Filed 5/14/14 P. v. Villalobos CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                          SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR



THE PEOPLE,                                                                   B247888

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. BA376852)
          v.

JUAN CARLOS VILLALOBOS,

          Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles County,
Ronald H. Rose, Judge. Affirmed.
          Jerome McGuire, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
                                         ______________________________
       Defendant Juan Carlos Villalobos appeals from the judgment entered upon his jury
conviction of premeditated attempted murder by use of a firearm and possession of a
firearm by a felon, both committed for the benefit of a street gang, as well as his
conviction of attempted second degree robbery and disobeying a court order. Defendant
contends the evidence does not support the gang enhancements. He also argues the trial
court made evidentiary errors, misadvised him about his sentence, and abused its
discretion in denying his request to represent himself at sentencing. We find no
reversible error and affirm the judgment.


                    FACTUAL AND PROCEDURAL SUMMARY
       At about 2:36 p.m. on September 29, 2010, Giovany Guevara was walking
towards his girlfriend’s house on Wabash Street in East Los Angeles. He was
approached by defendant, who asked Guevara where he was from, stated he was from
“KAM,” which stands for Krazy Ass Mexicans, and told Guevara he should not be
walking in appellant’s neighborhood. Guevara answered that he was from “nowhere,”
meaning he was not in a gang. Appellant pulled out a gun from his waistband, “racked
it,” and pointed it towards Guevara. He asked if Guevara had money. Guevara
responded he did not and started walking away. He heard defendant ask someone on his
phone twice, “Should I pop him?”, and tell the person on the other end of the line to meet
him around the corner. Guevara began to run. Defendant fired five or six shots.
Guevara was hit in the stomach and back.
       When he was interviewed at the hospital, Guevara described his assailant’s age,
weight and height, as well as his tattoos, specifically a tattoo of a woman on his neck.
After defendant was identified as having such a tattoo, the investigating officer placed his
photograph in a photographic line up, and Guevara identified him as the assailant.
       On October 7, 2010, officers spotted defendant in an alley east of Soto Street
between Malabar and Boulder Streets. One officer recognized one of defendant’s
companions as the girlfriend of a KAM member. The officers noticed that defendant
grabbed his waistband. They followed him onto Boulder Street, where he crouched

                                             2
behind a van and put the gun down. A nearby trashcan had graffiti associated with KAM.
Defendant was arrested. The gun he discarded was loaded with 16 rounds.
       Text messages on defendant’s cell phone indicated that, on September 29, 2010,
he was armed with a .380 caliber gun. Throughout that day, defendant exchanged
messages referencing various KAM gang members; the presence of police (“huras”),
enemies (“foos”), and rival State Street Gang members (“Stater Brothers”) in the
neighborhood; and “a war going on with these bitches.” At about 2:33 p.m., defendant
sent out a message stating he was “posted” at a store on Wabash and Stone Street, which
meant defendant was at the store, “keeping an eye on the neighborhood.” At 3:26 p.m.,
defendant messaged, “We left the hood ‘cause I got into it just now in Wabash,” meaning
he and others had left KAM gang territory after he had gotten into some kind of
confrontation on Wabash Street. The next message listed the names of KAM gang
members, including one of defendant’s brothers.
       Defendant was charged with four counts: attempted first-degree murder, with an
alleged personal use of a firearm (Pen. Code, §§ 664, 187, subd. (a); § 12022.53, subds.
(b), (c), & (d)1) (count 1); possession of a firearm by a felon (former § 12021, subd.
(a)(1), see now § 29800, subd. (a)(1)2) (count 2); attempted second-degree robbery
(§ 664, 211) (count 3); and disobeying a court order, namely a 2003 KAM gang
injunction (§ 166, subd. (a)(4)) (count 4). Gang enhancement allegations (§ 186.22) were
attached to the first two counts. Defendant pled not guilty and denied the allegations.
After an initial mistrial, a second jury convicted defendant as charged and found the
allegations true.
       Defendant was sentenced to 40 years to life in prison, plus three years and eight
months, consisting of 15 years to life on count 1 and 25 years to life on the gun
enhancement. Two other firearm enhancements were stayed. On count 2, he was

