Filed 9/28/16 P. v. Capla 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B266329

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA102128)
         v.

ROBERT ANTHONY CAPLA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Mike
Camacho, Judge. Affirmed.


         Juliana Drous, 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, Paul M. Roadarmel, Jr. and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Robert Anthony Capla (defendant) appeals from the
judgment entered after he was convicted of two counts of attempted murder. Defendant
contends: that the trial court erred in failing to instruct the jury that one of the
prosecution witnesses was an accomplice as a matter of law; that there was no substantial
evidence that defendant intended to kill everyone in a “kill zone”; and that trial counsel
rendered ineffective assistance by failing to seek to suppress cell phone evidence.
Finding no merit to defendant’s contentions, we affirm the judgment.
                                      BACKGROUND
       Defendant and two codefendants, Ronald Diaz (Diaz) and Melissa Sanchez
(Sanchez), were charged in a first amended information with two counts of attempted
murder in violation of Penal Code sections 187 and 664 (counts 1 and 2).1 The amended
information alleged as to both counts that the attempted murders were committed
willfully, deliberately, and with premeditation within the meaning of section 664,
subdivision (a), and for the benefit of, at the direction of, or in association with a criminal
street gang within the meaning of section 186.22, subdivision (b)(4). It was further
alleged, pursuant to Penal Code section 12022.53, subdivisions (c), (d), and (e)(1), that in
the commission of the offenses, defendant and a principal personally and intentionally
discharged a firearm, and that defendant personally and intentionally discharged a firearm
causing great bodily injury to Juan Gallardo (Gallardo).
       Defendant and Diaz were tried together by separate juries, and Sanchez’s matter
was settled prior to trial with a plea agreement. Defendant was convicted of both counts
as charged and the special allegations were found true. The trial court sentenced
defendant to a total prison term of 80 years to life, comprised of consecutive terms as to
each count of 15 years to life, plus 25 years to life due to the firearm enhancement under
section 12022.53, subdivision (d). The trial court imposed and stayed the remaining
firearm enhancements.
       Defendant filed a timely notice of appeal from the judgment.


1      All further statutory references are to the Penal Code unless indicated otherwise.

                                               2
Prosecution evidence
       Late in the evening of March 28, 2013, Sanchez, her boyfriend Juan Jaime (Jaime)
and his cousin Gallardo, sat in her car in the driveway of Jaime’s house for about an hour,
eating and smoking marijuana. Sanchez saw a car slowly pass by around 11:40 p.m., and
then circle around twice before stopping in the street near Jaime’s driveway. She saw
defendant in the passenger seat, but did not recognize the driver. She observed the
defendant and the driver get out of the car just as Jaime and Gallardo got out of
Sanchez’s car to throw away some trash. Sanchez saw the driver with a handgun and
defendant with a rifle. Holding the rifle in both hands, defendant steadied it on the car
door. Sanchez then heard multiple gunshots in rapid succession, about 10 gunshots in all.
Jaime testified that upon hearing the gunshots, he ran and ducked behind his mother’s
car, which was one of two other cars parked in the driveway closer to the house. He
escaped injury. Sanchez ducked down under the dashboard of her car until the shooting
stopped, and also escaped injury. Gallardo was struck by bullets, suffering a wound to
the lung and another close to his heart. He survived and also testified at trial.2
       Jaime was a member of the Duff Street clique of the Puente 13 gang, Gallardo was
a member of the Happy Homes clique of the Puente 13 gang, and defendant was a
member of the Blackwood clique of the Puente 13 gang. Blackwood, a criminal street
gang clique was “at war” with all the other cliques of the Puente 13 gang, and engaged in
violent feuds which sometimes involved physical assaults and shootings. Defendant was
known as “Malo,” and wore a tattoo on his upper lip that spelled out “Blackwood.”
       Los Angeles County Deputy Sheriff Irma Chavez arrived at the scene of the
shooting, and after speaking to Jaime she investigated the area of the driveway and
adjacent street. She inspected the Honda and a Scion parked in the driveway, a Ford

2      Jaime and Gallardo were reluctant witnesses. Jaime claimed that the shooters
were two unknown “black dudes,” and that he had never before seen defendant, despite
having identified defendant at the preliminary hearing and having testified to knowing
him from school. Gallardo claimed that he remembered nothing from that night except
that he was shot, and he denied that he testified at the preliminary hearing. The trial court
took judicial notice that Gallardo had been a witness at the preliminary hearing.

