P. v. Casas

Filed 8/2/07 P. v. Casas CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Rafael Casas was convicted after court trial of attempted second degree murder (Pen. Code, 664, subd. (a), 187).[1] The court further found that defendant personally used a deadly or dangerous weapon in the commission of the offense ( 12022, subd. (b)(1)); that he committed the offense for the benefit of, or in association with, a criminal street gang ( 186.22, subd. (b)(1)(C)); and that he had served a prior prison term ( 667.5, subd. (b)). Defendant was sentenced to 15 years in state prison.

On appeal, defendant contends that: (1) there is insufficient evidence to support the conviction; (2) he was denied effective assistance of counsel; and (3) there is insufficient evidence to support the finding that he committed the offense for the benefit of, or in association with, a criminal street gang. We disagree with these contentions and, therefore, affirm the judgment.

BACKGROUND

Defendant was charged by information with attempted premeditated murder

( 664, subd. (a), 187, 189; count 1), and possession of methamphetamine for sale (Health & Saf. Code, 11378; count 2). The information further alleged that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the offense in count 1 ( 12022, subd. (b)(1)); that he personally inflicted great bodily injury on the victim ( 12022.7, subd. (a), 1203, subd. (e)(3)); and that he committed the offense for the benefit of, at the direction of, and in association with a criminal street gang ( 186.22, subd. (b)(1)(C)). In addition, the information alleged that defendant had served a prior prison term. ( 667.5, subd. (b)). Defendant waived his right to a jury trial and the prosecutor struck the allegation of premeditation in count 1. The prosecutor dismissed count 2 at the close of the prosecutions case.

The Prosecutions Case[2]

The Events of May 7, 2005

On May 7, 2005, defendant went to San Jose to install a stereo system in a black truck owned by Francisco Valdibia. When he was done, Valdibia drove defendant back to Gilroy. They stopped at a Rotten Robbie gas station there, where defendant saw his girlfriend Bianca Valasquez. Defendant went to talk to Valasquez while Valdibia put gas in his truck. Defendant appeared to Valdibia to be upset at Valasquez and was yelling at her. As Valdibia was leaving, he saw defendant being chased by two people. Valdibia stopped and defendant jumped in the truck. He yelled at Valasquez to get into the truck with him. Valdibia asked defendant what was happening. Defendant said that he was just fighting with his girlfriend, and he told Valdibia to just drive him home. Valdibia did so and then went home himself. He did not see defendant with a knife.

Valasquez[3] first met defendant in 2003. Defendant liked to wear red, and Valasquez knew that he was a Norteo gang member. By May 7, 2005, defendant and Valasquez had been living together for about five months. Around 11:30 p.m. that night, Valasquez was at the gas station with her friend Angelica in order to use the restroom. She saw defendant drive up in a black truck with somebody she did not recognize. Defendant saw Valasquez and asked her what she was doing there. He demanded that she go home with him and she refused. Defendant grabbed her by the arm and hair and yelled at her. Angelica yelled at defendant to let Valasquez go. Valasquez saw a man get out of a car, approach them, and ask her if she was all right. The man then hit defendant, causing him to fall to the ground. When defendant got up, Valasquez saw that he had a knife. The two men started fighting, but Valasquez did not see defendant stab the man. Defendant ran from the man back to the black truck, and the man and two women followed him. Defendant left in the truck before the others reached him. Defendant later told Valasquez that he hid the knife and told her to not say anything if asked about the incident.

Close to midnight on May 7, 2005, John Sablan,[4] his cousin Kristalyn Rodriguez, and her friend Erika were parked near the restrooms at the gas station. Rodriguez and Erika were in the front seat of Rodriquezs car, and Sablan was asleep in the back seat. They had all been drinking and Sablan was tired. Rodriguez woke Sablan up and asked him to help some woman. Sablan saw defendant, who was about 20 feet away and who was wearing a red T-shirt and black jeans, pull one womans hair while another woman tried to grab him off her. Sablan approached defendant and the two women. The two women were yelling at defendant in Spanish; they appeared to Sablan to be afraid and to want defendant to stop.

Sablan asked the women if they were all right or if they needed help. Defendant told Sablan to mind his own business and said, Youre fucking with the wrong Norteno. Defendant then ran at Sablan with his hands in a fist. Sablan understood that defendant was using a gang term and thought that defendant was going to hit him; he did not see a knife. He stood his ground and hit defendant in the face with his fist. Defendant fell to the ground, but got back up and said, Im going to kill you. Defendant and Sablan then began fighting.

