Filed 1/23/14 P. v. Reyes CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047950

         v.                                                            (Super. Ct. No. 09NF1710)

EDWARD JAMES REYES,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed.
                   Richard De La Sota, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.
              We appointed counsel to represent Edward James Reyes on appeal.
Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his
client but advised the court no issues were found to argue on his behalf. Pursuant to
Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its
independent review, counsel provided the court with information as to issues that might
arguably support an appeal. Counsel provided information on the following three issues:
(1) whether Reyes’s convictions were supported by substantial evidence; (2) whether the
accomplice testimony was sufficiently corroborated; and (3) whether Reyes was
prejudiced by gang expert testimony.
              Counsel advised Reyes he may personally file a supplemental brief. Reyes
was given 30 days to file a supplemental brief. That time has passed, and he did not file a
supplemental brief. We have reviewed the information provided by counsel and we have
independently examined the record. We found no arguable issues. (People v. Wende
(1979) 25 Cal.3d 436.) The judgment is affirmed.
                                PROCEDURAL HISTORY
              An amended information jointly charged Reyes and Mariano Martinez with
conspiracy to commit murder in violation of Penal Code1 section 182, subdivision (a)(1)
(count 1), attempted premeditated and deliberate murder in violation of sections 664,
subdivision (a), and 187, subdivision (a) (count 2), and being an active participant in a
criminal street gang in violation of section 186.22, subdivision (a) (count 3).2 As to
count 2, the information alleged Reyes personally discharged a firearm causing great
bodily injury within the meaning of section 12022.53, subdivision (d), personally
discharged a firearm within the meaning of section 12022.53, subdivision (c), and he


1             All further statutory references are to the Penal Code.

2             The amended information charged Martinez with other crimes not relevant
here.

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personally used a firearm within the meaning of section 12022.5, subdivision (a). The
information also alleged Reyes committed counts 1 and 2 for the benefit of a criminal
street gang within the meaning of section 186.22, subdivision (b)(1).
              Prior to trial, the trial court granted the prosecution’s motion to sever the
cases of the two defendants. After the close of evidence, the court also granted the
prosecution’s motion to dismiss the section 12022.5, subdivision (a), allegation as to
count 2. The jury found Reyes guilty of attempted premeditated murder (count 2), and of
being an active member of a criminal street gang (count 3). The jury also found it true
Reyes had committed count 2 for the benefit of a criminal street gang within the meaning
of section 186.22, subdivision (b)(1). The jury was unable to reach a verdict on count 1,
and as to the allegations made as to count 2 pursuant to section 12022.53, subdivisions
(c) and (d). The court declared a mistrial as to that count and those allegations.
              In exchange for the prosecution’s foregoing a retrial on count 1 and on the
section 12022.53, subdivisions (c) and (d) allegations as to count 2, Reyes admitted an
allegation as to that count that a principal in a gang-related crime personally used a
firearm during the commission of that offense within the meaning of section 12022.53,
subdivisions (b) and (e)(1). On the same day, the trial court sentenced Reyes to an
aggregate indeterminate sentence of 25 years to life as follows: a life term with a
minimum parole eligibility date of 15 years pursuant to section 186.22,
subdivision (b)(5), for count 2; and a consecutive term of 10 years for the allegation as to
section 12022.53, subdivisions (b) and (e)(1), on that count. The court imposed and
stayed the sentence on count 3 pursuant to section 654.
                                          FACTS
              In 2009, Chicanos Kicking Ass (“CKA”) and Family of Latin Kings
(FOLKS) were rival street gangs. Reyes, moniker “Menace,” Martinez, moniker
“Stalker,” and Freddie Guerrero, moniker “Cartoon” were members of CKA.



