P. v. Garcia

















Filed 4/24/13 P. v. Garcia CA2/6











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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




>

THE PEOPLE, Plaintiff and Respondent, v. GILBERT GARCIA, JR., Defendant and Appellant.

2d Crim. No. B232129 (Super. Ct. No. 1284555) (Santa Barbara County)

Gilbert Garcia, Jr.,
appeals the judgment following his conviction for href="http://www.mcmillanlaw.com/">first degree murder (Pen. Code,
§§ 187/189)href="#_ftn1" name="_ftnref1"
title="">>[1],
and shooting at an occupied vehicle
(§ 246).

The
jury found allegations to be true that the offenses were committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)), and that a
principal personally and intentionally discharged a firearm (§ 12022.53,
subd. (e)). Garcia was sentenced to 25
years to life for the murder plus 25 years to life on the firearm
enhancement. Sentences of 15 years to
life for shooting at an occupied vehicle offense and 10 years for the gang
enhancement were stayed.

Garcia contends there is
insufficient evidence to support his convictions, to support the convictions on
an aiding and abetting theory, to
establish premeditation and deliberation, or to support imposition of a gang
enhancement. He also claims
instructional error regarding aiding and abetting, href="http://www.fearnotlaw.com/">prosecutorial misconduct, and error in
the denial of his motion to bifurcate trial of the gang enhancement. We affirm.

FACTS

During the
early morning hours of August 9, 2008, George Robertson, an African–American,
was shot and killed inside his car.
Robertson's car was located near the driveway of his residence in Santa
Maria.

A few hours earlier, Garcia
and his brother Roy Duran were in the Coachman Bar which is also located in
Santa Maria, less than two miles from the scene of the murder. The bar was frequented by African-American,
Hispanic and white customers. Garcia
appeared to be intoxicated. He flashed a
gang sign and called out the name of his gang.
Jason Ross was also in the bar.
Garcia is Hispanic and Ross is African–American.

The customers began to leave
the bar as closing time approached. Ross
attempted to speak to an Hispanic woman and was threatened by an Hispanic
man. Garcia argued with Ross, again
calling out the name of his gang. When
Garcia directed a racial slur at Ross, Garcia and Ross began fighting. The fight moved to the bar parking lot. Garcia was wearing a blue Dodger jersey and a
white tee shirt under it that became visible during the fight. Duran was involved in the fight on Garcia's
side but they were outnumbered. Other people
standing outside the bar joined the fighting along racial lines,
African–Americans against Hispanics.
Garcia and Duran were losing when bar bouncers broke up the fight. The crowd dispersed when police arrived.

Jeannette Mack was victim
George Robertson's girlfriend. They
lived near each other and had a child together.
Mack had been at the Coachman Bar that night but came home at closing
time. Robertson, who had been sleeping
at Mack's house, woke up, and left to return to his home to get luggage for a
trip he and Mack were going to take. He
said he would return.

Bianca Rodriguez, an
African-American, knew Robertson and lived a short walk from Robertson's
home. She also lived next door to Duran,
and was in a romantic relationship with Duran at the time of the shooting. Rodriguez expected Duran to come to her house
that night and telephoned him several times to find out where he was. At approximately 2:00 a.m., she spoke to
Duran on the telephone. Duran told her
about the fight at the bar. Duran was
upset because he thought Rodriguez's brother had been involved in the bar
fight.

Shortly after the telephone
call, Rodriguez heard two gunshots fired near her driveway. She looked out the window and saw Garcia and
Duran drive away in a brown truck. A few
minutes later, she heard loud music that sounded like it was coming from a
car. She knew that Robertson frequently
played music in his car at a high volume.
She looked outside and saw Garcia and Duran. Garcia had a gun. She saw Garcia and Duran approach Robertson's
home and heard nine or ten gunshots, and the sound of a car horn which lasted
several minutes.