                                              3
truck parked in the street, and Sanchez’s Toyota Camry, which had been moved prior to
the deputy’s arrival. There were bullet holes in all four vehicles, and bullet damage on
the front gate, fence, and pillars of the residence. The bullet holes had not been there
before the shooting. Deputy Chavez observed seven .22-millimeter bullet casings and
eight .9-millimeter casings. A firearms expert determined that the location where the
.22-caliber casings were found was consistent with the bullets having been fired while the
shooter was standing in the street.
       In her initial discussion with the deputies, Sanchez had intentionally misidentified
the shooter in a six-pack photographic lineup, and no witness had yet mentioned
defendant or Diaz. Investigators had no information that defendant was involved in the
shooting.
       On April 10, 2013, primary investigating officer Detective Shawn O’Donnell went
with Detective Marquez to serve a search warrant in an unrelated matter. As Detective
O’Donnell approached front door of apartment No. 204, Detective Marquez radioed him
that someone had jumped out of a second story window at the rear of the building,
causing Detective O’Donnell to go to that area where he found Detective Marquez
detaining defendant. Detective O’Donnell then went back to apartment No. 204,
knocked, and was given permission to search by the occupants who opened the door.
Inside he found three firearms, including a .22-caliber semiautomatic rifle and a .380-
caliber handgun in the south bedroom. There were indications that this was defendant’s
bedroom and the room from which defendant had jumped. Defendant was arrested, and a
cell phone was recovered from his pocket. After defendant waived his Miranda3
warnings, he admitted owning the guns found in the apartment. Defendant’s guns were
later test fired, and it was determined that the .22-calibur cartridge casings recovered
from the scene had all been fired from his .22-calibur semiautomatic rifle.
       All telephone calls made by jail inmates are recorded by a computer system. In a
recorded jail conversation between defendant and Lorraine Tovlin the day after his arrest,


3      Miranda v. Arizona (1966) 384 U.S. 436.

                                              4
defendant told Tovlin, “I’m fucked.” He explained that the police had three witnesses
who could identify him, and that he would be charged with three attempted murders.
Defendant added that he had provided probable cause by jumping out of the window, and
that ballistics tests would be done on the firearms, adding, “It’s all bad.” Tovlin, who
referred to defendant as “Malo,” advised him to grow his mustache so that his tattoo
would not show. Tovlin also advised defendant to have his mother pick up his property
or the police would use his phone as evidence. Defendant replied, “[F]uck.”
       Sanchez testified that she and Jaime had been dating for several weeks and had
known each other in high school. She had dated defendant before Jaime and claimed that
she was still in love with defendant. Although their relationship ended in February 2013,
the month before the shooting, she was still in communication with defendant in March
and wanted them to get back together. Even after the shooting, she tried to protect him.
Sanchez falsely identified someone in a photographic lineup and misled detectives until
June, when they told her that defendant’s phone records contained her text messages, and
they knew that there had been three calls between defendant’s and Sanchez’s phones
between 11:39 and 11:40 p.m. the night of the shooting.4
       Sanchez submitted to an interview on June 4, 2013, during which she admitted
knowing that defendant was the shooter and that he had admitted as much in text
messages. Sanchez identified defendant’s photograph from a photographic lineup, and
wrote: “I saw Robert with a big gun, passenger’s side with the door . . . open shooting at
Juan Jaime, Juan Gallardo and myself.” At trial, Sanchez denied knowing anything about
what might have happened that night or knowing beforehand that defendant was going to
do something to Jaime, and she denied having spoken to defendant about robbing Jaime.
However, Sanchez admitted having told detectives that she had known that defendant
planned to rob Jaime and do “what he did” to Jaime. She told them that approximately
one week before the shooting they had discussed a signal. Defendant would call, and if

4       All three calls were connected to a cell tower within one-half mile from the scene
of the shooting, which was consistent with defendant’s phone being in the vicinity of the
shooting.