After a few minutes, a black truck pulled up and defendant ran to it and got in the passenger side. Sablan and Rodriquez chased defendant, but the truck drove off. Rodriguez asked Sablan if he had been hurt. Sablan lifted up his shirt and they saw a lot of blood. Rodriguez drove Sablan to the hospital where he received medical attention for stab wounds on his left abdomen, his left bicep, and the back of his left shoulder. The wound on his bicep required six stitches; two wounds on his abdomen required six and two stitches, respectively; and the wound on his left shoulder also required about six stitches. All of the wounds left scars that were still visible at the time of the May 2006 trial.

Sablan was in the hospital for about two hours, during which time he and Rodriguez gave statements to officers from the Gilroy Police Department. The officers then took Sablan to the police station and showed him a photographic lineup. He was not able to identify anyone that night as his assailant.

Gilroy Police Officer Michael Bolton met Sablan at the hospital shortly after midnight on May 8, 2005. Medical personnel told Bolton that Sablans wounds were not life threatening but would require stitches. Sablan, who smelled of alcohol but did not appear intoxicated, told Bolton that he approached a man who was assaulting two women. Sablan asked the women if they needed help, but they did not respond. He wanted to stop the assault, so he verbally confronted the man. The man told Sablan,  you fucked with the wrong Norteno. The man tried to assault Sablan, but Sablan struck him. The man produced a knife, said, Im going to fucking kill you, and then stabbed Sablan in the left rib area.

When Valdibia first talked to an officer about the incident two or three weeks later, he lied because he was afraid. He said that he did not know whether defendant was at the gas station. He knows that defendant wears red, but he did not know that defendant was a gang member until the officer told him. Valasquez also originally told officers that defendant was not at the gas station. However, when she recognized Valdibia at the police station she said that defendant had been at the gas station. In a jail telephone conversation, defendant threatened Valasquez because she had testified at the preliminary hearing.

The Gang Evidence

Gilroy Police Officer Gregory Flippo testified as an expert in Hispanic criminal street gangs. There are Norteo and Sureo gangs, and Norteos are the dominant gangs in Gilroy. Norteos identify with the color red, the number 14, and the symbols of the Northern Star and the Welga Bird. The primary activities of the Norteo gangs are murder, assault with a deadly weapon, robbery, carjacking, theft, drug sales, and witness intimidation. A certified record for Paul Zapata, a validated Norteo gang member, showing that he was convicted of murder, was admitted into evidence as exhibit 9. The murder occurred approximately 40 yards away from where the current stabbing incident occurred.

Defendant is a validated Norteo gang member. He has gang tattoos on his hands and right arm. At the time of his arrest on May 14, 2005, defendant was wearing a red belt and a shirt that had a red Welga Bird and Norteo printed in bold red letters on it. Defendant told Flippo during an interview that he has been a Norteo gang member all of his life. Flippo also has reviewed approximately 22 police reports and police identification cards going back to 1995 stating that defendant was seen wearing gang clothing and associating with other Norteo gang members. On June 7, 2004, defendant was sentenced to state prison for his conviction by plea to a felony violation of section 245, subdivision (a)(1). At the time of the May 7, 2005, incident, defendant was wearing a red shirt and he told Sablan, youre fucking with the wrong Norteo.

Based on all of defendants history and the current offense, Officer Flippo believed that defendant is a Norteo gang member. Based on defendants statement to Sablan when defendant stabbed him, Flippo believed that defendant committed the offense to benefit the Norteo criminal street gang, although the incident did not start as a gang-related attack. Defendants actions benefited the gang and enhanced its reputation. The gangs reputation is based on fear and intimidation, which helps the members in their criminal activities. And, the stabbing incident occurred in a known Norteo gang area. Comments such as the ones defendant made to Sablan are often made to non-gang members. The comments build the individuals status with the gang, build the reputation of the gang, and instill fear in the victims and potential witnesses.

The Defense Case

Defendant testified in his own defense that he happened to see Valasquez at the gas station and wanted to talk to her. They started arguing and he grabbed her by her wrist. At the time, he had been using methamphetamine and had not slept for three or four days. A man came running at him from behind without saying anything. When defendant turned around, the man hit him, causing him to fall to the ground. When he got up, the man hit him again. Defendant said, what the fuck, like whats happening. He tried hitting the man, but the man was too fast for him. Defendant fell to the ground again and pulled out the knife he had used to peel wires on the truck stereo system in order to try to scare the man off, but the man kept attacking him. He then ran to the truck, but the man came after him. The man tried to open the truck door after defendant got inside, and he and another person ran after the truck when it took off. Defendant did not know that he had stabbed the man; he did not feel the knife going in the mans body and he did not see any blood. He lost the knife at the gas station and never found it again. He was arrested about one week later.