Moments later, Rodriguez
looked outside a third time and saw Garcia holding a gun. She saw Garcia and Duran run towards Duran's
home. Duran was wearing a white Raiders
jersey. Garcia was wearing a white shirt
and jeans. Shortly thereafter, Duran spoke to Rodriguez on the phone and
indicated that he was upset because an Hispanic had beaten up Garcia in the bar
fight.

Other witnesses heard the
gunshots. When Genaro Cuevas heard the
shots, he looked out his window and saw two men running away from a
vehicle. One man was Hispanic, about 200
pounds, and was wearing a white tee shirt with dark pants. The other man wore dark clothing. Witnesses Rick and Teresa Bautista also heard
gunshots and saw two people running. One
was heavy and wore a white tee-shirt with black pants and the other was wearing
dark clothing. Other witnesses testified
similarly but disagreed on their descriptions of the men and the clothing they
were wearing.

name="sp_999_2"> name="citeas((Cite_as:_2012_WL_1129329,_*2_(Ca">Police found Robertson
slumped over in the driver's seat of his car with the engine still
running. Robertson had died from a
gunshot wound. Police recovered numerous
bullet casings in the area. All the
casings had been fired from the same gun.

Garcia and Duran did not
appear at their employment the following Monday, August 11, 2008, and did not
contact their employers to provide an explanation. Garcia was arrested on August 15, and Duran was
arrested in October 2008.

At approximately 7:30 p.m. on
the day of the early morning shooting, Robertson's sister made a call to
Rodriguez at the request of the police.
Rodriguez told Robertson's sister that she saw Garcia fire two shots in her
driveway, and that Garcia and Duran then walked towards Robertson's home. Rodriguez then heard nine shots and a car
horn, and saw Garcia and Duran drive away.
Rodriguez told Robertson's sister that, when she confronted Duran with
the shooting, Duran said, "I'm sorry nigger."

In a later interview with
police, Rodriguez told the police that Garcia and Duran were involved in the
shooting. She stated that Garcia was
wearing a white tee shirt and gray pants and Duran was wearing a white Raider's
jersey with black lettering. Rodriguez
also identified Garcia in a police lineup and indicated that he was holding a
gun at the time of the shooting.

At trial, however, Rodriguez
recanted her prior statements. She
testified that she did not see Garcia or Duran from her window, she did not see
Garcia holding a gun or fire any shots, and that she did not tell Robertson's
sister anything to the contrary.

DISCUSSION

Substantial Evidence Supports
Convictions

Garcia contends there was
insufficient evidence to support his convictions for href="http://www.mcmillanlaw.com/">first degree murder and shooting at an
occupied motor vehicle.href="#_ftn2"
name="_ftnref2" title="">>[2] He argues that there was no credible evidence
that he was involved in the shooting, or acted as an aider and abettor, or
acted with premeditation and deliberation.
We disagree.

1. Standard
of Review. In assessing a
sufficiency of evidence claim, we consider the entire record in the light most
favorable to the judgment to determine whether it contains substantial
evidence, that is, "'". . . evidence that is reasonable, credible,
and of solid value, from which a rational trier of fact could find the
defendant guilty beyond a reasonable doubt."'" (People v. Burney (2009) 47 Cal.4th
203, 253.) We presume all facts in
support of the judgment which reasonably could be deduced from the evidence,
accord the judgment all reasonable inferences from the evidence, and do not
reweigh the evidence or redetermine credibility. (People v. Wilson (2008) 44 Cal.4th
758, 806; People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Reversal is not warranted simply because the evidence
might also reasonably be reconciled with a different verdict. (People
v. Albillar (2010) 51 Cal.4th 47, 59-60; People v.
Bolin (1998) 18 Cal.4th 297, 331.)

2. Substantial
Evidence Supports Convictions.
Garcia argues that his convictions were based entirely upon out-of-court
statements by witness Bianca Rodriguez which lacked sufficient reliability or
credibility to constitute substantial evidence, and which she later retracted
during her trial testimony.