                                             5
she did not answer, it meant that she was with Jaime; if she did pick up, it meant she was
at home and not with Jaime. When the detective asked why she would do this, Sanchez
answered, “Because I didn’t think he was going to shoot anybody. A robbing you get
over it, whatever. I robbed you, you robbed him. Okay. Whatever. But shooting
somebody -- like, shooting somebody -- Juan almost died. The cousin almost died in my
lap. Like, gasping, like, I was holding him. I was fucking holding him.”
       At 4:49 a.m., after the shooting, Sanchez sent defendant the following text
message: “You’re a piece of shit shooting at me. What the fuck is your problem? . . .
You fuckin’ know my car. Why the fuck would you shoot at me?” Defendant replied,
“Wait. I’m lost. When did I shoot at you?” After several more exchanges, Sanchez
texted: “Be glad you didn’t hit me because that shit was all bad. Worst part is I knew it
was you and seen your face.” Defendant replied, “I know. But I didn’t fuckin’ know it
was your car. How many times do I have to tell you?” About two weeks later, Sanchez
texted: “Please don’t do anything to him,” referring to Jaime. Defendant replied:
“We’re going to stop talking about your dream, and I can’t promise you anything for him.
He robbed my house when I was busted a couple of years back and took my [aunt’s] car.”
       Sanchez was eventually arrested and became a codefendant in this case. During
the preliminary hearing, she was transported to court on the same jail bus as defendant
and Diaz. Defendant told her she had said the wrong things. Defendant called her a
“bitch” and Diaz called her a “snitch.” Prior to trial, she entered a guilty plea to
attempted robbery, admitted the gang allegation, and received a 13-year suspended
sentence.
       In her trial testimony, Sanchez alternated between her denial that she knew
beforehand that defendant was going to do something to Jaime or that defendant had
spoken about robbing Jaime, with testimony that she believed defendant was going to rob
Jaime, and that the discussion about robbing Jaime for revenge came after the shooting,
but she was not sure. Sanchez denied having planned a robbery with anyone or that she
had a deal, plan, agreement, signal, or any special secret message with defendant that
night. She claimed she did not answer her phone the first time defendant called because


                                              6
it was silenced, and that she answered the second time because she saw it light up, but
then hung up without talking, because she was about to drive. She did not remember a
third call. She did not know that a shooting was going to occur. Sanchez claimed that
she was a victim and thought defendant was trying to kill her, but pled guilty to attempted
robbery because she wanted to go home, having already spent 10 months in custody.
Sanchez denied that her plea agreement included testifying. She was surprised when she
received a subpoena, because she thought her involvement had ended.
       In response to a hypothetical question mirroring the facts in evidence, gang expert
Detective Joseph Sumner gave his opinion that the crimes were committed for the benefit
of the Blackwood clique of the Puente 13 criminal street gang, as shooting at rivals
benefitted the gang by eliminating enemies, gaining respect, and bolstering its reputation.
The shooter in such a scenario could expect to gain status within the gang, which would
help him to “move up the ranks.”
                                      DISCUSSION
I. Accomplice Instruction
       Defendant contends that the trial court erred by failing to instruct the jury with
CALCRIM No. 335, that Sanchez was an accomplice as a matter of law, and instead
giving CALCRIM No. 334, which charged the jury with deciding whether she was an
accomplice.5
       “A conviction cannot be had upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.” (§ 1111.) “‘[W]hen there is
sufficient evidence that a witness is an accomplice, the trial court is required on its own
motion to instruct the jury on the principles governing the law of accomplices,’ including


5     The court first instructed the jury that “except for the testimony of Melissa
Sanchez, which would require supporting evidence in the event you determine her to be
an accomplice, the testimony of only one witness can prove any fact.” (CALCRIM No.
301.)

