Filed 1/28/16 P. v. Rodriguez CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B256431
                                                                          (Super. Ct. No. 2012014196)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

JESUS LEYVA RODRIGUEZ,

     Defendant and Appellant.



                   Jesus Leyva Rodriguez appeals his conviction, by jury, of the April 2012
attempted murder of Benny Huerta (Pen. Code, §§ 664, 187, subd. (a))1, assault with a
semi-automatic firearm (§ 245, subd. (b)), and resisting arrest. (§ 148, subd. (a)(1).) The
jury found that appellant personally used and personally discharged a firearm in
committing the attempted murder and assault, that he personally inflicted great bodily
injury on Huerta, and that he committed the offenses for the benefit of a criminal street
gang, Colonia Chiques. (§§ 12022.5, subd. (a)(1); 12022.53, subd. (d); 12022.7; 186.22,
subd. (b)(1).) It was unable to reach a verdict on additional charges that appellant
engaged in street terrorism (§ 186.22, subd. (a)), and that he committed assault with a
deadly weapon, a knife. (§ 245, subd. (a)(1).) The trial court sentenced appellant to an
aggregate term of 44 years to life as follows: a determinate term of 9 years on the


1
    All statutory references are to the Penal Code unless otherwise stated.
                                                             1
attempted murder conviction, plus a consecutive term of 25 years to life for the section
12022.53, subdivision (d) firearm enhancement, plus a consecutive term of 10 years for
the section 186.22, subdivision (b) gang enhancement.
              Appellant contends there is no substantial evidence he had the mental state
required to commit attempted murder or that he acted for the benefit of a criminal street
gang. He further contends the trial court abused its discretion when it imposed the upper
term of 9 years on his attempted murder conviction. We affirm.
                                           Facts
              Benny Huerta grew up in the Ventura Avenue neighborhood of Ventura,
California. Although he had been a member of Ventura Avenue Gangsters in his youth,
Huerta testified he left the gang in 1995. On the evening of April 17, 2012, Huerta was
walking on McFarlane Avenue toward his parked car, after visiting his friend,
Christopher Hannegan. Two men approached Huerta before he reached his car. They
exchanged words and a fist fight broke out. Within moments, Hannegan heard two gun
shots. The two men ran away as Huerta stumbled down the street, looking for help.
Blood was gushing from what turned out to be a stab wound to Huerta's right arm. He
had also been shot twice in the torso. One bullet went through his stomach and exited the
left side of his back. The other entered Huerta's right flank area and lodged in his pelvis.
Onlookers came to Huerta's aid while Hannegan called 911. Hannegan told the
responding police officers that one of the men was wearing a Rams football jersey and
black pants. The other man was wearing a Dodgers baseball cap.
              Huerta told the responding police officer that he was walking down
McFarlane when two men approached him and asked him where he was from. Huerta
responded that he was from Ventura and was not a gang member. The two men shot and
stabbed Huerta and then ran away.
              The shooting occurred at about 6:50 p.m., while it was still light outside.
Sara Morales had picked up her children from her mother-in-law's house on McFarlane
and was sitting in her car with them when she saw two men and a woman walk past. She
heard yelling and the sound of people fighting. Morales looked in the side mirror of her

