P. v. Torres





















Filed 9/17/12 P. v. Torres CA2/4













NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR










>

THE PEOPLE, Plaintiff and Respondent, v. GENARO C. TORRES, Defendant and Appellant.

B233421 (Los Angeles County Super. Ct. No. KA090474)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Bruce F. Marrs, Judge. Affirmed.

John Doyle,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Scott A. Taryle and
Eric J. Kohm, Deputy Attorneys General, for Plaintiff and
Respondent.

______________________________

Defendant Genaro Torres
appeals from the judgment entered upon his jury conviction of attempted murder
and assault and the jury’s finding that these crimes were committed for the
benefit of a street gang. Defendant
contends the evidence does not support a finding that he committed attempted murder
with deliberation and premeditation. He
also argues that his trial counsel rendered ineffective assistance by not
moving to bifurcate trial on the gang enhancement, and that the testimony of
the prosecution’s gang expert was insufficient to support the enhancement. We disagree and affirm the judgment.



>FACTUAL AND PROCEDURAL SUMMARY

At about 6:00 p.m. on March 15, 2010, the victims, Joel Guillen and
Raul Gonzalez, along with their friend Thomas Xulu, drove to Morgan Park in the
city of Baldwin Park. Gonzalez parked near the basketball courts. Defendant and others were playing
basketball. Guillen went onto the court
and got into an argument with defendant.
Gonzalez heard defendant identify himself as “Froggy” during the
argument.

Several
minutes later, after Guillen had returned to the car, a red pick-up truck
pulled up. Several men, including
defendant, jumped out of it. Defendant
hit Guillen in the head with what looked like a stick, a bat, or a hammer. Guillen fell down and went into
convulsions. Someone struck Gonzalez in
the head with a fist. Defendant shouted,
“This is Froggy from Northside,” then he broke a window in Gonzalez’s car and
left in the truck. Gonzalez drove
Guillen home.

Guillen had
to have a metal plate installed in his skull.
He suffered from aphasia as a result of the attack and did not remember
it. Gonzalez, Xulu, and another
eyewitness, Raymond Gutierrez, identified defendant in a photographic lineup as
the man who attacked Guillen.

The attack
was reported at 6:48 p.m. From 6:36 p.m. to 6:40 p.m. calls were placed between a cell
phone registered to defendant’s uncle and one used by Jose de la Torre, a
codefendant who is not a party to this appeal.


A reddish
pick-up truck was registered to de la Torre’s father. A hammer was recovered from defendant’s
house, along with a notebook with the initials of the Northside Bolen Parque
gang and the name “Froggy” inscribed on the cover. Defendant is a known member of the gang, and
his moniker is Froggy.

Defendant
and de la Torre were charged with attempted
first-degree murder (Pen. Code, §§ 664, 187, subd. (a))href="#_ftn1" name="_ftnref1" title="">[1]
as to Guillen (count 1) and assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(1)) as to Gonzalez (count 2). Gang enhancements were alleged as to both
counts (§ 186.22).

The jury
convicted defendant as charged on count 1, and on count 2 found him guilty of
the lesser included crime of assault (§ 240).
The jury found the attempted murder was willful, deliberate, and
premeditated, and the gang enhancement allegations were true. On count 1, defendant was sentenced to life
in prison with the possibility of parole after 15 years. A concurrent three-year sentence was imposed
on count 2.

This href="http://www.mcmillanlaw.com/">timely appeal followed.



>DISCUSSION

I

Defendant contends his attempted
murder conviction must be reversed because the evidence was insufficient to
show that he possessed a specific intent to kill Guillen and that he acted with
deliberation and premeditation.

“One who intentionally attempts to
kill another does not often declare his state of mind either before, at, or
after the moment he shoots. Absent such
direct evidence, the intent obviously must be derived from all the
circumstances of the attempt, including the putative killer’s actions and
words. Whether a defendant possessed the
requisite intent to kill is, of course, a question for the trier of fact. While reasonable minds may differ on the
resolution of that issue, our sole function is to determine if >any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” (People
v. Lashley (1991) 1 Cal.App.4th 938, 945–946.)