                                              7
the need for corroboration. [Citations.]” (People v. Tobias (2001) 25 Cal.4th 327, 331.)
“Whether a person is an accomplice is a question of fact for the jury unless there is no
dispute as to either the facts or the inferences to be drawn therefrom. [Citation.] The
burden is on the defendant to prove by a preponderance of the evidence that a witness is
an accomplice. [Citation.]” (People v. Fauber (1992) 2 Cal.4th 792, 834.) “‘[A] court
can decide as a matter of law whether a witness is or is not an accomplice only when the
facts regarding the witness’s criminal culpability are “clear and undisputed.”’
[Citation.]” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 430.)
       “[A]n accomplice is ‘one who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of the
accomplice is given’ [and who has] ‘“guilty knowledge and intent with regard to the
commission of the crime.”’ [Citations.]” (People v. Gonzales and Soliz (2011) 52
Cal.4th 254, 302.) “‘“[A]n accomplice is one who aids or promotes the perpetrator’s
crime with knowledge of the perpetrator’s unlawful purpose and an intent to assist in the
commission of the target crime . . . .”. . . [Citation.]’ [Citation.]” (Bryant, supra, 60
Cal.4th at p. 429.)
       Defendant first contends that there can be no real dispute over whether Sanchez
was an accomplice, as she was initially charged with the same crimes as defendant and
was held to answer on the same charges after a preliminary examination. As respondent
notes, having been initially charged with the same crime, or even held to answer or
convicted of the same crime, does not establish as a matter of law that a codefendant is an
accomplice. (Bryant, supra, 60 Cal.4th at p. 431.) While defendant acknowledges the
holding of Bryant, he argues that such facts are at least relevant to the issue. In addition,
defendant claims that there was no dispute that Sanchez was aware that Jaime was to be
assaulted in order to commit a robbery, and attempted murder could have been the
foreseeable result.
       It was not, in fact, undisputed that Sanchez was aware that defendant intended to
shoot or rob Jaime. Sanchez gave conflicting statements to the detectives about knowing
of the plan to rob Jaime and to do “what he did” to Jaime, but then told them: “I didn’t


                                              8
think he was going to shoot anybody. A robbing you get over it, whatever. I robbed you,
you robbed him.” At trial, Sanchez denied having any advanced knowledge that
defendant was going to do something to Jaime or that defendant had spoken about
robbing Jaime. She denied having planned a robbery or a signal, and she denied knowing
that a shooting was going to occur. Accomplice status cannot be determined as a matter
of law upon conflicting evidence and inferences, or upon the credibility of the alleged
accomplice’s denial. (People v. Hayes (1999) 21 Cal.4th 1211, 1271-1272.) Moreover,
knowing of an impending unarmed assault does not necessarily compel a finding that the
use of a deadly weapon was reasonably foreseeable. (See People v. Butts (1965) 236
Cal.App.2d 817, 836-837; People v. Prettyman (1996) 14 Cal.4th 248, 262-263.) As it
was the jury’s task to resolve such conflicts and credibility issues, the trial court did not
err.
       In any event, error in failing to instruct on accomplice liability is harmless where
there is sufficient corroborating evidence in the record. (People v. Lewis (2001) 26
Cal.4th 334, 370.) “Corroborating evidence may be slight, may be entirely
circumstantial, and need not be sufficient to establish every element of the charged
offense. [Citations.]” (People v. Hayes, supra, 21 Cal.4th at p. 1271.) The evidence is
“sufficient if it tends to connect the defendant with the crime in such a way as to satisfy
the jury that the accomplice is telling the truth. [Citation.]” (People v. Fauber, supra, 2
Cal.4th at p. 834.) The corroborating evidence against defendant was more than slight.
All the .22-calibur cartridge casings recovered from the scene of the shooting were fired
from defendant’s .22-calibur semiautomatic rifle. Defendant displayed a consciousness
of guilt when he jumped out of his bedroom window as sheriff’s deputies arrived. (See
People v. Mason (1991) 52 Cal.3d 909, 941-942.) In his recorded jailhouse conversation
defendant admitted that his attempt to flee provided probable cause to arrest him, and that
ballistics tests would be incriminating. Just hours after the shooting, in response to
Sanchez’s texted accusation and claim that she had seen him shooting, defendant texted
the reply: “I know. But I didn’t fuckin’ know it was your car. How many times do I



                                               9
have to tell you?” Defendant’s own actions and admissions provided ample
corroborating evidence.
II. Substantial evidence of intent to kill
       Defendant contends that there was insufficient evidence of an intent to kill to
support his conviction of the attempted murder of Gallardo. In particular, defendant
complains that there was no substantial evidence that defendant intended to kill everyone
in a “kill zone” surrounding Jaime.
       “The proper test for determining a claim of insufficiency of evidence in a criminal
case is whether, on the entire record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the
light most favorable to the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”
(People v. Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the
conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft
(2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical inferences that the
jury might have drawn from the circumstantial evidence. [Citation.]” (People v. Maury
(2003) 30 Cal.4th 342, 396.) Reversal on a substantial evidence ground “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th
297, 331 (Bolin).) As we begin with the presumption that the evidence was sufficient to
support the jury’s finding of guilt, it is defendant’s burden to affirmatively demonstrate
otherwise. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.)
       “Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing. [Citations.]”
(People v. Lee (2003) 31 Cal.4th 613, 623-624.) “‘[I]t is well settled that intent to kill or
express malice, the mental state required to convict a defendant of attempted murder,
may . . . be inferred from the defendant’s acts and the circumstances of the crime.’
[Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.)



