Filed 3/28/16 P. v. Gallardo CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT



THE PEOPLE,                                                          B259668

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA404896)
         v.

JOSE GALLARDO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
C. H. Rehm, Jr. Judge. Affirmed.


      Carla Castillo, 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, Margaret E. Maxwell and
Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       Jose Gallardo appeals from his conviction of first degree murder, contending that
there was insufficient evidence of premeditation and deliberation, and that he received
ineffective assistance of counsel when his lawyer failed to object to several gang
references by witnesses or to the prosecutor’s argument concerning the time required to
premeditate. We reject these contentions and affirm the judgment.

                       FACTS AND PROCEDURAL HISTORY

       In accord with the usual rules on appeal, we state the facts in the manner most
favorable to the judgment. (People v. Acevedo (2003) 105 Cal.App.4th 195, 197, fn. 1.)
At around 11:00 p.m. on August 18, 2012, Gilbert Guzman was shot and killed in an
alley adjacent to the house where he was attending a backyard wedding reception. When
the accounts of several party guests are stitched together, it appears that appellant Jose
Gallardo tried to enter the party from the front of the house, then walked down the alley,
where he tried to enter through a gate leading into the backyard of the party house.
Gallardo was not an invited guest.
       As Gallardo walked down the alley toward the gate, he was carrying a beer bottle
and sang along to the music coming from the party. Gallardo was in fact intoxicated,
having consumed multiple beers along with some methamphetamine. Victim Guzman,
who had consumed several beers and some cocaine, was in the alley at the time. When
Gallardo tried to enter the party, Guzman put his arm across the gate, told Gallardo it was
a family party, and walked him back into the alley toward a car parked nearby. One
guest who was also in the alley – Gabriel Reynoso – heard Gallardo ask Guzman, “What
do you mean I am nobody?” Another – Cristina Mendoza – asked Guzman whether
everything was alright. When Guzman assured her that it was, she returned to the house
to use the bathroom and then heard gunshots.
       Shortly before the shooting, the owner of the house, Rolando Larios, had retrieved
his nine millimeter handgun after learning that someone described as a “Cholo” had tried
to enter through the front of the house. Finding nobody by that description out front,
Larios went into his backyard, where he saw the gate leading to the alley was open. As

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Larios looked out into the alley, he saw Guzman, Gallardo, and two other party guests.
When Larios looked away after a brief distraction, he heard a gunshot. He saw Gallardo
run back down the alley toward the street, firing his gun in Larios’s direction, prompting
Larios to fire several rounds toward Gallardo.
       Gallardo ran off and hid in the backyard of nearby homeowner Francisco Onofre.
Onofre called the police, who found Gallardo in the backyard at around 12:40 a.m.
(August 19), but did not connect him to the shooting. Instead, Gallardo was taken
somewhere to sober up and then released. Gallardo left his cell phone in Onofre’s yard
and returned later that day (August 19) to retrieve it. Onofre spotted Gallardo, who asked
Onofre to open the gate so he could leave. After Onofre pointed a broomstick at him, and
Onofre’s wife said to call the police, Gallardo said, “Fuck you. I’m gonna come back
with my homies and fuck your shit up. I’m Junior from the barrio,” and “You don’t
know who you’re messing with.” The police arrived soon after and detained Gallardo.
       Gallardo was eventually connected to the Guzman shooting and was charged with
one count of first degree murder (Pen. Code, § 187), along with making a terrorist threat
(Pen. Code, § 422) against Onofre. The information also alleged that each crime was
committed for the benefit of a street gang. (Pen. Code, § 186.22.) The trial court granted
Gallardo’s motion to bifurcate the gang enhancement allegations, and later granted the
prosecutor’s motion to dismiss those allegations at the close of evidence in the first phase
of the trial. There was, thus, no second phase of the trial.
       Gallardo testified at his trial, contending that he acted in self-defense. According
to Gallardo, he was on his way to a friend’s house when he stumbled upon Guzman, who
was urinating in the alley. Guzman appeared angry and, in an attempt to calm him,
Gallardo said “I’m nobody, fool.” That angered Guzman even more. After being briefly
joined by Larios, Guzman became increasingly agitated, threatened to harm Gallardo, and
came toward him. When Guzman started to pull a gun from his waistband, Gallardo
pulled out his own handgun and fired it when Guzman grabbed for it. However, there
was no evidence apart from Gallardo’s testimony that Guzman was armed at the time.
No weapon was found.

