P. v. Garcia

Filed 9/14/06 P. v. Garcia CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A109855

v. (Alameda County

Super. Ct. No. CH35437)

JORGE GARCIA,

Defendant and Appellant.

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Jorge Garcia appeals from a judgment entered after a jury convicted him of attempted murder, (Pen. Code, §§ 187, 664, subd. (a))[1] and assault with a firearm (§ 245, subd. (a)(2)). He contends his conviction must be reversed because the prosecutor committed misconduct during final argument. We will reject this argument and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 24, 2003, shortly before 10:30 p.m., 16-year-old Ben Cruz was sitting with a friend in a park in Fremont. Cruz was a member of the Norteño street gang and he was wearing clothing that identified him as a member of that gang. The park was known to be a place where Norteños congregate.

Cruz and his friend noticed a car circling the park. After several trips around, the car stopped under a street light. Someone got out, yelled a term that is derogatory to Norteños, and threw a bottle at Cruz's friend. Appellant then got out of the car carrying a shotgun. Without saying a word, he lifted the shotgun and pointed it at Cruz. Cruz saw the weapon and started to run. Appellant fired. The shot hit Cruz. He stumbled to a nearby house and banged on the front door. The residents inside refused to admit him but they did call the police.

The police arrived and found Cruz lying on the porch bleeding from his abdomen. He told one of the officers that he had been shot by members of the Sureños, a rival street gang. Although Cruz did not know the name of the shooter, he believed he could recognize him. He provided a description of the car the suspects were driving.

A few minutes later, a police officer on patrol saw a car that matched the description of the one that was involved in the shooting. He stopped it. The driver, Alfonso Martinez, did not have a license. He did however, have a Sureño tattoo on his forearm and was wearing clothing that indicated he was a member of that gang. The officers arrested Martinez and towed his car. During an inventory search, a camera loaded with film was located. The pictures on the film showed Martinez, appellant and others at a beach making gang signs and showing gang symbols.

Detective Jason Lambert, an expert in gang-related crime, was assigned to investigate the shooting. He contacted appellant two days after the crime. Appellant told Lambert that on August 24, 2003, he went to the beach at Half Moon Bay.

Another detective went to visit Cruz while he was in the hospital. Cruz was medicated on morphine at the time. The detective showed Cruz a photographic line-up of possible suspects. Cruz identified someone other than appellant saying he â€