Filed 7/29/16 P. v. Zepeda CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B262734

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA415199)
         v.

RYAN ZEPEDA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Monica
Bachner, Judge. Affirmed.
         Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.




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       A jury convicted appellant Ryan Zepeda of two counts of attempted premeditated,
deliberate, and willful murder, and found that he committed the crimes in association
with a criminal street gang. (Pen. Code, §§ 664, 187, subd. (a), 186.22, subd. (b)).1
The jury further found that he personally used and discharged a firearm, causing great
bodily injury to the victims. (§ 12022.53, subd. (d)). The court sentenced appellant to
consecutive terms of life, with a minimum of 15 years pursuant to the gang enhancement,
plus 25 years for the personal use enhancement. Appellant appealed.
       We appointed counsel to represent appellant. Counsel filed a brief pursuant to
People v. Wende (1979) 25 Cal.3d 436, raising no issues on appeal and requesting that we
independently review the record to determine if the lower court committed any error.
       We directed appointed counsel to send immediately the record on this appeal and
a copy of the opening brief to appellant, and we notified appellant that within 30 days
from the date of the notice he could submit by brief or letter any grounds of appeal,
contentions, or argument he wished us to consider. Appellant filed a supplemental brief
raising several issues, which we address below, and requesting new appellate counsel.
                               STATEMENT OF FACTS
       In the afternoon of July 25, 2013, Mario Gonzalez drove with his friend, Oscar
Munoz, to Munoz’s house. The house was within territory claimed by the Krazy Ass
Mexicans, or KAM, gang. KAM territory is adjacent to area claimed by a rival gang,
Big Hazard. As they pulled into Munoz’s driveway a red or burgundy Lexus with gold
trim drove past them, made a U-turn, and stopped behind them. A passenger in the Lexus
got out of the car and approached Gonzalez’s car. He wore a gray, hooded sweatshirt
with a U.S.C. logo. He asked Gonzalez and Munoz where they were from; they replied
that they were not from anywhere. The man said “Fuck KAM,” or told Gonzalez and
Munoz to say, “Fuck Kam,” then shot both men several times. Munoz was shot in his
face, arm, and back. Gonzalez was shot three times in his arm. One bullet passed
through Gonzalez’s arm and lodged in his chest. They both survived.

       1 All subsequent statutory references are to the Penal Code unless otherwise
indicated.

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       Munoz’s mother, Sandra Sanchez, was nearby when she heard the shots. She saw
Munoz “lying down” in the car and a man standing nearby, who turned and pointed a gun
at her. When the driver of the Lexus honked the horn, the man got into the car and left.
       A police officer familiar with gang members in the area knew that a particular
member of Big Hazard (not appellant) drove a burgundy Lexus with gold trim. The
officer heard the report of the shooting and drove to the residence of the Big Hazard
member, where he found the Lexus. He arrived about 15 to 20 minutes after the report
of the shooting. The hood of the Lexus was hot, indicating that it had been recently
driven.
       Munoz selected appellant’s picture out of a six-pack photo lineup, and said he
was 75% sure that the man in the photograph was the shooter. At a different time and
place, Gonzalez initially selected the photograph of someone other than appellant, but
later identified appellant as the person who was probably the shooter.
       During a search of appellant’s residence, police found gray sweatshirts, “U.S.C.
sweatshirts,” and a U.S.C. football jersey.
       During trial, Sanchez (Munoz’s mother) identified one of the sweatshirts found in
appellant’s residence as the one worn by the gunman. Sanchez said she could not
identify appellant in court because the gunman’s hooded sweatshirt had covered much of
his face.
       Gonzalez and Munoz identified appellant in court as the shooter. Gonzalez
explained that he initially selected the photo of someone other than appellant in the photo
lineup because he did not want to testify at trial.
       Los Angeles Police Officer Brian Cook testified as the prosecution’s gang expert.
According to Officer Cook, appellant is a self-admitted member of Big Hazard, and
is known by the monikers, Nasty Boy and Koser. In March 2012, Cook arrested
appellant for “tagging” structures and a tree in the area around Hazard Park, an area
within Big Hazard’s territory. Appellant was a juvenile at the time.
       Officer Cook testified about Big Hazard’s culture, organization, territorial
boundaries, tattoos, gang signs, and its rivalry with KAM. According to Officer Cook,

