P. v. Holguin

Filed 3/27/06 P. v. Holguin CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from judgments of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Judgments are affirmed.

Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant Vincent Garcia Holguin.

Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant Travis Rex Larimer.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

Vincent Garcia Holguin (Holguin) appeals from the judgment entered upon his conviction by jury of first degree murder, shooting at an occupied motor vehicle, and three counts of willful, deliberate and premeditated attempted murder, with findings that all counts were committed with the personal and intentional discharge of a firearm, causing great bodily injury or death, and that all counts were committed for the benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a), 246, 664/187, subd. (a), 12022.53, subds. (d), (e)(1), 186.22, subd. (b)(1).)^[1] He was sentenced to 25 years to life in prison with a 25-year-to-life firearm enhancement for murder, and to a consecutive life term with a 15-year minimum parole eligibility period and a 25-year-to-life firearm enhancement for one count of premeditated attempted murder. The sentences for the other premeditated attempted murders were ordered to run concurrently, and the sentence for shooting at an occupied vehicle was stayed pursuant to section 654.

Travis Rex Larimer (Larimer) appeals from the judgment entered upon his conviction by jury of first degree murder and three counts of attempted murder, with the finding that all counts were committed for the benefit of a criminal street gang. He was sentenced to 25 years to life in prison for murder and to a determinate term of 17 years for one count of attempted murder with a criminal street gang enhancement, with the sentences for the other attempted murders to run concurrently.

Holguin contends that his federal and state constitutional rights to due process and a fair trial were violated when the trial court refused to grant a severance on the ground of antagonistic defenses.

Larimer contends (1) that the prosecutor and counsel for Holguin violated Doyle v. Ohio^[2] by commenting on his postarrest, post-Miranda^[3] silence; (2) that he was denied his Sixth Amendment right to the effective assistance of counsel by his counsel's failure to object to a gang expert's opinions about his gang membership and mental state; and (3) that he was denied his Sixth Amendment right to the effective assistance of counsel by his counsel's failure to object to evidence of his prior convictions for weapon possession and reckless driving and to irrelevant details of those convictions.^[4]

We affirm.

FACTS

The Prosecution Case

The evidence established that on the evening of November 16, 2001, 17-year-old Henry Gomez (Henry) drove his Honda from South Los Angeles to Torrance with three younger boys, Raul G. (Raul), Raul's brother Melvin C. (Melvin), and Alberto H. (Alberto). The four intended to steal car parts from parked vehicles. None of the four was a gang member, and none had a gun with him. At approximately 10:00 p.m., as they drove around looking at cars in the vicinity of Normandie and 212th Street, they saw what 13-year-old Alberto described as a gold or brown Toyota or Lexus containing three Hispanic men. The vehicle was moving slowly down the street, and the occupants of the vehicle lowered the driver's and passenger windows. Henry tried to drive away, but the vehicle followed him. As Henry drove in the right lane of Normandie, the vehicle pulled up next to him in the left lane. Alberto saw the passenger seated in the rear of the vehicle pull out a gun and begin firing. No words or hand signs were exchanged before the shooting, and no one in the Honda said anything to the occupants of the other vehicle.

Henry received a gunshot wound to the head and died at the scene. The Honda crashed into a telephone pole just south of the intersection of 212th and Normandie. The other three youths climbed out of the Honda, walked across a dirt field to a nearby house, and called the police. Melvin, who had been lying down in the seat behind Henry, received four gunshot wounds. Raul suffered a broken arm, and Alberto sprained his ankle. None of the victims was able to identify the individuals in the vehicle.

The shooting was witnessed by Los Angeles County Sheriff's Deputy Kenneth Dailey, who saw a light colored Mercedes driving slowly down Normandie alongside the Honda. He heard five to 10 pops and saw muzzle flashes coming from the passenger side of the Mercedes. He noticed that both cars seemed to be decelerating and then heard more popping noises. The Mercedes rapidly accelerated, crossed in front of the patrol vehicle, and turned onto 212th Street, with Deputy Dailey in pursuit, but it then abruptly slowed almost to a stop, nearly causing Deputy Dailey's car to hit it. Deputy Dailey stopped his police vehicle between one and three feet from the back of the Mercedes and saw two Hispanic men jump out of the front and back passenger seats and flee. They were approximately 10 feet from him at the closest point. One of the men, subsequently identified as Holguin, had a shaved head, was wearing dark pants and a light shirt, and had a mark that appeared to be a tattoo on the back of his head. The other man, who had longer hair, was wearing light colored or khaki pants and a plaid Pendleton type shirt. The Mercedes again sped off. Deputy Dailey pursued it a short distance until it came to a stop in a driveway at the end of a cul-de-sac. Larimer, the owner and driver of the Mercedes, got out, put up his hands, and was detained.

As a group of people gathered near the location where the Honda had crashed, Holguin approached. Craig Shiraiwa (Shiraiwa), one of the individuals in the group, testified that Holguin was bald and had a tattoo on the back of his head, was wearing dark sweat pants and a white tank top, and was sweating and out of breath. Holguin asked, â€