Filed 6/23/15 P. v. See CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067147
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF249209)
                   v.

MOUSENG SEE,                                                                            OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Alldredge, Judge.
         Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
       In March 2011, appellant Mouseng See, who is a documented gang member, fired
two shots at a police officer while running from him. As relevant to this appeal, a jury
convicted him in count 1 of attempted premeditated murder (Penal Code, §§ 187, subd.
(a), 664, subds. (e), (f))1 and in count 2 of assault with a semiautomatic firearm (§ 245,
subd. (d)(2)), finding true the gang enhancements (§ 186.22, subd. (b)) in both counts. In
addition, the jury convicted appellant in count 4 of carrying a loaded firearm (§ 12031,
subd. (a)(1)), and found true that he did so as an active participant of a criminal street
gang (§ 12031, subd. (a)(2)(C)), resulting in a felony conviction.
       On appeal, appellant raises seven issues: First, he contends the trial court erred by
failing to consider the merits of his pretrial motion wherein he sought to strike the gang
enhancements in counts 1 and 2.
       Second, he argues the trial court breached its sua sponte duty to provide a gang
limiting instruction to the jury. In the alternative, he alleges his trial counsel rendered
ineffective assistance for not seeking such an instruction.
       Third, he maintains the jury instructions and verdict for count 1 did not require the
jury to find the necessary elements beyond a reasonable doubt for his conviction under
section 664, subdivisions (e) and (f).
       Fourth, he asserts insufficient evidence supports the jury’s verdict in count 1 that
(1) he had the specific intent to kill and/or (2) he premeditated or acted with deliberation.
       Fifth, he contends insufficient evidence supports the finding of the gang
enhancements under section 186.22, subdivision (b), for counts 1 and 2.
       Sixth, he argues the evidence is insufficient in count 4 to support a felony
conviction. Respondent agrees.




1
       All future statutory references are to the Penal Code unless otherwise noted.


                                              2.
       Seventh, before trial, the trial court conducted an in camera review of the officer’s
personnel file, and he asks this court to conduct an independent review of that process.
Respondent does not object.
       Finally, he maintains he was improperly sentenced under the gang enhancements
pursuant to section 186.22, subdivision (b)(5).
       We agree insufficient evidence exists for the gang enhancements in counts 1 and
2. We also agree the evidence is insufficient in count 4 to support a felony conviction.
However, we determine the trial court did not abuse its discretion regarding the in camera
review, and we find appellant’s remaining arguments unpersuasive. We affirm but
remand for resentencing. In light of the remand, we will not address appellant’s final
concern regarding his sentencing under section 186.22, subdivision (b)(5).
                  FACTUAL AND PROCEDURAL BACKGROUND
1.     The shooting.
       In the early morning hours of March 3, 2011, Lindsay Police Officer Andrew
Robinson activated his emergency lights in his marked patrol vehicle and attempted to
stop a vehicle driven by appellant, who failed to yield and sped away. After a brief high
speed chase, appellant pulled to the side of the road and Robinson stopped about 20 feet
behind. Appellant exited holding a handgun so Robinson drew his weapon and ordered
appellant to stop or he would shoot. Appellant immediately started running diagonally
away and fired twice at Robinson while running. The shots occurred approximately two
to three seconds after Robinson told him to stop, and the shots were fired a second or two
apart. Robinson saw the gun pointed directly at him and saw “a perfectly round muzzle
flash.” Robinson was “100 percent” certain appellant pointed his gun directly at him
when the shots were fired. Appellant kept the gun raised for both shots as he ran, holding
his arm out in a 90-degree perpendicular fashion. Appellant did not look at Robinson as
he fired. At trial, Robinson testified appellant fired his first shot about 30 yards away,
and the second shot was fired between 30 to 50 yards away.

                                              3.
        Robinson returned two shots at appellant, who ran into a nearby orchard. Neither
Robinson nor appellant were struck. Robinson radioed for assistance and after other
officers arrived the area was searched and appellant was discovered inside an SUV
parked at a nearby residence.
        Appellant was taken into custody and, when asked about the location of his gun,
he stated it was “in the grove.” However, officers located a handgun with four live
rounds underneath the SUV’s seat, and appellant’s fingerprint was later discovered and
identified on this gun’s magazine. Two shell casings fired from this gun were located
approximately 39 and 119 feet, respectively, from Robinson’s patrol vehicle. Appellant’s
two casings were approximately 78 feet apart from each other.
        Appellant was searched and .07 grams of methamphetamine were found inside his
sock.
2.      The gang evidence.
        Officer Daniel Ford of the Visalia Police Department testified as the prosecution’s
gang expert. Ford explained that Oriental Troop gang members often have tattoos such
as “LP” (Lahu Pride), “MBS” (Mongolian Boys Society), “OT” and five dots. The
Oriental Troops have two subsets, including the Mongolian Society.
        The primary activities of the Oriental Troops gang include homicide, attempted
murder, assault with a deadly weapon, shooting at inhabited dwellings, narcotics sales,
narcotics transportation, robberies, carjackings, and vehicle theft. Ford noted that
Oriental Troop gang members commonly worked both in groups and alone. He
explained that it is very common for its members to carry guns, but the gang had a very
specific rule that prohibited a member to carry a gun with a round chambered. Oriental
Troops members often keep their gang-related items or tattoos on the left side of their
bodies.
        Ford investigated a June 2010 incident where an Oriental Troop gang member shot
at a police officer in Visalia. That gang member was convicted of attempted murder and

                                             4.
gang affiliation. Ford explained that such a shooting earned respect for the Oriental
Troops gang because its member was willing to take on law enforcement.
       Appellant had gang-related tattoos, including five dots on his left cheek, five dots
on his chest, and five dots on the left web of his hand, which represented either the letter
“O” or Asian Gang Pride. He wore an “LP” on his chest, which represented Lahu Pride.
He also had “MBS” tattooed on his left wrist, which represented the Mongolian Boys
Society. Appellant’s gang moniker was “Monster.”
       During the incident with Robinson, appellant did not make any gang signs or
symbols. He wore black pants and a black hooded sweatshirt, and he wore his hood up
during the encounter so that Robinson could only see a partial side of appellant’s face.
Appellant was wearing blue shorts under his black sweatpants and a folded blue bandana
was discovered inside the left pocket of the blue shorts. After the shooting, appellant’s
home was searched and drawings were located that depicted gang symbols. Ford opined
the drawings showed loyalty to the Mongolian Boys Society, the Lahu Pride Crips and
the Oriental Troops.
       Ford testified that during prior contacts with law enforcement, appellant admitted
being a member in the Lahu Pride Crips, the Mongolian Boy Society, and the Oriental
Troops, and he confirmed his moniker was “Monster.” Appellant was contacted in the
company of other Oriental Troop gang members and he wore gang clothing. In jail
classification forms, appellant admitted associating with gangs. Based upon his contacts
and review, Ford opined appellant was an active participant in the Oriental Troops gang.
       The prosecutor asked Ford a hypothetical that mirrored the events between
appellant and Robinson. Based on the hypothetical, Ford opined appellant’s crime was
committed for the benefit of and in association of a criminal street gang.
3.     The Information.
       In an amended information, the Tulare County District Attorney charged appellant
as follows:

                                             5.
        Count 1, attempted premeditated murder of a peace officer (§§ 187, subd. (a), 664,
subds. (e), (f)). It was further alleged appellant personally used, and personally and
intentionally discharged, a firearm (§ 12022.53, subds. (b), (c)), rendering the count 1
offense a “serious” and “violent” felony (§ 667.5, subd. (c)(8), § 1192.7, subd. (c)(8)). A
gang enhancement was also alleged as to count 1 (§ 186.22, subd. (b)(1)(C));
        Count 2, assault on a peace officer with a semiautomatic firearm (§ 245, subd.
(d)(2)). It was further alleged appellant personally used, and personally and intentionally
discharged, a firearm (§ 12022.53, subds. (b), (c)), rendering the count 2 offense a
“serious” and “violent” felony (§ 667.5, subd. (c)(8), § 1192.7, subd. (c)(8)). A gang
enhancement was also alleged as to count 2 (§ 186.22, subd. (b)(1)(C));
        Count 3, possession of methamphetamine (Health & Saf. Code, § 11377, subd.
(a));
        Count 4, carrying a loaded firearm (§ 12031, subd. (a)(1)). As to count 4, it was
further alleged that appellant was an active participant in a criminal street gang (§ 12031,
subd. (a)(2)(C));
        Count 5, misdemeanor resisting a peace officer (§ 148, subd. (a)(1)); and
        Count 6, misdemeanor evading a peace officer (§ 2800.1, subd. (a)).
4.      The Verdicts and Sentencing.
        The jury convicted appellant of all counts and found true all enhancements and
special allegations.
        For count 1, the trial court sentenced appellant to serve 45 years to life in prison
calculated as follows: 15 years to life with the possibility of parole on count 1; 20 years
for the section 12022.53, subdivision (c) enhancement; and 10 years for the section
186.22, subdivision (b)(1)(C), enhancement.
        For count 2, appellant was sentenced to seven years, plus 20 years for the section
12022.53, subdivision (c), enhancement plus 10 years for the section 186.22, subdivision