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              On May 20, 2009, Reyes, Martinez, and Guerrero picked up Jose Linares in
Martinez’s car and asked him if he wanted “‘to go to FOLKS.’” Linares understood that
to mean they were going to “jump” a FOLKS gang member. Linares told them he was
willing and that he had a gun stashed or hidden. Guerrero said he wanted to use the gun,
but Reyes said he did, so Linares gave the gun, wrapped in a blue or black bandanna, to
Reyes. Martinez was driving the car, Guerrero was in the front passenger seat, Reyes
was in the right rear seat, and Linares was in the left rear seat.
              Later, they saw Ricardo Cordova, who looked to them to be a FOLKS gang
member. Linares said, “There is one.” Guerrero asked Cordova, “‘Where are you
from?’” Cordova replied, “‘I don’t bang.’” Guerrero and Reyes got out of the car with
“wrappings” on their faces and began running after Cordova. Guerrero yelled, “CKA.”
Reyes had the gun in his hand when he got out of the car. One of the people who got out
of the car fired three or four shots from a revolver. No one could identify the shooter, but
Linares testified that when Reyes got back in the car Reyes still had the gun in his hand.
Linares also testified he and Reyes later hid the gun in a drainpipe and Reyes told him,
“‘I think I got him.’”
              Linares was charged with attempted murder as a result of the shooting
involved in this case. He testified at Reyes’s trial in return for a promise that he would
receive a sentence of 11 years and four months for his part in the crime.
              A passerby drove Cordova to the hospital. Cordova was shot
in the left occiput, where the base of the skull meets the neck, behind and below the left
ear. The bullet lodged next to Cordova’s left jaw. The bullet blocked the left internal
jugular vein, but the artery was not damaged, so the decision was made not to operate to
remove the bullet.
              Sergeant Henry Fantes found a “dark rag” near the Anaheim intersection of
Neighbors Avenue and Onondaga Avenue after a witness pointed it out to him. The



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parties stipulated the rag was tested for DNA and that Reyes was excluded as a major
contributor, but that Amos Lopez, whose DNA sample was obtained through
the CAL-DNA data bank, was a major contributor. Lopez, moniker “Stranger,” was a
CKA gang member.
              On June 17, 2009, Anaheim police officers, including Sergeant Michael
Haggerty, stopped the car used in the May 20 shooting. Martinez was driving the car and
Reyes, Lopez, and another male were passengers in the car. Inside the car, officers found
a length of pipe between the front seats, a souvenir wooden bat, and a claw hammer in
places where they would be accessible to be used as weapons. Officers arrested Reyes.
Haggerty went to Reyes’s apartment at 8252 San Helice Circle in Buena Park to tell his
parents he had been arrested, and with the mother’s consent, he searched Reyes’s
bedroom. Haggerty found letters and song lyrics that made reference to “Menace”
shooting “fools” on the spot. In addition, there were written references to “Forks,” which
was a derogatory term for the FOLKS gang.
              In September 2009 Reyes and Lopez were housed in juvenile hall. A
deputy probation officer, Indalesia Bravo, placed Reyes and Lopez in the same room and
set up a microphone so they could be surreptitiously taped. Bravo taped their
conversation and listened from the next room. Lopez was heard to tell Reyes the police
had told him that Lopez’s DNA was found, “[F]or, like a rag right there by where that
fool got shot.” After some innocuous discussion, Reyes told Lopez, “‘Cause I had took
off my shirt . . . white, a white, a white shirt across my face.’” When Lopez asked Reyes
about a bandana, Reyes responded, “[W]e left it in the car, fool. The, the one that we
wrapped it with, right? Yeah, well we came with it ‘cause Twin had it right here, he
pulled out the strap and gave it to me. There was no bandana.’” Finally, Reyes told
Lopez, in apparent response to a question, “Nah, I threw it over there . . . .” Lopez asked,
“Twin?” and Reyes answered, “Yeah[,] he came . . . with it already like packing it.”
“‘Strap’” is a common street term for a gun.

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              Anaheim Police Department Detective Jeff Dodd testified as a gang
expert. He testified that as of May 20, 2009, Reyes was an active participant in the
criminal street gang known CKA. CKA was a nontraditional criminal street gang in the
sense that it had white as well as Hispanic members. CKA “claimed” two different
neighborhoods. It started as a tagging crew in about 1990, and its rivals included
Citron Street, FOLKS, East Anaheim, Down Familia Wicked Soldiers, Small Town,
Jeffrey Street, and Fullerton Tokers Town. In May 2009, CKA had approximately
45 members. It employed as common signs or symbols the names
“Chicanos Kicking Ass,” or “Brown Familia Chicanos Kicking Ass.” Its primary
activities included vandalism and felonious assaults, including stabbings and shootings.
In addition, gang members would get the money to buy guns by stealing and selling
drugs. CKA members Linares and Efrain Garibay had, within the requisite time period,
committed the crimes necessary to establish a “‘pattern of criminal gang activity’” within
the meaning of section 186.22, subdivision (e).
              Dodd based his opinion Reyes was an active participant in CKA on police
reports and other police documentation indicating Reyes was in the company of other
CKA members on a number of occasions, that he had been stopped by the police for
curfew violations in areas “claimed” by CKA, and that he had gang tattoos that were
indicative of gang membership. Dodd acknowledged that on a number of the occasions
when Reyes was stopped by the police while he was in the company of gang members or
was in an area “claimed” by CKA, Reyes either denied being a gang member, or that
there was no notation in the report on which Dodd was relying that either Reyes or the
people he was with admitted to being gang members.
              In response to a hypothetical question mirroring the facts, Dodd testified it
was his opinion the shooting was committed for the benefit of, or in association with, a
criminal street gang. Dodd opined the shooting would bolster CKA’s reputation because
it would demonstrate to rival gangs and the community that CKA was powerful.