       1
           Statutory references are to the Penal Code unless otherwise indicated.
       2
        Former section 12021, subdivision (a)(1) was repealed as of January 1, 2012 and
reenacted without substantive change as section 29800, subdivision (a)(1). (People v.
Sanders (2012) 55 Cal.4th 731, 734, fn. 2.)
                                               3
sentenced to three years consecutive, and the enhancement allegation was dismissed. On
counts 3 and 4, the court imposed respectively an eight-month consecutive term and a
six-month concurrent term.
       Defendant filed this timely appeal.


                                      DISCUSSION
                                             I
       The gang enhancement provision in section 186.22, subdivision (b)(1) applies to
“any person who is convicted of a felony committed 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 . . . .” Appellant does not
dispute he is a gang member, but argues that the evidence was insufficient to establish
that the attempted murder and gun possession benefitted the KAM gang and were
committed with the specific intent to promote or further criminal conduct by gang
members.
       “In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. (People v. Wilson (2008) 44 Cal.4th 758,
806.) We presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence. (Ibid.) If the circumstances reasonably justify
the trier of fact’s findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding. (People v.
Lindberg (2008) 45 Cal.4th 1, 27.) ‘A reviewing court neither reweighs evidence nor
reevaluates a witness’s credibility.’ (Ibid.)” (People v. Albillar (2010) 51 Cal.4th 47,
59–60 (Albillar).)




                                             4
   A. Attempted murder
       Defendant contends the evidence is insufficient to support the gang enhancement
on count 1 because the prosecutor did not allege that the intervening attempted robbery
was gang related. The prosecutor also left the attempted robbery out of a hypothetical
about the shooting, on which the gang expert based his opinion that the shooting
benefitted KAM. Defendant claims there was no evidence he shot Guevara with a
specific intent to promote, further, or assist in criminal conduct by gang members
because the gang expert was not asked whether the hypothetical supported such a finding.
       “Expert opinion that particular criminal conduct benefited a gang by enhancing its
reputation for viciousness can be sufficient to raise the inference that the conduct was
‘committed for the benefit of . . . a[ ] criminal street gang’ within the meaning of section
186.22(b)(1). [Citations.]” (Albillar, supra, 51 Cal.4th at p. 63.) Defendant incorrectly
suggests that the element cannot be established by an inference. ‘“Expert opinion that
particular criminal conduct benefited a gang’ is not only permissible but can be sufficient
to support the Penal Code section 186.22, subdivision (b)(1), gang enhancement. (People
v. Vang (2011) 52 Cal.4th 1038, 1048, citing Albillar, at p. 63.) The expert testified that
the shooting, which occurred on a main street in KAM gang territory, would benefit
KAM because it would terrorize the community, demonstrate the gang controlled the
area, and discourage cooperation with police, thus allowing the gang to continue its free
reign of terror. The expert testimony was sufficient to raise the inference that the
shooting benefitted KAM.
       Defendant concedes that the beginning of the encounter was gang-related, and that
the evidence indicated KAM members were on the alert about an ongoing war with a
rival gang. But he claims the intervening attempted robbery changed the nature of the
encounter between defendant and Guevara because of the prosecutor’s decision not to
charge a gang-enhancement in relation to the attempted robbery and not to include it in
the hypothetical on which the expert based his opinion. We cannot speculate about the
reasons for the prosecutor’s discretionary decisions, and those decisions are not evidence.
(See Davis v. Municipal Court (1988) 46 Cal.3d 64, 87 [so long as sufficient facts