Unless it is physically
impossible or inherently improbable, the testimony of a single witness is
sufficient to support a conviction. (>People v. Young (2005) 34 Cal.4th 1149,
1181.) More specifically, an out-of-court
identification by
a single eyewitness may be sufficient to prove the defendant's identity as the
perpetrator, even if the witness does not confirm his or her identification at
trial, and there is no corroborating evidence.
(People v. Boyer (2006) 38
Cal.4th 412, 480; People v. Cuevas (1995) 12 Cal.4th 252, 257, 267-269,
271-272.) In assessing the name="SR;2047">sufficiency of an out-name="SR;2051">of-court identification, we consider
all relevant circumstances, including:
"(1) the identifying
witness's prior familiarity with the defendant; (2) the witness's opportunity
to observe the perpetrator during the commission of the crime; (3) whether the
witness has a motive to falsely implicate the defendant; and (4) the level of
detail given by the witness in the out-of-court
identification and any
accompanying description of the crime."
(Cuevas, at p. 267; see CALCRIM No. 315 [listing factors to
consider in evaluating identification evidence].)

name="SDU_4"> Here, the out-of-court
statements made by Rodriguez were sufficiently credible and reliable to
constitute substantial evidence.
Rodriguez had met Garcia on a prior occasion and knew Duran very
well. She looked out her window multiple
times and, although she did not see the shooting, she heard the gunshots and
had an opportunity to observe actions by Garcia immediately before and after
the shooting. Although Rodriguez had a
motive to deny involvement by her boyfriend Duran or shift primary
responsibility to Garcia, she did not do so in her statements. She described what she saw in reasonable
detail, and expressed no doubt in her out-of-court statements. She also saw Garcia and Duran from her
driveway close to her window, and had been made aware of the bar fight in a
telephone conversation with Duran.

Moreover, although no
other witness was able to identify Garcia or Duran, several witnesses saw two
men running away immediately after hearing shots fired. Contrary to Garcia's argument, such evidence
provides corroboration of portions of Rodriguez's out-of-court statements. The jury could reasonably conclude that her
pretrial statements were credible and discount her trial testimony as the
product of fear or a desire to avoid involvement.

3. Substantial
Evidence Supports Aiding and Abetting Theory. The case was tried on the theory that Garcia
was the shooter,href="#_ftn3"
name="_ftnref3" title="">>[3]
but the jury was instructed on both direct perpetrator and aiding and abetting
theories of liability. Garcia contends
that there was no substantial evidence that he aided and abetted the shooting
of Robertson by Duran. He also contends
that the record indicates that one juror voted to convict Garcia on a factually
invalid theory. We conclude that there
was substantial evidence to support conviction on both a direct perpetrator and
aider and abettor theory and, therefore, no error.

A person aids and abets
a crime when he or she commits, encourages or facilitates its commission with
knowledge of the unlawful purpose of the perpetrator and the intent or purpose
of committing, encouraging, or facilitating the offense. (People v. Beeman (1984) 35 Cal.3d
547, 560–561.) No particular factor is
dispositive in establishing knowledge and intent; the court must look at the
totality of the circumstances. (People
v. Medina (2009) 46 Cal.4th
913, 922.) "Among the factors which
may be considered . . . are: presence at
the scene of the crime, companionship, and conduct before and after the
offense." (In re Lynette G.
(1976) 54 Cal.App.3d 1087, 1094; see also In re Juan G. (2003) 112
Cal.App.4th 1, 5.)

Here, substantial
evidence shows that Duran and Garcia acted in concert beginning with the fight
in the Coachman Bar. Duran and Garcia
were angry over the fight which had strong racial overtones. Also, Duran was angry with Robertson because
he thought Robertson was too friendly with Duran's girlfriend. In addition, evidence shows that Duran and
Garcia travelled together from the bar to the area in which Robertson lived
which was approximately two miles away.
They approached Robertson together and one of them was carrying a gun. The evidence also shows that, after the
shooting, Garcia and Duran ran away together to Duran's home. The evidence shows that Garcia and Duran were
at the bar together and near Robertson's house both immediately before and
immediately after the shooting.