Defendant claims the fact Guillen was
hit in the head with a bat or a hammer was insufficient to establish a specific
intent to kill. Holding otherwise, he
urges, would obviate the distinction between acting with conscious disregard
for human life and acting with a specific intent to kill, and would turn every
assault with a deadly weapon into an attempted murder. He essentially argues the evidence could have
supported a contrary finding. But while
reasonable minds may differ on whether defendant intended to kill Guillen, it
was not irrational for the jury to infer an intent to kill from defendant’s
targeting the victim’s head, a vulnerable area, with what looked like a hammer,
inflicting a blow that sent the victim into convulsions and required the
installation of a metal plate in his skull.
Assaulting a victim “at a range and in a manner that could have
inflicted a mortal wound” is sufficient to support an inference of intent to
kill even if the killer abandoned the effort and the victim survived. (People
v. Lashley, supra, 1 Cal.App.4th
at p. 945.)

Defendant contends there is no
evidence of premeditation and deliberation.
These may be established by evidence about planning, motive, and the
manner of killing. (People v. Booker (2011) 51 Cal.4th 141, 173.) While the three factors are not exclusive,
the existence of evidence pertaining to all of them is sufficient to sustain a
conviction. (People v. Proctor (1992) 4 Cal.4th 499, 529.) The record here contains
such evidence.

The testimony that defendant and
Guillen argued on the basketball court supports the inference that defendant
acted out of anger, regardless of the subject of the argument. (See e.g. People
v. Lunafelix (1985) 168 Cal.App.3d 97, 102 [anger relevant to
motive].) Defendant’s mention of his
gang affiliation during the argument and the subsequent attack supports the
inference that it also motivated his actions.
(See People v. Funes (1994) 23
Cal.App.4th 1506, 1518 [gang affiliation relevant to motive or intent].)

While the attack on Guillen occurred
within minutes of the argument, time is not determinative since a calculated
decision may be made quickly. (>People v. Booker, supra, 51 Cal.4th at p. 172.) Defendant attacked Guillen upon pulling up in
a pickup truck, armed with an object that he used as a weapon. He was accompanied by others, one of whom
assaulted Gonzalez. He then left in the
same pickup truck. It can be inferred
that, after the argument with Guillen, defendant left the basketball court,
gathered backup, obtained a getaway vehicle and an object that could be used as
a weapon, and surprised the unsuspecting victim. (See e.g. People
v. Elliot (2005) 37 Cal.4th 453, 471 [defendant planned crime by
arming himself with knife and waylaying victim]; People v. Lunafelix, supra,
168 Cal.App.3d at p. 102 [unprovoked attack “deliberately and reflectively
conceived in advance”].) The fact that
defendant aimed at Guillen’s head right away also supports the inference that
the attack was deliberate and premeditated.
(See e.g. People v. Gonzalez
(2005) 126 Cal.App.4th 1539, 1552 [“‘wounds [which] were not wild and unaimed’”
can demonstrate premeditation and deliberation].)

Sufficient evidence supports the
attempted murder conviction.

II

Defendant argues his trial counsel
was ineffective because he did not move to bifurcate trial on the href="http://www.fearnotlaw.com/">gang enhancement. Defendant bears the burden of demonstrating
that his trial counsel’s representation fell below prevailing professional
standards, and there is a reasonable probability that the outcome of the trial
would have been different absent the deficiency in counsel’s performance. (People
v. King (2010) 183 Cal.App.4th 1281, 1298.)
There is a strong presumption that counsel’s performance was within the
range of reasonableness, and we defer to counsel’s tactical decisions. (Id. at
p. 1299.) Defendant cannot meet his
burden in this case.

The trial court has a broad
discretion to deny bifurcation on a gang enhancement. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1050 (Hernandez).) The >Hernandez court reasoned: “Evidence of the defendant’s gang affiliation
. . . can help prove identity, motive, modus operandi, specific intent, means
of applying force or fear, or other issues pertinent to guilt of the charged
crime. [Citations.] To the extent the evidence supporting the
gang enhancement would be admissible at a trial of guilt, any inference of
prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at
p. 1049.) The trial court has discretion
to deny bifurcation of a charged gang enhancement even when gang evidence would
be inadmissible if no gang enhancement were charged. (Id.
at p. 1050.)

