P. v. Calderon

Filed 8/23/06 P. v. Calderon CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Barry A. Taylor, Judge. Affirmed.

Philip Deitch, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Alan D. Tate, Deputy Attorney General, for Plaintiff and Respondent.

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A jury convicted defendant and appellant Francisco Calderon (defendant) of four counts of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664, 187, subd. (a)),[1] four counts of assault with a firearm (§ 245, subd. (a)(2)), and battery (§ 252) for defendant's participation in a drive-by shooting of four rival gang members. The jury also found that defendant personally used a firearm in connection with the attempted murder and assault with a firearm counts (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b),(c), (d)), and that all of the attempted murder and assault with a firearm counts were committed for the benefit of a criminal street gang (§186.22, subd. (b)(1)(A)). Defendant contends his convictions must be reversed because (1) there was insufficient evidence to establish that he was one of the gunmen; (2) there was insufficient evidence that the shooting was premeditated and deliberate; (3) assuming defendant was not one of the gunmen, there was insufficient evidence to support his convictions as an aider and abettor; and (4) there was insufficient evidence that the crimes were committed for the benefit of a criminal street gang.

We hold that substantial evidence supports the jury's findings that defendant fired a gun at the victims; that the attempted murders were willful, deliberate and premeditated; and that the crimes were done for the benefit of a criminal street gang. Because substantial evidence supports the jury's finding that defendant shot at the victims, we need not determine whether there was also substantial evidence to support defendant's convictions as an aider and abettor of the crimes. We therefore affirm the judgment.

BACKGROUND

Defendant was a member of a gang known as 129. On July 15, 2003, defendant and fellow 129 members Norberto Villafuerte, Juan Espinoza, Victor Lopez, and Hector Vasquez were riding together in a van owned by defendant's family. Defendant was upset because the windows of another car owned by his family had recently been broken, and defendant believed that members of a rival Samoan gang known as CCK or DC were responsible. Earlier that day, defendant had expressed a desire to retaliate against members of CCK and stated, â€