                                               6.
(b)(1)(C) enhancement. The court stayed the sentence on count 2 pursuant to section
654.
       For counts 3 and 4, appellant was sentenced to two years to run concurrently with
count 1. For counts 5 and 6, appellant was sentenced to 365 days in custody to run
concurrently with count 1.
                                      DISCUSSION
I.     The Trial Court Did Not Violate Due Process When It Denied
       Appellant’s Motion To Strike The Gang Allegations.
       Appellant contends the trial court erred by failing to consider the merits of his
pretrial motion to dismiss the gang allegations for evidentiary insufficiency. He asserts
he was denied due process requiring reversal of his convictions.
       A.      Background.
       The preliminary hearing occurred in July 2011. At its conclusion, appellant’s
defense counsel argued, in part, no facts supported a street gang allegation under section
186.22. Defense counsel noted appellant only intended to run away from Robinson and
was not assisting or furthering gang conduct. The trial court held appellant to answer on
the charges.
       In July 2011, the information was filed alleging, in part, the gang enhancement in
count 1 and in August 2011, appellant filed a section 995 motion (the August 2011
Motion) to set aside, in part, count 1 and its gang enhancement. Appellant argued there
were no facts, other than his past record and past gang associations, to support the alleged
gang enhancement. The trial court denied the August 2011 Motion following a hearing,
determining, in part, sufficient evidence existed from the preliminary hearing to justify
the gang enhancement.
       In November 2011, the prosecution filed a first amended information, which
contained the same allegations as the original information but added a count for assault
on a peace officer under section 245, subdivision (d)(2). This new charge became count


                                             7.
2 in the amended information, and it set forth the same gang enhancement under section
186.22, subdivision (b)(1), that appeared in count 1 of both the original and the amended
information. Following the filing of the amended information, defense counsel indicated
in court he would file another motion pursuant to section 995.
       Criminal proceedings were suspended under section 1368 and then resumed on
January 10, 2013, after appellant was deemed competent to stand trial. The trial date was
set for February 25, 2013, and the court ordered that February 19, 2013, was the last day
to hear any properly noticed dispositive motions.
       On February 15, 2013, appellant’s defense counsel filed a motion to strike the
gang allegations in counts 1 and 2 (the February 2013 Motion). At the hearing on
February 19, the court noted appellant had filed the February 2013 Motion late and the
prosecution had not received a copy until just then. The court asked if this issue had been
raised previously either at the preliminary hearing or a motion pursuant to section 995.
Appellant’s defense counsel admitted that this specific issue, whether sufficient evidence
supported the gang allegation, had been addressed and denied in a prior section 995
motion. Defense counsel, however, argued a motion to strike could be made at any time
and did not need to be a noticed motion.
       The prosecutor argued this same issue was heard and denied in August 2011 and
objected to the defense’s use of “semantics” to raise the issue again. The prosecutor
asserted the defense was precluded from bringing the same motion absent new
information.
       The trial court ordered the prosecution to file a written response, and the
prosecutor asked the court to take judicial notice of its previous ruling on the section 995
motion in August 2011, as well as the prosecution’s prior opposition to the same issue
raised then.




                                             8.
       On February 22, 2013, the prosecution filed an opposition, contending the
February 2013 Motion was barred absent a showing of changed circumstances. It was
also asserted the motion was meritless.
       On February 25, 2013, the trial court tentatively denied the February 2013 Motion
because it was untimely, not properly noticed, and had been ruled upon previously by the
magistrate (at the preliminary hearing) and at the previous hearing on the section 995
motion. The trial court noted the defense was challenging the same evidence it had
already challenged twice before. The trial court stated defense counsel could file a motion
pursuant to section 1118.1 at the close of the prosecution’s case.
       The trial court noted it had read all of the defense’s motion and it gave the parties
a final opportunity to argue the matter. The court denied the motion after both parties
submitted it without further oral argument.
       B.      Standard of review.
       Pursuant to section 995, an information may be set aside when the defendant has
been committed without reasonable or probable cause. (§ 995, subd. (a)(2)(B).) A
defendant may use a section 995 motion to set aside the entire information, individual
charges, or specific enhancements. (Salazar v. Superior Court (2000) 83 Cal.App.4th
840, 845-846; Ervin v. Superior Court of Contra Costa County (1981) 119 Cal.App.3d
78, 85.) Section 997 authorizes a section 995 motion prior to trial.
       When reviewing the trial court’s ruling on a 995 motion, an appellant court
conducts an independent review of the evidence. (People v. San Nicolas (2004) 34
Cal.4th 614, 654.) An information will not be set aside “‘if there is some rational ground
for assuming the possibility that an offense has been committed and the accused is guilty
of it.’ [Citation.]” (Ibid.)
       Section 995 is not the exclusive authority for setting aside an information. (Harris
v. Superior Court (2014) 225 Cal.App.4th 1129, 1144 (Harris).) A nonstatutory motion
to dismiss is permissible in certain circumstances and is the appropriate mechanism to

                                              9.
challenge an alleged error that is not reflected in the preliminary hearing transcript and
which might require an evidentiary hearing. (Ibid.; People v. Duncan (2000) 78
Cal.App.4th 765, 772; Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 271.) In
contrast, a motion under section 995 is appropriate where the preliminary hearing
transcript contains the alleged error entitling the defendant to dismissal of the
information. (Harris, supra, 225 Cal.App.4th at p. 1144.)
       C.     Analysis.
       Appellant contends his right to due process was violated when the trial court
refused to rule on the merits of his February 2013 Motion. He also argues the trial
court’s actions violated section 997, which authorizes a section 995 motion prior to trial
and “trumps” conflicting local or Judicial Council rules.
       This record does not establish a due process violation. The goal of procedural due
process is to give a party the right to be heard “‘“at a meaningful time and in a
meaningful manner.”’ [Citation.]” (City of Tulare v. Superior Court (2008) 169
Cal.App.4th 373, 383.) Here, appellant challenged the gang enhancement evidence in his
August 2011 Motion, which was fully briefed, argued and ruled upon. After the August
2011 Motion was denied, it was appellant’s right to file a motion for reconsideration
based on a showing of new or different facts, circumstances, or law. (Code Civ. Proc.,
§ 1008.) This record is devoid of such a motion for reconsideration. Moreover,
appellant’s present appeal does not challenge the denial of his August 2011 Motion.
       Appellant’s February 2013 Motion, like his August 2011 Motion, challenged the
sufficiency of the evidence stemming from the preliminary hearing transcript. Thus,
section 995 was the proper authority for the February 2013 Motion, which was
improperly filed as a nonstatutory motion to strike. (Harris, supra, 225 Cal.App.4th at p.
1144; People v. Duncan, supra, 78 Cal.App.4th at p. 772; Stanton v. Superior Court,
supra, 193 Cal.App.3d at p. 271.) Absent changed circumstances, appellant was not
entitled to another section 995 motion regarding the same allegations. (People v. Sherwin

                                             10.
(2000) 82 Cal.App.4th 1404, 1411 (Sherwin); In re Kowalski (1971) 21 Cal.App.3d 67,
70 (Kowalski) [second judge erred by considering renewed § 995 motion without any
showing of changed circumstances].) Appellant has not established any changed
circumstances justifying a renewed motion.
       Respondent argues the trial court properly declined to address the merits of the
February 2013 Motion because it was a “renewed” motion under section 995 and
identical to the August 2011 Motion. Although there is some merit to this argument,
respondent’s position is not entirely correct because the prosecution filed an amended
information after the August 2011 Motion was denied. As such, appellant had the right
to file another motion pursuant to section 995 to challenge the sufficiency of the
preliminary hearing evidence supporting the new count appearing therein, i.e., section
245, subdivision (d)(2). Without changed circumstances, however, appellant was not
entitled to challenge those remaining portions of the information which fell under the
denial of the August 2011 Motion. (Sherwin, supra, 82 Cal.App.4th at p. 1411;
Kowalski, supra, 21 Cal.App.3d at p. 70.)
       Regarding a challenge to the gang enhancements, appellant’s February 2013
Motion was no different substantively than his August 2011 Motion. In both motions,
appellant raised the same argument that “the record must provide some evidentiary
support, other than merely the defendant’s record of prior offenses and past gang
activities or personal affiliations, for a finding that the crime was committed for the
benefit of, at the direction of, or in association with a criminal street gang.”
(Underscoring omitted.) In the August 2011 Motion, appellant cited People v. Ochoa
(2009) 179 Cal.App.4th 650 (Ochoa) for this proposition. In his February 2013 Motion,
he cited People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon) for the same proposition,
a case he did not cite in the August 2011 Motion. Both Ramon and Ochoa stand for the
same legal proposition a gang expert’s testimony is insufficient alone to support a
criminal gang enhancement under section 186.22, subdivision (b). (Ochoa, supra, 179

                                              11.
Cal.App.4th at p. 657; Ramon, supra, 175 Cal.App.4th at p. 853.) During oral arguments
for the August 2011 Motion, appellant’s defense counsel emphasized Ochoa and noted
the only gang evidence came from Ford’s opinion testimony and nothing from appellant’s
actions.
        The factual basis for the gang enhancement in count 2 was no different from the
facts supporting the gang enhancement in count 1. Based on this record, appellant did
not suffer a due process violation when the trial court summarily rejected his February
2013 Motion because the validity of the gang enhancement had been fully briefed, argued
and decided in 2011.2
               1.     Appellant cannot establish prejudice.
        Assuming the trial court erred in failing to reach the merits of the February 2013
Motion, appellant cannot establish prejudice. He contends a structural error occurred,
requiring automatic reversal because he was deprived of a ruling on the merits to strike
the gang allegations. He asserts his trial then resulted in an abundance of inflammatory
and damaging gang evidence. These arguments are without merit because the trial court
issued a ruling in 2011 regarding the validity of the same evidence for the gang
enhancement in count 1. Appellant never challenged that ruling. Thus, a structural error
did not occur requiring automatic reversal. (People v. Flood (1998) 18 Cal.4th 470, 500
[a structural error occurs in a very limited class of cases and is a defect affecting the
framework within which the trial proceeds and not just simply an error in the trial process
itself].)
        In the alternative, appellant seeks reversal under Chapman v. California (1967)
386 U.S. 18 (Chapman), claiming the due process error was not harmless beyond a
reasonable doubt. He maintains the lengthy and detailed gang testimony had no


2     Because appellant cannot establish a due process violation, we will not address his
contention that section 997 trumps any conflicting local or Judicial Council rules.


