Filed 8/18/15 P. v. Ambriz CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B254690

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA128293)
         v.

CHRIS AMBRIZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. John A.
Torribio, Judge. Affirmed.


         Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       A jury found appellant Chris Ambriz guilty of: attempted willful, deliberate, and
premeditated murder (Pen. Code, §§ 664, 187, subd. (a); count 1);1 shooting at an
occupied motor vehicle (§ 246; count 2); assault with a semiautomatic firearm (§ 245,
subd. (b); count 3); assault with a firearm (§ 245, subd. (a)(2); count 4); and possession of
a firearm by a felon with two priors (§ 29800, subd. (a)(1); count 5). The jury found true
the allegations that the offenses were committed for the benefit of, at the direction of, and
in association with a criminal street gang (§ 186.22, subd. (b)), and that appellant used a
firearm in the commission of counts 2, 3 and 4 (§§ 12022.53, subds. (b) & (c)), 12022.5).
Appellant was sentenced to a total of 35 years to life, consisting of 15 years to life on
count 1, plus a consecutive term of 20 years for the section 12022.53, subdivision (c)
enhancement. The sentences on the remaining counts were stayed pursuant to section
654.
       Appellant contends the evidence was insufficient to support the jury’s findings
that the attempted murder was deliberate and premeditated and that the gang allegations
were true. He also contends the trial court erred in failing to sua sponte instruct the jury
on the lesser included offense of attempted manslaughter. We find no merit to these
contentions and find appellant’s remaining contentions moot. The judgment is affirmed.
                                          FACTS
The Shooting
       In the early afternoon of October 3, 2012, appellant, a member of the Carmelas
gang, and his girlfriend Crystal Martinez (Martinez) left the motel where they were
staying in Buena Park and drove around in a white Ford Expedition (the SUV).2
Appellant received a phone call from a man, and spoke with him through a feature on his
cell phone that operated like a walkie-talkie. After speaking with the man, appellant

1
       All further statutory references are to the Penal Code unless otherwise indicated.
2
        Martinez was handcuffed and wearing county jail blues while testifying. She had
been arrested for failing to respond to a subpoena to appear in court for this case. She
failed to appear because she was scared; she did not want to testify and had been harassed
in custody.

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drove to the parking lot of a Jack-in-the-Box restaurant in Bellflower. As appellant and
Martinez sat in the parking lot, appellant continued to speak with the man on the walkie-
talkie.
          Los Angeles County Sheriff’s Sergeant Marc Boskovich was also in the parking
lot as part of an undercover narcotics sting operation. He was inside a green Ford
Windstar minivan (the minivan) with tinted windows, and he was not in uniform. One of
Sergeant Boskovich’s partners had made a deal over the phone to buy methamphetamine,
which was supposed to be delivered to the parking lot by an unknown person. Sergeant
Boskovich monitored the parking lot, trying to determine who might be delivering the
drugs. After he had been there for about 10 minutes, a black Dodge Caravan (the Dodge)
parked directly next to him for about five minutes. A Hispanic male with a distinctive
mustache was in the Dodge, talking to someone via the walkie-talkie mode of a cell
phone. Sergeant Boskovich also noticed the SUV in the parking lot, but he did not see
appellant or Martinez. The sting operation was eventually called off.
          Sergeant Boskovich exited the parking lot in the minivan. The Dodge drove
toward a different exit, and appellant followed in the SUV. Appellant was still talking
over the walkie-talkie. According to Martinez, the man told appellant that the person in
the minivan had stolen something from him. The man said, “That’s the guy, that’s the
guy.” Appellant repeatedly asked, “Are you sure?” The man said, “Yes, I’ll never forget
his face.” Appellant made an illegal U-turn and began following Sergeant Boskovich’s
minivan through a residential neighborhood. The Dodge followed too. At some point,
appellant told Martinez that the person in the minivan was from the Varrio Norwalk gang
and had stolen something from appellant’s friend.
          Sergeant Boskovich noticed the SUV and the Dodge following him into a
residential neighborhood. As the minivan slowed for a dip in the road, appellant stuck
his left arm out of the driver’s side window of the SUV, holding a gun and fired multiple
shots at the minivan. Sergeant Boskovich sped up and radioed for help. Appellant
continued to follow and shoot at him. During the chase, Sergeant Boskovich lost sight of
the Dodge.

