Filed 8/11/15 People v. Girard CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B253704

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. NA091059)
         v.

DOUGLAS GIRARD,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur H. Jean, Jr., Judge. Affirmed.
         Valerie G. Wass, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle
and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
      A jury convicted defendant Douglas Girard of the first degree murder of
Robert Rodriquez (Pen. Code, § 187, subd. (a); count 5),1 the attempted robbery of
Mark Fisher (§§ 664/211; count 2), possession of ammunition (§ 12316, subd.
(b)(1); count 4), and two counts of possession of a firearm by a felon (§ 12021,
subd. (a)(1); counts 3 and 6).2 In all counts, the jury found that the crimes were
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C) in
counts 2 and 5; subd. (b)(1)(A) in the remaining counts). In the murder and
attempted robbery counts, the jury found that defendant personally discharged a
firearm causing great bodily injury or death (§ 12022.53, subd. (d) in count 2;
subds. (d) and (e)(1) in count 5). The jury found true that defendant had suffered
two felony convictions, constituting two strikes (§§ 667, subds. (b)-(i); 1170.12,
subds. (a)-(d)), two serious felonies (§ 667, subd. (a)(1)), and resulting in two prior
prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to a total
term of 150 years to life in state prison, plus 10 years.
      Defendant appeals from the judgment of conviction, contending: (1) the
evidence does not support the gang enhancement on the murder count (count 5)
and a related count of possession of a firearm by a felon (count 6); and
(2) defendant’s sentence should be vacated and the case remanded for sentencing
before a different judge, because the trial judge demonstrated bias against
defendant. We disagree with these contentions and affirm the judgment.



1
      All further statutory references are to the Penal Code.
2
       As to the murder charge, defendant was jointly tried with Andres Villafana, whom
the jury acquitted. The jury also acquitted defendant of the robbery and attempted
murder of Mark Fisher, and acquitted him of two counts of attempted murder of a police
officer.

                                            2
                                  BACKGROUND3
Prosecution Evidence
Attempted Robbery of Mark Fisher
      On January 2, 2012, Mark Fisher was moving out of the garage he rented at
the home of appellant’s girlfriend’s mother, Mona, located on Ravenna Avenue in
Wilmington. Defendant, a member of the Westside Wilmas (WSW) gang, was
present. He displayed a gun in his belt and asked Fisher to speak to Mona about
some missing antique bottles. Fisher spoke to Mona, denied taking the bottles, and
refused to pay for them. Defendant was present, but did not speak. Fisher offered
to give Mona $20 for gas money. He removed $20 from his wallet, which
contained $2,600, and gave it to her. Defendant left with Mona and his girlfriend,
but returned a half hour later. He pulled out a pistol, ejected the clip, and tried to
sell the clip to Fisher for $300 because he was broke. Fisher declined, and
defendant left.
      About 15 minutes later, defendant returned with a male companion, pointed
a gun at Fisher, and demanded that he lie on his stomach and give up his wallet.
When Fisher refused, defendant fired a shot which parted Fisher’s hair. Fisher
struck defendant with a bottle, and defendant shot him in the knee. After a
struggle, Fisher was able to fight defendant and his companion off and secure the
garage door. Fisher checked his wallet. Initially he thought that defendant had
taken about $120, but later on counting his money he was unsure whether any was
missing.
      About two or three weeks later, defendant’s wife asked Fisher not to testify
because defendant’s family needed him. She paid Fisher for falsifying a notarized

3
      Given the limited issues on appeal, we do not attempt to summarize all the
evidence introduced a trial.

                                           3
statement disavowing his identification of defendant. She was later convicted of
bribery for the incident. At trial Fisher admitted that he testified falsely at the
preliminary hearing that he was not certain defendant was the man who shot him.
        The police recovered three .40 caliber casings from the scene. As a result of
his wound, Fisher’s knee was fractured, and he wore a brace and walked with a
cane.