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car and saw the two men who had just passed her fighting with a third man in the street,
in front of her mother-in-law's house. Then she heard two gunshots. Morales started her
car, drove around the block and parked on Ventura Avenue. While she was parked, she
saw the same two men from the shooting run down Ventura Avenue toward the Red Barn
Liquor store. One was carrying a shirt in his hands. Morales called 911 and reported
what she had seen.
               Surveillance camera video from the Red Barn Liquor Store on Ventura
Avenue shows appellant and Ricardo Juarez run across the store's parking lot at about
6:52 p.m. Juarez is carrying a dark shirt in his hand. Before he enters the store, Juarez
stashes the shirt behind a scale that is standing near the store's front door. Once inside,
the men convince a customer to lend them his cell phone. Appellant talks with other
customers while Juraez makes a call and paces back and forth near the front door. They
leave the store three minutes later, running down Sunnyway Drive, a side street.
Appellant and Juarez were arrested a few blocks away from the liquor store, while hiding
behind an apartment building.
              About one week later, on April 25, a homeowner who lived on Sunnyway
Drive was trimming the high, thick grass and weeds in his front yard when he found a
handgun lying near a fence. The gun was a .25 caliber semiautomatic handgun with two
rounds missing from its seven-round magazine. Analysis later determined that cartridge
casings found at the scene of the shooting had been fired from this gun. DNA testing of
samples from the gun leads to the conclusion that appellant could have contributed to the
matter, but excluded Juarez and the victim, Huerta, as contributors.
              Officers also recovered the sports jersey that Juarez stashed near the front
door of the Red Barn Liquor store. An analysis of blood splattered on the jersey
determined that Huerta was included as a major contributor to the DNA profile while
appellant and Juarez were excluded as major contributors. A blue Dodgers cap, and
black Dodgers cap, and a black sweatshirt were recovered near the site of appellant's
arrest. Huerta was the major contributor of blood that stained the black baseball cap;


                                              3
Juarez was a possible contributor of DNA found on the inside front rim of the cap.
Appellant tested positive for gunshot residue on his hands; Juarez did not.
               At the time of the shooting, Juarez and appellant were staying on East
McFarlane with Juarez's girlfriend and her family. Sometime between 10:00 p.m. on
April 16, 2012 and about 8:00 a.m. on the April 17, the walls of a nearby parking
structure were tagged with graffiti consisting of the names "Goofy," and "Slings 3" and
the word "vasura." Appellant goes by the moniker "Slings 3." Juarez is known as
"Goofy."
               A detective from the Ventura Police Department testified that the shooting
occurred in a neighborhood "claimed" by the Ventura Avenue Gangsters, a street gang.
Huerta was a known member of that gang in the early 1990s. Rival gangs sometimes
refer to Ventura Avenue Gangsters by the derogatory term, "vasura," a reference to the
Spanish word for trash.
               Cody Collet, a detective from the Oxnard Police Department, testified as an
expert witness on the Colonia Chiques gang and on gang culture in general. He
explained that gang members commit crimes and acts of violence to earn respect from
one another, to promote the gang and to spread fear and intimidation in the community.
Members of Colonia Chiques often wear Dallas Cowboys clothing and use the Cowboys'
star in tattoos, writing and graffiti.
               Detective Collet opined that appellant was a member of Colonia Chiques at
the time of the shooting. Appellant had three other contacts with law enforcement. On
each occasion, he was associating with admitted Colonia Chiques members.          He also
has a five-pointed star tattooed on either side of his head and another tattoo that reads,
"CO Boy," a reference to the gang.       His cell phone stored numerous photos of appellant
with other Colonia Chiques members, in which all of the subjects are wearing gang-
related clothing and displaying gang hand signs. The screensaver on appellant's cell
phone is a photograph of a Colonia street sign. In a video posted to You Tube, appellant
and Juarez rap together about the Colonia gang and their willingness to use guns and
violence on its behalf.

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                                     Standard of Review
              Appellant contends his conviction of attempted murder is not supported by
substantial evidence that he intended to kill Huerta. He further contends the gang
enhancement is not supported by substantial evidence that he acted for the benefit of a
criminal street gang.
              In evaluating these claims, we apply a familiar standard of review: " '[W]e
review the whole record to determine whether any rational trier of fact could have found
the essential elements of the crime ... beyond a reasonable doubt. [Citation.] The record
must disclose substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review
the evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] "Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" [Citation.]
A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no
hypothesis whatever is there sufficient substantial evidence to support' " the jury's
verdict. [Citation.]' " (People v. Manibusan (2013) 58 Cal.4th 40, 87, quoting People v
Zamudio (2008) 43 Cal.4th 327, 357.)
              Evidence of a defendant's state of mind "is almost inevitably circumstantial,
but circumstantial evidence is as sufficient as direct evidence to support a conviction."
(People v. Bloom (1989) 48 Cal.3d 1194, 1208.) The trier of fact may infer a defendant's
intent to kill from his or her acts and the circumstances of the crime. (People v. Avila
(2009) 46 Cal.4th 680, 701.) In reviewing the judgment for substantial evidence, we are
required to accept logical inferences that the jury might have drawn from the
circumstantial evidence. "Where the circumstances reasonably justify the trier of fact's

