P. v. Hernandez

Filed 10/27/06 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge.

Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, David A. Rhodes and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Eduardo Hernandez was convicted of the first degree murder of Paul Lemos. In addition, the jury found true the special circumstance that the murder was committed during the commission of an attempted robbery. (Pen. Code, § 190.2, subd. (a)(17).^[1])^[2] The jury also found that a principal discharged a gun causing death during the commission of the offense and that the crime was committed for the benefit of a criminal street gang. (§ 12022.53, subds. (d) & (e)(1), § 186.22.) Defendant was sentenced to prison for a term of life without the possibility of parole. An additional consecutive sentence of 25 years to life was imposed for the discharge of a gun.

Defendant appeals, claiming he was not provided the effective assistance of counsel and the trial court erred in denying his motion for mistrial after his counsel was arrested for driving under the influence of methamphetamine after the verdict but before sentencing. In addition, defendant asserts the evidence was insufficient to support his conviction and the special circumstance, and the court erroneously instructed the jury regarding conspiracy. We affirm.

Facts

A. Background

Defendant, Jose Guzman, Jose Perez, and Laura Holt were all charged with the first degree murder of Paul Lemos. After being arraigned, Holt wanted to talk to law enforcement officers. She reached a plea agreement with a prison term of 13 years in exchange for her truthful testimony at the trials of her codefendants. Guzman and defendant were tried together and both were convicted of murder and additional allegations. Perez was tried separately and was convicted of first degree murder, two special circumstances, plus firearm and gang allegations.^[3] The jury was told that Holt was an accomplice as a matter of law and that her testimony required corroboration.

B. Accomplice Testimony

Laura Holt was with defendant, Perez, and Guzman on December 29, 2003. They spent part of the evening drinking at someone’s house in Laton, and then Holt drove the group in her car to a basketball game in Riverdale. As it turned out, they did not attend the game and after a short period of time they returned to Laton and went to the home of Jose Rodriguez (a.k.a. Huero).

Holt, defendant, Guzman and Perez smoked methamphetamine with Rodriguez, joined by Anthony Ruelas (a.k.a. Crack). Defendant, Guzman and Perez began talking about robbing someone. Guzman asked Rodriguez for a gun. Rodriguez did not want to give it to him. Guzman told Rodriquez that he was not going to shoot the gun; he only needed it to scare someone while he robbed them. Rodriguez gave the gun to Guzman.

At trial Holt was shown a photograph of a gun, and she testified that the gun looked like the gun Rodriguez gave to Guzman.

Holt, defendant, Guzman and Perez left in Holt’s car. Holt was driving. They drove around trying to decide where to go to rob someone. While driving around, Perez, Guzman and defendant talked about the robbery. They discussed stealing a vehicle with a stereo system. They drove to Hanford to find their target. They drove around the Hanford mall parking lot to look at cars. They did not find anything that suited their purposes.

Discussions continued, and Perez said he wanted to do a carjacking. Defendant wanted to do a home invasion. Guzman did not join in this discussion. Guzman and Perez argued over who was going to possess the gun. Guzman finally let Perez have his way and possess the gun. The gun had been loaded previously in the car by Guzman.

The group then drove to a residential area and looked around. Again finding nothing, they returned to the area of the mall. They saw a blue Chevrolet truck, lowered, with tinted windows, driven by Paul Lemos, the victim. Defendant liked the truck and told Holt to follow it. She did. Holt parked her car nearby while Lemos drove through the drive-through at Taco Bell and purchased food.

Holt continued to follow the truck. At one stop light, the victim’s truck was next to another nice truck. The group decided that the victim’s truck was the nicest. Perez got up and started to go towards the truck when Guzman and defendant told him to get back in the car.

They followed the victim in his truck until the victim arrived at his house. Holt backed the car up and stopped at the corner. She could not see the truck from her location. Perez and defendant jumped out and ran towards the truck. Defendant told Holt to follow them after they obtained the truck. Guzman got out shortly afterwards and stood near the car. Holt was not sure if Guzman stayed near the car because she was feeling ill from the drugs and wasn’t paying attention. She kept the engine running.