Murder of Robert Rodriguez
        Robert Rodriguez was a WSW member who lived with his girlfriend,
Susana Corona, and their six-month-old child in a converted garage on North
Wilmington Boulevard in Wilmington. On January 28, 2012, he told Corona that
their friend, Andres Villafana, was coming over to show him some speakers.
        After Rodriguez exchanged some texts with Villafana using Corona’s cell
phone, Corona heard scraping on the garage door, and later a knock. Rodriquez
pulled the garage door open slightly and asked who it was. There was no response,
so he put the door down. Corona heard more scraping or rubbing on the door.
Rodriguez opened the door part way and asked again who it was. Corona was able
to see a person standing behind a parked van and told Rodriquez. Rodriquez
opened the door just enough to exit and left. Through a window in the door,
Corona observed a thin male with his hand at his stomach behind the van. She
could not see the man’s face, but speculated that it was Villafana. The man lifted
his arm, and Corona heard two or three shots. Corona hid in the garage and called
911.
        The police responded to the scene and recovered six .40 caliber casings and
two .45 caliber casings. A forensic comparison later showed that the .40 caliber
casings were fired by the same gun used in the attempted robbery of Mark Fisher.

                                           4
      Rodriquez succumbed to his wounds. He was shot eight times, including
two to the head. A few days later, defendant told fellow WSW member Ivan
Zamora that he killed Rodriguez execution style, shooting him seven times in the
head, stomach, back and legs.


Defendant’s Arrest
      Around 4:00 p.m. on January 31, 2012, Los Angeles Police Officers David
Mock and his partner Brett Hayes encountered defendant, Villafana, and another
WSW member in an alley. The three threw gang signs at the officers. When the
officers stopped and exited the car, defendant pointed a gun at them and fired four
or five shots in the officers’ direction. Appellant’s group fled. Responding police
officers discovered Villafana and the other WSW member hiding in a laundry
room in an apartment complex. A fully loaded revolver was found in the alley. It
had not been fired, and no shell casings were discovered. Officers Mock and
Hayes were not wounded, and no bullets struck their vehicle.4
      On the evening of February 2, 2012, police began searching for defendant in
the area of Avalon and Lomita in Wilmington. Late that night defendant appeared
at the apartment of WSW member Larry Degroat. He was panicked, and threw
two guns, a .38 Smith and Wesson revolver and .9 millimeter pistol, under
Degroat’s bed. Degroat told him to take them out. Defendant did so, and flushed
some empty casings down the toilet. They went to the living room, where
defendant asked for a paper and pen. He wrote a note that said: “To whom it may
concern this is Topo [defendant’s nickname], Westside Wilmas. I’m responsible
for everything.” He told Degroat that he killed Rodriquez because he was “no



4
      Defendant was acquitted of the attempted murder of Officers Mock and Hayes.
                                          5
good and he [was] a snitch.” He said that he was tired of living and running from
his problems. Degroat believed he was high on meth.
      About 45 minutes after defendant arrived, Degroat looked outside and saw
that his home was surrounded by police officers. It was now the early morning of
February 3, 2012, and the police had decided to conduct a probation search of
Degroat’s home in an attempt to locate defendant. The police called on Degroat to
leave the apartment. He gathered his children and their mother, and did so.
Eventually defendant also came out and was arrested.
      In a lengthy interview, Degroat told the police about defendant’s arrival, his
two guns, and his statements. In a search of Degroat’s apartment, the police found
a .9 millimeter semiautomatic pistol inside a hamper and a loaded .9 millimeter
magazine in a lampshade. The police told Degroat that they were unable to find
the second gun defendant had brought with him. On February 5, 2012, Degroat
returned to his apartment and located the gun under his refrigerator. He told the
police, who recovered it (an unloaded .38 caliber blue steel revolver).