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         An unmarked police car drove toward the SUV and Martinez told appellant,
“There is a cop.” Appellant pulled his arm back inside the SUV and swerved to avoid the
police car. Officer Richard Torres, who was in the police car, saw appellant driving the
SUV and Martinez in the passenger seat. Martinez testified that appellant drove onto the
freeway and went to his friend Irene’s house in South Central. Officer Torres and
Sergeant Boskovich tried to follow, but they lost sight of the SUV. Appellant left the
SUV at Irene’s house and told her to cover it. Appellant and Martinez returned to the
motel.
The Investigation
         When Sergeant Boskovich finally exited his minivan, he saw a bullet hole on the
driver’s side rear bumper. Several casings and expended bullets were found in front of
houses in the neighborhood where the shooting occurred. One of the bullets struck the
car of a neighborhood resident while she was inside it, shattering the windshield.
         Appellant and Martinez were located at the motel later that day. Officer Torres
identified them at the scene as the occupants of the SUV that chased Sergeant Boskovich.
         The following day police searched Irene’s house. There was Carmelas gang
graffiti inside the house. The SUV was inside the yard and covered with a tarp. A
loaded, black and silver, nine-millimeter gun was found in the bathroom. Forensics
testing later revealed that the bullets and casings found at the scene were fired from the
recovered gun.
Gang Evidence
         Los Angeles County Sheriff’s Detective Ivania Farias testified as a gang expert.
Appellant was a self-admitted member of the Carmelas gang. He had numerous gang
tattoos, including on his face, neck, and hand. He had obtained another facial gang tattoo
while in custody for this case. The Varrio Norwalk gang was a longtime rival of the
Carmelas gang.
         The Carmelas gang’s primary activities are committing murder, attempted murder,
street robberies, bank robberies, assault with deadly weapons, drive-by shootings,
narcotics sales, firearms violations, and resisting arrest. Detective Farias explained that

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gangs commonly commit crimes outside of their claimed territory, such as to attack rival
members and conduct narcotics transactions.
       Based on a hypothetical scenario rooted in the facts of this case, Detective Farias
opined that the shooting was committed for the benefit of the Carmelas gang. Detective
Farias explained that when gang members are disrespected, they have to take action to
gain back respect. Stealing from a gang member is disrespectful. The shooting served to
benefit the gang by instilling fear in the community, so that citizens would be less likely
to report future offenses committed by the gang. Having gang tattoos on display was
another way to intimidate the community. Gang members notify the public of their
crimes through social media, broadcast media, and word of mouth.
Jailhouse Phone Calls
       Several of appellant’s jailhouse phone calls were recorded and played for the jury.
In a September 24, 2013 phone call, appellant told his wife Dolores that the prosecution
had a warrant out for Martinez. Appellant said Martinez was the reason he was in
custody, and that she was going to testify against him. Appellant detailed Sergeant
Boskovich’s preliminary hearing testimony for Dolores, and told her that a recording of
Martinez’s statement to the police had been played. He explained that on the recording,
Martinez said that appellant shot at the minivan because he thought the occupants were
Norwalk gang members, and that he hid the car at Irene’s house. Appellant also told
Dolores that when Martinez was arrested, she got scared, and took the police to Irene’s
house. Appellant said he had talked to some “homies,” and Martinez was no longer
allowed in Carmelas gang territory. Appellant said he had “paperwork” on Martinez. In
gang parlance, “paperwork” is a police report or other proof that someone is cooperating
with law enforcement. Once paperwork is obtained, a person can be labeled a “snitch” or
“rat,” and becomes a target for violence from any gang member.
       In a September 25, 2013 call, appellant told Dolores that the next time he called,
he would need her to make a conference call so that he could tell his “homeboy” to tell
“that little hood rat” that “she better make sure she disappears.” A “hood rat” is a female
who has sexual relationships with more than one gang member.