                                              5
demonstrate probable cause defendant committed a crime, prosecutor has discretion to
determine what charges to bring].) Moreover, by focusing on the attempted robbery to
the exclusion of the larger context in which it occurred, defendant invites us to see the
encounter in a light most favorable to him rather than to the judgment. We cannot do that
either. (Albillar, supra, 51 Cal.4th at p. 59.)
       Section 186.22, subdivision (b)(1) also requires that a defendant commit the gang-
related felony “with the specific intent to promote, further, or assist in any criminal
conduct by gang members . . . .” Criminal conduct includes “the current offenses—and
not merely other criminal conduct by gang members.” (Albillar, supra, 51 Cal.4th at
p. 65.) “[I]f substantial evidence establishes that the defendant intended to and did
commit the charged felony with known members of a gang, the jury may fairly infer that
the defendant had the specific intent to promote, further, or assist criminal conduct by
those gang members.” (Id. at p. 68.)
       The text messages defendant sent and received throughout the day of the shooting
support the inference that he was in constant communication with others on gang-related
matters. Immediately before the shooting, he asked for instructions whether to shoot the
victim, and agreed to meet the person who gave him the instructions around the corner.
After the shooting, defendant texted that he left the area in the company of others, and his
subsequent message listed names of known KAM members. Thus, although defendant
was alone at the time of the shooting and the identity of the person from whom he sought
instructions is unknown, the jury could infer that defendant committed the shooting while
he was in close contact with other KAM gang members.
   B. Firearm Possession
       Defendant argues that the gang enhancement on count 2 is not supported by
evidence that his possession of a gun at the time of his arrest was gang related because
the gang expert was not asked a hypothetical about possession of a firearm around
Boulder and Soto Streets, the area where defendant was arrested on October 7, 2010.
       The expert was asked if it would benefit the gang for its member to be “walking
around Wabash, Stone, City Terrace area with a gun.” Part of the expert’s answer was

                                                  6
specific to the area around Wabash Street, but he also testified generally that “walking
around with a gun in your neighborhood is gangbanging” because it involves patrolling
and protecting the gang’s neighborhood. (See People v. Garcia (2007) 153 Cal.App.4th
1499, 1505–1506 [evidence sufficient where expert identified gang-related purpose for
possession of loaded weapon despite contrary evidence].)
       The expert testified Soto Street was the western border of the KAM gang territory,
and Boulder and Malamar Streets were within that territory. On the day of his arrest,
defendant was spotted in an alley between Boulder and Malamar Streets, just east of Soto
Street. He was arrested after he turned onto Boulder Street. His observed movements
were all within KAM gang territory. Defendant’s possession of a firearm in gang
territory provides substantial evidence for the expert’s opinion, even though the
hypothetical referenced different streets in that territory. (Cf. In re Frank S. (2006) 141
Cal.App.4th 1192, 1199 [no evidence defendant was in gang territory, had gang members
with him, or had any reason to use knife he carried for self-protection in gang-related
offense].)
       Defendant was not in the company of known gang members at the time of his
arrest, but that fact by itself does not render the evidence speculative. The expert testified
that possessing weapons was one of the primary activities of KAM, along with attempted
murder and assault with a deadly weapon. A possession offense may be gang related if it
is among the gang’s primary activities. (See People v. Sanchez (2014) 223 Cal.App.4th
1, 12; cf. People v. Ochoa (2009) 179 Cal.App.4th 650, 661–664 [no evidence
connecting carjacking and armed robbery to defendant’s gang]; People v. Ramon (2009)
175 Cal.App.4th 843, 853 [expert’s opinion did not include ‘“possessing stolen vehicles”’
among gang’s activities].)
       The gang enhancements are supported by substantial evidence.
                                              II
       Defendant argues the trial court made erroneous evidentiary rulings regarding
relevancy and Evidence Code section 352. We review such rulings for abuse of
discretion. (People v. Linton (2013) 56 Cal.4th 1146, 1181.)