Defendant said that he grew up with and hangs around gang members but he denied being a Norteo gang member himself. He admitted having pleaded no contest to two 2003 misdemeanor counts of battery on a cohabitant and a felony count of assault with a deadly weapon, and having served a two-year prison term. None of his offenses were gang-related. He was on parole and was wearing a maroon 49ers jersey at the time of the gas station incident.

Verdicts and Sentencing

On June 2, 2006, the trial court found defendant guilty of attempted murder

( 664, subd. (a), 187), and found that he personally used a deadly and dangerous weapon, a knife, during the commission of the offense ( 12022, subd. (b)(1)); that he committed the offense for the benefit of, or in association with, a criminal street gang

( 186.22, subd. (b)(1)(C)); and that he had served a prior prison term ( 667.5, subd. (b)). The court found the allegation that defendant inflicted great bodily injury on the victim ( 12022.7) to be not true. On July 24, 2006, the court sentenced defendant to 15 years in state prison, the sentence consisting of the lower term of five years for the attempted murder with a consecutive term of 10 years for the gang enhancement. The court struck the punishment for the personal-use and prison-prior enhancements pursuant to section 1385.

DISCUSSION

Attempted Murder

Defendant contends that he has been denied due process as there is insufficient evidence to support the finding of attempted murder. He argues that the prosecution failed to carry its burden of showing that the attempt to kill was not the result of a sudden quarrel or heat of passion.

In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 139; see also People v. Catlin (2001) 26 Cal.4th 81, 139 (Catlin).) [W]e do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, 312.) We simply consider whether any rational trier of fact could have found the essential elements of [defendants] crime beyond a reasonable doubt. [Citations.] [Citation.] (People v. McCleod (1997) 55 Cal.App.4th 1205, 1221.)

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. [Citation.] (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

The elements of attempted murder and attempted voluntary manslaughter due to a sudden quarrel or in the heat of passion are set out in Judicial Council of California Criminal Jury Instructions (2006) CALCRIM Nos. 600 and 603.

To prove that the defendant is guilty of attempted murder, the People must prove that: [] 1. The defendant took at least one direct but ineffective step toward killing [a person]; AND [] 2. The defendant intended to kill that [person].

A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.

[A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control. . . .] (CALCRIM No. 600.)

An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion.

The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if: [] 1. The defendant took at least one direct but ineffective step toward killing a person; [] 2. The defendant intended to kill that person; [] 3. The defendant attempted the killing because [he or she] was provoked; [] 4. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment; AND [] 5. The attempted killing was a rash act done under the influence of intense emotion that obscured the defendants reasoning or judgment.

Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.

In order for heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as . . . defined . . . . While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.

It is not enough that the defendant simply was provoked. The defendant is not allowed to set up [his or her] own standard of conduct. . . . In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.

[If enough time passed between the provocation and the attempted killing for a person of average disposition to cool off and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempt voluntary manslaughter on this basis.]

The People have the burden of proving beyond a reasonable doubt that the defendant did not attempt to kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, [defendant must be found] not guilty of attempted murder. (CALCRIM No. 603.)

In finding defendant guilty of attempted murder, the trial court stated: As to the charge in Count 1 the charge is attempted murder. It requires two primary elements. First, that Mr. Casas took at least one direct but ineffective step toward killing another and, two, that he intended to kill that person. In that regard as to the act certainly the stabbing four times of Mr. Sablan would constitute direct though ineffective steps toward killing him. His own word[s ]youre fucking with the wrong Norteno[] and []Im going to kill you,[] combined with the reasonable inferences from the physical acts more than support a conclusion that Mr. Casas intended to kill Mr. Sablan. Having determined that Im satisfied that the that the prima facie case of attempted murder has been proven, and now the Court must evaluate any defenses or mitigators in determining whether in fact theres anything that reduces the case from attempted murder. The defendant has claimed through his testimony self-defense. . . . Certainly after considering all the evidence I dont have a reasonable doubt that [the] assault by defendant was in self-defense.