                                              10
       The kill zone “theory addresses the question of whether a defendant charged with
the murder or attempted murder of an intended target can also be convicted of attempting
to murder other, nontargeted, persons.” (People v. Stone (2009) 46 Cal.4th 131, 138.)
“[A]lthough the intent to kill a primary target does not transfer to a [nontargeted]
survivor, the fact the person desires to kill a particular target does not preclude finding
that the person also, concurrently, intended to kill others within what [is] termed the ‘kill
zone.’” (People v. Bland (2002) 28 Cal.4th 313, 329.) Thus, a concurrent intent to kill
nontargeted victims may be inferred when the defendant uses lethal force calculated to
kill everyone within an area around the intended target as a means of ensuring the target’s
death. (Ibid.)
       Under defendant’s view of the evidence, Jaime was the only target, not Gallardo
or Sanchez, because there was evidence that with a motive to rob Jaime, defendant
circled the block while Jaime, Gallardo, and Sanchez remained in the car, and did not
start shooting until Jaime got out of the car. Defendant then surmises that Gallardo was
hit by defendant’s gunfire only because he coincidentally got out of the car at the same
time as Jaime, and because defendant must have lacked skill with the firearm. From such
circumstances defendant appears to reason that because the doctrine of transferred intent
does not apply to attempted murder, the prosecution was required to present evidence that
defendant intended to kill Jaime by killing all those near him, i.e., Gallardo and Sanchez.
Defendant then concludes that intent to kill could not be based on such a “kill zone”
theory because “[o]ther than the fact [defendant] fired several shots, there was no
evidence whatsoever that he intended to kill everyone in the area.” (Italics added.)
       Initially, we reject the underlying assumption in defendant’s argument that
because a “kill zone” theory was before the jury, the prosecution was required to prove
that defendant harbored an intent to kill Gallardo under that theory alone. The trial court
instructed the jury with CALCRIM No. 600, which defines attempted murder, with the
following optional language regarding the kill zone theory of concurrent intent:
              “[A] person may intend to kill a specific victim or victims and, at the
       same time, intend to kill everyone within a particular zone of harm, what


                                              11
       we call ‘kill zone.’ In order to convict [the] defendant of the attempted
       murder of Juan Gallardo, the People must prove that the defendant not only
       intended to kill Juan Jaime but also either intended to kill Juan Gallardo or
       intended to kill everyone within that kill zone. If you have a reasonable
       doubt whether the defendant intended to kill Juan Gallardo, or intended to
       kill Juan Jaime by killing everyone in the kill zone, then you must find the
       defendant not guilty of the attempted murder of Juan Gallardo.” (Italics
       added.)

       The jury was thus given the option of inferring that defendant intended to kill
everyone within the kill zone, but it was also told it was not required to do so. As read by
the trial court, CALCRIM No. 600 correctly stated the elements of the offense of
attempted murder, as well as the kill zone theory of concurrent intent. (People v. Stone,
supra, 46 Cal.4th at pp. 137-138 & fn. 3; People v. Campos (2007) 156 Cal.App.4th
1228, 1241, 1243.) Contrary to defendant’s apparent reasoning, the term “kill zone” is
merely shorthand for concurrent intent; it is not a special legal doctrine such as the
doctrine of transferred intent. (People v. Bland, supra, 28 Cal.4th at p. 331, fn. 6.)
“Rather, it is simply a reasonable inference the jury may draw in a given case: a primary
intent to kill a specific target does not rule out a concurrent intent to kill others.” (Ibid.)
As defendant does not contend that the instruction was erroneous, his premise that the
prosecution was limited to that theory is without merit.
       Regardless, defendant’s view of the evidence does not demonstrate a lack of
substantial evidence to support a kill zone theory, as it consisted of speculative
conclusions drawn in favor of defendant’s of argument. Defendant does not meet his
burden merely by summarizing the circumstances that support a finding in his favor
without also showing that the jury’s contrary finding cannot reasonably be inferred from
the evidence. (People v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.) The substantial
evidence test “is not whether the evidence may be reconciled with innocence, but whether
there is substantial evidence in the record on appeal to warrant the inference of guilt
drawn by the [jury]. [Citation.]” (People v. Saterfield (1967) 65 Cal.2d 752, 759.)