Like the defendant in >Hernandez, defendant here injected his
gang membership into the crime by giving out his moniker and gang
affiliation. The gang expert helped the
jury understand the significance of this self-identification, which was
relevant to both motive and identity.
The expert explained that gang members commonly shout out their gang
affiliation when they commit violent crimes.
They do so to gain recognition for themselves and their gangs. He also explained that gang members are
obligated to retaliate if they are disrespected; otherwise, they would be
considered “weak link[s]” by their own gangs and would be subject to
attack. Additionally, the gang expert’s
testimony that gangs promote fear in the community by retaliating against
anyone who cooperates with law enforcement helped explain the eyewitnesses’
reluctance to identify defendant during trial.


Defense counsel’s strategy at trial
was to challenge the identification of defendant as the attacker. Since much of the gang evidence was crucial
to defendant’s identification, it is unlikely that the trial court would have
granted a motion to bifurcate the gang enhancement. Defense counsel’s decision not to make such a
motion was entirely reasonable.

The only evidence defendant
identifies as prejudicial pertains to the definition of a “criminal street
gang,” which requires, among other things, that one of the gang’s “primary
activities” be the commission of certain enumerated crimes (the so-called
“predicate offenses”) and that its members be engaged in “a pattern of criminal
gang activity” by committing two or more such crimes within the statutory
period. (§ 186.22, subd. (e) & (f); >Hernandez, supra, 33 Cal.4th. at p. 1048.)
The gang expert listed attempted murder as one of Northside Bolen
Parque’s primary activities. To
establish “a pattern of criminal gang activity,” the prosecutor offered
evidence of another gang member’s conviction of attempted murder and assault on
a police officer. The gang expert’s
testimony was limited to explaining that the gang member shot at police
officers who were trying to gain entry to his house on a search warrant. None of the officers was hit, but the gang member
was wounded.

While evidence of a predicate offense
committed by another gang member may not be admissible at a trial limited to
defendant’s guilt, “countervailing considerations . . . apply when the
enhancement is charged permit[ting] a unitary trial.” (Hernandez,
supra, 33 Cal.4th. at p. 1051.) The facts of the predicate offense of
attempted murder, where no officer was injured, were no more inflammatory than
the fact that defendant hit Guillen on the head with a hammer, causing severe
injury. Since this predicate offense was
committed by another gang member, it was not a crime for which defendant
escaped punishment. And, as in >Hernandez, this predicate offense was
offered to prove solely the gang enhancement, so there was no danger of
confusing the jury with collateral matters.
(See id. at pp. 1050,
1051.)

Defendant incorrectly maintains the
gang expert’s testimony regarding the predicate offense of attempted murder
constituted impermissible opinion about defendant’s specific intent to kill Guillen. A gang expert may give an opinion that a
crime committed in the manner described in a hypothetical question would be
gang related, but may not give an opinion on how the jury should decide the
case as to the particular defendant. (>People v. Vang (2011) 52 Cal.4th 1038,
1049.) The expert’s testimony about the
predicate offense was not an attempt to “evade” this limitation as it was
offered only in relation to the gang enhancement and not in relation to defendant’s
guilt. Contrary to defendant’s assertion
that the jury was allowed to consider the gang evidence as character evidence,
the jury was instructed to consider the predicate offenses offered by the
prosecution only in relation to the gang enhancement and not as evidence of
defendant’s bad character.

As we have explained, there was
sufficient evidence supporting an attempted murder conviction in this
case. The record does not bear out
defendant’s suggestion that he was convicted of attempted murder because the jury
heard brief expert testimony that another Northside Bolen Parque gang member,
in an unrelated case, was also convicted of attempted murder.

Defendant has failed to show that his
counsel provided ineffective assistance by not moving to bifurcate trial on the
gang enhancement.

III

Defendant
contends the gang expert’s testimony regarding Northside Bolen Parque’s primary
activities was insufficient to support that element of the gang
enhancement. We review the sufficiency
of the evidence to support an enhancement under the same standard we apply to a
conviction, presuming “every fact in support of the judgment the trier of fact
could have reasonably deduced from the evidence. [Citation.]”
(People v. Wilson (2008) 44
Cal.4th 758, 806.)