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                Leticia Rodriguez testified she is Reyes’s mother. Reyes was
13 or 14 years old when he acquired the gang tattoos. The word “Menace” was tattooed
on Reyes’s body. On June 17, 2009, she allowed police officers to enter her home and
search a room Reyes shared with his brother Moyses. She had another son named
Andres, who was also known as “Menace.” Andres, who was 23, went to juvenile hall at
the age of 15 and did not return home. The crimes Andres was convicted of committing
were “probably” gang-related, and the gang was likely “F Troop.”
                                       DISCUSSION
                Pursuant to Anders, counsel raised three possible issues. We will address
each in turn.
Sufficiency of the Evidence
                The jury convicted Reyes of attempted premeditated murder (count 2), and
of being an active member of a criminal street gang (count 3). The jury also found it true
Reyes committed count 2 for the benefit of a criminal street gang within the meaning of
section 186.22, subdivision (b)(1). As to count 2, Reyes admitted an allegation he was a
principal in a gang-related crime who personally used a firearm during the commission of
that offense within the meaning of section 12022.53, subdivisions (b) and (e)(1).
                When reviewing a criminal conviction for sufficient evidence, this court
must examine the whole record in the light most favorable to the trial court’s judgment.
(People v. Brady (2010) 50 Cal.4th 547, 561.) Reversal for insufficient evidence is
unwarranted unless it appears “‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998)
18 Cal.4th 297, 331.)
                “Attempted murder requires the specific intent to kill and the commission
of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]”
(People v. Lee (2003) 31 Cal.4th 613, 623.) “A defendant’s intent is rarely susceptible of
direct proof, and may be inferred from the facts and circumstances surrounding the

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offense. [Citation.]” (People v. Felix (2009) 172 Cal.App.4th 1618, 1624.) A conviction
for attempted premeditated murder will not be reversed if a rational trier of fact could
have found premeditation and deliberation beyond a reasonable doubt based upon the
evidence presented. (People v. Francisco (1994) 22 Cal.App.4th 1180, 1191.)
Premeditation requires the defendant acted as “the result of ‘a pre-existing reflection’ and
‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash
impulse hastily executed.’” (People v. Anderson (1968) 70 Cal.2d 15, 27.)
Premeditation and deliberation can be established with evidence of motive, planning
activity, and the manner of killing. (Id. at pp. 26-27; see also People v. Stitely (2005)
35 Cal.4th 514, 543.)
              Here, there is adequate evidence Reyes planned to go into FOLKS claimed
territory to find and shoot a rival gang member. Once he believed he had found a rival
gang member, Reyes exited the car with his face wrapped and with the gun in his
possession. Reyes then followed the victim around the corner where the victim was shot.
We conclude ample evidence supports Reyes’s conviction for attempted premeditated
murder.
              Reyes was also convicted of being an active member of a criminal street
gang. The elements of the gang participation offense in section 186.22, subdivision (a),
are the following: First, active participation in a criminal street gang, in the sense of
participation that is more than nominal or passive; second, knowledge the gang’s
members engage in or have engaged in a pattern of criminal gang activity; and third, the
willful promotion, furtherance, or assistance in any felonious criminal conduct by
members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.) A person who is
not a member of a gang, but who actively participates in the gang, can be guilty of
violating section 186.22, subdivision (a). (§ 186.22, subd. (i).) Dodd’s testimony along
with the facts of this case provide substantial evidence to support the gang participation
conviction.

