Filed 1/22/15 P. v. Vargas CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B252425

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA097700)
         v.

JESUS MIGUEL VARGAS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Mike
Camacho, Judge. Affirmed.


         Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Victoria B. Wilson and Carl N. Henry, Deputy Attorneys General, for Plaintiff
and Respondent.


                                                       ******
       Jesus Miguel Vargas appeals the judgment following his conviction for one count
of first degree murder with a firearm enhancement, raising various claims of error. We
find no error warranting reversal and affirm.
                           PROCEDURAL BACKGROUND
       Following trial, a jury convicted appellant of one count of first degree murder
(Pen. Code, § 187, subd. (a))1 and found true an allegation he personally and intentionally
discharged a firearm proximately causing the victim’s death (§ 12022.53, subd. (d)). The
trial court sentenced appellant to 25 years to life for the murder and consecutive 25 years
to life for the firearm enhancement. It imposed various fines, fees, and credits not at
issue here. Appellant timely appealed.
                              FACTUAL BACKGROUND
       On February 24, 2012, the day of the murder, appellant and Francisco Garcia
began conversing at Garcia’s house in Pomona, California. Around 2:00 or 3:00 p.m.,
they walked to a nearby store, purchased two 32-ounce beers each, returned to Garcia’s
house, and drank them within about an hour while continuing to talk. According to
Garcia, appellant appeared to be in a “pretty good mood,” saying he was “doing good”
and “working.” He did not seem agitated or angry about anything. They left Garcia’s
house around 5:45 p.m. because Garcia had to pick up his child from a nearby school. As
they walked, appellant split off from Garcia and headed down Hyde Avenue toward a
group of six or seven people playing basketball in a mainly residential cul-de-sac. Garcia
continued on alone. Garcia did not recognize anyone in the group. Garcia told officers
appellant said he was going to “talk to his friends.” About 10 to 15 minutes later, Garcia
heard about three to four gunshots. When later interviewed, Garcia told officers
appellant was a member of the Island Block Criminals gang, although at trial Garcia
denied familiarity with any gangs in Pomona, including the Island Block Criminals, and
denied saying appellant was an Island Block Criminals gang member known as “Stalker.”



1      All undesignated statutory citations are to the Penal Code unless otherwise noted.


                                                2
       At the time of the murder, Carlos Guzman was riding his bicycle on San Antonio
Avenue when he heard about three gunshots. He saw someone resembling appellant run
past him from the shooting area. When later shown a photographic lineup containing a
three-year-old photograph of appellant, he said the photograph looked like appellant,
although he could not be “positive.” In a second photographic lineup with a more current
photograph, Guzman could not identify appellant.
       Just before the shooting, Miguel Gomez was at the basketball hoop with the victim
Alfonso Enciso, among others. He knew Enciso as “Little D” and “Junior.” He and
another man went to the store to buy beer. When they returned 15 minutes later, he saw
Enciso “about to get in a fight” with another man, although Gomez only saw the back of
the other man’s head. Gomez told Enciso to “chill out,” and he heard five gun shots.
Gomez was still in his van at the time, so he started a three-point U-turn, but Enciso was
injured and tried to jump into his driver’s-side window. Gomez then laid him down on
the ground and ran to call 911. He did not get a good look at the shooter and was unable
to identify anyone at trial.2
       Fabio Moreno had known Enciso for nine years and was with him and Gomez at
the time of the shooting. He had met appellant around the same time he met Enciso and
there was a time they hung out together, but as they grew up, they stopped talking and
were no longer friends. As soon as Enciso was shot, Moreno panicked and ran away.
Police picked him up the next day.
       At trial, Moreno did not recall most details from the day of the shooting or what he
told police.3 He recalled seeing someone with a gun, although he did not remember who,
and he did not recall seeing appellant on the day of the shooting. Nor did he recall
identifying appellant in a six-pack photographic lineup. Four days after the shooting he



2       Gomez did not voluntarily testify at trial. He testified someone talked to him
about not coming into court, but he was not threatened. He was concerned about
testifying, however.
3      Like Gomez, Moreno did not testify voluntarily at trial.