                                              12.
legitimate purpose in his trial because the gang allegations were not justified, noting gang
evidence is inherently inflammatory. (People v. Albarran (2007) 149 Cal.App.4th 214,
229.) These arguments and his reliance on Albarran are without merit. As discussed
above, a due process violation did not occur.
       Moreover, appellant has failed to demonstrate the trial court would have granted
the February 2013 Motion on its merits, even if it had been heard. (People v. Arjon
(2004) 119 Cal.App.4th 185, 192 (Arjon).) The court had already ruled the gang
evidence was admissible relevant to the enhancement in count 1. The gang evidence was
identical for the enhancements in counts 1 and 2. As such, appellant has failed to show
the jury heard inflammatory gang evidence it would have otherwise not heard had count
2’s enhancement been dismissed prior to trial.
       In addition, count 3 in the original information alleged a felony violation of
section 12031, subdivision (a)(1), and further alleged that appellant was an active
participant in a street gang pursuant to section 12031, subdivision (a)(2)(C). Appellant
did not seek to dismiss this count in his August 2011 Motion. After the information was
amended, this allegation became count 4, which appellant did not seek to strike in his
February 2013 Motion. Thus, the jury would have heard evidence of appellant’s gang
participation even if the judge had ruled on the merits of the February 2013 Motion.
       Because appellant never challenged the court’s denial of the August 2011 Motion,
he has failed to show prejudice stemming from the court’s denial of the February 2013
Motion. It is beyond a reasonable doubt the gang evidence at trial would have been the
same even if the trial court had reached the merits of the February 2013 Motion.
Accordingly, appellant cannot establish prejudice and he is not entitled to reversal.
(Arjon, supra, 119 Cal.App.4th at p. 192 [prejudicial error must be established stemming
from the denial of a motion under § 995].)




                                             13.
II.    The Trial Court Did Not Violate Due Process Regarding A Gang Limiting
       Instruction.
       Appellant argues the trial court had a sua sponte duty to instruct the jury with
CALCRIM No. 1403 because gang evidence dominated the trial.3 He contends the trial
court’s failure rendered the trial fundamentally unfair and violated due process. In the
alternative, appellant maintains his defense counsel rendered ineffective assistance by not
seeking this limiting instruction.
       A.     Background.
       During closing arguments, appellant’s trial counsel argued Robinson’s testimony
was not believable. He suggested Robinson made up facts to justify an officer involved
shooting. Defense counsel urged the jury to disregard the gang evidence as inapplicable,
contending this was not a gang case. He argued there was no basis for any gang
allegation against appellant because Ford’s opinion had no validity since it was not based




3      CALCRIM No. 1403 states:
       “You may consider evidence of gang activity only for the limited purpose of
       deciding whether: [¶] [The defendant acted with the intent, purpose, and
       knowledge that are required to prove the gang-related (crime[s]/ [and]
       enhancement[s]/ [and] special circumstance allegations) charged(;/.)][¶] [OR]
       “[The defendant had a motive to commit the crime[s] charged(;/.)][¶] [OR]
       “[The defendant actually believed in the need to defend (himself/herself)(;/.)] [¶]
       [OR] [¶] [The defendant acted in the heat of passion(;/.)] [¶] [OR]
       “[_____ <insert other reason court admitted gang evidence>.]
       “[You may also consider this evidence when you evaluate the credibility or
       believability of a witness and when you consider the facts and information relied
       on by an expert witness in reaching his or her opinion.]
       “You may not consider this evidence for any other purpose. You may not conclude
       from this evidence that the defendant is a person of bad character or that (he/she)
       has a disposition to commit crime.”

                                            14.
on the facts of the case. Defense counsel told the jury to find Ford’s opinion testimony
irrelevant because it was based on incorrect information.
       B.     Standard of review.
              1.     Limiting instructions.
       Upon request, a trial court should give a limiting instruction regarding gang
membership evidence but it does not have a sua sponte obligation to do so. (People v.
Hernandez (2004) 33 Cal.4th 1040, 1051 (Hernandez); People v. Jones (2003) 30 Cal.4th
1084, 1116.) A narrow exception to this rule exists in a few extraordinary cases where
evidence of past offenses dominates part of the evidence against the defendant, and such
evidence is both highly prejudicial and minimally relevant to any legitimate purpose.
(Hernandez, supra, 33 Cal.4th at pp. 1051-1052.) Such an extraordinary case, however,
does not include where the gang evidence is relevant to a gang enhancement, which
provides a legitimate purpose for the jury to consider it. (Id. at p. 1052.)
              2.     Ineffective assistance of counsel.
       A defendant bears the burden of proving ineffective assistance of counsel.
(People v. Vines (2011) 51 Cal.4th 830, 875 (Vines).) Counsel’s performance must be
both deficient and have caused prejudice. (Ibid.) To reverse a conviction, the appellate
record must affirmatively disclose defense counsel had no rational tactical purpose for his
or her act or omission. (Id. at p. 876.) “If the record on appeal ‘“‘sheds no light on why
counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,’ the claim on appeal must be rejected,”’ and the ‘claim of
ineffective assistance in such a case is more appropriately decided in a habeas corpus
proceeding.’ [Citation.]” (Ibid.)




                                             15.
       C.     Analysis.
              1.     The trial court had no sua sponte duty to provide a limiting
                     instruction.
       Appellant asserts his case was extraordinary because the gang evidence dominated
the trial. He contends the trial court had a sua sponte duty to provide a limiting
instruction. However, appellant’s contentions are without merit because this evidence
was relevant to the gang enhancements. As such, the jury had a legitimate purpose to
consider it and appellant’s case falls under the general rule that the trial court had no sua
sponte duty to provide a limiting instruction regarding the gang evidence. (Hernandez,
supra, 33 Cal.4th at p. 1052.)
              2.     Appellant’s defense counsel did not render ineffective assistance.
       Appellant contends his defense counsel rendered ineffective assistance for not
requesting a limiting instruction regarding the gang evidence. He asserts no reasonable
tactical explanation exists for his trial counsel’s failure, which fell below an objective
standard of reasonableness.
       These contentions are unpersuasive because a reasonable attorney may tactically
conclude a limiting instruction might be riskier than whatever “‘questionable benefits’”
such an instruction might provide. (Hernandez, supra, 33 Cal.4th at p. 1053.) Here, the
defense theory at trial was that Robinson gave false statements regarding the incident
with appellant and the events which Robinson described did not occur. Defense counsel
maintained no basis existed for the gang allegations, arguing to the jury the gang
evidence was not applicable and did not matter. Defense counsel also told the jury that
Ford’s opinion testimony was irrelevant because it was based on incorrect information.
       Based on the closing arguments, appellant has failed to establish defense counsel
had no rational tactical purpose for not requesting a jury instruction under CALCRIM
No. 1403. To the contrary, it was the defense theory that Robinson’s trial testimony was
false, the gang allegations had no basis, and the gang allegations did not matter. Defense


                                             16.
counsel attempted to move the jury’s attention away from the gang evidence and, instead,
focused on discrediting Robinson. Requesting CALCRIM No. 1403 would have
emphasized the gang evidence, and that instruction invited the jury to consider such
evidence as a motivating factor for appellant to commit the charged crimes.
        Appellant’s claim must be rejected because defense counsel was not asked for an
explanation regarding his actions and the record establishes a satisfactory explanation.
(Vines, supra, 51 Cal.4th at p. 876.) Appellant’s claim of ineffective assistance is more
appropriate for a habeas corpus proceeding. (Ibid.) Appellant has failed to establish that
his defense counsel’s performance was deficient. (Ibid.)
               3.     Appellant cannot establish prejudice.
        In a claim of ineffective assistance of counsel, the defendant bears the burden to
establish there is a reasonable probability the result of the proceeding would have been
different absent counsel’s error. (Vines, supra, 51 Cal.4th at p. 876.) Here, even if
defense counsel erred, appellant cannot establish prejudice.
        Appellant fled from Robinson, both while driving his vehicle and then on foot
despite Robinson activating his vehicle’s emergency lights and later ordering him to stop.
Appellant exited his vehicle with a loaded handgun drawn and ready, which he used to
fire at Robinson twice. Robinson saw the gun pointed directly at him and saw “a
perfectly round muzzle flash.” He had no doubt appellant’s gun was pointed directly at
him.
        Upon being taken into custody, appellant’s gun was found with four live rounds
and his fingerprint was discovered and identified on the gun’s magazine. The two shell
casings fired from appellant’s gun were located approximately 39 and 119 feet from
Robinson’s patrol vehicle. .07 grams of methamphetamine were found inside appellant’s
sock.




