Filed 3/6/14 P. v. Garibay CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE


THE PEOPLE,                                                          B245741

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA047912)
         v.

JOSE GARIBAY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M.
Chung, Judge. Affirmed.
         Law Offices of Fred Browne & Associates, Fred Browne for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General,
for Plaintiff and Respondent.
                                    INTRODUCTION
       A jury convicted defendant and appellant Jose Garibay of three counts of
attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, subd. (a) &
1871) and three counts of shooting from a motor vehicle (former §12034, subd. (c), now
§ 26100, subd. (c)). The jury found true the allegations that the attempted murders were
committed for the benefit of, at the direction of, or in association with a criminal street
gang with the specific intent to promote, further, or assist in criminal conduct by gang
members (the gang enhancement allegations) within the meaning of section 186.22,
subdivisions (b)(1)(C) and (b)(5), and that in committing those offenses, a principal
personally and intentionally discharged a firearm which proximately caused great bodily
injury (§ 12022.53, subds. (d) & (e)(1)). The jury also found true the gang enhancement
allegations with respect to the shooting from a motor vehicle offenses within the meaning
of section 186.22, subdivisions (b)(1)(B) and (b)(1)(C). On appeal, defendant contends
that insufficient evidence supports the gang enhancement allegations and that he was
deprived of his right to make an effective motion for new trial. We affirm.


                                     BACKGROUND2
       Defendant was a Midtown Criminals gang member. On October 24, 2009,
defendant drove by a residence at 1259 Boyden Avenue in Lancaster. Two Midtown
Criminals gang members and a female were in the car with defendant. Westside
Playboys gang members Adam Hernandez, Cesar Ramos, and David Lomeli were in
front of the residence. As he drove by the residence, defendant fired several gunshots.
Ramos was struck in the chest by a bullet.


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

2      Because defendant does not contend that his attempted murder and shooting from
a moving vehicle convictions are not supported by sufficient evidence, we provide a brief
background of those offenses and omit facts in connection to those offenses except as
they are relevant to defendant’s challenge to the sufficiency of evidence supporting the
gang enhancement allegations.

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       Los Angeles County Sheriff’s Department Detective Robert Gillis interviewed
Ramos. Ramos said he had been walking by a friend’s house when a car carrying four
male Hispanics drove by. One of the car’s occupants “threw an ‘M’ hand sign” at him.
Ramos “threw a ‘P’ up,” the symbol for Playboys. The car’s driver started shooting at
him. Ramos heard the word “Criminals” as the shooting was ending.
       Detective Gillis also interviewed Lomeli. Lomeli told Detective Gillis that he
lived at 1259 Boyden in October 2009. According to Lomeli, Hernandez and his
girlfriend, Patty, had been in a “heated argument.” Patty and an unknown group of male
Hispanics arrived at “the location” in a large silver sedan. Lomeli told the detective that
the car returned five minutes later, and the driver pointed a handgun at Lomeli as Lomeli
turned to run into the house. Lomeli heard the word “Westside” as shots were being fired
and the word “Criminals” when the firing stopped.
       When Detective Gillis spoke with Hernandez, Hernandez asked the detective if he
wanted to know “who did it.” Hernandez then formed the letters “MTC” with his hands.
Detective Gillis testified that the letters “MTC” are a common sign or symbol of the
Midtown Criminals gang. Hernandez did not provide the shooter’s name.
       Three weeks after the shooting, Sheriff’s Department deputies conducted a
“protective sweep” of defendant’s residence in connection with another crime
investigation. During that sweep, Detective Gillis found a .22-caliber revolver under the
pillow on defendant’s bed. The parties stipulated that the .22 caliber revolver recovered
from defendant’s bedroom was test-fired and determined to have fired a bullet that was
recovered from Ramos’s chest.
       At some point, defendant was apprehended. In an interview with Detective Gillis,
defendant admitted that he was the shooter. Defendant said that he used a .22-caliber
gun, and that he fired two to four shots. Defendant said that he had been in a fight,
apparently with Hernandez, and that Hernandez slapped defendant’s mother when she
tried to break up the fight. On the day of the shooting, “Patty” flagged down defendant
and said that “her man” had hit her. Defendant said that when he fired the gun he was
angry because Hernandez had slapped his mother; he “didn’t want to shoot them.”

