ineffective in not consulting with, and presenting, a gang expert to refute the prosecutorial expert. This contention is not persuasive.
There are no facts in the record showing defense counsel failed to consult with a gang expert or a gang expert would have testified as appellant proposes. Also, the record does not explain defense counsel’s tactical decision to rely on appellant and his acquaintances to prove appellant had disaffiliated with White Fence. Thus, we reject appellant’s contention as it relies upon matters outside the appellate record. (People v. Ledesma, supra, 39 Cal.4th at p. 746; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Even assuming counsel’s decision was not tactical, appellant cannot on this record demonstrate he was prejudiced thereby.
DISPOSITION
The judgment is affirmed.

O’CONNELL, J. ^*
We concur:



RUBIN, Acting P. J.



GRIMES, J.



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