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the primary activities of Big Hazard are the commission of assaults with deadly weapons,
burglaries, drug sales, and tagging the Big Hazard name or symbols. He testified about
two prior convictions of Big Hazard gang members for murder and robbery.
       Officer Cook explained that the act of shooting another gang member enhances the
shooter’s reputation within the gang and benefits the gang by instilling fear and respect in
the neighborhood. When asked a hypothetical question based on the prosecution’s
evidence, Officer Cook opined that the shootings were done for the benefit of or in
association with, or at the direction of, a criminal street gang.
       Dr. Robert Shumer, a psychologist, testified for the defense as an expert regarding
problems with eyewitness identifications. He identified various factors that can affect
the accuracy of a witness’s perception and identification, including stress, the passage
of time, and the duration of the incident. He also testified as to how identification
procedures, such a six-pack photo lineup, can affect the accuracy of an identification.
                                       DISCUSSION
       In his supplemental brief, appellant states that he informed an investigating
officer that he had an alibi and gave the officer the names of alibi witnesses who could
testify on his behalf. The officer, however, testified at trial that appellant had no alibi
and appellant’s counsel offered no alibi evidence at trial. The argument suggests the
possibility that his trial counsel was ineffective by failing to present alibi witnesses and
failing to fully cross-examine the officer.
       An appellant claiming ineffective assistance has the burden of establishing:
(1) that his “counsel’s representation fell below an objective standard of reasonableness”;
and (2) “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” (Strickland v.
Washington (1984) 466 U.S. 668, 688, 694.) In reviewing ineffective assistance claims,
we employ a “ ‘strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance’ ” and will reverse convictions on direct appeal only
when the record affirmatively discloses that counsel had no rational tactical purpose for

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his or her act or omission. (Lucas (1995) 12 Cal.4th 415, 437.) “[U]nless the record
reflects the reason for counsel’s actions or omissions, or precludes the possibility of a
satisfactory explanation, we must reject a claim of ineffective assistance raised on
appeal.” (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
       Although appellant does not state that his attorney was aware of his alibi or
his alibi witnesses, even if we assume he was so aware, we cannot conclude that his
counsel was constitutionally deficient. Whether to assert an alibi defense, to call
particular witnesses, and cross-examine a witness about the appellant’s alibi involve
tactical and strategic decisions we cannot evaluate based on our record. Counsel may
have, for example, determined that the alibi witnesses were not credible and that their
testimony would have been detrimental to the defense case. Counsel may also have
reasonably believed that cross-examining the officer on the point would have elicited
evidence refuting the alleged alibi and, on balance, harmed the defense. Because the
record does not preclude the possibility that counsel’s decisions have satisfactory
explanations, we cannot determine that counsel was ineffective on this ground.
       Appellant expressly raises ineffective assistance of counsel claim based on several
grounds. First, counsel failed to pursue the possibility that the victims’ testimony
could be stricken because they had been told that they had to testify in order to
“receive protective custody” and avoid deportation. He is referring to evidence that
police informed Gonzalez and Munoz that relocation assistance may be available for
witnesses who cooperate with the police, and informed Sanchez about the federal
government’s U-Visa program, by which victims of crimes who are otherwise subject
to deportation may remain in the country. These facts were introduced at trial and the
jury was entitled to consider such evidence in evaluating the witnesses’ testimony.
Appellant offers no argument or authority to support the contention that such evidence
would support a motion to strike the witnesses’ testimony. His attorney’s failure to make
such a motion does not, therefore, constitute ineffective assistance.
       Second, appellant contends that his counsel failed to seek to exclude evidence
regarding his tagging arrest because the record of his juvenile adjudication had been

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expunged. Even if the adjudication has been expunged—a fact not disclosed by our
record—the expungement would not preclude evidence of the facts concerning the
tagging incident. Such evidence was relevant to show appellant’s connection with
Big Hazard and his willingness to “put in work” for the gang. The record reveals no
basis for excluding the evidence.
       Third, counsel allegedly failed to introduce evidence of his good character,
including evidence that he “was doing productive things in the com[m]unity,” such as
working two part-time jobs and being involved in gang intervention and a book club.
He also graduated from high school and had “a handful of good character witnesses
supporting” him. Because such evidence is not in our record, we cannot determine
whether counsel was constitutionally deficient for failing to introduce it.
       Fourth, appellant asserts that his counsel “never provided [him] with [his]
transcripts” during trial. As a result, he knew “only what was being said in the
courtroom” and what his attorney provided him. It is not clear what transcripts appellant
is referring to or whether he requested such transcripts from his counsel. Even if we
assume appellant asked his counsel for transcripts, that counsel had a duty to provide
such transcripts, and counsel failed to provide them, appellant has made no showing that
the result of the proceeding might have been different if he had been given the transcripts.
       We have reviewed the record on appeal and are satisfied that appellant’s counsel
has fully complied with his responsibilities and that no arguable appellate issue exists.
(Wende, supra, 25 Cal.3d at p. 441.) For this reason, we deny his request for new
appellate counsel. We have also considered appellant’s contentions and, for the reasons
set forth above, conclude they are without merit. (See People v. Kelly (2006) 40 Cal.4th
106, 110.)




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                                 DISPOSITION
     The judgment is affirmed.

     NOT TO BE PUBLISHED.




                                               ROTHSCHILD, P. J.
We concur:




                  CHANEY, J.




                  JOHNSON, J.




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