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       The jury convicted Gallardo of both first degree murder and making terrorist
threats. He contends on appeal that he was guilty of only second degree murder because
there was insufficient evidence of premeditation and deliberation. He also contends that
he received ineffective assistance of counsel when his lawyer failed to object to several
comments by witnesses that portrayed him as a gang member, and to the prosecutor’s
closing argument analogy concerning the short time span required to show premeditation
and deliberation for first degree murder.

                                      DISCUSSION

1.     There Was Sufficient Evidence of Deliberation and Premeditation

       1.1. Legal Principles of First Degree Murder

       First degree murder is differentiated from second degree murder by the existence
of evidence showing premeditation and deliberation. (Pen. Code, §§ 187, subd. (a), 189;
People v. Nazeri (2010) 187 Cal.App.4th 1101, 1111 (Nazeri).) Deliberation refers to a
careful weighing of considerations in forming a course of action, while premeditation
means to think over in advance. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069
(Mendoza).)
       In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our Supreme Court
identified three types of evidence that are useful in determining whether there was
sufficient evidence of premeditation and deliberation – planning activity, preexisting
motive, and the manner of killing. (Mendoza, supra, 52 Cal.4th at p. 1069.) These
factors are neither exclusive nor determinative. Instead they simply guide an appellate
court’s assessment of the evidence. (People v. Cage (2015) 62 Cal.4th 256, 276 (Cage).)
       Premeditation and deliberation do not require an extended period of time.
Although they cannot occur in the flicker of an eye, the true test is not the duration of
time as much as it is the extent of reflection. The thought process may occur with great
speed and a cold, calculated judgment may be arrived at quickly. (Cage, supra,
62 Cal.4th at p. 276; Nazeri, supra, 187 Cal.App.4th at p. 1114.)

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       Gallardo contends there was insufficient evidence of premeditation or deliberation.
We therefore review the record in the light most favorable to the judgment to determine
whether it contains substantial evidence from which a rational trier of fact could find him
guilty beyond a reasonable doubt. (Mendoza, supra, 52 Cal.4th at pp. 1068-1069.)
       1.2. The Evidence Shows Deliberation and Premeditation
       Gallardo contends there was no evidence of any of the three Anderson factors –
planning, motive, or manner of killing. Without expressly saying so, Gallardo appears to
contend that instead of planning to kill Guzman, the evidence shows as a matter of law
that he did so impulsively and rashly. He claims there is no evidence of motive because
he did not know Guzman, and that even though the manner of killing – shooting his
victim at pointblank range – suggests first degree murder, that factor alone is not enough.
We disagree.
       First, the Anderson factors serve only as analytical guideposts and are neither
exclusive nor determinative. (Cage, supra, 62 Cal.4th at p. 276.)
       Second, the evidence shows that Guzman was shot at close range without
provocation or evidence of a struggle, which supports an inference of premeditation and
deliberation. (People v. Thompson (2010) 49 Cal.4th 79, 114-115.)
       Third, Gallardo cites no authority for the proposition that a killer must have
already known his victim for a motive to exist. In Mendoza, supra, 52 Cal.4th 1056, for
instance, the defendant shot and killed a police officer who stopped him for questioning.
The Supreme Court found substantial evidence that the defendant did so to avoid arrest
because he was carrying a firearm while on parole. (Id. at pp. 1070-1071.) Nothing in
Mendoza states that the defendant knew the officer. Instead, the decision suggests that a
motive to kill can arise as to a stranger based on unfolding circumstances. As respondent
points out, the evidence shows that after being denied entry to the wedding reception,
Gallardo asked Guzman, “What do you mean I am nobody?” and then shot him. We
agree with respondent that a rational trier of fact could infer from this that Gallardo was
motivated by his anger at being denied entry to the party.