Holt heard two gunshots. Guzman got in the car. Perez and defendant ran to the car and got in. They told her to take off. She did.

In the car, defendant said that he was punching the victim. The victim was scared and crying. Defendant told Perez he should have used his hands instead of a gun to take things from the victim. Perez stated that he thought he shot the victim in the shoulder and missed with the other two shots. Defendant said that Perez should have taken the victim’s wallet while defendant was punching him.

Holt drove the group back to Laton. She was told not to say anything. Holt dropped Perez off at his house so he could change his clothes and wash up to get rid of any gun residue. Holt, defendant, and Guzman drove back to Rodriguez’s home and again used drugs. Defendant and Guzman told Rodriquez he needed to get rid of the gun. Perez showed up shortly thereafter. The group stayed there about an hour. During this time the gun was returned to Rodriguez. They then decided they would go to Fresno to try and find some more drugs. Their trip was unsuccessful and they returned to the home of Rodriguez and used more drugs.

Holt, defendant, Guzman and Perez left in Holt’s car. They were stopped by police. When they were stopped, defendant ran and was not captured. The others discussed their alibi. They decided they would say that Holt had picked them up from City Lights in Fresno. Guzman came up with a name he would use. Officers removed them individually from the car and separated them. They were eventually allowed to leave. Holt went with Guzman to his brother’s house.

Two months before trial Holt was in a holding cell. Perez, defendant, and Guzman were being held in the same area. Perez asked Holt to take back her deal and not testify. Guzman told her he wanted to marry her.

C. Nonaccomplice Evidence

Christina Padilla knew the victim. On December 29, 2003, she had a cellular telephone conversation with Lemos while she was riding in a van. She heard a loud sigh and Lemos stopped talking. She heard the beeping sound of his truck that is made when the door is open and the keys are left in the ignition.

Donaldson lived next door to Lemos. On the night of December 29, 2003, she was outside on her front porch. She heard someone say, “Fuck you bitch, you fuckin’ scrap.” She looked and saw two men standing near each other by the back of the truck. One of the individuals had a gun pointed sideways at Lemos. Donaldson went inside of her house. She heard three shots. She looked out and saw Lemos fall to his knees in the driveway; the other individuals ran away. She heard two car doors and heard a car “screech off.” She came out of her house and saw Lemos on the ground holding the back of his head and making moaning sounds.

When Donaldson first spoke to an investigator that evening, she told them she did not see anything. She was afraid. Her husband told her to tell the truth, and later that evening she told officers what she had seen.

Donaldson identified Perez as the person with the gun she saw standing by the victim’s truck at the time he was shot.

Shirley Villagran was driving by the park. She drove further down the street and parked on the street near the victim’s house so she could talk with a friend in the car. She saw a small white car parked on the corner. She heard two gunshots. She saw two people run to the car and get in. The car took off with the headlights off. Villagran followed them trying to get their license number. She stopped following the car when the car turned left towards Laton. She went back to the area and told law enforcement officers what she had seen.

Hanford police investigator Richard Pontecorvo responded to the scene of the murder.^[4] The victim’s truck was parked in the driveway. The driver’s door was open and there was a Taco Bell bag on the ground, as well as a Taco Bell cup. A cellular telephone was on the ground by the truck. They keys were in the ignition of the truck. The stereo system in the truck was not missing. There were no shell casings in the area.

In the early morning hours of December 30, 2003, Pontecorvo drove to Laton looking for the vehicle. He observed a vehicle that matched the description of the vehicle leaving the crime scene. Pontecorvo followed the vehicle. The occupants of the vehicle kept looking back at Pontecorvo as he followed it. Pontecorvo stopped the vehicle. One person fled the scene. Pontecorvo removed the other three occupants of the car. Holt was the driver of the car. Guzman was seated in the front passenger seat; he misidentified himself as Alex Gutierrez. Perez was in the rear passenger seat. Holt said that she had picked up the men from City Lights in Fresno.

Lemos died from a single gunshot wound to the left side of his head. In addition, he had swelling to his right eye that was not consistent with a gunshot wound but was consistent with blunt force trauma. A deformed slug was recovered from the victim’s brain.