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       In a September 26, 2013 call, appellant told Dolores that earlier that day he tried to
start a fight with a Norwalk gang member, and told the Norwalk gang member that his
“little homie” recently shot appellant’s brother. Appellant’s brother had been shot
recently. Appellant explained to Dolores that ever since he found out a Norwalk gang
member killed his brother, he decided he would fight any Norwalk gang member, even if
they were older. Appellant also told Dolores to call his “homie” to “let him know to
make sure that that fucking stupid bitch ass fucking girl, make sure they make her
disappear.”
       In another September 26, 2013 call, appellant told an unknown male to “see what
[he] could do” about a witness for whom the prosecution had “issued a warrant.”
                                       DISCUSSION
I. Sufficient Evidence Established Premeditation and Deliberation
       Appellant contends the evidence was insufficient to support the jury’s finding that
the attempted murder was premeditated and deliberate.
       A. Standard of Review and Relevant Law
       A defendant raising a claim that the evidence was insufficient to support his
conviction bears a “massive burden” because this court’s “role on appeal is a limited
one.” (People v. Akins (1997) 56 Cal.App.4th 331, 336.) “‘In assessing the sufficiency
of the evidence, we review the entire record in the light most favorable to the judgment to
determine whether it discloses 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.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in
support of the judgment the existence of every fact that could reasonably be deduced
from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Hoang
(2006) 145 Cal.App.4th 264, 275.) We do not reweigh evidence, reappraise the
credibility of witnesses, or resolve conflicts in the evidence, as these functions are
reserved for the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) This
standard applies whether direct or circumstantial evidence is involved. (People v.
Thompson (2010) 49 Cal.4th 79, 113.) Reversal is not warranted unless it appears “‘that

                                              6
upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
       To find that the attempted murder was committed willfully, deliberately, and with
premeditation, the jury had to find that appellant’s decision to kill was considered
beforehand and arrived at as a result of careful thought and weighing of considerations.
(CALJIC No. 8.67; People v. Young (2005) 34 Cal.4th 1149, 1182.) “‘“The process of
premeditation . . . does not require any extended period of time. ‘The true test is not the
duration of time as much as it is the extent of the reflection. Thoughts may follow each
other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’
[Citations.]”’” (People v. Halvorsen (2007) 42 Cal.4th 379, 419.)
       Although not exhaustive, factors that may establish premeditation and deliberation
include: (1) planning activity; (2) motive; and (3) method of the attempted murder.
(People v. Koontz (2002) 27 Cal.4th 1041, 1081; People v. Perez (1992) 2 Cal.4th 1117,
1125; People v. Anderson (1968) 70 Cal.2d 15, 26–27.)
       B. Analysis
       Contrary to appellant’s assertion, the above-listed factors are present here.
       First, appellant engaged in planning activity by bringing a gun to the drug deal.
Appellant concedes that he was at the parking lot in response to a call for a drug deal.
(People v. Alcala (1984) 36 Cal.3d 604, 626 [“when one . . . brings along a deadly
weapon which he subsequently employs, it is reasonable to infer that he considered the
possibility of homicide from the outset”].) Appellant also engaged in planning activity
by verifying with his cohort that the person in the minivan was someone who had stolen
from him, by making the illegal U-turn, and by following the minivan before firing at it.
(See People v. Perez, supra, 2 Cal.4th at p. 1127 [“premeditation can occur in a brief
period of time”]; People v. Koontz, supra, 27 Cal.4th at p. 1082 [defendant’s arming
himself and following the victim demonstrated planning activity].)
       Second, appellant’s motive demonstrated premeditation and deliberation.
Martinez told police the reason appellant shot at the minivan was because he believed a
rival gang member was inside who had stolen from appellant’s cohort. A motive of gang