Because both theories of
liability are supported by the evidence, this uncertainty is immaterial. "'[A]s long as each juror is convinced
beyond a reasonable doubt that defendant is guilty of murder as name="sp_4040_1025">name="citeas((Cite_as:_22_Cal.4th_900,_*1025)">that offense is defined by
statute, it need not decide unanimously by which theory he is guilty. . .
.'" (People v. Jenkins (2000) 22 Cal.4th 900, 1024-1025.) A jury "'. . . need not decide
unanimously whether defendant was guilty as the aider and abettor or as the
direct perpetrator. . . . Not only is there no unanimity requirement as to the
theory of guilt, the individual jurors themselves need not choose among the
theories, so long as each is convinced of guilt. Sometimes, as probably occurred here, the
jury simply cannot decide beyond a reasonable doubt exactly who did what. There may be a reasonable doubt that the
defendant was the direct perpetrator, and a similar doubt that he was the aider
and abettor, but no such doubt that he was one or the other.' . . . [Although]
different facts would support aiding and abetting liability and liability as a
direct perpetrator, . . . the jury need not unanimously agree 'on the precise
factual details of how a killing under one or the other theory occurred in
order to convict defendant of first degree murder.'" (Ibid.;
see also People v. Santamaria (1994) 8 Cal.4th 903, 918-919;
Schad v. Arizona (1991) 501 U.S. 624, 631-632.)

4. >Substantial Evidence of Premeditation and
Deliberation. Garcia also claims
there was no substantial evidence of the premeditation and deliberation
required for a first degree murder conviction.
We disagree.

An
intentional killing is premeditated and deliberate if it resulted from
preexisting thought and reflection rather than unconsidered or rash
impulse. (People v. Hughes (2002) 27 Cal.4th 287, 370-371.) The requisite reflection does not require a
specific or extended period of time.
Thoughts may follow each other with great rapidity and a calculated
decision may be arrived at quickly. (>People v. Mayfield (1997) 14 Cal.4th 668,
767; see also People v. Stitely
(2005) 35 Cal.4th 514, 543.)

Appellate
courts typically rely on three kinds of evidence in resolving the issue of
premeditation and deliberation: motive,
planning activity, and manner of killing.
(People v. San Nicolas (2004)
34 Cal.4th 614, 658, citing People v.
Anderson (1968) 70 Cal.2d 15.) These
factors, however, provide a framework and are not prerequisites for
premeditation or deliberation (People v.
Hawkins (1995) 10 Cal.4th 920, 957) and need not be present in any
particular combination or degree. (>People v. Burney, supra, 47 Cal.4th at
p. 235.)

Here,
the record discloses evidence of motive, planning, and manner of killing from
which a reasonable jury could conclude that Garcia acted with premeditation and
deliberation. Evidence of planning
includes the close proximity of the shooting to the bar fight, possession of a
gun prior to the shooting, and Duran's telephonic statements to Rodriguez that
he was upset about the beating of Garcia in the bar fight. In addition, there is evidence that Garcia
and Duran fired two gunshots outside Rodriguez's apartment before they walked
towards Robertson's home and shot him.
Evidence that Garcia was a gang member and the importance of retaliation
and reputation in gang culture provides evidence of motive.

The manner of the shooting also shows
premeditation and deliberation. Garcia
and Duran approached Robertson with a gun and fired several shots from close
range with the clear intent to kill.
Such evidence "shows a calculated design to ensure death rather
than an unconsidered explosion of violence." (People
v. Horning (2004) 34 Cal.4th 871, 902-903; People v. Koontz (2002) 27 Cal.4th 1041, 1082.) Considering this evidence as a whole, the
jury reasonably could conclude that Garcia "thought before he
acted." (People v. Villegas (2001) 92 Cal.App.4th 1217, 1224.)

No Error in Aiding and
Abetting Instruction

Garcia contends that the trial court erred in
instructing the jury on aiding and abetting by failing to inform the jury that
an aider and abettor's liability depends upon his own mens rea. We disagree.