Several days after the murder, a search was conducted at the home of Rodriguez. Rodriguez, Manuel Tapia and Raul Gonzalez were present when the search occurred. Officers found weapons, ammunition, drugs, and drug paraphernalia. Rodriquez told officers that he gave the gun to Guzman for protection but the gun was never returned to him.

The home of Robert Gonzalez was searched. The weapon was not found. Several days later Robert Gonzalez turned a weapon over to law enforcement. Robert Gonzalez is the brother of Raul Gonzalez and the uncle of Manuel Tapia, one of the individuals at the home of Rodriquez when it was searched for the weapon. Robert Gonzales said he had received an anonymous call regarding the location of the gun. He went to the location and found the gun in a paper bag by the side of the road. He refused to provide any further details about the gun. Robert Gonzales testified that he received a call and the unidentified male caller asked him if he was going to testify. The caller said he knew where he lived. When the gun was first turned in, Robert Gonzalez said he got the gun from Manuel Tapia.

A criminalist test-fired the gun turned in by Robert Gonzalez. Because the gun was worn and old, the criminalist was not able to get nice, crisp characteristics to compare to the fragment recovered from the victim, but the bullets agreed as far as land, grooves and twists, and the bullet retrieved from the victim was consistent with being fired from the gun.

Jose Rodriquez testified that he did not know Guzman, did not know Manuel Tapia, and did not give Guzman a gun. He additionally testified that he did not know Perez or Guzman even though there were pictures of them found in his trailer. He admitted he was convicted of possession of methamphetamine for sale and possession of a firearm as a result of the search of his house for the gun. Manuel Tapia was present when the search was conducted.

Pontecorvo said that when officers searched the home of Jose Rodriquez, Rodriquez said that Guzman had not given the gun back to him.

On February 22, 2004 officers went to the home of Mimi Pina to serve an arrest warrant for defendant and Guzman. They knocked on the door. Mimi answered and said Guzman was inside with defendant. Officers posted at the rear of the house apprehended defendant and Guzman after they ignored orders to go to the ground and tried to escape.

Mimi Pina testified that she was living with defendant and Guzman on February 22, 2004. Luis Hernandez is the father of her children and also the cousin of Guzman and defendant. Pina was having a relationship with Guzman at this time. Prior to the arrest of Guzman and Hernandez, Pina had several conversations with them. Roxanne, the mother of defendant’s children, was present during some of the conversations.

During the conversations, defendant told them that Perez shot the person in the truck and Holt drove them. Guzman said that Perez liked the victim’s truck and Perez told Holt to follow it. Perez said he was going to take the victim’s money and his truck. Guzman also said that Perez shot the victim. Pina was told that Perez told the victim to give him all of the money and the victim asked not to be killed. The victim reached for something and defendant said the victim was reaching for a gun. Perez shot the victim. When Guzman talked about the incident, he cried and said he did not do it.

Numerous law enforcement officials described contacts with defendant, Guzman, and Perez involving the Laton Bulldogs gang and their membership in the gang.

Ralph Paolinelli, an expert on the Laton Bulldogs gang, testified that “scrap” is a term used by Norteno Bulldogs to disrespect Surenos. The Laton Bulldogs are rivals with both the Sureno and Norteno gangs. It was Paolinelli’s opinion that defendant, Perez, and Guzman are members of the Bulldog gang.

An officer searched the victim’s bedroom, finding nothing associated with any type of gang affiliation.

DISCUSSION

I. Effective Assistance of Counsel

Prior to trial, defendant made three Marsden (People v. Marsden (1970) 2 Cal.3d 118) motions. The first motion was made on March 21, 2005. At that time defendant’s complaints were that his counsel, Mr. Lee, had not come to talk to him and was not prepared. Counsel replied that he had provided discovery to defendant and had met with him several times in jail and in court. Defendant stated that counsel had not read the file. Counsel said that he had read the entire file and refreshed his recollection when he would go to visit defendant. Counsel stated that defendant finds details that he thinks are important and they discuss them. Counsel admitted that sometimes defendant points out facts that counsel initially thought are unimportant, but that defendant convinces him that they are important. After hearing from counsel and defendant, the court denied the motion.