                                             17.
       Based on the overwhelming evidence of appellant’s guilt as to counts 1 through 6,
it is not reasonably probable the result would have been different had defense counsel
requested an instruction under CALCRIM No. 1403. (Vines, supra, 51 Cal.4th at p. 876.)
There is no suggestion anyone stated appellant should be found guilty because he was a
bad person. (Hernandez, supra, 33 Cal.4th at p. 1054.) Despite appellant’s arguments to
the contrary, the trial was neither “unreliable” nor “fundamentally unfair” due to defense
counsel’s failure to act. (In re Avena (1996) 12 Cal.4th 694, 721 [test for prejudice is not
solely one of outcome determination and must examine whether counsel’s deficient
performance resulted in a trial “unreliable” or “fundamentally unfair”].)
       Appellant, however, contends the issue of prejudice should be analyzed under the
Chapman standard because a due process violation occurred resulting in an abundance of
gang evidence in his trial. As discussed earlier, this contention is without merit because
appellant’s due process rights were not violated. Appellant is not entitled to reverse his
convictions due to a failure to instruct the jury using CALCRIM No. 1403.

III.   The Instructions And Verdicts For Count 1 Did Not Violate Appellant’s
       rights.
       Appellant argues the verdict form and jury instructions for count 1 were
inadequate. He asserts his due process and jury trial rights were violated, requiring
reversal.
       A.     Background.
              1.     The amended information.
       The amended information alleged in count 1 as follows:

              “On or about March 3, 2011, in the County of Tulare, the crime of
       ATTEMPTED MURDER OF A PEACE OFFICER, in violation of PENAL
       CODE SECTION 66/4/187(A) [sic], a FELONY, was committed by
       MOUSENG SEE, who did unlawfully attempt to murder OFFICER
       ROBINSON, who was a PEACE OFFICER, engaged in the performance of
       duty and this was known, and reasonably should have been known, by the
       DEFENDANT.


                                            18.
              “It is further alleged, within the meaning of Penal Code section
       664(e) and (f), that the above offense was willful, deliberate and
       premeditated.”
              2.     The relevant jury instructions.
       Prior to the commencement of trial, the court discussed with counsel the proposed
jury instructions and verdict forms which the prosecution had submitted. The court asked
defense counsel to review them and provide any objections before the close of business
the next day. No such objection appears in this record. After the parties rested, and
before closing arguments, the trial court asked if the defense had any other jury
instructions, and appellant’s trial counsel indicated he did not.
       When instructing the jury, the trial court read CALCRIM No. 200 and advised the
jury to consider the jury instructions together. CALCRIM No. 220 was read and the jury
was informed that appellant was presumed innocent and the prosecution was required to
prove him guilty beyond a reasonable doubt.
       When specifically discussing count 1, the trial court read to the jury the following
relevant portions of CALCRIM Nos. 600, 601 and 602:

              “The defendant is charged in Count 1 with attempted murder. To
       prove that the defendant is guilty of attempted murder the People must
       prove that 1, the defendant took a direct but ineffective step toward killing
       another person. And 2, the defendant intended to kill that person. [¶]...[¶]

               “If you find the defendant guilty of attempted murder under Count 1,
       you must then decide whether the People have proved the additional
       allegation that the attempted murder was done willfully and with
       deliberation and premeditation. The defendant acted willfully if he
       intended to kill when he acted. The defendant deliberated if he carefully
       considered the considerations for and against his choice and knowing the
       consequences decided to kill. The defendant premeditated if he decided to
       kill before acting. [¶]...[¶]

              “The People have the burden of proving this allegation beyond a
       reasonable doubt. If the People have not met this burden you must find this
       allegation has not been proved.




                                             19.
              “If you find the defendant guilty of attempted murder on Count 1
       you must then decide whether the People have proved the additional
       allegation that he intended to murder a peace officer.

              “To prove this allegation the People must prove that 1, Officer
       Robinson was a peace officer lawfully performing his duties as a police
       officer.

              “And 2, when the defendant attempted the murder, the defendant
       knew or reasonably should have known that Officer Robinson was a peace
       officer who was performing his duties.”

              3.     The verdict form for count 1.
       Regarding count 1, the verdict form asked the jury to do the following:
       First, to find appellant guilty or not guilty “as charged in Count 1 of the
Information, of ATTEMPTED MURDER, in violation of Penal Code section[s]
664/187(a), victim being Officer Robinson.”
       Second, to find as true or not true whether “the attempted murder was WILLFUL,
DELIBERATE, PREMEDITATED, within the meaning of Penal Code section 664(e)
and (f).”
       Third, to find as true or not true whether “the defendant attempted to murder a
PEACE OFFICER, with in [sic] the meaning of Penal Code section 664(e) and (f).”
       Fourth, to find as true or not true whether “the defendant personally and
intentionally discharged a firearm, with in [sic] the meaning of Penal Code section[]
12022.53(c).”
       Finally, to find as true or not true whether “the above offense was committed for
the benefit of or in association with a criminal street gang, with in [sic] the meaning of
Penal Code section 186.22(b)(1)(C).”

       B.     Standard of review.
       On appeal, the wording of a jury instruction is reviewed de novo and we determine
whether the instructions were complete and correctly stated the law. (People v. Bell
(2009) 179 Cal.App.4th 428, 435.) When reviewing the correctness of jury instructions,


                                             20.
we review the trial court’s “entire charge” and not merely parts of instructions or a
particular instruction. (People v. Bolin (1998) 18 Cal.4th 297, 328 (Bolin).) A jury
instruction is not prejudicial if the necessary elements are contained in two instructions
rather than in one. (Ibid.) Essential elements missing in one instruction may be provided
by another instruction or cured when the instructions are viewed as a whole. (Ibid.;
accord People v. Burgener (1986) 41 Cal.3d 505, 538-539 [jury instruction not defective
where reasonable doubt was not defined in conjunction with express malice but the
definition was given elsewhere], disapproved on other grounds in People v. Reyes (1998)
19 Cal.4th 743, 756.)
        On appeal, we presume the jury followed the trial court’s oral instructions and
those written instructions that are clearly readable. (People v. Hardy (1992) 2 Cal.4th 86,
208.)
        C.     Analysis.
        Appellant argues there were no jury findings (1) of premeditated attempted murder
upon a peace officer or (2) that he knew, or reasonably should have known, Officer
Robinson was a peace officer engaged in the performance of his duties. He asserts the
lack of these findings violated the Sixth and Fourteenth Amendments. He maintains the
jury instructions and verdict form for count 1 were “divorced” from section 664,
subdivisions (e) and (f), so that the jury instructions “improperly scrambled the offense
and premeditation allegation.”
        There is a dispute between the parties regarding whether appellant has forfeited or
waived these issues on appeal by not challenging the sufficiency of the jury instructions
or the verdict form in the lower court. We need not resolve this dispute because, when
we presume no waiver or forfeiture occurred, appellant’s arguments are unpersuasive on
the merits.
        Except in a felony case in which the jurors are in doubt regarding the legal effect
of the facts proved, the jury must render a general verdict. (§ 1150.) “A general verdict

                                             21.
upon a plea of not guilty is either ‘guilty’ or ‘not guilty,’ which imports a conviction or
acquittal of the offense charged in the accusatory pleading.” (§ 1151.) The verdict’s
form is immaterial so long as it expresses the intention to convict the defendant for the
crime charged. (People v. Camacho (2009) 171 Cal.App.4th 1269, 1272.) A verdict
does not need to enumerate each element of a particular charge or enhancement so long
as the jury was instructed on the required elements. (People v. Lobato (2003) 109
Cal.App.4th 762, 767.)
       Section 664, subdivision (e), mandates a defendant shall be punished in the state
prison for life with the possibility of parole for an attempted murder committed upon a
peace officer so long as the defendant knew or reasonably should have known the victim
was a peace officer engaged in the performance of his or her duties. Section 664,
subdivision (f), mandates a defendant shall be imprisoned in state prison for 15 years to
life if the elements in subdivision (e) are proven and it is also found true that the
attempted murder was willful, deliberate, and premeditated.
       Here, the jury was instructed that appellant was presumed innocent and conviction
of count 1 (and all of the counts) required proof beyond a reasonable doubt. The jury was
instructed on the elements of section 664, subdivisions (e) and (f), including that the
prosecution had to prove Robinson was a peace officer lawfully performing his duties,
and appellant “knew or reasonably should have known” Robinson was a peace officer
who was performing his duties when the attempted murder occurred. The jury was also
instructed regarding the definitions of willfulness, deliberation and premeditation. The
jury instructions regarding count 1 were complete and correctly stated the law. It is
presumed the jury understood and followed the trial court’s instructions. (People v.
Hardy, supra, 2 Cal.4th at p. 208.)
       The jury found appellant guilty of attempted murder of Robinson in violation of
sections 664 and 187, found true the attempted murder was “willful, deliberate,
premeditated” and found true appellant attempted to murder a peace officer within the

                                             22.
meaning of section 664, subdivisions (e) and (f). Given the totality of the record,
appellant’s arguments are without merit the jury instructions failed to require the
prosecution to prove, and the jury to find, the attempted murder elements beyond a
reasonable doubt. Likewise, his contentions are unpersuasive there were no jury findings
of premeditated attempted murder upon a peace officer, or that the jury did not find he
knew or reasonably should have known Robinson was a peace officer engaged in the
performance of his duties. The jury instructions and verdict form for count 1 were not
“divorced” from section 664, subdivisions (e) and (f), as he asserts, and the trial court did
not improperly scramble the offense and premeditation allegations.
       Appellant’s reliance on Alleyne v. United States (2013) 570 U.S. ___ [133 S.Ct.
2151] (Alleyne) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) is
misplaced.
       In Apprendi, supra, 530 U.S. 466, the Supreme Court held that the federal
Constitution requires a jury to find the existence of every element of a sentence
enhancement beyond a reasonable doubt if it increases the penalty beyond the prescribed
maximum statutory punishment. (Apprendi, supra, 530 U.S. at p. 490.) In Alleyne, the
Supreme Court affirmed its holding in Apprendi and held facts that increase a mandatory
minimum sentence must also be submitted to the jury. (Alleyne, supra, 570 U.S. at p. ___
[133 S.Ct. at p. 2163].) However, neither Apprendi nor Alleyne requires a verdict form to
expressly detail every element of an enhancement. (Alleyne, supra, 570 U.S. at p. ___
[133 S.Ct. at p. 2163]; Apprendi, supra, 530 U.S. at p. 490; see People v. Lobato, supra,
109 Cal.App.4th at p. 767.) Instead, the “facts” must be submitted to the jury, which
must find them beyond a reasonable doubt. (Alleyne, supra, 570 U.S. at p. ___ [133 S.Ct.
at p. 2163]; Apprendi, supra, 530 U.S. at p. 490.)
       After reviewing Apprendi, our Supreme Court stated that, except for a sentence
enhancement that is based on a defendant’s prior conviction, a jury must find, beyond a
reasonable doubt, the existence of every element of a sentence enhancement if it