Garcia has forfeited this contention on
appeal because he did not object and request a modification of the standard
form CALCRIM No. 401 jury instruction. (>People v. Lopez (2011) 198 Cal.App.4th
1106, 1118-1119.) A party may not claim
an instruction that is generally correct is incomplete or misleading unless he
has first requested clarifying instructions in the trial court. (People
v. Canizalez (2011) 197 Cal.App.4th 832, 849; Lopez, at pp. 1118-1119.)

Even
if the issue had not been forfeited, there was no instructional error. It is undisputed that the guilt of an aider
and abettor is determined by his own mental state and an aider and abettor may
be convicted of a greater or lesser crime than the perpetrator. (People
v. McCoy (2001) 25 Cal.4th 1111, 1114; People
v. Lopez, supra, 198 Cal.App.4th at p. 1118.)

"'Aider and
abettor liability is premised on the combined acts of all the principals, but
on the aider and abettor's own mens
rea.'
[Citation.] We have defined the
required mental states and acts for aiding and abetting as: '(a) the direct perpetrator's actus reus—a
crime committed by the direct perpetrator, (b) the aider and abettor's mens
rea—knowledge of the direct perpetrator's unlawful intent and an intent to
assist in achieving those unlawful ends, and (c) the aider and abettor's actus
reus—conduct by the aider and abettor that in fact assists the achievement of
the crime.'" (People v. Thompson
(2010) 49 Cal.4th 79, 116–117.) Here, the trial court
instructed the jury with the standard version of CALCRIM No. 401 which
correctly informed the jury of these principles of aider and abettor liability.href="#_ftn4" name="_ftnref4" title="">[4] There is nothing in the jury instructions as
given which could have confused the jury that an aider and abettor is equally
guilty as the direct perpetrator regardless of the aider and abettor's own
mental state. We presume that jurors
understand, correlate, and follow the court's instructions. (People
v. Castaneda (2011) 51 Cal.4th 1292, 1320-1321; People v. Lopez, supra, 198 Cal.App.4th at p. 1119.) name=B00062028225044>

No Prosecutorial Misconduct

Garcia contends the prosecutor committed
misconduct by misstating the evidence during argument, and by asking questions
during his trial examination of Rodriguez which insinuated the existence of
facts for which there was no evidence.
He argues that the prosecutor falsely claimed that witnesses who saw men
running from the shooting corroborated Rodriguez's unsworn statements regarding
the clothing worn by Garcia. He also
argues that the prosecutor asked Rodriguez questions at trial which insinuated
that she recanted her unsworn statements incriminating Garcia because of
threats against her when, in fact, there was no evidence of any threats. We conclude that there was no misconduct by
the prosecutor.

As respondent argues, Garcia has forfeited
both of his prosecutorial misconduct claims by failing to object to the
prosecutor's argument or questions at trial.
(People v. Thompson, supra, 49
Cal.4th at p. 121.) We reject
Garcia's assertion that objection in the trial court would have been futile and
that an admonition would not have cured any purported misconduct. Even if there had been misconduct, nothing in
the record supports the futility of objections or the inadequacy of
admonitions. We will address Garcia's contention on the merits,
however, because he argues in the alternative that his trial counsel's failure
to object amounted to ineffective assistance of counsel.

It is misconduct for a prosecutor to misstate
or mischaracterize the evidence during argument, or assert facts that are not
based on the evidence at trial. (People
v. Davis (2005) 36 Cal.4th 510, 550.) A prosecutor's reference to facts not in
evidence is misconduct because it "'tend[s] to make the prosecutor his own
witness—offering unsworn testimony not subject to cross-examination. . .
.'" (People v. Hill (1998)
17 Cal.4th 800, 827-828, overruled on another ground in >Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13.) A
prosecutor, however, "is given wide latitude to vigorously argue his or
her case and to make fair comment upon the evidence, including reasonable
inferences or deductions that may be drawn from the evidence." (People v. Ledesma (2006) 39 Cal.4th
641, 726.) A prosecutor may argue
points and draw reasonable evidentiary inferences which are at odds with
defendants' view of the evidence. (People
v. Dennis (1998) 17 Cal.4th
468, 522.)