The second Marsden motion was made on June 24, 2005. Defendant complained that he had not had an investigator and he had two witnesses that needed to come to trial. Counsel replied that he and the defendant had agreed that their defense would be to demonstrate weakness in the prosecution’s case through cross-examination and other methods. Counsel stated that defendant talked about witnesses, but he would not divulge who they are or what they have to do with the case. Defendant said that his two witnesses were (1) the person of whom an officer made a field identification as the person who fled the car when it was pulled over the morning after the murder, and (2) defendant’s aunt. Defendant complained that counsel did not come to visit him. Counsel responded that the other person had no information to provide and was not valuable since the information would come in through the police officer as to his momentary mistaken identity; the aunt had been interviewed and did not recall anything that would be helpful. The court denied the motion.

The third motion was heard on July 8, 2005, shortly before trial was to begin. Defendant again claimed that counsel had not come to see him to resolve any of the issues previously discussed. Counsel reiterated that the aunt would not be a helpful witness. Defendant kept stating that they had not prepared for his defense, but he could not state specifics except that he had witnesses that needed to be talked to. When pressed for an answer, defendant said he could not think off the top of his head and he needed assistance. The court denied the motion.

The case proceeded to trial. The defense was that defendant was not involved in the crime, based on the following: he was not in the car when it was stopped; the officer stopped someone that he thought was the person who ran from the car but that person was not defendant; Holt initially implicated only Guzman and Perez and did not implicate defendant in the crime; and Mimi Pina gave contradictory statements and eventually said that she could not say that defendant ever said anything to make her think he was involved. Defense counsel used all of these instances in arguing that there was a reasonable doubt whether defendant was the third person involved in the crime.

Defendant was found guilty on July 15, 2005. On July 30, 2005, defendant’s counsel, Mr. Lee, was arrested for driving under the influence of methamphetamine.^[5] Defendant was appointed new counsel. Defense counsel filed a motion for new trial, claiming defendant was denied the effective assistance of counsel. Defendant filed a declaration in support of the motion, claiming that his counsel seemed nervous and distracted, was perspiring profusely, and was unresponsive. After counsel was arrested, defendant came to the conclusion that his counsel’s behavior was that of a methamphetamine user. This was based on defendant’s personal observation of methamphetamine users.

The People filed opposition to the motion.

At the hearing on the motion, defendant’s new counsel stated that he examined the trial transcript and did not find anything glaring in the transcript that would indicate that defendant’s counsel was under the influence or was ineffective, but he argued that defendant was prejudiced in a subtle was by Mr. Lee’s lack of responsiveness and attentiveness. Counsel deferred to the court because the court, having presided over the trial and pretrial proceedings, was in a very good position to evaluate Mr. Lee’s demeanor and performance.

The court commented that Mr. Lee is an “extremely experienced and able defense attorney who has practiced before this Court many years.” The court found that he saw no significant or discernible difference from his performance at defendant’s trial as compared to his able service in other cases before the court in the past 15 or 20 years. The court found Mr. Lee’s defense to be more than adequate, and in fact found it to be quite creative in light of the difficult evidentiary problems faced from the overwhelming evidence. The court did not at any time believe Mr. Lee’s performance or representation were less than adequate. The court found no correlation between Mr. Lee’s arrest and his conduct at trial. The court denied the motion.

Defendant protested the court’s ruling. The court asked defendant’s counsel if he found any evidence that would support defendant’s claim that Mr. Lee showed objective signs of intoxication during trial. Defense counsel said he interviewed the transport deputy, the bailiff, cocounsel (for Guzman) and the district attorney and found no evidence that Mr. Lee was under the influence. Defense counsel also stated he could find no significant errors in the transcripts that would support a motion for a new trial.

Defendant now claims he was denied the effective assistance of counsel at trial. He argues that the denial of his right to effective counsel is shown by the court’s failure to remove his counsel, counsel’s failure to make appropriate objections and arguments at trial, and the failure to grant a motion for new trial when counsel’s arrest became known to the trial court.

