Filed 7/28/15 P. v. Rodriguez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

 v.

RAUL PEREZ RODRIGUEZ,

Defendant and Appellant.

 H040074

 (Santa Cruz County

 Super. Ct. No. F21710)

Defendant Raul Perez Rodriguez was found guilty of premeditated attempted 

murder committed for the benefit of a criminal street gang. On appeal, defendant argues 

there was insufficient evidence to support the jury’s finding of premeditation and the 

gang enhancement. In addition, defendant argues the trial court erred in failing to instruct 

the jury on voluntary intoxication as it related to his claim of imperfect self-defense.

STATEMENT OF THE FACTS AND CASE

On October 23, 2011, the victim in this case, Victor Salazar Garcia was living on 

Bixby Street in Santa Cruz. Salazar Garcia stated that he lived in Suren͂o territory, but he

was not in the gang. That night, Salazar Garcia had gone to Watsonville with his family, 

and when he returned around 8:00 p.m., he found another car parked in his parking spot. 

His family got out of his car and went into the house, and Salazar Garcia waited in the car 

for the person in his space to move. When the driver of the car came out to move his car, 

Salazar Garcia backed his own car out and over the sidewalk on the other side of the 
2

street. Salazar Garcia sat in the driver’s seat of his car with the windows down while he 

smoked a cigarette. 

While sitting in his car smoking, Salazar Garcia saw defendant walking toward 

him. Since Salazar Garcia was blocking the sidewalk, he tried to move his car out of 

way, but had to brake suddenly when another car drove by. At that point, defendant said, 

“Puro Norte. Te voya cargar la chingada.” Salazar Garcia knew that “Puro Norte,” was a 

gang slogan, and understood the remaining statement to mean “[h]e’s going to kill me.” 

The Spanish interpreter stated that this phrase means “I’m going to fuck you up.” 

While defendant was verbally threatening Salazar Garcia, he stabbed Salazar 

Garcia through the open car window with a knife he was holding in his left hand. Salazar 

Garcia said there was no verbal altercation before the attack, and that he said “What’s 

happening? What’s going on?” to defendant. Salazar Garcia tried to grab the knife as 

defendant was attempting to stab him a third time, but ended up cutting his hand. Salazar 

Garcia then let go of the brake and pushed the accelerator, crashing his car into the fence 

and stairway of his apartment across the street. 

Salazar Garcia got out of his car and was bleeding and having trouble breathing. 

Salazar Garcia shouted at defendant, “Que onda, hijo de puta madre,” which means, 

“What’s up you son of a bitch?” At this point, Salazar Garcia’s wife came out of the 

house, and saw defendant walk away while yelling, “Puro Norte, faggot.” She said 

defendant was wearing white tennis shoes, white socks, black clothing, and a black cap. 

When Santa Cruz Police Officer Karina Cecena arrived, she saw Salazar Garcia 

sitting on the ground with his shirt off. He was using a blue shirt to apply pressure to his 

chest wound. Officer Cecena looked inside Salazar Garcia’s car and found blood on the 

seat, steering wheel, window and door. She also found Salazar Garcia’s brownish cap 

with a blue star that is associated with the Dallas Cowboys inside the car. 

Salazar Garcia was taken by ambulance to Dominican Hospital and then by air to 

Santa Clara County Valley Medical Center. He had two stab wounds to his chest, one on 
3

his shoulder and three or four on his left hand. One of his fingers required surgery. The 

chest wounds were just below Salazar Garcia’s collar bone, and one or both penetrated 

his chest wall and caused his lung to collapse. The chest wounds were potentially lethal 

without treatment. 

A subsequent investigation by Detective Michael Hedley of the Santa Cruz Police 

Department revealed fingerprints belonging to defendant inside Salazar Garcia’s car. 

Detective Hedley also found a metal watch on the floorboard of the driver’s side of 

Salazar Garcia’s car. There was blood on the watchband. Detective Hedley discovered 

DNA from two sources on the watch: defendant and Salazar Garcia. Detective Hedley 

learned that defendant was on parole, and contacted defendant’s parole officer, Edward 

Garcia. Detective Hedley and Garcia went to defendant’s residence to conduct a parole 

search, but defendant was not there. Garcia asked defendant’s family to have defendant 

contact him. Defendant did not contact Garcia over the next several days, which Garcia 

found to be unusual for defendant. 

Garcia and the police arrested Salazar Garcia a few days later at a Motel Six in 

Gilroy. During the arrest, officers seized a cell phone from defendant’s room. One text 

message on the phone referred to playing games and “shooting scraps.” “Scraps” is a 

derogatory term for Suren͂o gang members. Another text message sent after the attack on 

Salazar Garcia referred to “crashing with [my] homies.” 