Gang Evidence
      Los Angeles Police Officer Mark Maldonado testified as the prosecution’s
gang expert. He was familiar with WSW, which had about 450 to 500 members
who identified themselves in graffiti and tattoos using common symbols (“WSW,”
“WS Wilmas,” and others), as well as by hand signs (forming a “W”). WSW
territory included the scene of the Rodriguez murder. According to Officer
Maldonado, WSW’s primary activities include, among other crimes, murder,
attempted murder, assault with a firearm, and robbery. Officer Maldonado
testified concerning the prior first degree murder convictions of two named WSW
members in unrelated cases.

                                          6
      Officer Maldonado testified that in a process considered “house cleaning” or
simple gang politics, a member of WSW will kill another member of the gang who
falls out of favor. WSW was affiliated with the Mexican Mafia, which
promulgated a rule under which a member who snitches, meaning who talks to the
police or testifies against another gang member, can be beaten or killed. Asked a
hypothetical question using the evidence of the Rodriguez murder (in which the
prosecutor, intending to argue that both defendant and Villafana were shooters,
hypothesized two shooters rather than one), Officer Maldonado testified in relevant
part that that the crime was committed to benefit the WSW gang. The victim was
considered to be a snitch, and to benefit the gang he was killed: “they get rid of the
snitch in their house. . . . They don’t have to worry about it anymore.” Also,
“other gangs will hear about it. . . . [T]he gang[’]s killing one of their own shows
the discipline of that particular gang [and] how violent that gang is.” When asked
a hypothetical question using the evidence of the Fisher attempted robbery, he
opined that it was also committed to benefit the WSW gang.


Defense Evidence
      Defendant, who was 36 years old at the time of trial, testified in his own
defense. He admitted being a member of WSW (as were his parents), having
joined when he was 11.
      Defendant admitted attempting to rob Fisher. When Fisher took out his
wallet when talking to Mona, defendant saw that he had a lot of money. Defendant
admitted ordering Fisher at gunpoint to lie on his stomach, firing a shot close to
Fisher’s head to scare him, and shooting Fisher in the leg while they struggled. He
was not able to take any money.



                                          7
        Defendant also admitted killing Rodriguez. When defendant was in prison,
a fellow WSW member and close friend was shot and paralyzed. After defendant
got out of prison, he discovered in April or May of 2011 that Rodriguez was
responsible (although he was not sure if he was the shooter), so he decided to kill
Rodriguez. When he learned from Villafana that he was going to Rodriguez’s
residence to sell some speakers, he texted Rodriguez using Villafana’s cell phone
in an attempt to lure him into the alley. Villafana did not know defendant’s plan to
kill Rodriguez.
        Defendant convinced Villafana not to go to Rodriguez’s residence, and went
himself. He was armed with two pistols, a .45 caliber and a .40 caliber. When
Rodriguez exited the garage and approached where defendant stood in the alley,
defendant started shooting. When the .45 caliber pistol jammed after two or three
shots, he used the .40 caliber pistol. Rodriguez ran and fell. Defendant placed the
.40 caliber pistol to Rodriguez’ head, looked up to make sure no one was around,
and fired. Apparently, the bullet ricocheted off the pavement and struck Rodriguez
in the head. Defendant denied telling Zamora, Degroat or anyone else that he had
committed the murder.
        Concerning the shooting involving Officers Mock and Hayes, defendant
testified that he started shooting to slow the officers’ pursuit. He fired backwards
as he fled, and did not shoot at the officers or try to hurt them.