Garcia argues that there
was misconduct when the prosecutor claimed that testimony from witnesses
supported the unsworn statement by Rodriguez that Garcia was wearing a white
tee shirt. Because testimony from other
witnesses indicated that Garcia was wearing a white or light-colored tee shirt,
the prosecutor's argument fairly interpreted and characterized the state of the
evidence.

Bartender Joshua Caldera
testified that he thought Garcia was wearing a white tee shirt during the bar
fight. Genaro Cuevas testified that he
saw an Hispanic man wearing a white tee shirt running away. Teresa Bautista and her husband testified
that one of the two persons they saw running from the scene was wearing light
clothing. Although witness statements
were not identical and the men running away were difficult to see, there is
ample testimony to support the prosecutor's argument that Garcia was wearing a
white tee shirt.

It is also misconduct for
a prosecutor to ask a witness questions which suggest facts adverse to the
defendant without a good faith belief that the facts are true and could be proven. (People v. Bolden (2002) 29
Cal.4th 515, 562; People v. Mooc (2001) 26 Cal.4th 1216, 1233.)

Here, in response to trial testimony which
was inconsistent with her unsworn statements incriminating Garcia, the
prosecutor asked Rodriguez whether she had been threatened by anyone. name="SDU_11">On direct examination, the
prosecutor asked Rodriguez if she were afraid to testify. She said "no," but admitted that
she may have told other people that she was afraid. The prosecutor also asked her what she meant
by her pretrial statement that "[you had] to live here." She answered that she did not want to get
involved, and that testifying might "put me and my girls in harm's
way." Also, prior to trial,
Rodriguez said that she did not want to report threats to the police. When asked by the prosecutor at trial about
this statement, she said she had not received any threats but "was feeling
scared."

The prosecutor's question did
not constitute misconduct. There is no
basis in the record to conclude that the prosecutor did not have a good faith
belief that Rodriguez would testify that she had been threatened and, in
essence, Rodriguez gave testimony supporting that inference that she was
afraid. Rodriguez admitted that she
feared testifying and was worried about retaliation against her and her
family.

Substantial Evidence
Supports Gang Enhancement

Garcia contends that there was insufficient
evidence to support imposition of a gang enhancement. He concedes membership in a href="http://www.mcmillanlaw.com/">criminal street gang, but argues that
there was no substantial evidence that the murder was committed for the benefit
of his gang "with the specific intent to promote, further, or assist"
criminal conduct by gang members. (§
186.22, subd. (b)(4).) We disagree and
conclude that substantial evidence supports the jury's finding.

A
gang enhancement requires proof of the existence of a criminal street gang and
that the offense was "committed for the benefit of, at the direction of,
or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members . . .
." (§ 186.22, subd. (b)(4).) Expert testimony is admissible to prove these
elements, including the motivation for a crime, and whether a crime was
committed to benefit or promote a gang.
(People v. Albillar, supra, 51
Cal.4th at p. 63; People v. Garcia
(2007) 153 Cal.App.4th 1499, 1512.) But,
an expert's opinion must be based on the evidence, not on speculation or
conjecture, and more than mere gang membership is required. (People
v. Gardeley (1996) 14 Cal.4th 605, 617-618.) We apply the substantial evidence standard in
assessing the sufficiency of the evidence supporting a gang enhancement. (People
v. Albillar, supra, 51 Cal.4th at
pp. 59-60.)

Here, Santa Maria Police Officer Louis Tanore
testified as the prosecution's gang expert.
He testified that he was familiar with the Tanglewood gang, Garcia was a
hard core member of that gang, and the murder was committed for the benefit of
the gang. He based his opinion upon
evidence that (1) the murder closely followed a fight at the Coachman Bar
between Garcia and a much smaller African-American man, (2) at the time of the
fight, Garcia identified himself as a member of the Tanglewood gang to all
others in the bar by calling out the name "Wood" and flashing a gang
sign, and (3) Garcia had suffered a humiliating defeat at the hands of the
smaller man in the fight.