                                             3
was interviewed by police and a recording of that interview was played for the jury. In it,
he identified appellant as the shooter. He said four or five guys were playing basketball
when he saw two men pass by. One went on to pick up his son at school while appellant
started “mad dogging” Enciso. When Enciso said, “what’s the problem,” appellant
pulled out a gun and said “fuck cheese side.” Appellant then started shooting as Enciso
was walking away. Moreno explained he, appellant, and Enciso had grown up together
and had been friends. Enciso and appellant had gotten into a previous altercation and he,
Enciso, and appellant had other “little problems.” He said “cheese side” was a
disrespectful slang term for “East Side,” which was Enciso’s gang.
       Enciso died from a single gunshot wound that entered his back and exited the
lower part of his ribcage, striking his lung, heart, and liver. At the scene of the shooting,
officers found bullet holes in the walls and window panes of a nearby house, a “copper,
shiny object” in a bullet hole in the wall inside the house, and at least one spent round in
the street.
       Immediately after the shooting, Detectives Michael Lange and Andrew Bebon
began searching for appellant as a suspect. Two months later a police fugitive
apprehension team reported seeing appellant at his home in Pomona. After the police set
up a perimeter and conducted several announcements, appellant exited the back door and
reentered the house after he saw officers in the backyard. He emerged from the front
door with one of his sisters, at which point he was arrested.
       Detective Bebon testified as a gang expert for the prosecution. He had been a
Pomona police officer for 25 years and had extensive training and experience with
criminal street gangs. During the investigation of Enciso’s shooting, he became familiar
with the Island Block Criminals gang. He opined appellant was a member of the Island
Block Criminals based on several facts: appellant had several tattoos associated with the
Island Block Criminals, which individuals use to identify themselves and others as gang
members; a search warrant executed on appellant’s home yielded “a lot of writings in his
room” related to the Island Block Criminals; and, to the best of Detective Bebon’s
knowledge, appellant admitted he was a member of the Island Block Criminals when he

                                              4
was arrested. Detective Bebon further testified the term “cheese side” was a derogatory
term for the East Side Pomona gang and Enciso had an “ESP” tattoo, which was
consistent with membership in East Side Pomona. Although Detective Bebon was not
personally aware of a rivalry between Island Block Criminals and East Side Pomona
before the shooting, he had since become aware a rivalry existed.
       In defense, appellant presented two alibi witnesses. His brother Julian Vargas
testified he briefly stopped at his house to pick up his soccer cleats between 5:50 and
6:00 p.m. on the day of the shooting and saw appellant outside drinking a beer and
smoking a cigarette. Five minutes later, Julian4 left for soccer practice. When he
returned home at 9:00 p.m., he knocked on appellant’s bedroom door. Appellant did not
answer but Julian heard him tossing in bed. Jose Escamilla was Julian’s friend and they
played on the same soccer team. He testified their soccer practices would typically start
no later than 6:00 p.m. He recalled going to appellant’s house with Julian on the day of
the shooting between 5:55 and 6:10 p.m. and seeing appellant there.
                                      DISCUSSION
1. Admission of Gang Expert Testimony
       Appellant contends the trial court abused its discretion and denied his right to a
fair trial and jury trial when it allowed Detective Bebon to testify as a gang expert to
support the prosecution’s theory that appellant’s motive in killing Enciso was gang-
related. We disagree.
       Prior to trial, appellant objected to the prosecution’s introduction of gang evidence
because no gang allegation was alleged in the case. The trial court characterized
appellant’s request as one “to exclude mention of gang evidence in this case essentially
on [an Evidence Code section] 352 basis; that it’s so inflammatory and prejudicial that it
would deny [appellant] of a right to a fair trial. Given that there are no gang allegations
alleged or most certainly sustained by the magistrate at the preliminary hearing, to allow


4      We refer to Julian by first name only to avoid confusion with appellant. No
disrespect is intended.


                                              5
it now would be prejudicial. I’ve heard the People’s position already in terms of
establishing a motive to commit the crimes because of the familiarity between [appellant]
and the decedent, the victim in this case. Evidently they grew up together, obviously
went their separate ways in terms of gang affiliation and found themselves on opposite
ends of gang membership or affiliation issue. Evidently the defendant’s gang is a rival of
the victim’s gang. Evidently that may have resulted in the encounter that preceded the
actual shooting in this case.” The court added, “It became abundantly clear when I
ordered back one of the defense witnesses who the People have identified as an alibi
witness that also kind of makes a motive issue even more relevant and [appellant] is
essentially claiming that he is not the person who committed the crime, that it was
someone else who perhaps had a motive to commit the crime and he did not. Again, that
is the issue that evidently we have in this case. Motive is an issue that the court certainly
has to take into consideration, most certainly, when there is no other explanation
available as to why this type of crime occurred. There is something to explain it. I mean,
it could be anything, quite frankly, under the sun, but the People’s theory, from what I’m
hearing, is the gang rivalry that is present, nothing else to explain why someone who
wants to kill this person.”
       The prosecutor pointed out Moreno told officers appellant exclaimed “fuck cheese
side” before he shot Enciso, with “cheese side” being a derogatory term for East Side
Pomona. The court agreed “[i]t sounds relevant and probative.” It added, “The courts by
way of case law authority should be very cautious in allowing gang evidence into a case
in which no gang allegation has been alleged because of obviously the inflammatory
nature of the allegation and the evidence that the jury would hear. But, again, keep in
mind we can’t treat gang evidence like nuclear waste, so to speak. Sometimes it is
relevant and probative in a case that does not contain a gang allegation to, again, help
explain the motive behind the killing.”
       After further discussion on a related issue, the court ruled as follows: “[T]he issue
of the gang rivalry is relevant and admissible, purportedly the defendant’s gang affiliation
and the fact that he made a statement at or near the time the shot was fired supporting his