                                    DISCUSSION
   I.      Gang Enhancement
        Defendant contends that the evidence does not support the gang
enhancement in the Rodriguez murder count (count 5) and the related count of
possession of a firearm by a felon (count 6). Specifically, he contends that the

                                           8
prosecution failed to prove that he committed the crimes to benefit WSW or with
the specific intent to promote WSW’s gang activities. We disagree. Of course, we
view the whole record in the light most favorable to the judgment, and draw all
inferences in support. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
      As here relevant, the gang enhancement requires that the defendant commit
a felony “‘for the benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members . . . .’ [Citation.]” (People v. Mendez (2010) 188
Cal.App.4th 47, 56.) Here, defendant told Larry Degroat that he killed Rodriquez
because he was “no good” and a “snitch.” Officer Maldonado testified in relevant
part that that such a crime would benefit the gang to which the snitch belonged
because “they get rid of the snitch in their house. . . . They don’t have to worry
about it anymore.” Also, “other gangs will hear about it. . . . [T]he gang[’]s killing
one of their own shows the discipline of that particular gang [and] how violent that
gang is.”
      From this evidence, the jury could reasonably infer that defendant killed
Rodriguez to benefit WSW by ridding the gang of a member who was a snitch.
The jury could also infer that he did so with the specific intent to promote WSW’s
criminal conduct. That is, the jury could infer that defendant, a lifelong WSW
member since the age of 11, understood that the murder would demonstrate the
violent lengths to which the gang would go to protect itself, thus enhancing the
gang’s reputation and its ability to carry out its illegal activities without
interference. Further, the jury could infer that defendant intended to kill Rodriguez
so as to allow his gang to engage in future criminal activity without the risk of
having a snitch in their midst who would cooperate with the police.



                                            9
      Defendant contends that the prosecution theory was that both Villafana and
defendant acted in concert in the killing, and that the hypothetical question the
prosecutor asked Officer Maldonado based on the Rodriguez killing assumed that
two gang members acted in association in the killing. Because the jury acquitted
Villafana of the Rodriguez murder, defendant contends that Officer Maldonado’s
opinion that the killing of a snitch would benefit the hypothetical gang lacked a
foundation. However, Villafana’s acquittal has no effect on the sufficiency of the
evidence to support the gang enhancement against defendant. (People v. Miranda
(2011) 192 Cal.App.4th 398, 405 [jury verdict or finding inconsistent with another
verdict or finding allowed to stand if supported by substantial evidence].) Further,
Officer Maldonado’s testimony concerning the benefit to a gang by eliminating a
snitch was not dependent on there being two shooters acting in concert as opposed
to one acting alone – the killing benefits the gang regardless of the number of
killers. Moreover, even without expert testimony on the point, the dangers to a
gang of having a snitch in its midst are apparent. A jury could rationally infer, as a
matter of common sense, that if a life-long gang member such as defendant
murders a fellow gang member he believes is a snitch, he does so at least in part to
benefit the gang by ridding it of a security risk, and to permit the gang to continue
committing crimes without the fear that the snitch will inform on other gang
members.
      Defendant contends Degroat’s testimony is not substantial evidence to
conclude that the killing was motivated by the belief that Rodriquez was a snitch.
Defendant asserts that he made no similar claim to any other confidant, there was
no independent evidence that Rodriguez was considered a snitch, and defendant
himself testified that he killed Rodriguez not because he was a snitch, but because
he was somehow involved in the shooting of a friend who became paralyzed as a

                                          10
result of his wounds. Of course, absent physical impossibility or inherent
improbability, the testimony of a single witness constitutes substantial evidence to
support a verdict or finding. (See People v. Young (2005) 34 Cal.4th 1149, 1181
[referring to eyewitness identification testimony].) Here, Degroat was a fellow
gang member to whose home defendant fled in fear of being apprehended for his
crimes, including the murder of Rodriguez. He wrote a note admitting that he was
“responsible for everything.” In this context, it was neither physically impossible
nor inherently improbable that defendant would confess to Degroat his belief that
Rodriguez was no good and a snitch. Hence, Degroat’s testimony was sufficient to
prove defendant possessed such a motivation for killing Rodriguez.
      Defendant contends that there was insufficient evidence to prove that he
possessed the guns he used to kill Rodriguez to benefit WSW and promote gang
activity. However, defendant possessed the guns to carry out the murder of
Rodriguez. Thus, his possession of the guns carried the same intent as the killing:
to benefit WSW and promote future gang activity by eliminating a snitch. In short,
substantial evidence supported the gang enhancement in the murder of Rodriguez
(count 5) and the related possession of a firearm by a felon (count 6).