                                             23.
increases the crime’s penalty beyond the statutory maximum. (People v. Sengpadychith
(2001) 26 Cal.4th 316, 326.) Sengpadychith held a federal constitutional error occurs
where a trial court fails to instruct the jury on an element of a sentence enhancement
(other than one for a prior conviction) when the penalty is extended beyond the statutory
maximum. (Ibid.)
       Here, the jury was instructed on all elements of the charge constituting count 1,
including the sentence enhancements under section 664, subdivisions (e) and (f). These
facts were submitted to the jury to determine whether appellant was guilty beyond a
reasonable doubt. Having been instructed on the elements of section 664, subdivisions
(e) and (f), it is presumed the jury made the findings as instructed when it found true
those enhancements. As such, despite appellant’s arguments to the contrary, the trial
court did not improperly impose a sentence without the requisite findings by the jury as
required under Alleyne and Apprendi. Accordingly, appellant’s claim of error fails.
(People v. Lobato, supra, 109 Cal.App.4th at p. 767.)

IV.    Sufficient Evidence Establishes Appellant Had Specific Intent To Kill Along
       With Premeditation.
       Appellant argues the evidence was insufficient to prove he intended to kill, or that
he premeditated and deliberated. He asserts his due process rights were violated,
requiring reversal of his conviction for attempted murder.
       A.     Standard of review.
       On appeal, we review the entire record in the light most favorable to the judgment
to determine whether a reasonable jury could have found the defendant guilty beyond a
reasonable doubt based on “‘evidence that is reasonable, credible, and of solid value.’”
(People v. Jones (2013) 57 Cal.4th 899, 960.) In doing this review, we are not required
to ask whether we believe the trial evidence established guilt beyond a reasonable doubt.
(People v. Johnson (1980) 26 Cal.3d 557, 576.) Rather, the issue is whether any rational
jury could have found the essential elements of the crime beyond a reasonable doubt after


                                            24.
viewing the evidence favorably for the prosecution. (Ibid.) We are to presume the
existence of any fact the jury could have reasonably deduced from the evidence in
support of the judgment. (Ibid.)
          B.     Analysis.
                 1.     Intent to kill.
          For a defendant to be convicted of attempted murder, the prosecution must prove
the defendant had a specific intent to kill and the defendant committed a direct but
ineffectual act toward accomplishing the intended killing. (People v. Smith (2005) 37
Cal.4th 733, 739 (Smith); see §§ 187, subd. (a), 664.) The mental state required for
attempted murder is different from that required for murder itself, which does not require
the intent to kill because implied malice—a conscious disregard for life—is sufficient.
(Smith, supra, at p. 739.) As such, for appellant to be convicted of the attempted murder
of Robinson, the prosecution had to prove he acted with specific intent to kill Robinson.
(Ibid.)
          “[A]n intent unlawfully to kill” and “express malice” are essentially the same
concepts. (People v. Saille (1991) 54 Cal.3d 1103, 1114.) To be guilty of attempted
murder of Robinson, appellant had to harbor express malice toward him. (Smith, supra,
37 Cal.4th at p. 739.) Express malice requires a showing that appellant either desired
Robinson’s death or knew to a substantial certainty that death would occur. (Ibid.)
          Neither murder nor attempted murder requires proof of motive. (Smith, supra, 37
Cal.4th at p. 740.) However, “evidence of motive is often probative of intent to kill.”
(Id. at p. 741.) It is also well established that the defendant’s actions and the
circumstances of the case can be used to infer the mental state required to convict the
defendant of attempted murder. (Ibid.)
          The act of firing a gun toward a victim at a close, but not point blank, range is
sufficient to support an inference of intent to kill where the shot could have inflicted a
mortal wound had the shot been on target. (Smith, supra, 37 Cal.4th at p. 741.) In

                                               25.
addition, the fact that the victim may have lived because of the defendant’s poor
marksmanship does not establish a less culpable state of mind. (Ibid.)
       Here, appellant’s shell casings were 39 and 119 feet, respectively, from
Robinson’s patrol vehicle. The location of appellant’s shell casings is circumstantial
evidence establishing appellant fired at a close enough range from Robinson to justify
attempted murder. (People v. Lashley (1991) 1 Cal.App.4th 938, 945 [substantial
evidence supported attempted murder conviction where the defendant fired single shot
from a .22-caliber rifle from second story balcony].)
       Appellant, however, argues we should rely on Robinson’s testimony regarding the
distance of appellant’s shots, i.e., approximately 30 yards away. Although the evidence
was in conflict regarding the distance of appellant’s shots, on appeal we view the
evidence in the light most favorable to the judgment (People v. Jones, supra, 57 Cal.4th
at p. 960) and presume the existence of any fact the jury could have reasonably deduced
from the evidence in support of the judgment. (People v. Johnson, supra, 26 Cal.3d at p.
576.) Given the location of appellant’s shell casings, appellant fired close enough to have
inflicted a mortal wound had the shots been on target. (Smith, supra, 37 Cal.4th at p.
741.) Even if the evidence regarding the distance from which appellant fired could be
interpreted more than one way, the circumstances reasonably justified the jury’s finding
so the judgment will not be reversed. (People v. Abilez (2007) 41 Cal.4th 472, 504
[opinion of reviewing court that circumstances might also reasonably be reconciled with
a contrary finding of the jury does not warrant reversal of judgment].) When viewed in
the light most favorable to the judgment, the evidence discredits appellant’s argument he
fired “from a fair distance away” and without an intent to kill while fleeing.
       Further, appellant targeted Robinson when he pointed his gun directly at the
officer and fired. It can be reasonably inferred appellant either desired Robinson’s death
or knew to a substantial certainty death would occur. (Smith, supra, 37 Cal. 4th at p.
739.) Because he targeted Robinson, appellant’s arguments are unpersuasive that he did

                                            26.
not look at Robinson when he fired, did not stop and aim, or that Robinson was not in the
line of fire. The trial evidence established appellant pointed the gun directly at Robinson,
who could see a “perfectly round” muzzle flash. This evidence justifies the jury’s verdict
that appellant had an intent to kill.
       Finally, appellant’s reliance on People v. Leon (2010) 181 Cal.App.4th 452 (Leon)
and People v. Millbrook (2014) 222 Cal.App.4th 1122 (Millbrook)4 is misplaced.
       In Leon, the defendant fired a single shot into the right taillight of a car that held
three occupants. Once of the occupants was struck and killed. The defendant was
convicted of one count of murder and two counts of attempted murder. (Leon, supra, 181
Cal.App.4th at pp. 456-458.) Two of the occupants were seated on the passenger side,
with one occupying the front seat and the other the rear seat. The third occupant was the
driver. (Id. at p. 457.) The shot went through the taillight and back seat, and killed the
back seat passenger. (Id. at pp. 457-458.) Leon held the evidence was sufficient to
support the finding of intent to kill the two victims seated on the passenger side of the
vehicle, one behind the other, because they were in the defendant’s line of fire, but the
evidence was insufficient to show intent to kill the driver, who was not in the line of fire
from the single shot. (Id. at pp. 465-466.) The Leon court noted it was “physically
impossible” for the single bullet to strike the driver as well as the other two victims. (Id.
at p. 465.)




4      In his reply brief appellant raises Millbrook for the first time. Millbrook was
published on January 8, 2014, after appellant filed his opening brief. As a general
proposition, points raised after the opening brief will not be considered unless good cause
is shown for failure to present them earlier. (People v. Adams (1990) 216 Cal.App.3d
1431, 1441, fn. 2; People v. Jackson (1981) 121 Cal.App.3d 862, 873.) Given
Millbrook’s publication date, appellant has shown good cause. (Meier v. Ross General
Hospital (1968) 69 Cal.2d 420, 423, fn. 1.)