Because, as shall be discussed, we find that defendant was not denied the effective assistance of counsel at any juncture, we need not determine if this case should be judged under the Cronic standard (United States v. Cronic (1984) 466 U.S. 648 [finding that in certain situations the deprivation of counsel is so complete that prejudice is presumed and need not be demonstrably shown]) or the traditional standards requiring a showing of prejudice as outlined in Strickland v. Washington (1984) 466 U.S. 668. In addition, there is nothing in the record that amounts to the type of significant deprivation of counsel such that the Cronic standard of review would apply.

Defendant contends that his pretrial complaints were confirmed by Lee’s posttrial drug arrest. Lee’s drug problem distracted him to the extent that he could not effectively communicate with his client. He argues that the larger question is whether the attorney-client channels of communication were impaired, making it hard to sustain an effective defense. Defendant refers to arguments II (erroneous admission of the gun) and III (substantial evidence) on appeal as support for his claim that his counsel missed defense opportunities. He concludes that the drug problem of counsel prevented the operation of an effective adversarial system.

“A new trial may be granted where the trial court finds that the defendant received ineffective assistance of counsel. [Citations.] To prevail on this ground, a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant in the sense that it ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.]” (People v. Andrade (2002) 79 Cal.App.4th 651, 659-660.)

We have reviewed the transcript and have found nothing in the record to indicate that Lee was impaired and unable to provide effective assistance of counsel. In addition, we agree with the trial court’s assessment of Lee’s performance at trial. He presented a more than adequate defense in light of overwhelming evidence. Counsel’s cross-examination of witnesses, as well as his closing argument, was well thought out, logical, and effective. As shall be discussed in issues II and III, we find no merit to those issues and find that counsel was not ineffective in areas involved with those issues.

The trial court was in the best position to judge whether counsel was under the influence at trial and/or impaired to the extent that he did not provide adequate assistance of counsel. “It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them.” (People v. Fosselman (1983) 33 Cal.3d 572, 582.) There is nothing in the record to undermine the court’s conclusions in denying the Marsden motions or the motion for new trial.^[6] Additionally, other than the one instance where defense counsel was arrested for driving under the influence, there is nothing in the record to support a finding that defense counsel had a “drug problem” during trial.

II. Admission of the Gun into Evidence

Defendant asserts that the gun admitted into evidence was not adequately connected to the defendants or to the crime. Thus, if his counsel had made an objection to the admission of the gun, the objection would have been granted and the gun would have been excluded from evidence. Defendant argues that his counsel was ineffective in failing to object to the admission of the gun.

In People v. Freeman (1994) 8 Cal.4th 450, the defendant participated in a robbery and murder at a bar. When he took property from the victims, he placed the property into a small white garbage bag. An officer at trial testified that he found a “‘white plastic garbage bag” in a car said to belong to the defendant. There was no objection at trial to the admission of this evidence. On appeal, the defendant argued his counsel was ineffective in not objecting to the evidence regarding the bag.

The defendant claimed the bag was not relevant because it was not identified as the bag used in the robbery and any number of people might possess such an unremarkable item such as a plastic bag in their car. The Supreme Court found that there was a reasonable inference that defendant used that bag in the robbery and thus was the shooter. Based on the similarity of the bag used in the robbery to the one found in the defendant’s car, the inference was not speculative. In addition, there was nothing prejudicial about the bag so it should not have been excluded under Evidence Code section 352. (People v. Freeman, supra, 8 Cal.4th at pp. 490-492.)

In People v. Farnam (2002) 28 Cal.4th 107 police arrested the defendant and found a knife in his possession. The prosecution sought to admit the knife to show that it could have been the instrument used to cut the telephone cords and the screen door at the home where a murder occurred. The defendant objected based on relevance, due process, and under Evidence Code section 352. The court admitted the evidence. The expert at trial could not “conclusively identify the knife with the cuts, [but] they did indicate that the blade’s length and shape were similar to the slit in the screen door and that the knife could have been used to cut the telephone cords.” (Farnam, supra, at p. 156.)