The next issue becomes as to whether there is evidence that would mitigate a finding of malice such that this would constitute an attempted voluntary manslaughter based on a theory of imperfect self-defense as argued by Defense. . . . Im more than satisfied that it has been proven beyond a reasonable doubt and its the Peoples burden to prove beyond a reasonable doubt that this is not attempted voluntary murder excuse me manslaughter. Im satisfied that it was not that the defendant did not subjectively believe that he was in imminent danger of being killed or suffering great bodily injury. Certainly as the primary aggressor, as the Court has determined, and beginning the chain of events that led to the stabbing of the defendant [sic] the Court does not believe that this is a case of imperfect self-defense that would mitigate the finding of malice in this case. Therefore, the Court is satisfied beyond a reasonable doubt that the defendant is guilty of the charge in Count 1, . . . attempted murder.

The court did not expressly find that defendants attempt to kill was not because of a sudden quarrel or in the heat of passion. However, the court expressly found that defendant did not subjectively believe that he was in imminent danger of being killed or suffering great bodily injury when he attempted to kill Sablan. By doing so, the court implicitly found that defendant was not provoked and/or that any provocation was not sufficient to have caused a person of average disposition to act rashly and without due deliberation at the time defendant stabbed Sablan four times. Substantial evidence supports this implied finding.

The record shows that Sablan approached defendant when he saw defendant grabbing the arm and hair of one woman while another woman tried to get defendant off her. The women appeared to Sablan to be afraid and to want defendant to stop. When Sablan asked the women if they needed help, defendant turned his attention from the women to Sablan, and made a comment regarding his gang affiliation. Although Sablan struck the first blow, he did so in response to defendants assault on the woman as well as defendants gang comment and movement toward him. Defendant fell to the ground, and then escalated the situation by telling Sablan that he was going to kill him, pulling out a knife, and stabbing Sablan four times during their mutual combat. This is substantial evidence supporting the courts implied finding that defendants attempt to kill Sablan by stabbing him four times was not provoked and/or there was not sufficient provocation that would have caused a person of average disposition to act as defendant did. As substantial evidence supports the courts implied finding that defendant committed attempted murder rather than attempted voluntary manslaughter due to a sudden quarrel or in the heat of passion, no due process violation has been shown.

Ineffective Assistance

Defendant contends that he was denied the effective assistance of counsel due to counsels failure to argue that his intent to kill was because of a sudden quarrel or in the heat of passion. He argues that there is nothing in the record indicating why counsel failed to raise this potentially meritorious defense, and that there is a reasonable probability that the outcome of his trial would have been different had counsel raised it.

A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsels failings. [Citations.] (People v. Price (1991) 1 Cal.4th 324, 440; see also Strickland v. Washington (1984) 466 U.S. 668, 687-696 (Strickland).) Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citation.] (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed. (Strickland, supra, 466 U.S. at p. 697.)

Although defense counsel did not argue to the court that any finding of intent to kill should be mitigated by a finding of a sudden quarrel or heat of passion, the issue was presented to the court by way of the prosecutors argument: I would comment if the court is entertaining the ideas of possible manslaughter, attempted manslaughter under either a heat of passion or an imperfect self-defense, I would submit to the court that the heat of passion is not within the realm of possible defenses or mitigating defenses because it is unreasonable that [] The reasonable, everyday person is not going to, first of all, beat up his girlfriend in the parking lot of Rotten Robbie on Saturday night; but hes not going to pull out a knife and start stabbing somebody because he gets punched after hes been beating up his girlfriend, which is the standard of a reasonable person. [] Reasonable behavior wouldnt cause a person to come to act as the defendant did, which is to pull a knife and try to stab this person to death. Heat of passion, which mitigates an attempted manslaughter, that an ordinary person is going to act like the defendant did under same or similar circumstances. And an ordinary person is not going to pull out a knife and try to stab the person, in the totality.

The court stated that it was aware that it was the prosecutors burden to prove beyond a reasonable doubt that defendants actions did not constitute attempted voluntary manslaughter rather than attempted murder. The prosecutor argued that the evidence supported a finding that defendants actions did not constitute attempted voluntary manslaughter under a heat-of-passion theory. Defense counsel argued defendants claim of self-defense and imperfect self-defense. In light of the prosecutors argument, and the trial courts express finding that defendant did not subjectively feel that he was in imminent danger of being killed or suffering great bodily injury when he pulled out a knife and stabbed Sablan, it is not reasonably probable that a result more favorable to defendant would have occurred had defense counsel also argued that defendants stabbing of Sablan was because of a sudden quarrel or in the heat of passion. Defendant has not shown that counsel rendered ineffective assistance.

Gang Enhancement

Defendant contends that the true finding on the gang enhancement must be reversed as there is insufficient evidence to support it. He argues that there is insufficient evidence that he had the specific intent to benefit the Norteo gang when he committed the attempted murder.