                                              6
affiliation, making it a gang related type of shooting, and that is what is relevant and that
is what would explain it, so it is relevant. It’s admissible even under a[n Evidence Code
section] 352 analysis and I will permit it. But, again, the People must have competent
evidence that there is, in fact, a gang attributed to the defendant and that there is, indeed,
a rivalry between that gang and another gang that evidently the defendant believed the
victim may have some affiliation with. That needs to come through the gang expert, I
would imagine, more so than any other source.”
       Defense counsel argued there was no indication appellant “professed any
allegiance to Island Block Criminals to the incident at hand. And I think simply stating
fuck cheese side without any other particularized information regarding an ongoing
dispute between the two, I think at this point would be insufficient evidence to support
mentioning gangs in that respect.” The court noted evidence of the gang-related items
seized from appellant’s house during the search “would support at least the membership
or affiliation or some type of association with a particular gang” and if there was
evidence East Side Pomona and Island Block Criminals were rival gangs, “that makes the
important connection that could help establish the motive for the killing. It’s strictly
because of this rivalry that may have been in existence at the time. And that’s all that is
necessary, quite frankly, especially when there is nothing else to explain why a person
like [appellant] would want to harm this individual. That’s why I asked is there any other
evidence of motive independent of this rivalry, this gang, and evidently there is not. To
deprive the People of their evidence on that point would deny them a fair trial, most
certainly. I think the jury needs to hear it and needs to evaluate it and because obviously
any fact finder would want an explanation as to why someone would go to this extent to
end a human being’s life. It has to be something very important, not just a random
shooting with no explanation. So motive evidence is critical, especially in a case of this
nature, so I will permit the evidence to come in based on the People’s offer of proof.”
       “Evidence of the defendant’s gang affiliation—including evidence of the gang’s
territory, membership, signs, symbols, beliefs and practices, criminal enterprises,
rivalries, and the like—can help prove identity, motive, modus operandi, specific intent,

                                               7
means of applying force or fear, or other issues pertinent to the guilt of the charged
crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; see People v. Williams
(1997) 16 Cal.4th 153, 193.) Further, police officers properly qualified as experts may
offer opinions on the culture and habits of criminal street gangs. (People v. Gardeley
(1996) 14 Cal.4th 605, 617; see Williams, supra, at p. 196.) In admitting gang evidence,
the trial court must be mindful of the “risk the jury will improperly infer the defendant
has a criminal disposition and is therefore guilty of the offense charged,” but such
evidence nevertheless remains admissible when relevant to prove identity or motive, if its
probative value is not substantially outweighed by its prejudicial effect. (People v.
Carter (2003) 30 Cal.4th 1166, 1194 (Carter).)
         Here, the trial court did not abuse its discretion in finding Detective Bebon’s
testimony was highly probative of appellant’s gang-related motive in killing Enciso and
was not unduly prejudicial. Detective Bebon’s testimony that appellant was a member of
Island Block Criminals, Enciso was a member of East Side Pomona, and the two gangs
were rivals was critical to explain appellant’s exclamation of “fuck cheese side” when he
shot Enciso, which was a derogatory term for East Side Pomona. Further, as the trial
court recognized, Detective Bebon’s expert testimony provided the crucial link from
which the jury could have inferred Enciso’s killing was gang-motivated, especially given
there was no other explanation for the shooting. (See People v. Tuilaepa (1992) 4 Cal.4th
569, 588 [“Testimony linking defendant and [participant in fight] to rival gangs was
admissible because it tended to explain the reason for the fight.”], affirmed on other
grounds by Tuilaepa v. California (1994) 512 U.S. 967.) Nor was it unduly prejudicial as
compared to the evidence that appellant boldly walked up to Enciso on a residential street
while he stood among his friends and fatally shot him. And none of the gang evidence
related at all to other crimes committed by appellant’s gang, so there was little risk the
jury would simply infer appellant had a criminal disposition from his gang membership
alone.
         In challenging Detective Bebon’s testimony, appellant focuses on the fact that
Detective Bebon was never asked a hypothetical question about whether a shooting in