The defendant claimed the trial court denied him due process and abused its discretion when it admitted the knife and associated testimony into evidence. “He claims the knife evidence was irrelevant to any disputed material issue because there was no showing as to when he acquired the knife. Improper introduction of the weapon, he argues, led jurors to infer that he murdered Mrs. Mar simply because he had a similar knife two months after the killing.” (People v. Farnam, supra, 28 Cal.4th at p. 156.)

First, the court found the knife was relevant. “Evidence that defendant possessed a knife two months after the Mar crimes, coupled with the evidence that the perpetrator of the Mar crimes used a sharp instrument, consistent with defendant’s knife, to slit a screen door and sever two telephone cords at the Mar residence, tended to establish that defendant was the perpetrator. ‘Standing alone the inference may have been weak, but that does not make the evidence irrelevant.’ [Citation.]” (People v. Farnam, supra, 28 Cal.4th at pp. 156-157.)

The court found that “It does not matter that the prosecution could not conclusively connect defendant's knife to the Mar crime scene. In People v. De La Plane (1979) 88 Cal.App.3d 223, for instance, the trial court admitted evidence of a sawed-off axe handle found in the house in which the defendant was arrested. There, the only evidence that connected the axe handle to the murder victim was expert testimony concluding that the handle ‘could have caused’ the victim’s wounds. ( Id. at p. 239.) As the appellate court aptly reasoned in that case, ‘If a victim’s wound could have been caused by a specific type of weapon or instrument, such a weapon or instrument found in defendant’s possession is admissible in evidence. Such a weapon or instrument is considered relevant on the theory that a trier of fact may reasonably draw an inference from defendant’s possession of the weapon or instrument to the fact that he used the weapon or instrument to commit the offense--a disputed fact of consequence in the action.’ (Ibid.; see also People v. Alcala (1992) 4 Cal.4th 742, 796-797 [evidence of Kane Kut knives seized from defendant’s residence properly admitted to show that defendant had access to, or familiarity with, the same brand of carving knife found near the murder victim's remains]; People v. Clark (1992) 3 Cal.4th 41, 129 [evidence of two knives belonging to the defendant properly admitted at trial, even though neither knife was directly or conclusively connected to the offenses].)” (People v. Farnam, supra, 28 Cal.4th at p. 157.)

The court also found that the admission of the knife was not error under Evidence Code section 352. In light of the expert’s testimony, “the court could reasonably conclude that the jury would not be confused or misled on the subject matter of the knife. Thus, although the probative value of the knife was not that strong, the danger of confusion, speculation, or prejudice was minimal.” (People v. Farnam, supra, 28 Cal.4th at p. 157, fn. omitted.)

Defendant argues that the connection of the gun to him was vague and generic, as was the connection of the gun to the crime. We disagree. Although the prosecution could not conclusively connect the gun to the crime or to defendant, the evidence was strong in support of the inference that the gun admitted at trial was in fact the murder weapon. Holt testified that the gun looked like the gun given to Guzman by Rodriguez. The slug retrieved from Lemos was consistent with the bullets test fired from the weapon. When Gonzalez turned in the gun, he said he received it from his nephew, Manuel Tapia. Tapia was in the home of Rodriquez when law enforcement initially went to the home looking for the gun. Although the connection of the gun with defendant and the crime was not conclusive, it was strong. Defense counsel had no reason to object because it would not have been excluded under Evidence Code section 352.

III. Sufficient Evidence of Attempted Robbery

Defendant contends the evidence is not sufficient to support an attempted robbery and thus the felony murder conviction, as well as the attempted robbery special circumstance, must be reversed. Defendant asks that we disregard the testimony of Holt that a robbery was planned because the evidence instead pointed clearly to a gang killing. He bases his argument on three separate facts. First, he argues that the killing was a gang killing because the truck was blue and blue is the color of a rival gang to the Bulldogs; thus the defendants would not have wanted to possess a blue truck. Second, because the victim was called a “scrap” (a derogatory term for a rival gang), this indicates that the murder was a gang murder “pure and simple.” Finally, he argues that because nothing was taken there is no evidence of an attempted robbery.