The same standard of review applies to claims of insufficiency of the evidence to support a gang enhancement finding as for a conviction. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) We examine the record to determine whether it shows 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. [Citation.] Further, the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (Catlin, supra, 26 Cal.4th at p. 139.) A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citation.] (People v. Raley (1992) 2 Cal.4th 870, 891.)

This standard applies whether direct or circumstantial evidence is involved. (Catlin, supra, 26 Cal.4th at p. 139.) The element of intent is generally proved with circumstantial evidence. Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.] (Peoplev. Pre (2004) 117 Cal.App.4th 413, 420.) Evidence to support the element of specific intent may be shown by a defendants conduct, including any words the defendant may have spoken, and by all the circumstances surrounding the commission of the acts. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690-691.)

Section 186.22, subdivision (b)(1)(C) imposes additional punishment of 10 years when a defendant is convicted of a violent felony as defined in section 667.5, subdivision (c), 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)(1).) Attempted murder is listed as one such violent felony. ( 667.5, subd. (c)(12).) The essential elements of an allegation under section 186.22, subdivision (b)(1), are: (1) the crime charged, in this case attempted murder, was committed for the benefit of, at the direction of, or in association with a criminal street gang; and (2) the crime was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales).) Defendant contends that the prosecution failed to establish the latter element of the enhancement.

The record discloses that Sablan saw defendant grab Valasquezs arm and hair while another woman tried to get defendant to stop. Both women appeared to Sablan to be afraid, so Sablan approached them and asked if they needed help. Defendant turned his attention from the women to Sablan. During the ensuing mutual combat, defendant said, Im going to kill you, pulled out a knife, and stabbed Sablan four times. We have already determined that this is sufficient evidence to support the courts finding that defendant committed attempted murder.

The record further discloses that Valasquez testified that she knew that defendant was a Norteo gang member and that he liked to wear red clothing. Detective Flippo testified that Norteo gang members identify with the color red, that the charged offense occurred in a known Norteo gang area, that defendant was wearing a red T-shirt at the time of the charged offense, and that defendant admitted to the detective that he has been a Norteo gang member all his life. When Sablan approached and asked Valasquez and her friend if they needed help, defendant stated, Youre fucking with the wrong Norteno. Sablan understood that defendant was using a gang term and thought defendant was going to hit him, so he struck first. Defendant said, Im going to kill you, pulled out a knife, and stabbed Sablan four times during the ensuing mutual combat. Detective Flippo testified that defendants actions benefited the gang and enhanced its reputation. The gangs reputation is based on fear and intimidation, which helps the members in their criminal activities. Detective Flippo also testified that comments such that the ones defendant made to Sablan are often made to non-gang members; the comments build the individuals status with the gang, build the reputation of the gang, and instill fear in the victims and potential witnesses.

We conclude that this is sufficient evidence to support the section 186.22, subdivision (b)(1)(C) element that the attempted murder was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. In our limited role of evaluating a sufficiency-of-the-evidence claim, we do not reweigh the evidence, redetermine issues of credibility, or second-guess whether we would have reached a conclusion different from the trier of fact. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931; see also In re Ramon T. (1997) 57 Cal.App.4th 201, 207-208.) Thus, as another appellate court reasoned in rejecting a similar challenge to a gang enhancement finding: Here a qualified expert testified the participation of a Southside gang member in a Townsend Street retaliation killing would benefit Southside by enhancing its respect. It was for the [trier of fact] to assess the weight of that testimony in the first instance, and since we believe a rational [trier of fact] could have been convinced by it, we cannot deem it insufficient. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1384.)

There is no requirement in section 186.22, subdivision (b), that the defendants intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits. To the contrary, the specific intent required by the statute is to promote, further, or assist in any criminal conduct by gang members. (Pen. Code, 186. 22, subd. (b), italics added.) Therefore, defendants own [conduct] qualified as the gang-related criminal activity. No further evidence on this element was necessary. (People v. Hill (2006) 142 Cal.App.4th 770, 774.) We find substantial evidence supports the courts finding that defendant committed the attempted murder for the benefit of, or in association with, a criminal street gang.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

Mcadams, J.

_________________________

duffy, J.

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[1] Further statutory references are to the Penal Code unless otherwise specified.

[2] As the prosecutor dismissed count 2, we do not set forth the evidence presented in support of that count.

[3] Valasquez testified that she was convicted of two counts of felony burglary in 1998.

[4] Sablan testified that he was convicted in 2003 of battery on a peace officer ( 243, subd. (b)), and possession of a firearm ( 12021, subd. (c)).