                                               8
similar circumstances would have been gang-motivated. While it is certainly true a gang
expert may testify by way of hypothetical questions (People v. Vang (2011) 52 Cal.4th
1038, 1045), appellant cites no authority to suggest an expert must do so. Nor were
hypothetical questions necessary in this case. The jury could have readily inferred the
shooting was gang-motivated based on Detective Bebon’s testimony and the other
evidence showing appellant and Enciso were members of rival gangs, coupled with
appellant’s exclamation “fuck cheese side” just before the shooting. We also reject
appellant’s claim of federal constitutional error, which is entirely dependent on his state-
law claim of error. (Carter, supra, 30 Cal.4th at p. 1196.)
2. Sufficiency of the Evidence of Premeditation and Deliberation
        Appellant argues insufficient evidence supported the jury’s finding of deliberation
and premeditation, which violated his due process rights. We disagree.
        “‘To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.’” (People v. Tafoya (2007) 42 Cal.4th 147, 170.) “‘[G]enerally first degree
murder convictions are affirmed when (1) there is evidence of planning, motive, and a
method of killing that tends to establish a preconceived design; (2) extremely strong
evidence of planning; or (3) evidence of motive in conjunction with either planning or a
method of killing that indicates a preconceived design to kill.’ [Citation.] These factors
are not the exclusive means, however, to establish premeditation and deliberation . . . .”
(Id. at p. 172.) “Thus, while premeditation and deliberation must result from ‘“careful
thought and weighing of considerations”’ [citation], we continue to apply the principle
that ‘[t]he process of premeditation and deliberation does not require any extended period
of time. “The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .”’” (People v. Bolin (1998) 18 Cal.4th 297,
332.)

                                              9
         Here, the evidence was plainly sufficient to demonstrate appellant killed Enciso
with premeditation and deliberation because it showed both a method of killing indicating
a preconceived design to kill and a motive. Having been in a “pretty good mood” just
before the shooting, appellant approached Enciso and the others on a public street with a
loaded firearm and, after an argument with Enciso, shouted “fuck cheese side” and fired
at least three (and as many as five) shots at Enciso as he walked away, one of which hit
him in the back and killed him. (See People v. Manriquez (2005) 37 Cal.4th 547, 578
[sufficient evidence of deliberation and premeditation from evidence that “defendant,
armed with a concealed firearm, left his room at the motel, angrily confronted the victim,
and fired several times, inflicting multiple wounds to the victim’s chest”].) As discussed
above, there was also strong evidence of a gang-related motive. Although appellant
argues the evidence demonstrated at most a heated exchange between appellant and
Enciso, that goes to the weight of the evidence, and the jury rejected that theory when it
found first degree murder instead of voluntary manslaughter, on which it was also
instructed.
3. Motion for Mistrial
         Before trial, the trial court instructed the jury, “Do not take anything I say or do
during this trial as an indication of what I think about the facts, the witnesses or what
your verdict should be.” Just before the jury retired to deliberate, the court repeated this
instruction.
         During the trial after Moreno finished testifying, the trial court made the following
comment in front of the jury: “Before the next witness is sworn, I think the record should
reflect, and it certainly is silent on the point up until now, that during the majority of
witness Fabio Moreno’s testimony, he stared downward toward his lap area while on the
witness stand and through the majority of his testimony covered his face with his right
hand.”
         Appellant did not object to the statement or request a jury admonition at the time,
but he moved for a mistrial the next morning. Defense counsel conceded the trial court’s
description of Moreno’s demeanor was accurate, but argued the comment invaded the