Defendant’s interpretation of the evidence ignores the well-established standard of review on the question of the sufficiency of the evidence on appeal. “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Issues of credibility are not reweighed or redetermined on appeal. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

We begin by noting that defendant does not claim that the testimony of Holt was not sufficiently corroborated. Defendant asks that we ignore her testimony because she came up with the robbery scheme in an effort to increase her chances for a reduced sentence. It is not within our province to determine her credibility on appeal. She testified that the group set out to rob or carjack an individual and they chose Lemos because he drove a nice truck. She did not give any testimony establishing the motive of the killing as strictly a gang killing.

The testimony established that the victim’s truck was not singled out because it was blue, but because it was a nice truck. Pina testified that after the murder she had conversations with defendant and Guzman, and they said that Perez told the victim to give him all of his money. When the victim reached for something, defendant said the victim was reaching for a gun. This is when Perez shot the victim. When combined with Holt’s testimony, this clearly established that a robbery, not a gang murder, was the motive for the killing. The fact that defendant and Perez fled without actually taking anything does not defeat the inference because it is a reasonable inference that they hurriedly fled the scene when their plans went astray and the victim was shot, knowing that the firing of the gun would bring the quick attention of neighbors and law enforcement. (See People v. Rodriques (1994) 8 Cal.4th 1060, 1130; People v. Zapien (1993) 4 Cal.4th 929, 984.)

Although the word “scrap” was used during the assault, it is reasonably inferable that the term was used much in the manner of a cuss word said during the heat of a moment. The use of this term alone does not degrade the evidence presented that established the motive for the killing to be a robbery.

The fact that nothing was taken does not establish that an attempted robbery did not take place. The evidence established that defendant and Perez intended to take property from the victim but they were thwarted in their efforts when they believed that the victim was reaching for a gun and he was shot.

Substantial evidence supports the finding that an attempted robbery took place.

IV. Conspiracy

In a lengthy argument defendant contends that conspiracy does not exist as an independent theory of criminal liability in California and the trial court erred by instructing the jury on the theory of conspiracy.

In People v. Belmontes (1988) 45 Cal.3d 744, the defendant and two others agreed to go to the victim’s home to commit a burglary. They were surprised to find the victim at home and they killed her. On appeal the defendant claimed that it was error to allow the prosecution to proceed on an alternate theory of uncharged conspiracy liability. The California Supreme Court rejected this argument. “It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. (People v. Lopez (1963) 60 Cal.2d 223, 250 [uncharged conspiracy to commit burglaries admissible to prove identity of murderer]; People v. Pike (1962) 58 Cal.2d 70, 88 [uncharged conspiracy to commit robberies admissible to prove armed robbery culminating in murder].) ‘Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it preclude the giving of jury instructions based on a conspiracy theory [citations].’ [Citation.]

“The evidence here showed that defendant, Vasquez and Bolanos met, specifically intended to agree or conspire, specifically intended to commit the planned burglary, and carried out overt acts in furtherance of the conspiracy--completing the intended crime. There being evidence supportive of all the elements of a conspiracy, the People were entitled to proceed on that alternative theory of liability. [Citation.]” (People v. Belmontes, supra, 45 Cal.3d at pp. 788-789.)

We are bound by the California Supreme Court’s decision that an uncharged conspiracy may be used to prove criminal liability for the acts of a coconspirator. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Disposition

The judgment is affirmed.

____________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

___________________________________

CORNELL, J.

___________________________________

DAWSON, J.

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^[1] All further code references are to the Penal Code unless otherwise noted.

^[2] Defendant was also charged with the special circumstance that the murder was carried out in furtherance of a criminal street gang. (Pen. Code, § 190.2, subd. (a)(22).) The district attorney dismissed this special circumstance immediately prior to deliberations by the jury.

^[3] Guzman (F048683) and Perez (F048495) are the subjects of separate appeals.

^[4] The victim did not die at the scene, he died several days later.

^[5] July 30, 2005, was a Saturday.

^[6] Defendant does not directly challenge the rulings from his Marsden motions but incorporates his complaints from these motions in his argument that his pretrial complaints were confirmed by the posttrial drug arrest of Lee.