                                               12
       Viewed in the light most favorable to the jury’s finding of guilt, substantial
evidence supported a reasonable inference that defendant intended to kill everyone in
Jaime’s proximity. There were bullet holes in Sanchez’s car, as well as in the nearby car
used by Jaime to hide behind. Also, bullets struck Gallardo as he got out of Sanchez’s
car. When, as here, a gang member fires multiple shots at a group of people in rival gang
territory it is reasonable to infer that he harbored an intent to kill someone. (See People
v. Francisco (1994) 22 Cal.App.4th 1180, 1192.) Further, firing multiple shots directly at
a small group at close range as defendant did, will give rise to a reasonable inference that
the shooter intended to kill all in the group. (People v. Garcia (2012) 204 Cal.App.4th
542, 554.) A shooter who directs lethal force at a group of people in close proximity as
defendant did here, “can be convicted of several attempted murders if he intended to kill
several people, even if there were no particular people he intended to kill. [Citation.]”
(People v. McCloud (2012) 211 Cal.App.4th 788, 798-799; see also People v. Houston
(2012) 54 Cal.4th 1186, 1218.)
       Moreover, substantial evidence supports a finding that defendant specifically
targeted Gallardo with the intent to kill. A “shooter’s purposeful ‘use of a lethal weapon
with lethal force’ against the victim, if otherwise legally unexcused, will itself give rise to
an inference of intent to kill. [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 742.)
The inference arises even where no motive is apparent and the victim survives. (Ibid.)
As defendant acknowledges here, he did not fire wildly, but rather rested his gun on the
car door, took aim, and fired several shots which struck only Gallardo. Gallardo was
struck twice, in the lung and near his heart. From such circumstances, the jury could
reasonably conclude that defendant specifically intended to kill Gallardo and thus
intentionally targeted him.
       We conclude that there was substantial evidence to support a finding that
defendant intended to kill Gallardo by means that would kill all three people in and near
Sanchez’s car or by specifically targeting Gallardo with the intent to kill him.




                                              13
III. Cell phone evidence
       Defendant contends that his trial counsel rendered ineffective assistance by failing
to move to suppress text messages and cell site location records from defendant’s cell
phone, which he claims were obtained without a warrant.
       The Sixth Amendment right to assistance of counsel includes the right to the
effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-674;
see also Cal. Const., art. I, § 15.) “Generally, a conviction will not be reversed based on
a claim of ineffective assistance of counsel unless the defendant establishes both of the
following: (1) that counsel’s representation fell below an objective standard of
reasonableness; and (2) that there is a reasonable probability that, but for counsel’s
unprofessional errors, a determination more favorable to defendant would have resulted.
[Citations.] If the defendant makes an insufficient showing on either one of these
components, the ineffective assistance claim fails.” (People v. Rodrigues (1994) 8
Cal.4th 1060, 1126.)
       “[C]ounsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.” (Strickland
v. Washington, supra, 466 U.S. at p. 690.) “‘Tactical errors are generally not deemed
reversible; and counsel’s decisionmaking must be evaluated in the context of the
available facts. [Citation.] To the extent the record on appeal fails to disclose why
counsel acted or failed to act in the manner challenged, we will affirm the judgment
“unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation . . . .” [Citation.]’ [Citations.]” (People v.
Hart (1999) 20 Cal.4th 546, 623-624.)
       Respondent points out that at the time defendant’s cell phone and records were
obtained in mid-2013, California Supreme Court precedent was that a warrantless search
of a cell phone found on the defendant’s person at the time of arrest was valid. (People v.
Diaz (2011) 51 Cal.4th 84, 93 (Diaz).) It was not until the following year that the United
States Supreme Court held otherwise. (See Riley v. California (2014) ___ U.S. ___ [134
S.Ct. 2473, 2485, 2493].) Respondent contends that because the trial court was bound by