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retaliation alone can be sufficient to establish premeditation and deliberation. (People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 295 [where motive was gang retaliation, it
could be inferred that defendants, who were armed, “formed the intent to commit
premeditated and deliberate murder as early as when they asked the driver to turn the car
around and return to the gas station to confront [the victims], who fit the profile of
retaliatory targets, whether or not they actually belonged to the Crips gang”]; People v.
Sanchez (2001) 26 Cal.4th 834, 849 [“Premeditation can be established in the context of a
gang shooting even though the time between the sighting of the victim and the actual
shooting is very brief”]; People v. Rand (1995) 37 Cal.App.4th 999, 1001–1002 [aiming
weapon at victims whom shooter believed to be rival gang members constituted sufficient
evidence of premeditation and deliberation].)
       Third, the method of the attempted murder demonstrated premeditation and
deliberation. Appellant did not simply fire at the minivan as he drove by it; rather, he
followed the minivan for some time, fired once the minivan slowed down for a dip, and
then fired multiple shots. (See People v. Ramos (2004) 121 Cal.App.4th 1194, 1208
[“the manner of the attempted murder, firing numerous rounds at an occupied vehicle,
showed the shooting was purposeful”]; People v. Wells (1988) 199 Cal.App.3d 535, 541
[defendant’s pursuit of the victim and firing of shots in a manner slow enough for him to
take careful aim supported a finding of deliberation and premeditation].)
       We are satisfied that substantial evidence supported the jury’s finding of
premeditation and deliberation.
II. No Sua Sponte Duty to Instruct on Manslaughter
       Appellant contends the trial court erred by failing to sua sponte instruct the jury on
the lesser included offense of manslaughter based on the theory of heat of passion.
       Attempted voluntary manslaughter on a theory of heat of passion is a lesser
included offense of attempted murder. (People v. Millbrook (2014) 222 Cal.App.4th
1122, 1137.) A trial court has a sua sponte duty to instruct on a lesser included offense
only where there is substantial evidence that the defendant is guilty of the lesser offense.
(People v. Breverman (1998) 19 Cal.4th 142, 162.) Substantial evidence is not any

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evidence, no matter how weak, but evidence from which a reasonable jury could find that
the defendant was guilty only of the lesser offense. (People v. Moye (2009) 47 Cal.4th
537, 553.)
       Heat of passion or sudden quarrel manslaughter has both objective and subjective
components. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) “The defendant must
actually, subjectively, kill under the heat of passion,” and the heat of passion must arise
from conduct by the victim so provocative that it would cause an ordinarily reasonable
person to act rashly and without deliberation and reflection. (Id. at pp. 583–584.) Heat
of passion manslaughter does not exist where a sufficient “‘cooling off period’” has
elapsed between the provocation and the killing, for an ordinarily reasonable person’s
passion to subside and reason to return. (People v. Moye, supra, 47 Cal.4th at p. 550;
People v. Daniels (1991) 52 Cal.3d 815, 868; CALJIC No. 8.43.)
       Here, there was no evidence of the subjective component that appellant actually
acted under a heat of passion. Martinez did not testify that appellant was acting enraged,
uncontrollably, excitably or under any other intense emotion. The only logical inference
from the evidence is that appellant was acting out of revenge. (People v. Breverman,
supra, 19 Cal.4th at p. 163 [while the passion aroused need not be anger or rage, it must
be a “‘“‘violent, intense, high-wrought or enthusiastic emotion’”’ [citation] other than
revenge”].) Indeed, appellant’s repeated questions to his cohort confirming that the
person in the minivan was the person who had stolen from the cohort demonstrates that
appellant was thinking clearly and wanted to make sure he shot at the right person.
Appellant did not immediately pull out his weapon and fire at the minivan; he followed
the minivan and only began firing once the minivan slowed down for a dip in the road.
Such calculated behavior is inconsistent with acting under the heat of passion.
       Evidence of the objective component was also missing. Although the cohort was
adamant about recognizing Sergeant Boskovich as the person who stole from him, the
evidence showed that Sergeant Boskovich was sitting in a minivan with tinted windows.
Moreover, Sergeant Boskovich did not engage in any provocative conduct; he never
exited the minivan. (See People v. Daniels, supra, 52 Cal.3d at p. 868 [for heat of