   II. Sentencing
      Relying on comments made by the trial court at his sentencing hearing,
defendant contends that the court demonstrated bias, requiring a remand for
resentencing. Defendant forfeited the issue, but, regardless, a remand is not
required.
      At defendant’s sentencing hearing, William Hanoway, a volunteer chaplain
at the county jail, spoke on defendant’s behalf without being asked to do so. He
stated that based on his conversations with defendant, he knew that defendant grew

                                         11
up in a gang environment (his parents were gang members), and he believed that
defendant was sorry for his crimes. Hanoway saw “some redemptive value” in
defendant and asked “for a little bit of mercy.”
        A letter from defendant’s wife was read into the record. In the letter, she
expressed her pride in defendant for “being honest,” and stated that while people
who did not know defendant may look at him “like an animal,” he was not. He
was a “loving, big-hearted person.” She described him as a loving parent and
husband, and asked that the court “remember that he has a wife and kids that love
him.”
        Trina Gomez, apparently defendant’s aunt (mother of defendant’s cousin),
also spoke for him. She stated that she had known him since he was 12. She noted
that he had been honest in court concerning his crimes, and she wanted the court to
know that defendant “is not an animal,” that he had “remorse for certain things that
he cannot change,” and that “he is human.”
        Following her statement, the court continued the hearing at defense
counsel’s request. At the next session, the court asked defense counsel for his
“thoughts as to sentencing.” Defense counsel replied: “[A]ll I have to say is that I
thought during the trial he did a noble act by his testimony where he admitted what
he did and exonerated Mr. Villafana. And I think he should get some kind of a
break for that.”
        In response, the court stated: “Frankly, I think he should be stood up against
a wall and shot. That’s my feeling. And I intend to impose every day that I can. I
can’t think of a more awful human being.”
        After hearing from the prosecutor, the court sentenced defendant as a third
strike defendant to a total unstayed term of 150 years to life, plus an additional 10
years for his two priors under section 667, subdivision (a)(1), as follows: for the

                                           12
first degree murder of Rodriguez (count 5), 75 years to life (triple the base term of
25 years to life pursuant to the Three Strikes law), plus an additional 25 years to
life for the section 12022.53, subdivision (d) enhancement; for the Fisher
attempted robbery, 25 years to life (pursuant to the Three Strikes law), plus an
additional 25 years to life for the section 12022.53, subdivision (d) enhancement;
on the remaining counts, stayed sentences of 25 years to life; and for the two prior
667, subdivision (a)(1) priors, an additional determinate term of 10 years (5 years
each).
         Defendant contends that the court’s comments that he “should be stood up
against a wall and shot,” and that “I can’t think of a more awful human being,”
demonstrate a bias in sentencing that requires a remand and resentencing before a
different judge. However, because defendant did not raise the issue of the judge’s
alleged bias in the trial court, the contention is forfeited. (People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1067.) Even if the issue were not forfeited,
however, no remand is required.
         The state and federal constitution guarantee a defendant a due process right
to an impartial trial judge. (People v. Guerra (2006) 37 Cal.4th 1067, 1111
(Guerra), overruled on another point in People v. Rundle (2008) 43 Cal.4th 76,
151.) However, “[m]ere expressions of opinion by a trial judge based on actual
observation of the witnesses and evidence in the courtroom do not demonstrate a
bias.” (Guerra, supra, 37 Cal.4th at p. 1111.)
         Here, the trial court’s comments were intemperate and ill-advised, but were
clearly based on evidence of defendant’s violent conduct in the instant case -- his
murdering one person execution-style, seriously wounding another in an attempted
robbery, and shooting in the direction of pursuing police officers in a third
incident. Although the court’s view of defendant’s crimes and character should not