                                             14
Diaz (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), it would
most certainly have denied a motion to suppress. “The Sixth Amendment does not
require counsel to raise futile motions. [Citations.]” (People v. Solomon (2010) 49
Cal.4th 792, 843, fn. 24.) Defendant counters that Diaz does not apply because the cell
phone was not searched incident to his arrest, but rather, the following day. However,
Diaz held that there was no Fourth Amendment requirement that the cell phone search be
contemporaneous with the arrest, so long as it was immediately associated with the
defendant’s person at the time of arrest. (Diaz, supra, 51 Cal.4th at p. 93.) Thus, this
ground would have been rejected as well.
       Defendant argues that the motion would have had merit with regard to the cell
tower location data, based upon U.S. v. Jones (2012) 565 U.S. __ [132 S.Ct. 945], which
was published prior to defendant’s arrest. In that case, the United States Supreme Court
held that attaching a GPS device to monitor the movements of defendant’s vehicle on
public streets, constituted a search within meaning of the Fourth Amendment. (Id. at pp.
948-949.) However, the court did not address the circumstances under which such a
search would be unlawful or a warrant would be required. As defendant points out,
Justice Alito commented that absent “statutes regulating the use of GPS tracking
technology for law enforcement purposes[,] [t]he best that we can do [is] to ask whether
the use of GPS tracking in a particular case involved a degree of intrusion that a
reasonable person would not have anticipated.” (Id. at p. 964 (conc. opn. of Alito, J.),
italics added.)
       In this particular case, the record is silent regarding the circumstances under which
the cell tower location information was obtained, despite defendant’s speculation that the
search of his phone was “plainly done without a warrant.” Joseph Sierra, custodian of
records for T-Mobile and Metro PCS, testified that he searched the records for the cell
phones registered to defendant and Sanchez, and produced the call records relating to the
“search date,” meaning the date range required by legal demand served on the company.
Neither the kind of legal demand nor the basis for it appears in the record. “‘We cannot



                                            15
evaluate alleged deficiencies in counsel’s representation solely on defendant’s
unsubstantiated speculation.’ [Citations.]” (Bolin, supra, 18 Cal.4th at p. 334.)
       In sum, the record on appeal fails to disclose why counsel did not seek to suppress
defendant’s cell phone records, and any circumstances which might demonstrate deficient
performance by counsel do not appear in this record. As a satisfactory explanation
appears to lie in the state of binding precedent at the time of trial, defendant has failed to
show that counsel failed in the “exercise of reasonable professional judgment.”
(Strickland v. Washington, supra, 466 U.S. at p. 690; see People v. Hart, supra, 20
Cal.4th at pp. 623-624.)
       Moreover, we agree with respondent that defendant has not met his burden to
show prejudice by demonstrating a reasonable probability that, but for the alleged error,
defendant would have obtained a different result. (Strickland v. Washington, supra, 466
U.S. at p. 694; People v. Rodrigues, supra, 8 Cal.4th at p. 1126.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
(Strickland, at p. 694.) Defendant’s only argument relating to prejudice is that the cell
site location records had a prejudicial impact because they established he was near the
scene of the shooting at the time it occurred, and corroborated Sanchez’s identification of
defendant as the shooter. Defendant does not attempt to show how confidence in the
outcome would be undermined without the records; nor does defendant mention the
inculpatory evidence that would remain in evidence against him.
       The inculpatory evidence that would remain after a successful suppression motion
would inclue the following: the .22-calibur semiautomatic rifle used in the shooting and
found in defendant’s bedroom; the seven cartridge casings recovered from the scene, all
fired from that rifle; defendant’s admission that he owned the rifle; defendant’s attempt to
flee law enforcement by jumping through his bedroom window; defendant’s recorded jail
telephone conversation in which he admitted that his attempt to flee provided probable
cause to arrest him, and that ballistics tests and his cell phone would be incriminating.
Also remaining would be defendant’s motive, as a member of the Blackwood clique of
the Puente 13 criminal street gang, to attempt to kill Jaime and Gallardo. As the gang


                                              16
expert testified, defendant’s gang was “at war” with other Puente 13 cliques, the victims
here were members of other cliques, and as the shooter, defendant stood to benefit his
gang and elevate his status in the gang by shooting at rivals. Considering all the
circumstances, we discern no reasonable probability that absent the cell phone evidence
defendant would have obtained a different result.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                 ____________________________, J.
                                                 CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
HOFFSTADT




                                            17