After the arrest, Detective Hedley interviewed defendant. Defendant denied 

having a cell phone, and said the phone the police had taken belonged to his girl, 

“Marivel.” Defendant told Hedley he did not know why the Santa Cruz Police wanted to 

talk to him, that he had not been in Santa Cruz the previous week, had not lost a watch, 

had not stabbed a man, and had not been “banging.” 

When defendant was being processed after his arrest, authorities noted that he had 

a huelga bird tattoo on his stomach, a tattoo that read Norten͂o on his stomach, a tattoo

that read “NSW” on his chest, a “X4” tattoo under the “NSW” tattoo on his chest, a tattoo 
4

that read “Watson: In amigos we trust” on his back, and a tattoo of a set of red lips on his 

neck. 

When defendant was booked into Santa Cruz County Jail he requested he be 

classified and placed with “Northerners.” Santa Cruz County Jail personnel place 

Norten͂o members in the “N-Unit,” where defendant was placed on his request. While 

defendant was in custody, he received a new tattoo of a huelga bird on his neck. 

During trial, Santa Cruz Police Detective Lauren Schonfield testified as an expert 

on Santa Clara County gangs. She stated that Norten͂os and Suren͂os commit crimes such

as vandalism, drug sales, arson, stabbings, robbery, attempted homicide and homicide.

Only gang members have gang-related tattoos. Suren͂os associate with the 

number 13, and have adopted the color blue. Norten͂os use the number 14 and the color 

red.

Suren͂os have areas of “turf” that they control in Santa Cruz. There have been 

several incidents of violence between Norten͂os and Suren͂os in areas of Santa Cruz 

controlled by Suren͂os. Many of these incidents involved cars and multiple Norten͂os, 

however, there are also cases where a gang member acted alone. When a gang member 

acts alone it is called a “jale,” or mission, and it is often done by a younger gang member 

to gain status in the gang. During a jale, a gang member may not wear gang colors and 

would use a knife in order to make less noise and draw attention to the crime. By saying 

“Puro Norte, puto,” a Norten͂o gang member would advertise to the Suren͂o neighborhood 

that this was a Norten͂o crime.

Detective Schonfield further stated that when a Norten͂o enters Suren͂o turf in

Santa Cruz and commits a crime, the Norten͂o has “disrespected [the] turf,” and it does 

not matter if the victim is actually a Suren͂o member. By doing this, the Norten͂o is 

saying to their fellow gang members, “I wasn’t afraid of those Suren͂os. I went in and

committed this crime. We don’t need to be afraid of them.” In addition, she stated that at 
5

times, gang members commit crimes against others they believe are members of a rival 

gang based on clothing alone.

Watsonville Police Detective Jarrod Pisturino also testified as a gang expert. 

Norten͂os are the main gang in Watsonville, with at least 1500 members there. 

Watsonville had a number of Norten͂o subgroups, including City Hall Watson, North Side

Chicos, Watson Varrio Norte, Clifford Manor Locos, and North Side Watson. Norten͂os

associate with the color red and the letter “N.” They also use the huelga bird as one of 

their symbols. Norten͂os often have tattoos, and only gang members are permitted to have

gang tattoos. If non-gang members have tattoos, they may be beaten, stabbed or 

murdered. 

Detective Pisturino testified that defendant is a member of North Side Watson, and 

committed a gang-related carjacking in 1995, and a gang-related robbery in 2006. 

Detective Pisturino believed that defendant was an active Norten͂o based on the fact that

defendant had gang-related tattoos associated with Norten͂os, including the heulga bird

and the word Norten͂o on his stomach, the letters “NSW” on his chest (referring to North

Side Watson), and the red lips on his neck (referring to being “kissed” by the Norten͂o

lifestyle). In addition to the tattoos, other factors led Detective Pisturino to conclude that 

defendant was a Norten͂o including the fact that he shouted “Puro Norte” after the

stabbing, Salazar Garcia was wearing a blue shirt and Dallas Cowboys hat and defendant 

may have believed him to be a Suren͂o, the gang-related text messages on defendant’s 

phone such as “shooting scraps,” and “crashing with my homies,” defendant’s admission 

to jail personnel that he was a “Northerner,” and his placement in the “N Unit” in the jail. 