                                           13
have been expressed in such inflammatory terms, “[o]n appeal, we assess whether
any judicial misconduct or bias was so prejudicial that it deprived defendant of ‘“a
fair, as opposed to a perfect, trial.”’” (Guerra, supra, 37 Cal.4th at p. 1112.)
      As defendant concedes, the only possible discretionary decision involved in
his sentencing was whether to strike one or both of his prior strike convictions.
The decision to strike a prior strike conviction is subject to “stringent standards
that sentencing courts must follow in order to find . . . an exception [to the Three
Strikes law]. ‘[I]n ruling whether to strike or vacate a prior serious and/or violent
felony conviction allegation or finding under the Three Strikes law, on its own
motion, “in furtherance of justice” pursuant to Penal Code section 1385(a), or in
reviewing such a ruling, the court in question must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects,
the defendant may be deemed outside the scheme’s spirit, in whole or in part, and
hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.’” (People v. Carmony (2004) 33 Cal.4th 367,
377 (Carmony).)
      In the present case, as a matter of law, nothing in the record rationally
suggests that defendant should be deemed outside the spirit of the Three Strikes
law in whole or in part. Thus, on this record, the trial had no discretion to strike
one or more of defendant’s prior strikes.
      Defendant had been a WSW member since the age of 11. As his probation
report shows, by the time of trial, at age 36, he had amassed a long criminal record
of theft and violence. He had sustained juvenile petitions for grand theft,
intimidating a witness, and murder. He was paroled from the California Youth
Authority on the sustained murder petition in October 2001. By March 2002, he

                                            14
had been convicted of carjacking (his first strike offense) and sentenced to three
years in state prison. Following his release, he was convicted of robbery in May
2006 (his second strike) and sentenced to six years in prison. Again released, he
was convicted in August 2010 of obstructing a peace officer, and in October 2011
of criminal contempt of court. In January 2012, he committed the Fisher attempted
robbery, the Rodriguez murder, and fired in the direction of Officers Mock and
Hayes who were attempting to apprehend him. Nothing in defendant’s prior record
or current crimes presented any justification for striking one or both of his prior
strikes.
       Further, none of the requests for leniency at his sentencing spoke to any true
“particulars of his background, character, and prospects” (Carmony, supra, 33
Cal.4th at p. 377) that might rationally suggest he was outside the spirit of the
Three Strikes scheme in whole or in part. Hanoway, the volunteer chaplain,
believed that defendant had remorse and “some redemptive value.” According to
the letter of defendant’s wife (who had been convicted of bribing Fisher),
defendant was a loving father and husband, with a family that loved him. Trina
Gomez had known defendant since he was a child and believed he felt remorse.
Defendant’s attorney argued that defendant deserved some leniency because in his
testimony he was honest and took the blame for the Rodriguez murder.
       But none of these circumstances –notions of remorse, redemptive value as a
human being, the love of a wife and children, and testimony absolving Villafana –
rationally suggested any mitigation of his past record and current crimes, or any
character traits or future prospects indicating his criminal lifestyle was a thing of
the past. To the contrary, he was a lifelong, violent criminal who had committed,
among other crimes, two murders (one as a juvenile, another as an adult), a
carjacking, a robbery, and an attempted robbery. As an adult, he had never

                                          15
remained out of custody for more than three years from one crime to the next. As
a matter of law, regardless of the expressions of love and support he received at his
sentencing hearing, he is precisely the kind of recidivist offender that the Three
Strikes law was intended to punish. Thus, despite the court’s comments prior to
sentencing, defendant was not deprived of a fair sentencing hearing: the only
legally possible leniency that could have been shown was to strike one or both of
his prior strike convictions, but on this record the court had no discretion to do so
under the stringent standards placed on such a decision.


                                      DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, J.




             We concur:




             EPSTEIN, P. J.




             COLLINS, J.

                                          16