                                              7
   A. Evidence Regarding Defendant’s Brother
       The trial court allowed the prosecution to use a case involving defendant’s brother,
Luis Villalobos, a known KAM member, as one of the predicate offenses required to
prove defendant was a member of a criminal street gang. The expert also was allowed to
testify that in a text message defendant mentioned his brother Anthony Villalobos,
another known KAM member, along with other gang members with whom defendant left
the area of the shooting.
       Defendant argues this evidence which portrayed defendant as a member of “a gang
family,” was more prejudicial than probative, and should have been excluded under
Evidence Code section 352 because it was “essentially prohibited character evidence,” or
because it established his guilt by association. In particular, he argues that the evidence
of his brother Luis’s gang-related crimes would lead to the improper inference that
defendant was prone to commit crimes because “blood is thicker than water.”
       Defendant cites no authority prohibiting the use of such evidence, and we have
found none. On the contrary, even defendant’s own gang-related crimes may be used as
predicate offenses. As the court explained in People v. Tran (2011) 51 Cal.4th 1040,
1048 (Tran), “because the prosecution is required to establish the defendant was an active
participant in a criminal street gang and had knowledge of the gang’s criminal activities,
the jury inevitably and necessarily will in any event receive evidence tending to show the
defendant actively supported the street gang’s criminal activities. That the defendant was
personally involved in some of those activities typically will not so increase the
prejudicial nature of the evidence as to unfairly bias the jury against the defendant.”
Evidence that defendant’s brother committed a predicate crime is no more prejudicial
than evidence that defendant did so himself.
       Here, the expert testified that he had arrested Luis Villalobos for possession of a
loaded firearm in KAM territory and in the company of KAM members, that Luis was a
self-admitted KAM member, and that he was defendant’s brother. Luis’s crime was a
predicate offense necessary to establish KAM was an active criminal street gang. The
crime of possession is not unduly inflammatory, and the reference to the familial

                                               8
relationship was fleeting. Moreover, the jury was provided a limiting instruction not to
conclude from the evidence of gang-related activity that defendant is of “bad character”
or has a “predisposition to commit crime.” The trial court did not abuse its discretion in
admitting the evidence. (See Tran, supra, 51 Cal.4th at p. 1050.)
   B. Question about Gun Possession
       Defense counsel asked the expert whether “many people in that area have
firearms.” The court sustained the prosecutor’s relevance objection. Defense counsel did
not explain the relevance of this question. Defendant now argues evidence that many
people in his neighborhood, even those who have no gang connection, carry weapons for
protection would have weakened the inference that defendant’s firearm possession was
gang related. Only relevant evidence is admissible, and evidence is relevant if it has “any
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, §§ 210, 350.) Evidence that individuals
unaffiliated with a gang carry weapons for self-protection does not logically tend to prove
that gang members, such as defendant, carry weapons for the same purpose. The court
did not abuse its discretion in sustaining an objection to a question intended to elicit
irrelevant evidence.
   C. Cumulative Error
       Because we have rejected defendant’s individual claims of error, there is no
cumulative error. (People v. Tully (2012) 54 Cal.4th 952, 1020.)
                                             III
       Defendant argues he was denied due process when the court misadvised him of the
maximum sentence he faced if he rejected the prosecution’s plea bargain offer. A court’s
misrepresentation as to sentencing that prevents a defendant “from obtaining a plea offer
more favorable to him than the sentence he received after trial” violates due process and
is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24.
(People v. Goodwillie (2007) 147 Cal.App.4th 695, 735–737 (Goodwillie) [burden of
proof on prosecution], but see People v. Miralrio (2008) 167 Cal.App.4th 448, 462–463
[burden of proof on defendant].)