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Defendant said that two Midtown Criminals gang members were with him in the car.
One of the gang members yelled “MTC,” and the other threw up an “M.”
        Detective Gillis testified that respect is everything in a gang. If a gang member
does not have the respect of his fellow gang members or from rival gang members, he
and his gang could be perceived of as weak. A gang member who identifies his gang by
name is issuing a challenge. If a gang member issues a challenge to a rival gang member,
violence will follow. The rival gang member will respond by stating his gang’s name and
using a weapon if armed. If a gang member were having a “personal beef” with a rival
gang member and the rival gang member slapped the first gang member’s mother when
she tried to intervene, such an act would be seen as disrespectful within the context of
gang life. Although such disrespect might draw an immediate response, the offended
gang member might wait for a more advantageous opportunity to retaliate.
        Los Angeles County Sheriff’s Department Sergeant Richard Cartmill testified as
an expert on the Midtown Criminals gang. The sergeant was not aware of any hostilities
between the Midtown Criminals and Playboys gangs in 2009. The prosecutor gave
Sergeant Cartmill a set of hypothetical facts based on the evidence in this case. Based on
those facts, Sergeant Cartmill opined that the shooting was committed for the benefit of
and in association with the Midtown Criminals gang. The sergeant explained that gang
members commit crimes together because there is strength in numbers; each member of
the group can assume a different role such as lookout, driver, or shooter; and they can
split up when the police arrive making apprehension more difficult. The crime also
would benefit the gang as a show of dominance. In the hypothetical, a member of the
group “threw out” the gang’s name either as a challenge or in response to a challenge. If
gang members fail to respond to a challenge, the failure shows weakness and invites
attacks from other gangs. Sergeant Cartmill investigated a number of crimes in which a
gang member enlisted fellow gang members to respond when the gang member’s family
member was assaulted, insulted, or otherwise targeted. A gang member would view an
attack on a family member as an affront to the gang member and thus an affront to the
gang.

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                                       DISCUSSION
I.     Sufficient Evidence Supports the Gang Enhancement Allegations
       Defendant contends that insufficient evidence supports the gang enhancement
allegations under section 186.22, subdivision (b)(1) because “[t]here was no evidence
other than the gang expert’s testimony that the shooting was for the benefit of the gang.”
Sufficient evidence supports the allegations.


       A.     Standard of Review
       “‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46
Cal.4th 680, 701.) “We must presume in support of the judgment the existence of every
fact that the trier of fact could reasonably deduce from the evidence. [Citation.]”
(People v. Medina (2009) 46 Cal.4th 913, 919.) “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. Zamudio
(2008) 43 Cal.4th 327, 357.) “Substantial evidence includes circumstantial evidence and
the reasonable inferences flowing therefrom.” (People v. Ugalino (2009) 174
Cal.App.4th 1060, 1064.) “We ‘must accept logical inferences that the jury might have
drawn from the circumstantial evidence. [Citation.]’ [Citation.] . . . ‘[I]t is the jury, not
the appellate court that must be convinced of the defendant’s guilt beyond a reasonable
doubt. [Citation.]’” (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.) We review a
claim of insufficient evidence to support a gang enhancement finding under the same
standard of review. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)




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       B.     Application of Relevant Principles
       “‘Expert 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. [Citation.]” (People v. Vang (2011) 52 Cal.4th 1038, 1048;
People v. Gardeley (1996) 14 Cal.4th 605, 619.) Defendant acknowledges that the
California Supreme Court has held that a gang expert’s testimony is sufficient evidence
to support a gang enhancement finding, but argues that “Sergeant Cartmill’s opinion that
the shooting was committed ‘for the benefit of’ the gang was nothing but a stock answer
to a stock question asked by the prosecution in it hypothetical, given without adequate
supporting evidence.”
       The evidence showed that defendant, a member of the Midtown Criminals gang,
drove to the site of the shooting with two fellow Midtown Criminals gang members.
Once there, defendant’s gang cohorts either displayed gang signs or symbols or shouted
their gang’s name as defendant shot at his victims. Detective Cartmill explained that the
shooting would benefit the Midtown Criminals gang by showing its dominance.
Moreover, even if defendant shot at Hernandez because Hernandez allegedly slapped
defendant’s mother, Detective Cartmill explained that gang members view an attack on
their family members as ultimately an attack on the gang itself. Detective Cartmill’s
expert testimony was substantial evidence from which a reasonable juror could have
found beyond a reasonable doubt that defendant’s offenses were committed for the
benefit of and in association with a criminal street gang with the specific intent to
promote, further, or assist in criminal conduct by gang members. (People v. Avila, supra,
46 Cal.4th at p. 701; People v. Vang, supra, 52 Cal.4th at p. 1048; People v. Gardeley,
supra, 14 Cal.4th at p. 619.)


II.    The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s
       Request to Continue the Sentencing Hearing
       Defendant contends that the trial court abused its discretion when it denied his
request to continue the sentencing hearing to allow him more time to consider whether to

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file a motion for new trial based on ineffective assistance of counsel. The trial court did
not err.