                                              27.
       Here, substantial evidence establishes appellant pointed his handgun directly at
Robinson and fired twice. This record does not demonstrate it was physically impossible
for appellant’s shots to strike Robinson. Leon is distinguishable.
       In Millbrook, supra, 222 Cal.App.4th 1122, the defendant pointed a gun at the
victim’s chest and intentionally fired it from two feet away. (Id. at p. 1149.) The
appellate court determined substantial evidence existed to establish the defendant’s intent
to kill for purposes of an attempted murder conviction. (Id. at pp. 1149-1150.) Appellant
argues the present matter must be reversed because his facts are nothing like Millbrook.
Appellant’s contention is without merit because Millbrook did not limit its holding only
to situations where the defendant fires from such a close range. Instead, the appellate
court focused on the defendant’s acts and the circumstances of the crime. (Id. at p. 1149.)
Although appellant fired from a much greater distance away than in Millbrook,
appellant’s acts and the circumstances of the crime were sufficient to permit the jury to
conclude he had the requisite express malice.
       Finally, appellant fails to distinguish Smith, supra, 37 Cal.4th 733. In Smith, the
defendant fired a single shot into the rear of a vehicle from a distance of one car’s length
away. Two victims were in the car and in the line of fire. The defendant was convicted
of attempted murder of both victims despite firing a single shot. The Smith court upheld
the defendant’s conviction for attempted murder against a substantial evidence challenge.
The Smith court emphasized that both victims were in the line of fire and the shot was
discharged from close range. (Id. at p. 743.) Given the facts of this case, Smith supports
affirming appellant’s conviction for attempted murder because Robinson was in the line
of fire and appellant purposefully discharged a lethal firearm sufficiently close to have
inflicted a mortal wound had his shots not missed. (Ibid.)
       Substantial evidence supports the jury’s verdict that appellant had a specific intent
to kill Robinson. This evidence was reasonable, credible, and of solid value such that a



                                             28.
reasonable jury could find appellant guilty beyond a reasonable doubt. (People v. Jones,
supra, 57 Cal.4th at p. 960; People v. Johnson, supra, 26 Cal.3d at p. 576.)
              2.     Premeditation and deliberation.
       Premeditation and deliberation exist when the attempted killing occurred as a
result of preexisting reflection rather than an “unconsidered or rash impulse.” (Bolin,
supra, 18 Cal.4th at p. 332.) In the context of first degree murder, “‘premeditated’ means
‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined
upon as a result of careful thought and weighing of considerations for and against the
proposed course of action.’” (People v. Mayfield (1997) 14 Cal.4th 668, 767, overruled
on other grounds in People v. Scott (June 8, 2015, S64858) ___ Cal.4th ___ [2015
Cal.LEXIS 3903, p. 43, fn. 2].)
       The Supreme Court utilizes three categories of evidence to resolve the issue of
premeditation and deliberation: planning activity, motive, and manner of killing. (People
v. Steele (2002) 27 Cal.4th 1230, 1249.) These factors do not require a “special
combination” and they are not accorded any particular weight, but these factors are a
guide for an appellate court to assess whether the evidence supports an inference that a
killing or attempted killing occurred because of preexisting reflection. (Bolin, supra, 18
Cal.4th at pp. 331-332.) The appellate court will uphold an attempted murder verdict
when there is (1) extremely strong evidence of planning, or (2) evidence of motive
coupled with either (a) evidence of planning or (b) evidence of a manner of killing
showing that the defendant must have had a preconceived design. (People v. Bloyd
(1987) 43 Cal.3d 333, 348.)
       While premeditation and deliberation do not require an extended period of time,
the test is not the duration of time so much as the extent of reflection. (People v. Bloyd,
supra, 43 Cal.3d at p. 348.) The essence of premeditation and deliberation is a cold
calculated judgment rather than a rash impulse. (People v. Cole (2004) 33 Cal.4th 1158,
1224.) The Supreme Court has cautioned, however, that if “deliberation” and

                                            29.
“premeditation” meant no more reflection than that involved in forming intent to kill,
then there would be no distinction between attempted murder, and attempted
premeditated and deliberate murder. (People v. Anderson (1968) 70 Cal.2d 15, 26.)
       Here, substantial evidence established appellant had a motive to kill Robinson.
Appellant was an active Oriental Troops gang member, and killing a law enforcement
officer would bring notoriety to the gang. Appellant had time to plan when he refused to
yield to Robinson and sped away with a loaded handgun in his vehicle. Appellant exited
with his handgun drawn. This is circumstantial evidence appellant intended a violent
encounter. (People v. Lee (2011) 51 Cal.4th 620, 636 [it is reasonable to infer a
defendant considered the possibility of homicide from the beginning when he brings a
deadly weapon and subsequently uses it]; People v. Alcala (1984) 36 Cal.3d 604, 626,
abrogated by statute on other grounds as stated in People v. Falsetta (1999) 21 Cal.4th
903, 911.)
       Although the record does not suggest appellant led Robinson on a long high speed
pursuit, premeditation and deliberation do not require an extended period of time, and
cold, calculated judgment can occur quickly. Moreover, appellant fired more than once,
showing the manner of his shooting was purposeful.
       The jury was given the opportunity to find appellant guilty of attempted voluntary
manslaughter (heat of passion), which it rejected. Based on this record, the jury could
have reasonably determined appellant acted with more than a rash outburst when he led
Robinson on a high speed pursuit before stopping, exiting with a loaded handgun drawn
and ready, and fired twice, even though he was also running away.
       Appellant cites People v. Boatman (2013) 221 Cal.App.4th 1253 (Boatman)5 in
his reply brief as support there is insufficient evidence to find premeditation. The facts of
Boatman, however, are very different from those presented here.

5      In his reply brief, appellant raises Boatman for the first time, noting Boatman was
published after his opening brief was filed on November 22, 2013. Boatman was

                                            30.
       In Boatman, the defendant shot his girlfriend in her face while they were in a
bedroom of his family’s home. (Boatman, supra, 221 Cal.App.4th at p. 1258.) There
were other family members in the home at the time, but none of them witnessed the
shooting. Immediately after the shooting, the defendant asked his brother to call the
police and he attempted to give his girlfriend mouth-to-mouth resuscitation. (Ibid.)
       The defendant gave different versions of what happened. He initially told officers
his girlfriend accidentally shot herself. He then stated he accidentally shot her thinking
the gun was not loaded. His final story was that he knew the gun was loaded and his
girlfriend playfully pointed it at him, he slapped it away, and he then cocked back the
hammer “‘just jokingly’” and the gun fired after the hammer slipped. (Boatman, supra,
221 Cal.App.4th at p. 1259.) At trial, however, he testified she playfully pointed the gun
at him and he took it and playfully pointed it back at her. While pointing it at her, he
cocked back the hammer, and, when she slapped the gun, it discharged. (Id. at p. 1260.)
       The Boatman court concluded there was no planning evidence presented.
(Boatman, supra, 221 Cal.App.4th at p. 1267.) The court pointed out that there was “no
evidence that defendant left the room or the house to get a gun, or that he even moved
from his squatting position on the floor.” (Ibid.) The court further reasoned the
“behavior following the shooting [was] of someone horrified and distraught about what
he had done, not someone who had just fulfilled a preconceived plan,” noting the
defendant tried to resuscitate his girlfriend, told his brother to call the police, and could
be heard crying in the background during the 911 call. (Ibid.) The court concluded
“[t]he evidence not only fails to support an inference of a plan to kill [his girlfriend], but
strongly suggests a lack of a plan to kill.” (Ibid.)



published on December 4, 2013. Given Boatman’s publication date, appellant has shown
good cause for his failure to raise this authority earlier. (Meier v. Ross General Hospital,
supra, 69 Cal.2d at p. 423, fn. 1.)


                                              31.
       The Boatman court also found “little or no relevant motive evidence.” (Boatman,
supra, 221 Cal.App.4th at p. 1267.) The only motive evidence was a text message from
the victim to a friend, stating she was having a fight with the defendant. The Attorney
General relied on this to argue the jury may have inferred the defendant was “‘in a bad
mood after being released from custody and he was angry with [his girlfriend].’” (Id. at
pp. 1267-1268.)
       Here, unlike in Boatman, appellant had a gang related motive to kill Robinson, and
he had time to premeditate and deliberate while fleeing from Robinson in his vehicle.
Appellant exited his vehicle with his handgun drawn and fired it twice shortly thereafter.
Unlike in Boatman, appellant’s actions were those of someone who had fulfilled a
preconceived plan. Boatman is distinguishable and does not support reversal.
       When the Supreme Court’s three factors are analyzed, substantial evidence
supports an inference the attempted killing occurred because of appellant’s preexisting
reflection. (Bolin, supra, 18 Cal.4th at p. 332.) This evidence was reasonable, credible,
and of solid value such that a reasonable jury could find appellant intended to kill
Robinson with premeditation and deliberation. (People v. Jones, supra, 57 Cal.4th at p.
960.) Accordingly, appellant’s conviction in count 1 is affirmed.
V.     Reversal Is Required For The Gang Enhancements.
       Appellant asserts the evidence was insufficient to prove the gang enhancements
under section 186.22, subdivision (b).
       A.     Standard of review.
       The substantial evidence standard of review applies to gang enhancements and
gang participation convictions. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.)
       To establish a gang enhancement, the prosecution must prove two elements: (1)
the crime was “committed for the benefit of, at the direction of, or in association with any
criminal street gang,” and (2) the defendant had “the specific intent to promote, further,
or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) The crime

                                            32.
must be “gang related.” (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) “Not
every crime committed by gang members is related to a gang.” (Ibid.) A defendant’s
mere membership in the gang does not suffice to establish a gang enhancement. (People
v. Gardeley (1996) 14 Cal.4th 605, 623-624; In re Frank S. (2006) 141 Cal.App.4th
1192, 1199 (Frank S.).) Instead, the charged crime must have some connection with the
activities of a gang. (Frank S., supra, at p. 1199; accord, People v. Martinez (2004) 116
Cal.App.4th 753, 762 [§ 186.30 context].)
       In addition, the prosecution must prove “the gang (1) is an ongoing association of
three or more persons with a common name or common identifying sign or symbol;
(2) has as one of its primary activities the commission of one or more of the criminal acts
enumerated in the statute; and (3) includes members who either individually or
collectively have engaged in a ‘pattern of criminal gang activity’ by committing,
attempting to commit, or soliciting two or more of the enumerated offenses (the so-called
‘predicate offenses’) during the statutorily defined period.” (Gardeley, supra, 14 Cal.4th
at p. 617, italics omitted.)
       The prosecution may rely on expert opinion testimony to prove the elements of the
gang enhancement and establish whether the charged crime was gang related. (People v.
Vang (2011) 52 Cal.4th 1038, 1048 (Vang); Hernandez, supra, 33 Cal.4th at pp. 1047-
1048.) However, a gang expert’s testimony, without any additional evidence in support,
is insufficient to find that the charged offense was gang related. (Ochoa, supra, 179
Cal.App.4th at p. 657.) The expert testimony must be accompanied by some substantive
factual evidentiary basis from which the jury could reasonably infer the crime was gang
related. (Id. at p. 660 [“something more than an expert witness’s unsubstantiated opinion
that a crime was committed for the benefit of, at the direction of, or in association with
any criminal street gang is required to justify a true finding on a gang enhancement”];
Ramon, supra, 175 Cal.App.4th at p. 852; People v. Morales (2003) 112 Cal.App.4th
1176, 1198; People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931.)