Defendant testified at trial. He said that he grew up in Watsonville, and when he 

was 13 or 14 he became involved with the Norten͂o gang. He eventually became a

Norten͂o and was “jumped in,” meaning he was beaten up by other gang members. When

he was 13 or 14 he got his first tattoo of a cross with a “14” on his left hand. He got other 

gang tattoos before he was 19, including one on his back that said “Watson.” In 1995, 
6

defendant was convicted in Santa Cruz County of carjacking and felony assault with

force likely to cause great bodily injury. Defendant testified that the carjacking was 

gang-related, and that he did commit gang crimes, but that he never had to commit a 

crime for his gang. 

Defendant was sentenced to prison in 1995 and stayed there until 2005. When he 

was released, he went back to Watsonville to live with his parents. In 2006 he met 

Marivel Rodriquez, and that same year he was convicted of felony assault with force 

likely to produce great bodily injury. Defendant admitted that this was gang-related. 

Defendant went back to prison where he stayed until 2007. While in prison, defendant 

had “Norten͂o” tattooed across his chest. Defendant was not involved in gang activity 

after he was released in 2007. 

In 2008 defendant and Marivel were married and their son Raul was born in 2009. 

In 2010, defendant returned to prison on a parole violation. He was released in October 

or November 2010 and returned to Watsonville. Defendant and Marivel found a place to 

live in Watsonville in January 2011. 

During the time he was living with Marivel in 2011, defendant was not hanging 

around with gang members at all. Defendant was spending time with his family and 

eventually got a job at Surf City Smoothies in Watsonville. When he was not working, 

defendant was at home and drinking, but said that the drinking “got like addicting, pretty 

much.” Defendant lied to his parole officer and told him he was living with his parents 

when he was actually living with Marivel. This was a violation of one of his parole 

conditions. 

Defendant’s hours at the smoothie shop starting being cut, and he worked in the 

fields picking strawberries. Defendant said that he was “fad[ing] away” from the gang as 

many Norten͂os did at his age (35), and there was no pressure to commit crimes for the 

gang. 
7

Marivel testified that in 2011, defendant was occasionally working and acting as a 

father and that he was not “gang-banging.” Marivel also said that defendant used to be a 

Norten͂o, but that she was not sure what his current gang status was. 

On October 21, 2011, defendant lied to Marivel and said he was going out to look 

for a job. Defendant instead went to a barbeque at his cousin Junior Perez’s house in 

Watsonville, and drank a lot when he was there. When defendant came home in the early 

morning hours of October 22, 2011, Marivel would not let him inside because defendant 

was intoxicated and she told him to leave. Later that day, defendant went to a car show 

with Junior and then a family reunion of one of Junior’s friend’s, where he drank a lot. 

Defendant woke up hung over on October 23, 2011, and went back to Junior’s 

house where he drank more alcohol and smoked marijuana. At some point later in the 

afternoon, defendant and Junior went to a barbeque at one of Junior’s friend’s houses in 

Watsonville. Defendant drank non-stop at the barbeque, including lots of beer and six to 

seven shots of hard alcohol. 

Defendant said that he did not remember leaving the barbeque, or where he went 

when he left. He did not remember being on Bixby Street in Santa Cruz, and whatever 

street he was on, he was not there to stab or kill anyone. Defendant said that he was

“pretty much intoxicated,” and did not remember how he got there. 

Defendant testified that his first memory of that night was being on Pacific 

Avenue in Santa Cruz near a Taco Bell and a liquor store. Defendant wanted to try to 

find a ride back to Watsonville and he needed a phone because he did not have his with 

him. Defendant wanted to go to the 7-Eleven store that was near the hotel where he used 

to work so he could use the pay-phone there. 

Defendant said that he remembered crossing a bridge, and said, “I just—the first 

street that I seen, I turned down. Looked kind of dark a little bit, so I just went down the 

street, and pretty much right there I relieved myself.” Defendant did not remember 

exactly what he was wearing, but said that it was probably a black and white shirt, baggy 
8

black pants, and black Nike tennis shoes. Defendant also said that he did not remember 

wearing a hat. 

Defendant thought he was near his old job. He knew that the Beach Flats area of 

Santa Cruz was Suren͂o territory, but did not know anything about the gang status of the

neighborhood where he was. Defendant said that he was drunk and was stumbling. He 

was worried because he could see the lights of the Boardwalk and knew he was close to 

Beach Flats. 

Defendant said that at some point he knew that if a Suren͂o recognized him as a

Norten͂o, he could be killed. Defendant began walking out of the neighborhood. He 

heard a car and people pass by. Defendant believed these were gang members and he 

became scared and nervous. Defendant heard a car passing him and then he heard 

another vehicle “revving” before it pulled in front of him on the sidewalk. 