         A.     Background
         The jury convicted defendant on October 10, 2012. The trial court set defendant’s
sentencing hearing for November 30, 2012. At sentencing, defense counsel asked for a
continuance so that defendant’s family members could submit letters of support. Counsel
stated that she had had problems visiting defendant and her “schedule just didn’t allow
for a full motion to be prepared by today’s date.”
         Defense counsel also stated that she had spoken with defendant’s father and had
raised “the issue of doing a motion for a new trial based on some grounds that would
have to do with issues that were brought up in the trial. That would be a motion I could
not do because it has to do with attorney—things I did during trial in making a
determination of what witnesses and evidence to call. [¶] My understanding in talking to
Mr. Garibay is right now he is not seeking to do that. I am not even sure the court would
grant that if he were. But he is not seeking to do that. I had hoped to get him some more
time to just think about whether he really wanted to do that or not. However, at this
point, I don’t think he wants to formally do that. I just was hoping the court would give
him some more time to review that option and if it’s a valid option. And I submit on
that.”
         The trial court denied defendant’s request for a continuance, finding that the
request was not supported by good cause. As to additional letters of support, the trial
court accepted defense counsel’s representation that there was family support for
defendant. It stated that it had observed that defendant had strong family support from
his parents who attended “pretty much . . . every court proceeding” and would take such
support into consideration in sentencing defendant. The trial court did not address
defense counsel’s request that defendant be granted a continuance to consider whether to
file a new trial motion based on ineffective assistance of counsel.



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       B.     Standard of Review
       “The party challenging a ruling on a continuance bears the burden of establishing
an abuse of discretion, and an order denying a continuance is seldom successfully
attacked. [Citation.]” (People v. Beames (2007) 40 Cal.4th 907, 920.) A trial court
abuses its discretion “only when the court exceeds the bounds of reason, all
circumstances being considered. [Citations.]” (Ibid.)


       C.     Application of Relevant Principles
       A motion for a continuance in a criminal proceeding under section 1050 “shall be
granted only upon a showing of good cause.” (§ 1050, subd. (e).) “To continue any
hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and
served on all parties to the proceeding at least two court days before the hearing sought to
be continued, together with affidavits or declarations detailing specific facts showing that
a continuance is necessary and (2) within two court days of learning that he or she has a
conflict in the scheduling of any court hearing, including a trial, an attorney shall notify
the calendar clerk of each court involved, in writing, indicating which hearing was set
first.” (§ 1050, subd. (b).)
       A party may move for a continuance under section 1050 without complying with
the requirements of subdivision (b) by showing good cause for failing to comply with
those requirements. (§ 1050, subd. (c).) If the moving party fails to comply with the
requirements in subdivision (b), the trial court must hold a hearing to determine whether
good cause exists for the failure to comply with those requirements. (§ 1050, subd. (d).)
If after such a hearing the trial court finds that the moving party did not show good cause
for failing to give notice under subdivision (b), the trial court must deny the motion for a
continuance. (§ 1050, subd. (d).) That is, the trial court must deny the motion to
continue as a procedural matter, without addressing the merits of the motion.
       Defendant concedes that he did not file a motion for a continuance that complied
with the requirements in section 1050, subdivision (b). The trial court did not hold a
hearing, as required by subdivision (d), to determine if defendant could show good cause

                                              8
for his failure to comply with subdivision (b). Instead, the trial court bypassed that
hearing and proceeded directly to a determination of the merits of defendant’s motion.
Inexplicably, defendant appears to contend that he was prejudiced by the trial court’s
failure to hold a hearing to determine whether there was good cause for his failure to
comply with subdivision (b).
        There were two possible outcomes of a hearing under section 1050, subdivision
(d), one favorable to defendant and one not favorable to defendant. First, the trial court
could have found good cause for non-compliance with subdivision (b) and addressed the
merits of defendant’s motion. Second, the trial court could have found that defendant did
not show good cause for failing to comply with subdivision (b), which would have
required it to deny defendant’s motion without considering the merits. When the trial
court failed to hold a hearing under subdivision (d) and instead directly addressed the
merits of defendant’s motion for a continuance, defendant obtained the only favorable
outcome of such a hearing if it had been held—a determination of the merits of his
motion for a continuance. Accordingly, defendant suffered no prejudice.
        Defendant also complains that the trial court never inquired about or addressed his
request for a continuance to “pursue a motion for new trial on ineffective assistance.”
Neither defendant nor defense counsel stated that defendant intended to file a new trial
motion. Defense counsel stated that she discussed with defendant’s father a motion for
new trial based on ineffective assistance of counsel, but that defendant did not at that time
seek to file such a motion. Defense counsel then stated that she hoped the court would
give defendant additional time to consider whether to file a new trial motion. The trial
court reasonably could have found, based on defense counsel’s statements, that defendant
did not intend to file a motion for new trial. Accordingly, the trial court did not abuse its
discretion in denying defendant’s motion for a continuance without addressing the new
trial/ineffective assistance of counsel issue. (People v. Beames, supra, 40 Cal.4th at p.
920.)




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




                                               MOSK, Acting P. J.


We concur:



             KRIEGLER, J.



             MINK, J.




     Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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