                                              9
       Defendant claims the court misadvised him about his maximum exposure during
the plea bargain discussion after the initial mistrial. At that time, the court estimated
defendant’s sentence on count 1 would be 25 or 35 years to life, which was lower than
the 40-year-to-life term the court eventually imposed. The court was uncertain about the
facts of the case and did not express an opinion on defendant’s exposure on the other
counts.
       Although incorrect, the court’s estimate did not bring “the plea bargaining process
to a halt.” (Goodwillie, supra, 147 Cal.App.4th at p. 735.) After jury selection began for
the second trial, the prosecutor advised the court the defense had approached him about a
plea, and the prosecutor had offered 39 years, which was consistent with a prior offer in
the “high 30’s.” At that point, the trial court explained to defendant that count 1 carried
the possibility of a life sentence, and he would serve a minimum of 32 years before he
would be eligible for parole, so the prosecutor’s offer was “not much above the minimum
sentence.” The court suggested that the sentence could be as high as 42 years to life on
count 1 alone, or about 40 years, and defendant “could very well remain [in prison] for
the rest of [his] life”.
       The court’s calculation of the maximum sentence on count 1 was incorrect, as it
was based on the standard seven-year minimum before eligibility for parole, plus a 25-
year minimum on the gun enhancement, and a 10-year minimum on the gang
enhancement. Until sentencing, the court was unaware of the 15-year minimum term
before a defendant would be eligible for parole in a gang-related felony (§ 186.22, subd.
(b)(5)), which it ultimately imposed on count 1, along with a 25-year-to-life term on the
gun enhancement, for a total of 40 years to life on that count. Nevertheless, the
maximum exposure on count 1 of which defendant was advised (42 years to life) was
slightly higher than the sentence he received after trial on that count.
       Defendant incorrectly claims that the court consistently advised him that his
maximum exposure was from 25 years to life to 35 years to life, and that the 32-year-to-
life estimate “split the difference.” The record does not bear out the claim that defendant
was prejudicially misadvised about his maximum sentence on count 1, and the court

                                             10
never purported to advise him on his maximum exposure on all counts. Under the
circumstances, it cannot be said that the court’s representation about the sentence caused
defendant to turn down the prosecutor’s offer of 39 years to life.
                                             IV
       Defendant contends he should have been allowed to represent himself at
sentencing. He relies on People v. Miller (2007) 153 Cal.App.4th 1015 (Miller). The
Miller court held that the defendant had “an absolute right to represent himself at
sentencing” because his request to do so was made two months before the sentencing
hearing and was therefore timely. (Id. at p. 1024.) The sentence was reversible per se
because the trial court treated the request as untimely. (Ibid.)
       Here, at the original sentencing hearing on March 6, 2013, defendant asked to
represent himself only on a motion for new trial, and asked for a continuance to prepare
the motion. The court denied the requests. Sentencing was continued to March 25, 2013
to give the attorneys time to look into the effect of section 186.22, subdivision (b)(5) on
the sentence on count 1. The court directed defense counsel to discuss with defendant his
request for a motion for a new trial. During the March 25 hearing, defendant asked to
represent himself at sentencing because counsel had not spoken to him about filing a new
trial motion. Counsel stated he had not found grounds for such a motion. The court
denied defendant’s request and proceeded to sentence him.
       Miller, supra, 153 Cal.App.4th 1015 is distinguishable. The request for self-
representation in that case was made after a motion for new trial had been made and
denied, and sentencing was all that remained. (Id. at p. 1024.) Miller does not require
that a limited request to represent oneself on a motion for new trial be treated as a request
to represent oneself at sentencing. The court explained that motions for self-
representation made during trial are subject to the trial court’s discretion because of the
“potential disruption of proceedings already in progress.” (Ibid.) Although sentencing
proceedings are separate from the trial, the court acknowledged that, to be timely, “the
request for self-representation at sentencing must be made within a reasonable time prior
to commencement of the sentencing hearing.” (Ibid.) Thus, defendant’s request to

                                             11
represent himself partway through the sentencing hearing on March 25 was untimely
under Miller, and the court had discretion to deny it. (See People v. Doolin (2009)
45 Cal.4th 390, 455, fn. 39 [untimely request to represent oneself at sentencing subject to
court’s discretion].)
       Defendant argues that the request was timely because defense counsel had failed
to meet with him between the two hearings as directed by the court, and defendant did
not understand the effect of section 186.22, subdivision (b)(5) on his sentence until the
March 25 hearing. But at the March 6 hearing the court already had put defendant on
notice he might be subject to 15 years to life in prison on count 1. Defendant’s
complaints at both hearings had to do only with the motion for new trial he wanted to file,
and it is unclear that he actually wanted, let alone was prepared, to represent himself with
regard to sentencing. The trial court did not abuse its discretion in denying defendant’s
request to represent himself.


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




                                                 EPSTEIN, P. J.
We concur:




       MANELLA, J.                               EDMON, J.*




        *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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