                                               5
findings, a reviewing court's conclusion the circumstances might also reasonably be
reconciled with a contrary finding does not warrant the judgment's reversal." (People v.
Zamudio, supra, 43 Cal.4th at pp. 357-358.)
                                         Discussion
                        Substantial Evidence of Attempted Murder
              Appellant contends there is no substantial evidence he intended to kill
Huerta because neither of the shots he fired penetrated a vital organ. Appellant was
standing in close proximity to Huerta at the time, but did not take advantage of that
circumstance to fire additional shots, ensuring Huerta's death.
              The mental state required for attempted murder differs from that required
for murder itself. (People v. Smith (2005) 37 Cal.4th 733, 736.) Murder maybe proved
with evidence of implied malice, e.g., actions taken with a conscious disregard for life.
(Id.) Attempted murder, however, requires proof that the defendant harbored express
malice – the specific intent to kill the victim – and committed a direct but ineffectual act
toward accomplishing that intended killing. (People v. Perez (2010) 50 Cal.4th 222, 229;
People v. Ramos (2011) 193 Cal.App.4th 43, 47.) Express malice may be proved with
evidence that appellant either desired Huerta's death or knew to a substantial certainty
that Huerta's death would occur as a result of appellant's actions. (People v Smith, supra,
37 Cal.4th at p. 739.) As our Supreme Court recently emphasized, "The act of shooting a
firearm toward a victim at close range in a manner that could have inflicted a mortal
wound had the shot been on target is sufficient to support an inference of an intent to
kill." (People v. Houston (2012) 54 Cal.4th 1186, 1192, see also People v. Smith, supra,
37 Cal.4th at p. 739 [same].)
              Here, appellant was standing within a few feet of Huerta when he drew a
firearm from his pocket and fired two shots into Huerta's torso. The shots, fired at close
range, inflicted wounds that would have been fatal had Huerta not received almost
immediate medical attention. These facts support the logical inference that appellant
acted with the specific intent to kill when he shot Huerta.


                                              6
              Appellant fired two shots and then ran away without checking to make sure
Huerta was dead. This fact does not negate his intent to kill. As our Supreme Court
reasoned in Smith, the fact that a shooter fires a few times and then abandons his efforts
" ' "out of necessity or fear does not compel the conclusion that he lacked the animus to
kill in the first instance. Nor does the fact that the victim may have escaped death
because of the shooter's poor marksmanship necessarily establish a less culpable state of
mind." ' " (People v. Smith, supra, 37 Cal.4th at p. 741, citations omitted. See also
People v. Houston, supra, 54 Cal.4th at p. 1218 [survival of some victims of mass high
school shooting does not negate shooter's intent to kill]; People v. Ramos, supra, 193
Cal.App.4th at p. 48 [sufficient evidence of intent to kill where gunshots would have
inflicted mortal wound had defendant's "marksmanship been better."].)
           Substantial Evidence Supports Criminal Street Gang Enhancement
              Appellant contends there is no substantial evidence he acted for the benefit
of a criminal street gang. We disagree. Colonia Chiques is a criminal street gang within
the meaning of section 186.22. (People ex rel. Totten v. Colonia Chiques (2007) 156
Cal.App.4th 31.) Appellant has symbols associated with Colonia Chiques tattooed on his
head and chest. His cell phone stored pictures of himself with other known gang
members. Appellant and Juarez were staying in the geographic "territory" of a rival gang
and, the night before, had tagged a nearby wall with graffiti insulting to that gang.
Before the assault on Huerta began, appellant and Juarez issued the common gang
challenge, "Where you from?" Then, they acted together to shoot and stab him.
Detective Collet testified that, in his opinion, a shooting like the one at issue here would
have been gang related because it involved gang members acting together to assault a
potential rival in a hostile neighborhood. The attack would have been seen by others as a
way to increase "respect" for, or fear of their gang. This constitutes substantial evidence
from which a reasonable jury could infer that appellant acted for the benefit of Colonia
Chiques when he shot Huerta. (People v. Albillar (2010) 51 Cal.4th 47, 62.)