                                               10
province of the jury. The court explained the comment was not for the jury’s benefit, but
for the “record’s benefit, and that was made abundantly clear. It was absolutely vital as
to his conduct on the witness stand, and I described his conduct, as you agree, fairly
accurately. That’s for the record. [¶] It’s the record I’m conscious of and that I’m trying
to protect. Without that description I think it detracts from the quality of Mr. Moreno’s
testimony and the significance of his comment in relation to his testimony. [¶] Again, it
wasn’t done for the jury’s benefit. They witnessed the same thing I commented on the
record. I don’t think my comments were designed to influence their perception at all.
Quite frankly, they were instructed not to do that, quite frankly. Anything I say or do
during the trial, they should not take as an indication of what I think about the facts, the
witnesses, or what their verdict should be. [¶] So you’re protected, and the jury
appropriately instructed that they are not to consider my comments in that respect. But
again, it was more for the purpose of protecting the record. I think that was important
especially given the significance of his testimony and the nature of his testimony. [¶] I
think that bolstered the meaning of what he had to say. And again, if I was a lawyer
witnessing that, I would definitely have commented on that, made the record, most
certainly, that that was his conduct as displayed during his testimony. [¶] It’s not
misleading the jury or improperly influencing them at all, quite frankly. It’s protecting
the record, which I think is absolutely necessary.”
       Appellant contends the trial court abused its discretion in denying his motion for a
mistrial. We disagree. “We review the denial of a motion for mistrial under the
deferential abuse of discretion standard. [Citations.] ‘A motion for mistrial is directed to
the sound discretion of the trial court. We have explained that “[a] mistrial should be
granted if the court is apprised of prejudice that it judges incurable by admonition or
instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its
nature a speculative matter, and the trial court is vested with considerable discretion in
ruling on mistrial motions.”’” (People v. Cox (2003) 30 Cal.4th 916, 953, overruled on
other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)



                                             11
          “The court may make any comment on the evidence and the testimony and
credibility of any witness as in its opinion is necessary for the proper determination of the
cause.” (Cal. Const., art. VI, § 10; see §§ 1127, 1093, subd. (f).) “A trial court has
‘broad latitude in fair commentary, so long as it does not effectively control the verdict.’”
(People v. Linwood (2003) 105 Cal.App.4th 59, 73.) Any judicial comments on the
evidence “‘must be accurate, temperate, nonargumentative, and scrupulously fair. The
trial court may not, in the guise of privileged comment, withdraw material evidence from
the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or
otherwise usurp the jury’s ultimate factfinding power.’” (People v. Proctor (1992) 4
Cal.4th 499, 542 (Proctor), affirmed on other grounds by Tuilaepa v. California, supra,
512 U.S. 967.) “‘The propriety and prejudicial effect of a particular comment are judged
both by its content and by the circumstances in which it was made.’” (Linwood, supra, at
p. 73.)
          The trial court did not abuse its discretion in denying appellant’s motion for a
mistrial because appellant suffered no conceivable prejudice from the court’s comment in
front of the jury that would have warranted a new trial. While the court enjoys wide
latitude to comment on the evidence, here the court was not commenting on the evidence
for the jury’s benefit, but in order to ensure the record accurately reflected Moreno’s
demeanor. Whether or not the trial court erred in doing so in front of the jury—a point
we need not decide—the better practice would have been to make its record outside the
jury’s presence. But as the trial court noted, the jury observed Moreno’s behavior on the
stand—which defense counsel conceded was accurately described by the trial court—and
the jury was instructed twice not to take the court’s comments on witnesses as an
indication of the court’s view of the facts or verdict.5


5       Contrary to appellant’s argument, even if the court’s comment was for the jury’s
benefit, the court was permitted to comment on Moreno’s demeanor without also
commenting on any other witness. (Proctor, supra, 4 Cal.4th at p. 542 [“‘“[A] judge may
restrict his comments to portions of the evidence or to the credibility of a single witness
and need not sum up all the testimony, both favorable and unfavorable.”’”].)


                                               12
       We also reject appellant’s contention the trial court was obligated to sua sponte
instruct the jury with CALCRIM No. 3530 after it commented on Moreno’s demeanor.
That instruction states: “Do not take anything I said or did during the trial as an
indication of what I think about the evidence, the witnesses, or what your verdict should
be. [¶] Now, I will comment on the evidence only to help you decide the issues in this
case. [¶] However, it is not my role to tell you what your verdict should be. You are the
sole judges of the evidence and believability of witnesses. It is up to you and you alone
to decide the issues in this case. You may disregard any or all of my comments about the
evidence or give them whatever weight you believe is appropriate.” As we have noted,
the court twice instructed the jury consistent with CALCRIM No. 3530, and appellant
cites no cases requiring the trial court to repeat the instruction a third time during trial
absent a request from appellant to do so. In any case, because the trial court gave the
instruction, there was no reasonable probability any error in failing to sua sponte repeat it
prejudiced appellant. (See People v. Breverman (1998) 19 Cal.4th 142, 165.)
                                       DISPOSITION
       The judgment is affirmed.




                                                   FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




                                              13