                                             33.
       B.     Analysis.
       Appellant contends the evidence was insufficient to prove either that his crime was
“gang related” or that he had the specific intent to promote, further, or assist gang
members as required for conviction of the gang enhancement. He relies principally on
Ochoa, supra, 179 Cal.App.4th 650, which we find persuasive.
       In Ochoa, the defendant was charged with carjacking and a felon in possession of
a firearm. He challenged the sufficiency of the evidence supporting a gang enhancement
under section 186.22, subdivision (b)(1). The defendant, who was a gang member, acted
alone in committing a carjacking with a shotgun, and the offense did not occur in his
gang’s territory. (Ochoa, supra, 179 Cal.App.4th at p. 662.) Ochoa found the evidence
insufficient to sustain the gang-related prong of section 186.22, subdivision (b)(1), noting
the circumstances of the crime did not support the opinion testimony of the prosecution’s
gang expert that the crimes were gang related. (Ochoa, supra, at pp. 661-662.)
       In reaching its conclusion, the Ochoa court noted there was no evidence only gang
members committed carjackings or a gang member could not commit one for personal
reasons. (Ochoa, supra, 179 Cal.App.4th at p. 662.) Two witnesses for the prosecution
testified that gang members can commit crimes on their own without benefitting the
gang. (Ibid.) The Ochoa court discounted the gang expert’s testimony that a gang
member’s carjacking would always benefit the gang. This testimony improperly
informed the jury how the expert believed the case should be decided without any
underlying factual basis to support it. (Ibid.) Notably, the Ochoa defendant did not call
out a gang name, did not display gang signs, did not wear gang clothing and did not
engage in gang graffiti while committing the carjacking. There was no evidence of
bragging or graffiti after the fact to take credit for the crime. There was no testimony the
victim saw any of the defendant’s tattoos. There was no evidence the crimes occurred in
the defendant’s gang territory, the territory of a rival, or that the victim was a gang
member. There was no evidence the defendant was given gang permission, or instructed,

                                             34.
to commit the carjacking. The defendant committed his crime without another gang
member present. There was no indication the defendant used the stolen vehicle to
transport other gang members or drugs, or had an intention to do so. (Id. at pp. 662-663.)
       Based on its record, the Ochoa court determined the gang expert had no specific
evidentiary support when he opined the carjacking could benefit the defendant’s gang in
a number of ways. Instead, Ochoa held such testimony was based solely on speculation,
which was insufficient to affirm a conviction. (Id. at p. 663.)
       Here, appellant’s circumstances mirror those of Ochoa. Appellant did not call out
a gang name, did not display gang signs, and was not wearing visible gang clothing when
he engaged Robinson. This record does not demonstrate evidence of bragging or graffiti
after the fact taking credit for appellant’s crime. There was no testimony that appellant’s
tattoos were visible to Robinson. To the contrary, Robinson testified appellant wore a
black hooded sweatshirt, with the hood up, and black pants. Robinson could only see a
partial side of appellant’s face.
       There was no evidence appellant engaged Robinson in appellant’s, or a rival’s,
gang territory. There was no evidence appellant was given gang permission, or
instructed, to commit the crimes. Appellant committed his crime without another gang
member present.
       As in Ochoa, the gang expert here, Ford, opined that appellant’s crime was
committed for the benefit of and in association of a criminal street gang. Ford believed
appellant’s crime would establish respect for his gang in general and respect for appellant
within his gang. He also opined that appellant was “a walking billboard as to what the
Oriental Troops are and what they are doing.” The facts, however, do not support Ford’s
opinion testimony because appellant did not do anything during his encounter with
Robinson to suggest he was a gang member. Ford’s testimony effectively told the jury
that a crime like appellant’s would always be for the benefit of the gang, but his opinion
testimony did nothing more than inform the jury how he believed the case should be

                                            35.
resolved. (Ochoa, supra, 179 Cal.App.4th at p. 662.) Ford’s testimony was based solely
on speculation. (Id. at pp. 662-663.) Ochoa is not distinguishable from the present
matter and it controls.
       Respondent, however, contends it is questionable whether Ochoa’s rationale is
still good law in light of our Supreme Court’s opinion in Vang, supra, 52 Cal.4th 1038.
Vang held that “‘[e]xpert 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.” (Id. at p. 1048.) Vang analyzed whether the trial
court erred in permitting the prosecution’s gang expert to respond to hypothetical
questions the prosecutor asked which closely tracked the evidence in a manner that was
only thinly disguised. (Id. at p. 1041.)
       In Vang, the four defendants were convicted of assault by means of force likely to
produce great bodily injury after they attacked an individual who was once associated
with the gang. At trial, three of the defendants admitted they were members in a criminal
street gang. Based on two hypotheticals that closely tracked the evidence in the case, the
prosecution’s gang expert opined the assault was committed for the benefit of a gang and
it was gang motivated. (Vang, supra, 52 Cal.4th at p. 1043.) The jury found true the
gang enhancement allegations under section 186.22, subdivision (b)(1). (Vang, supra, at
p. 1041.)
       The Vang expert relied on three factors in determining the assaults were gang
motivated: (1) the victim had associated with gang members at one time; (2) the victim
was lured to the spot where the attack occurred; and (3) known documented gang
members worked together to attack the victim. (Vang, supra, 52 Cal.4th at p. 1043.) On
appeal, the defendants argued the trial court erred when it allowed the expert to testify
based on the “‘thinly disguised’” hypothetical that the attack was committed for the
benefit of the gang and was gang motivated. (Id. at p. 1044.) The Supreme Court
disagreed and held that an expert may express an opinion based on hypothetical questions

                                            36.
that track the evidence in the trial regarding whether the defendant committed a crime for
a gang purpose. (Id. at p. 1048.) Vang noted that hypothetical questions must be based
on the evidence and that fact need not be disguised. (Id. at p. 1041.) The Vang court
held “‘[e]xpert opinion that particular criminal conduct benefited a gang’ is not only
permissible but can be sufficient to support the . . . gang enhancement.” (Id. at p. 1048,
quoting Albillar, supra, 51 Cal.4th at p. 63.) However, the Vang court also stated that the
expert’s opinion, “if found credible, might, together with the rest of the evidence, cause
the jury to find the assault was gang related.” (Vang, supra, at p. 1048, italics added.)
       Here, Vang does not alter our conclusion Ochoa requires reversal of appellant’s
convictions for the gang enhancement. Vang did not address whether a gang expert’s
testimony, without more, was sufficient to establish a gang enhancement. As this court
has observed, “[a] case is not authority for a proposition it did not consider.” (Sanchez v.
City of Modesto (2006) 145 Cal.App.4th 660, 685.) Moreover, Vang expressly stated that
while the gang expert’s testimony is permissible and can be sufficient to support the gang
enhancement, the expert’s opinion, together with the rest of the evidence, might cause the
jury to find the crime was gang related. (Vang, supra, 52 Cal.4th at p. 1048.) Vang has
not rendered Ochoa’s rationale questionable or no longer good law.
       Moreover, other cases stand with Ochoa. In People v. Rios (2013) 222
Cal.App.4th 542 (Rios) the appellate court reversed, inter alia, the defendant’s gang
enhancement convictions stemming from charges of vehicle theft and carrying a loaded
firearm in a vehicle after a review of the evidence failed to establish a gang connection
other than the expert’s opinion testimony. The Rios court noted that while the
prosecution may rely on the charged offense as the criminal conduct that supports a gang
enhancement when the defendant acts in concert with others, when the defendant acts
alone (which occurred in Rios), “the combination of the charged offense and gang
membership alone is insufficient to support an inference on the specific intent prong of



                                            37.
the gang enhancement. Otherwise, the gang enhancement would be used merely to
punish gang membership.” (Id. at pp. 573-574.)
       In Ramon, supra, 175 Cal.App.4th 843, this court addressed the sufficiency of the
evidence to support the specific intent prong of a gang enhancement. The defendant in
Ramon, a gang member, was stopped by police in his gang’s territory while driving a
stolen truck. A fellow gang member was in the truck, and police found an unregistered
firearm under the driver’s seat. (Id. at pp. 846–847.) The defendant was convicted of
three firearm offenses and receiving a stolen vehicle; the jury also found true the gang
enhancement allegations on three counts. (Id. at p. 848.) At trial, a gang expert testified
the stolen truck and the unregistered firearm could be used to commit gang crimes. (Id.
at p. 847.) He opined possessing a gun and driving a stolen truck in gang territory
benefitted the gang and the perpetrators of these offenses would intend to promote the
gang. (Id. at p. 848.) The expert testified stolen trucks and firearms were “tools” the
gang needed to commit other crimes. (Ibid.)
       On appeal, the defendant in Ramon argued the facts of his offenses plus the fact of
his gang membership and presence in gang territory were insufficient to support the
expert’s opinion on benefit and intent. (Ramon, supra, 175 Cal.App.4th at pp. 849–851.)
This court agreed, stating, “The People’s expert simply informed the jury of how he felt
the case should be resolved. This was an improper opinion and could not provide
substantial evidence to support the jury’s finding. There were no facts from which the
expert could discern whether Ramon and Martinez were acting on their own behalf the
night they were arrested or were acting on behalf of [their gang]. While it is possible the
two were acting for the benefit of the gang, a mere possibility is nothing more than
speculation. Speculation is not substantial evidence. [Citation.]” (Id. at p. 851.) This
court also held that the “facts on which [the gang expert] based his testimony were
insufficient to permit him to construct an opinion about Ramon's specific intent . . . .”
(Id. at p. 852.) This court reasoned that the prosecution’s expert opinion was a possibility,