                                              7
                                     Sentencing Error
              The trial court sentenced appellant to the upper term of nine years on the
attempted murder conviction. It reasoned, "The crime involved great violence, great
bodily harm and [a] high degree of cruelty and viciousness. The victim was vulnerable
'cause he was walking down the street minding his own business . . . . It appears to the
court that the crime did indicate sophisticated planning or some sort of knowledge of how
all this was supposed to occur."   Appellant contends this was an abuse of discretion
because the aggravating factors on which the trial court relied were encompassed within
the elements of the crime and the enhancements. For example, appellant argues, "great
violence was part and parcel of the use of a semi-automatic firearm, and part of the crime
of attempted murder itself." Similarly, he contends the trial court should not have relied
on great bodily injury as an aggravating factor because the jury found true a great bodily
injury sentencing enhancement. (§ 12022.7.) We are not persuaded.
              First, appellant forfeited this claim because he did not object on this basis in
the trial court. (People v. Gonzalez (2003) 31 Cal.4th 745, 751.) Appellant's trial
counsel requested that the trial court impose the lower term because of appellant's youth,
and insignificant criminal record. Counsel did not object on the basis now asserted as
error: that the aggravating circumstances relied by the trial court were identical to the
elements of the crime and imposed enhancements.
              Had the claim not been forfeited, we would reject it because the trial court
did not abuse its discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) In
deciding whether to impose the upper term for an offense, the trial court may not rely on
a "fact that is an element of the crime upon which punishment is being imposed . . . ."
(Cal. Rules of Court, rule 4.420(d).) Additionally, "the court may not impose an upper
term using the fact of any enhancement upon which sentence is imposed under any
provision of law." (§ 1170, subd. (b), see also Cal. Rules of Court, rule 4.420(c).) The
sentence imposed by the trial court complied with both of these rules.
              The aggravating factors of "great violence," "high degree of cruelty," and
victim vulnerability are not elements of the offense of attempted murder. (§ 664, subd.

                                              8
(a); People v. Perez, supra, 50 Cal.4th at p. 229.) Similarly, to find true the section
12022.53, subdivision (d) enhancement, the jury had to find that appellant personally
discharged a firearm causing great bodily injury. While this enhancement necessarily
requires appellant to engage in some level of violence, it does not require "great" violence
or a high degree of cruelty. The trial court's use of these aggravating circumstances did
not violate rule 4.420.
              We reject appellant's contention that the aggravating circumstances of
cruelty, victim vulnerability, and sophistication and planning are not supported by the
evidence. Appellant acted in concert with Juarez, while both of them were armed, to
assault an unarmed, unsuspecting passerby. Hours earlier, they signaled their intention to
do violence by tagging a nearby wall with insulting, gang graffiti. These facts support
the aggravating circumstances found by the trial court and its decision to impose the
upper term. (People v. Black (2007) 41 Cal.4th 799, 813 [a single aggravating
circumstance will support an upper term sentence].)
                                        Conclusion
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                                        YEGAN, J.


We concur:


              GILBERT, P.J.


              PERREN, J.




                                             9
                                 Jeffrey Bennett, Judge

                            Superior Court County of Ventura

                           ______________________________


             Susan S. Bauguess, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General,
for Plaintiff and Respondent.




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