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              The jury also found it true Reyes had committed count 2 for the benefit of a
criminal street gang within the meaning of section 186.22, subdivision (b)(1). A gang
enhancement finding is reviewed under the substantial evidence standard. (People v.
Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).) To establish the truth of a gang
enhancement allegation, the People must prove beyond a reasonable doubt that the
offense charged was “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.” (§ 186.22, subd. (b)(1).) The gang relatedness of
an offense may be proved by expert testimony. (E.g., People v. Vang (2011) 52 Cal.4th
1038, 1044, 1049-1050, fn. 5; Albillar, supra, 51 Cal.4th at p. 63; People v. Gardeley
(1996) 14 Cal.4th 605, 617.) Again, along with the facts of this case, Dodd’s testimony
provided substantial evidence to support the jury’s true finding on the gang enhancement.
Corroboration of Accomplice Testimony
              Section 1111 defines an accomplice “as one who is liable to prosecution for
the identical offense charged against the defendant.” The section further provides: “A
conviction cannot be had upon the testimony of an accomplice unless it be corroborated
by such other evidence as shall tend to connect the defendant with the commission of the
offense; and the corroboration is not sufficient if it merely shows the commission of the
offense or the circumstances thereof.” (§ 1111.) Corroborating evidence must connect
defendant with the crime to satisfy the jury the accomplice is telling the truth but the
evidence need not corroborate every fact to which the accomplice testifies and may be
slight and entirely circumstantial. (People v. Whalen (2013) 56 Cal.4th 1, 55.)
              Linares was charged with attempted murder as a result of the shooting
involved in this case. Thus, he was an accomplice under section 1111. Linares’s
testimony was corroborated in a variety of ways. Less than a month after the shooting,
officers stopped the car used in the May 20 shooting. Martinez was driving the car and
Reyes, Lopez, and another male were passengers in the car. In Reyes’s bedroom, officers

                                              9
found letters and song lyrics that made reference to “Menace” shooting “fools” on the
spot and there were written references to “Forks,” which was a derogatory term for the
FOLKS gang. When Reyes and Lopez were housed in juvenile hall, they were
surreptitiously taped. Lopez expressed concern about his DNA being found in
connection with the attempted murder. Reyes then commented on the circumstances of
the crime including referring to “a white shirt across my face,” and indicating the
bandana wrapped around the gun had been left in the car. Based on all of this evidence,
we conclude Linares’s testimony was sufficiently corroborated.
Gang Evidence
              Recognizing the potential prejudicial effect of gang evidence, our Supreme
Court has condemned the introduction of gang evidence that is tangentially relevant
because of its highly prejudicial impact. (People v. Jones (2003) 30 Cal.4th 1084, 1115.)
Because gang evidence creates a risk the jury will infer the defendant has a criminal
disposition and is therefore guilty of the charged offense, “trial courts should carefully
scrutinize such evidence before admitting it.” (People v. Williams (1997)
16 Cal.4th 153, 193.) Gang evidence is subject to the general rule that all relevant
evidence is admissible if it is relevant to a material issue in the case other than character,
is not more prejudicial than probative, and is not cumulative. (People v. Avitia (2005)
127 Cal.App.4th 185, 192 (Avitia).) If “evidence of gang activity or membership is
important to the motive, it can be introduced even if prejudicial. [Citations.]” (People v.
Martin (1994) 23 Cal.App.4th 76, 81.) “‘[B]ecause a motive is ordinarily the incentive
for criminal behavior, its probative value generally exceeds its prejudicial effect, and
wide latitude is permitted in admitting evidence of its existence.’ [Citations.]” (People v.
Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
              Gang evidence, including expert testimony, is relevant and admissible to
prove the elements of the substantive gang crime and gang enhancements. (Avitia, supra,
127 Cal.App.4th at p. 192.) A properly qualified gang expert may testify about a wide

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range of issues, including a gang’s territory, retaliation, graffiti, hand signals, tattoos, and
clothing. (People v. Lindberg (2008) 45 Cal.4th 1, 46-47.)
              Reyes was charged with conspiracy to commit murder and attempted
premeditated and deliberate murder. It was alleged these two crimes were committed for
the benefit of a criminal street gang within the meaning of section 186.22,
subdivision (b)(1). Additionally, Reyes was charged with being an active participant in a
criminal street gang in violation of section 186.22, subdivision (a). Gang evidence was
also relevant and probative on the issue of motive. Accordingly, we conclude Reyes was
not prejudiced by the amount and the nature of the gang testimony.
              In addition to reviewing the issues suggested by counsel, we have reviewed
the entire record. Having done so, we conclude there is no arguable issue on appeal.
                                        DISPOSITION
              The judgment is affirmed.




                                                    O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




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