                                             38.
it was not the only possibility and “a mere possibility is not sufficient to support a
verdict.” (Id. at p. 853.) This court noted that no case stands for the proposition expert
testimony about a possible reason for committing a crime was sufficient, by itself, to
justify a gang enhancement. (Ibid.)
       Finally, in Frank S., supra, 141 Cal.App.4th 1192, an officer detained the minor
when he failed to stop at a red traffic light while riding his bicycle. The officer
discovered a knife, a bindle of methamphetamine, and a red bandana on the minor. The
People charged the minor with carrying a concealed dirk coupled with a gang
enhancement, as well as other charges. (Id. at p. 1195.) The prosecution’s gang expert
testified the minor was a gang member and the substantive offense was committed to
benefit his gang. She testified “a gang member would use the knife for protection from
rival gang members and to assault rival gangs.” (Ibid.)
       The appellate court reversed the enhancement, finding that “nothing besides weak
inferences and hypotheticals show the minor had a gang-related purpose for the knife.”
(Frank S., supra, 141 Cal.App.4th at p. 1199.) “[U]nlike in other cases, the prosecution
presented no evidence other than the expert’s opinion regarding gangs in general and the
expert’s improper opinion on the ultimate issue to establish that possession of the weapon
was ‘committed for the benefit of, at the direction of, or in association with any criminal
street gang . . . .’ [Citation.] The prosecution did not present any evidence that the minor
was in gang territory, had gang members with him, or had any reason to expect to use the
knife in a gang-related offense. In fact, the only other evidence was the minor’s
statement to the arresting officer that he had been jumped two days prior and needed the
knife for protection. To allow the expert to state the minor’s specific intent for the knife
without any other substantial evidence opens the door for prosecutors to enhance many
felonies as gang-related and extends the purpose of the statute beyond what the
Legislature intended.” (Ibid.)



                                             39.
       The authorities discussed above establish appellant’s convictions for the gang
enhancements associated with counts 1 and 2 must be reversed. There is insufficient
evidence to establish appellant’s charged crimes in counts 1 and 2 were either gang
related (Ochoa, supra, 179 Cal.App.4th at p. 663), or appellant had the specific intent to
promote, further, or assist gang members (Rios, supra, 222 Cal.App.4th at pp. 574-575;
Ramon, supra, 175 Cal.App.4th at p. 853). Accordingly, we reverse the enhancements
pursuant to section 186.22, subdivision (b)(1) on counts 1 and 2.6
VI.    Count 4 Must Be Reduced To A Misdemeanor Due To Insufficient Evidence.
       Appellant asserts the evidence is legally insufficient to support his felony
conviction in count 4 that he carried a loaded firearm (former § 12031, subd. (a)(1)
[misdemeanor carrying a loaded firearm]) while an active participant in a street gang
(former § 12031, subd. (a)(2)(C) [punished as a felony when the person is an active
participant in a gang under § 186.22, subd. (a)(1)]).7 He relies on People v. Rodriguez
(2012) 55 Cal.4th 1125 (Rodriguez).
       Respondent concedes Rodriguez establishes the evidence is insufficient to support
a conviction under section 186.22, subdivision (a). Respondent, however, argues the
evidence is sufficient to support appellant’s conviction under former section 12031,
subdivision (a)(1), requiring count 4 to be reduced to a misdemeanor. Appellant agrees.
       We appreciate the parties’ concessions and accept them as appropriate in light of
Rodriguez and the evidence in this record.



6     In light of the reversal of the enhancements under section 186.22, subdivision (b),
we will not address appellant’s arguments he was improperly sentenced under section
186.22, subdivision (b)(1)(C).
7      Former section 12031 was repealed in 2010, operative January 1, 2012. (Stats.
2010, ch. 711, § 4 (SB 1080)) and reenacted without substantive change as section 25850.
Former section 12031 was in effect as of the date of appellant’s charged crimes (March 3,
2011) as alleged in the first amended information.


                                             40.
       In Rodriguez, our Supreme Court held a gang member does not violate section
186.22, subdivision (a), if he commits a felony but acts alone. (Rodriguez, supra, 55
Cal.4th at p. 1139.) Here, appellant acted alone when he carried a loaded handgun and
engaged Robinson. As such, substantial evidence supports the jury’s verdict that
appellant violated former section 12031, subdivision (a)(1), a misdemeanor. However,
pursuant to Rodriguez, there is legally insufficient evidence to satisfy section 186.22,
subdivision (a). Thus, appellant is not eligible for felony punishment under former
section 12031, subdivision (a)(2)(C). Accordingly, we reduce the felony to a
misdemeanor in violation of former section 12031, subdivision (a)(1) and remand for
appropriate resentencing.

VII.   Independent Review Of The Sealed Record Pertaining To The Pitchess
       Proceedings Reveals No Procedural Error Or Abuse Of Discretion.
       Appellant requests we independently review the propriety of the trial court’s
ruling regarding his motion filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d
531 (Pitchess). Respondent does not object.
       A.     Background.
       On October 21, 2011, appellant filed a Pitchess motion to permit discovery and
disclosure of Robinson’s personnel records. Appellant requested any records pertaining
to reports of alleged dishonesty, planting of evidence, giving of false and misleading
testimony, writing of false and/or misleading investigation reports, or the use of excessive
force, including that from a firearm.
       On November 15, 2011, the trial court granted appellant’s Pitchess motion and
conducted an in camera review of Robinson’s personnel records. Following the in
camera review, the court made the following nonconfidential ruling: “I have met in
camera and have thoroughly reviewed each and every file maintained by the City, the
custodian of the records of the City of Lindsay with respect to Officer Robinson and there
is [sic] absolutely no documents whatsoever that could be characterized as related to the


                                            41.
issues that you have raised, [appellant’s counsel]. And so there is no, going to be no
obligation on behalf of [city’s counsel] to disclose information to you.”
       On April 28, 2015, this court ordered the trial court to provide the files which it
reviewed at the in camera hearing on November 15, 2011, pursuant to appellant’s
Pitchess motion.
       On May 29, 2015, the trial court conducted a hearing regarding verification of the
records associated with appellant’s Pitchess motion. The same custodian of records was
present at both the November 15, 2011, and May 29, 2015, hearings. During the May 29,
2015, hearing, the trial court indicated it had not maintained a copy of Robinson’s
personnel records associated with the November 15, 2011, in camera review. Under
oath, the custodian stated she had Robinson’s complete personnel file, including each and
every document presented to the trial court on November 15, 2011. No documents had
been taken out or deleted from Robinson’s personnel file following the November 15,
2011, in camera review. The custodian placed the entirety of Robinson’s personnel file
in electronic form on a CD, which the trial court ordered sealed and it was forwarded to
this court for review.
       B.     Standard of review.
       “‘A criminal defendant has a limited right to discovery of a peace officer’s
personnel records. [Citation.] Peace officer personnel records are confidential and can
only be discovered pursuant to Evidence Code sections 1043 and 1045.’ [Citation.]”
(People v. Yearwood (2013) 213 Cal.App.4th 161, 180 (Yearwood).) “A defendant is
entitled to discovery of relevant information from the confidential records upon a
showing of good cause, which exists ‘when the defendant shows both “‘materiality’ to
the subject matter of the pending litigation and a ‘reasonable belief’ that the agency has
the type of information sought.” [Citation.]’ [Citation.]” (Ibid.)




                                             42.
       C.     Analysis.
       We have reviewed the trial court’s in camera examination of Robinson’s personnel
file. The trial court complied with the procedural requirements of a Pitchess hearing. A
court reporter was present and the custodian of records was sworn prior to testifying.
(Yearwood, supra, 213 Cal.App.4th at p. 180.) The custodian of records complied with
the requirement to bring all the records and submit them for review by the court. (Ibid.)
       Upon review of the sealed personnel file, we do not see any materials “‘so clearly
pertinent to the issues raised by the Pitchess discovery motion that failure to disclose
them was an abuse of Pitchess discretion.’ [Citation.]” (Yearwood, supra, 213
Cal.App.4th at pp. 180-181.) An abuse of judicial discretion is lacking. (Id. at p. 181.)
                                      DISPOSITION
       The Penal Code section 186.22, subdivision (b)(1) enhancements on counts 1 and
2 are reversed.
       The conviction on count 4 is reduced to a misdemeanor violation of former Penal
Code section 12031, subdivision (a)(1).
       The remaining convictions are affirmed. The matter is remanded to the trial court
for resentencing.

                                                                 _____________________
                                                                       LEVY, Acting P.J.
WE CONCUR:


 _____________________
POOCHIGIAN, J.


 _____________________
DETJEN, J.




                                             43.