Tanore
testified that respect is critical to gangs and that gang members tend to react
violently to individuals who disrespect the gang. Tanore testified that a hard core gang member
such as Garcia is expected to retaliate against violence in order to maintain
his status in the gang. Failure to
retaliate would be viewed as a sign of weakness which would damage the
reputation of Garcia in the gang. Tanore
testified that the combination of Garcia being humiliated in the fight with a
much smaller man and racial animosity required immediate and extreme
retaliation to protect his status in the gang.
(See People v. Albillar, supra,
51 Cal.4th at p. 63 [expert opinion that a crime benefited a gang by enhancing
its reputation for viciousness can be sufficient to show the crime was
committed for the benefit of the gang].)


A gang enhancement also requires proof that
the offense was committed with the "specific intent to promote . . .
criminal conduct by gang members."
(§ 186.22, subd. (b)(1).)
Circumstantial evidence of intent is sufficient. Courts "'. . . routinely draw inferences
about intent from the predictable results of action. . . .'" (People
v. Miranda (2011) 192 Cal.App.4th 398, 411-412.) If substantial evidence otherwise establishes
that the offense was gang related, the jury reasonably may infer the required
specific intent. (See >People v. Albillar, supra, 51 Cal.4th at
pp. 67-68.)





No Abuse of Discretion in
Denying Bifurcation of Gang Enhancement

Garcia
contends the trial court abused its discretion by refusing to bifurcate the
gang enhancement from the trial of the offenses. We disagree.

A
trial court has discretion to bifurcate gang enhancement allegations if it
determines that the probative value of the gang evidence is outweighed by a
risk of undue prejudice. (Evid. Code, §
352; People v. Hernandez (2004) 33
Cal.4th 1040, 1049.) Gang evidence
always carries a potential for prejudice and, when gang enhancements are not
alleged, the probative value of such evidence is often minimal. Conversely, when an offense is alleged to be
gang related, gang evidence is relevant and highly probative to prove elements
of the charged offense. (>Hernandez, at p. 1049.) Evidence of the defendant's gang affiliation,
the beliefs and practices of the gang, and the gang's criminal enterprises
"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." (Ibid.) To the extent that
evidence supporting a gang enhancement is admissible at a trial of the offense,
bifurcation is not necessary. (>Id. at pp. 1049-1050.)

We conclude that there was no abuse of
discretion in this case. The prejudicial
effect of gang evidence did not outweigh its probative value to prove motive
and identity and explain the existence of fear and intimidation that could have
caused Rodriguez to recant her unsworn statements during her href="http://www.fearnotlaw.com/">trial testimony.

The
gang evidence was intertwined with evidence of guilt and particularly relevant
to Garcia's identity, motive, and intent.
(People v. Hernandez, supra,
33 Cal.4th at p. 1048.)
"'"[B]ecause a motive is ordinarily the incentive for criminal
behavior, its probative value generally exceeds its prejudicial effect, and
wide latitude is permitted in admitting evidence of its existence." . .
.'" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168; >People v. Gonzalez (2005) 126
Cal.App.4th 1539, 1550.)

Garcia
argues that admission of evidence of a large number of predicate offenses was
prejudicial. We agree that admission of
many predicate offenses provides a potential for prejudice. (People
v. Hernandez, supra, 33 Cal.4th at p. 1049.) Nevertheless, the predicate offenses in this
case were not more serious than the charged offenses, and the number offered
into evidence was not so large as to cause significant prejudice. The burden is on the defendant to establish a
substantial danger of prejudice requiring bifurcation. (Id.
at p. 1051.) Garcia has failed to meet
that burden.

The
judgment is affirmed.

NOT
TO BE PUBLISHED.









PERREN,
J.





We concur:







GILBERT,
P. J.







YEGAN,
J.



Edward H. Bullard, Judge



Superior Court County of Santa Barbara



______________________________





Robert Franklin Howell, 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, Senior Assistant
Attorney General, Stephanie A. Miyoshi, Rama R. Maline, Deputy Attorneys
General, for Plaintiff and Respondent.