A gang enhancement requires among
other things proof that the crime was committed “for the benefit of, at the
direction of, or in association with any criminal street gang . . . .” (§ 186.22, subd. (b)(1).) A “criminal street gang” is defined in
relevant part as a group “having as one of its primary activities the
commission of one or more of the criminal acts enumerated in paragraphs (1) to
(25), inclusive, or (31) to (33), inclusive, of subdivision (e), . . . and
whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (§
186.22, subd. (f).) “Sufficient proof of
the gang’s primary activities might consist of evidence that the group’s
members consistently and repeatedly
have committed criminal activity listed in the gang statute.” (People
v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Expert testimony based on an adequate factual
foundation constitutes sufficient proof.
(Ibid.)

When asked about Northside Bolen
Parque’s primary activities, the gang expert responded: “They vary.
One of our more frequent forms is graffiti, vandalism,href="#_ftn2" name="_ftnref2" title="">[2]
followed by robbery, burglary, grand theft auto, possession of weapons, drug,
narcotic sales, attempted murder, murder, assault with a deadly weapon.” Defendant argues that this testimony shows
that the gang’s activities vary in frequency and does not establish that the
gang repeatedly and consistently engages in activities enumerated in section
186.22, subdivision (e). In response to
the question about the gang’s primary activities, the expert listed a number of
qualifying predicate offenses. He did
not say, and we do not read his response to suggest, that these offenses were
infrequent.

Defendant also argues that the
expert’s testimony lacked foundation.
The expert testified that he was a police officer with the City of Baldwin Park, where he
was assigned to the gang unit. He had
come in contact with gang members during various investigations and was a
member of several associations dealing with gang issues in the San Gabriel
Valley. He was familiar with Northside
Bolen Parque through more than 200 field contacts, conversations with gang
members, conversations with other officers, police department resources, and
the gang’s “fierce reputation” in the community. This provided sufficient foundation for his
testimony. (See People v. Gardeley (1996) 14 Cal.4th 605, 620 [gang expert’s
opinion based on conversations with gang members, investigations of crimes
committed by gang members, and information from other officers and law
enforcement agencies satisfied primary activities requirement].)

Defendant relies on >Alexander L., supra, 149 Cal.App.4th 605, a misdemeanor vandalism href="http://www.fearnotlaw.com/">delinquency proceeding, where the court
found the gang expert’s testimony insufficient to establish that the alleged
gang’s primary activities were those enumerated in section 186.22, subdivision
(e). (Id. at pp. 611–614.)
Specifically, the court noted that when asked about the gang’s primary
activities, the expert stated that he “kn[e]w” that the gang had been involved
in certain enumerated crimes, but he did not testify that these crimes
constituted the gang’s primary activities.
(Id. at pp. 611–612.) No foundation for his knowledge was
established, nor was there any other evidence ensuring the reliability of his
conclusory testimony. (>Id. at p. 612.)

The Alexander L. court considered the expert’s testimony to be closer
to the insufficient evidence in In re
Nathaniel C. (1991) 228 Cal.App.3d 990 (Nathaniel
C.) and In re Leland D. (1990)
223 Cal.App.3d 251 (Leland D.) than
to the evidence in People v. Gardeley,
supra, 14 Cal.4th 605. (Alexander
L., supra, 149 Cal.App.4th at p.
614.) The gang expert in >Nathaniel C. purported to testify about
criminal gang activity in his area, but the gang at issue in the case operated
in a different area, and the expert could not offer first-hand testimony
regarding its activities. (>Id. at pp. 1004–1005.) Here, in contrast, the gang expert was a
member of the gang unit of the City of Baldwin Park and had first-hand
familiarity with the Northside Bolen Parque gang, which operates in that
city. The prosecution introduced href="http://www.mcmillanlaw.com/">documentary evidence of convictions on
predicate offenses within the statutory period.
This case is thus distinguishable from Leland D., where the expert testified about predicate offenses,
based on non-specific hearsay and without a clear timeframe. (Id.
at pp. 259–260.) Additionally, unlike >Alexander L., this case itself involves
a predicate offense under section 186.22, subdivision (e), lending credence to
the gang expert’s testimony. (See >People v. Martinez (2008) 158
Cal.App.4th 1324, 1330.)

The gang evidence was sufficient to
support the enhancement.



>DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN
THE OFFICIAL REPORTS







EPSTEIN,
P. J.

We
concur:







WILLHITE, J.







MANELLA, J.