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       Fourth, witness Cristina Mendoza testified that she saw Guzman walk Gallardo
some distance from the gate to a nearby parked car. She received Guzman’s assurance
that everything was alright and then walked back across the yard and into the house,
where she was using the bathroom when she first heard gunshots. That evidence suggests
a somewhat prolonged period that provided Gallardo ample time to reflect on his course
of action and make the choice to kill Guzman. Combined with Gallardo’s testimony that
he shifted his beer bottle from his right hand to his left hand so he could draw his gun, the
evidence supports an inference that Gallardo had made a conscious, considered decision
to kill Guzman.
       These facts differ greatly from those in People v. Munoz (1984) 157 Cal.App.3d
999, cited by Gallardo. In Munoz, the defendant was the passenger in a car who asked
the driver to stop to ask a passerby for directions. As the passerby bent over, the
defendant asked for his wallet and then shot the man as he stepped back. Those facts
showed nothing more than a senseless desire to kill someone that was reached in a brief
amount of time. (Id. at pp. 1009-1010.) As just set forth, viewing the facts most
favorably to the judgment, the evidence shows that Gallardo in fact premeditated and
deliberated before killing Guzman.
2.     Ineffective Assistance of Counsel Claims
       2.1 Generally Applicable Principles
       Gallardo contends that he received ineffective assistance of counsel because his
lawyer failed to object to several gang-related references by witnesses or to the
prosecutor’s purportedly misleading argument to the jury concerning the time required to
deliberate and premeditate. Claims of ineffective assistance of counsel entail deficient
performance assessed under an objective standard of reasonableness, and prejudice
measured by a reasonable probability of a more favorable outcome absent the deficient
performance. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 48.) The failure to
make a meritless objection does not constitute ineffective assistance of counsel. (People
v. Cunningham (2001) 25 Cal.4th 926, 1038.)


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       A prosecutor commits misconduct when he uses deceptive or reprehensible
methods to persuade the jury. When a claim of misconduct is based on the prosecutor’s
jury arguments, we determine whether there is a reasonable likelihood that the jury
improperly construed or applied the disputed remarks. (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 427.)
       2.2. Gang Remarks by Witnesses
       Gallardo contends that his lawyer failed to object or made improper objections to
several gang references made by witnesses: (1) the girl who reported seeing Gallardo in
the front yard described him as a Cholo (no objection); (2) Onofre, the terrorist threat
victim, offered for the first time at trial that, in addition Gallardo having said he was
Junior from the Barrio and would come back with his homies, Gallardo also said he
belonged to a gang, showed him his tattoos, said “You don’t know who you’re dealing
with, I am part of Salvatrucha,” and said he would kill Onofre when he came back (no
objection); (3) after Larios testified that he went to get his gun because he heard Cholos
were around, he explained that a Cholo was a gang member (no objection); (4) Cristina
Mendoza testified that the shooter looked like a gangster, prompting the incorrect and
unsuccessful objection that the answer was speculative; (5) another witness, Gustavo
Mendoza, also described Gallardo as a Cholo (no objection).
       As Gallardo points out, evidence that a defendant belongs to a gang is highly
inflammatory and should be carefully scrutinized before it is admitted. (People v. Montes
(2014) 58 Cal.4th 809, 859.) And, as Gallardo also notes, his trial lawyer was aware of
the need to shield the jury from such evidence to the extent possible, as evidenced by her
successful pretrial motion to bifurcate the trial of the gang benefit allegations. According
to Gallardo, this makes all the more inexplicable his lawyer’s failure to properly object to
the gang-related testimony set forth above. Only belatedly did defense counsel step in to
exclude such evidence, successfully objecting past the midway point at trial to evidence
about a 911 call about the shooting, where the caller described the shooter as a
gangbanger.


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       We analyze separately the evidentiary claims related to the events at the party at
which Guzman was killed and those dealing with what happened the next day at the
neighbor’s house (defendant’s contention No. 2, above).
       2.3 Gang Testimony In Connection with the Guzman Killing
       We find no fault in defense counsel failing to object to the first instance of
disputed testimony, where the witness described Gallardo as a Cholo. Its apparent
reference to gang members may not be obvious to all, and counsel might not have wanted
to draw attention to it.
       We understand Gallardo’s concerns about the prosecutor’s question to Larios, and
Larios’s answer, that the term Cholo meant gangster, and the two subsequent references
to Gallardo having looked like either a gangster or a Cholo. Even if an objection might
have been sustained to some of this testimony, we find there was a reasonable tactical
decision to not object, and, in any event, any failure was not prejudicial in light of the far
more damaging gang evidence that was properly introduced in conjunction with the
section 422 threats to neighbor Onofre, as we discuss next.
       2.4 Gang Testimony as Part of the Threat Against Neighbor Onofre
       Testimony about the threats against Onofre was introduced in two parts.
       First was the statement that Onofre made to the police that Gallardo said he was
Junior from the Barrio and would return with his homies to “fuck him up,” and, “You
don’t know who you’re messing with.” There is no doubt that the statement was
Gallardo’s boastful threat that he was a gang member. This evidence was not only
relevant but critical to the prosecution’s case under section 422 (count 2) that Gallardo
had made a terrorist threat to Onofre. On appeal Gallardo tacitly acknowledges so by not
asserting error in the admission of this testimony.
       Gallardo does complain about the second part of this evidence – Onofre’s
“surprise” testimony that Gallardo said he belonged to the notorious Mara Salvatrucha
gang and threatened to kill him. On appeal he argues that trial counsel should have
objected under Evidence Code section 352. We reject that argument. First, the testimony
came in after the “Junior from the barrio” and “homies” testimony of which Gallardo