                                              9
passion manslaughter instruction to apply, “the killing must be ‘upon sudden quarrel or
heat of passion’ (§ 192); that is, ‘suddenly as a response to the provocation, and not
belatedly as revenge or punishment . . . .’”].) Even if appellant reasonably believed the
person in the minivan had stolen from his cohort, such conduct was not sufficiently
provocative to satisfy the objective component of heat of passion manslaughter. An
ordinarily reasonable person would not experience a sudden heat of passion causing him
to act rashly and without deliberation under such circumstances. (See People v. Gonzales
and Soliz, supra, 52 Cal.4th at p. 301 [“a passion for revenge cannot satisfy the objective
requirement for provocation”].)
       Because there was insufficient evidence of attempted heat of passion
manslaughter, the trial court did not err in failing to instruct the jury on this lesser
included offense.
III. Sufficient Evidence Supported the Gang Allegations
       Appellant contends the evidence was insufficient to support the jury’s true
findings on the gang allegations. Specifically, appellant argues that the gang expert’s
opinion that the shooting was committed to benefit appellant’s gang had no factual basis
because there was no evidence that appellant identified himself as a gang member during
the commission of the offense or that the victim or witnesses knew he was a gang
member.
       The same standard of reviewing the sufficiency of the evidence to support a
conviction applies to a true finding on a gang enhancement. (People v. Mendez (2010)
188 Cal.App.4th 47, 56; People v. Wilson (2008) 44 Cal.4th 758, 806.)
       Pursuant to section 186.22, subdivision (b)(1), “any person who is convicted of a
felony committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members,” shall receive additional punishment. (§ 186.22, subd. (b)(1);
CALJIC No. 17.24.2.)
       Here, the logical inference from all the evidence is that appellant and his cohort
were at the parking lot to engage in a gang-related drug transaction. They never exited

                                               10
their vehicles, they were in constant communication via their walkie-talkies, and they
coordinated their actions in leaving the parking lot and following the minivan. The
evidence also showed that appellant believed the victim was a rival gang member who
had stolen from his cohort. Because Sergeant Boskovitch never exited the minivan,
appellant relied entirely on what his cohort told him. Thus, the evidence supported the
conclusion that appellant committed the offenses not for his own, nongang-related
purposes, but for the purposes of benefiting his gang by avenging a disrespectful act by a
rival gang member and with the specific intent to promote, further, or assist in criminal
conduct by gang members.
       While it is true that appellant did not shout out his gang’s name or otherwise
identify himself as a gang member, the gang expert testified that gangs made their crimes
known through social media and word of mouth. Appellant’s jailhouse phone calls
demonstrated that he had let other gang members and his wife know about the crimes.
And the crimes were committed in broad daylight in a residential area, so it would be
expected that the community would learn about it.
       We are satisfied that substantial evidence supported the jury’s true findings on the
gang allegations.
IV. Remaining Contentions on Count 4 are Moot
       Appellant’s last two contentions focus on count 4. He argues there was no
evidence that he knew he was assaulting a peace officer and that the jury was improperly
instructed on this offense. These contentions are moot. Appellant focuses on the original
information, which charged him in count 4 with assault with a firearm upon a peace
officer in violation of section 245, subdivision (d)(1). The original information was
amended so that appellant was charged in count 4 with assault with a firearm in violation
of section 245, subdivision (a)(2). The amended information superseded the original
information.




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




                                            __________________________, J.
                                                  ASHMANN-GERST


We concur:



_____________________________, P. J.
           BOREN



____________________________, J.
           HOFFSTADT




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