                                              8
does not complain, which properly introduced the gang aspect of the case. Second,
admittedly, Onofre’s live testimony was more damaging than the version he told the
police, but it was also of particular relevance and probative of the sustained fear element
of the section 422 charge. Trial counsel cannot be faulted for making an objection that
surely would have been overruled.1
       2.5. No Objection Was Warranted to the Prosecutor’s Jury Argument
       In order to illustrate how quickly premeditation and deliberation can occur, the
prosecutor gave as an example a driver who “approach[es] a stale yellow light. You’re
getting close to the intersection, and in your mind you are going to make a decision. Am
I going to go for it, or am I going to hit the brakes? How fast is that decision in your
mind? Do I go or do I stop? Do I hit the brakes or do I gun? [¶] What are you doing
when you are watching circumstances, seeing if there are cars to the left, to the right,
other lights, pedestrian, cars ahead of you? You are deliberating. You are actively
weighing the consequences for and against your conduct behind the wheel of a car. Do
you stop or do you go? That’s how fast deliberation can take place.”



1
        The impact of this surprise testimony was mitigated by what happened later in the
trial. The prosecutor made it a point to call the police officer who took the report from
Onofre and have the officer confirm that Onofre never reported those comments.
Gallardo’s counsel hammered that point home by having the officer repeat that testimony
on cross-examination. The prosecutor also never mentioned the disputed evidence as part
of his jury arguments. Therefore, the jury was likely to conclude that Onofre was
exaggerating or imagining the new testimony and therefore disregarded it. In short, even
if an objection to that testimony had been warranted, the potential prejudicial effect of
that testimony was severely undercut by the prosecutor’s efforts to remedy what appeared
to be surprise testimony.

       In addition, Gallardo had juvenile adjudications for attempted murder and
unlawful possession of a firearm, and he testified that he “participated” in an attempted
murder, although not as the shooter, and participated in unlawful weapons possession.
Therefore, the jury properly heard evidence that Gallardo was in a gang, had unlawfully
possessed firearms in the past, had taken part in an attempted murder, and had made gang
threats. The additional prejudicial effect of Onofre’s testimony was minimal.

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       Defense counsel did not object, but instead told the jury during her argument that
premeditation could not be a last-second decision, and that a decision to kill that was rash
or impulsive could not amount to deliberation and premeditation. In rebuttal, the
prosecutor told the jury that premeditation and deliberation could occur while driving
through a stale yellow light. For instance, the prosecutor said, Gallardo had taken the
time to shift his beer bottle from his right hand to his left hand in order to remove the gun
from his pocket and fire it, providing him sufficient time to premeditate and deliberate.
       Gallardo contends his lawyer rendered ineffective assistance by failing to object to
the prosecutor’s argument because he mischaracterized the test of premeditation and
deliberation as something akin to the snap of a finger. We disagree.
       Although better analogies may exist, we believe that, by linking the time involved
with the careful weighing of various relevant circumstances, the prosecutor’s analogy
fairly described how quickly premeditation and deliberation may occur so long as the
defendant adequately reflected on his actions ahead of time. (Cage, supra, 62 Cal.4th at
p. 276; Nazeri, supra, 187 Cal.App.4th at p. 1114.) We therefore conclude that no
objection was warranted and that no ineffective assistance of counsel occurred. (People
v. Cunningham, supra, 25 Cal.4th at p. 1038.)

                                         DISPOSITION

       The judgment is affirmed.




                                                  RUBIN, J.
WE CONCUR:



              BIGELOW, P. J.



              GRIMES, J.

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