Defendant said that the vehicle was about five feet away from him when he saw 

the driver. Defendant testified that the car stopped suddenly and he saw the driver 

looking at him. Defendant said that he “just reacted,” and started punching the driver 

through the open driver’s-side window. Defendant said that he remembered punching 

but did not remember having a knife and could not remember stabbing Salazar Garcia. 

Defendant attacked Salazar Garcia first, because he said that his first instinct was 

to protect himself. Defendant thought he would be shot or killed if Salazar Garcia got out 

of his car. Defendant said that he felt threatened by Salazar Garcia even thought he did 

not see a knife or gun and did not recognize Salazar Garcia as a gang member. 

Defendant did not remember whether Salazar Garcia said anything to him, was wearing a 

hat, or what color shirt he had on. 

Defendant repeated that he felt threatened because “of the way the car got in front 

of me, and cut me off, and I did not know what was happening. I did not know what was 

going on. Felt like something was going to happen to me.” Defendant said that he was 

almost run over when Salazar Garcia’s car accelerated and crashed across the street. 
9

Defendant said that he tried to run because he heard people coming out. Defendant 

denied that he walked toward Salazar Garcia after the car crashed, but later said that he 

did not remember whether he followed Salazar Garcia. 

Defendant said that he could not run very fast because he was drunk. Defendant

did not remember ever saying “Puro Norte, puto.” 

Defendant said that he remembered waking up on October 24, 2011 at Junior’s 

friend’s house where he had attended the barbeque the night before. Defendant did not 

know Junior’s friend’s name or the address of the house. Defendant woke up with a 

hangover, and with dried blood on his hands, pants and shirt. Defendant threw his shirt 

and pants away. Defendant only remembered that he had been in a fight the previous day. 

When defendant picked up his cell phone the next day, he did not call the police or 

his parole officer, Garcia, to inform them he had been in a fight. Defendant said that he 

did not remember telling anyone about the fight. 

Defendant found out soon after the incident that his parole officer, Garcia, was 

looking for him. Defendant did not contact Garcia because he was scared. Defendant 

said, “I knew something was wrong, because of the fact that he tried to contact me right 

away when he had just seen me, like, a week before that.” Defendant believed he “had 

done something pretty bad, something wrong.” Defendant said, “I knew I did something 

wrong, but I did not know [what].” 

Over the next few days, defendant stayed with a number of friends in a number of 

places. Eventually, defendant met up with Marivel at a hotel in Gilroy where he was 

arrested.

Defendant testified that he did not know why he lied to Detective Hedley during 

his interview about not having a cell phone. Defendant said that he had used his cell 

phone to read about the Bixby Street incident on the Santa Cruz Sentinel Web site. 

Defendant said that when he was taken to the county jail, he did not asked to be 

placed in the “N-Unit,” because the staff already knew he was a Northerner. Defendant 
10

first testified that he did not remember telling jail personnel that he was a Norten͂o

affiliate, but later remembered that he had. Defendant said that he was not a gang 

“dropout” when he was arrested, and said that he did not know how to dropout. 

While he was in jail awaiting trial, defendant got a huelga bird tattoo to cover up a 

tattoo of the name of his former girlfriend. Defendant testified that his huelga bird tattoo 

had no gang association, and that it was only to express pride at being a Mexican farm 

worker. Defendant said that the huelga bird is the symbol on the United Farm Workers 

flag. Defendant denied that the huelga bird is associated with Norten͂os, and said that this

is the view of gang experts only. 

Later at trial, defendant stated that the United Farm Workers Union flag had a 

huelga bird with five wings, and that his tattoo of the bird had four wings. Defendant 

stated that four is the number associated with Norten͂os. Defendant then admitted that his 

huelga bird tattoo was a Norten͂o tattoo. 

Defendant said that while he was in jail, Marivel called him and asked him to 

snitch and cut his ties with the gang. Defendant said that he had not cut his ties with the 

gang, and he is still an active Norten͂o. Defendant said that the Norten͂os are a street gang

that commits crimes like attempted murder. 

In April 2013, defendant was charged with willful, deliberate, and premeditated

attempted murder (Pen. Code, §§ 664/187, subd. (a)).1The information also alleged that

defendant inflicted great bodily injury (§ 12022.7, subd. (a)), and committed the offense

for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Finally, the information

alleged that defendant had a prior “strike” conviction (§ 667, subds. (b)- (i)), and had

served a prior prison term (§ 667.5, subd. (b)).

 

1

 All further statutory references are to the Penal Code.
11

After trial, the jury found defendant guilty of attempted premeditated murder, and 

found all of the enhancements true. Following a bench trial, the court found defendant 

had suffered a prior “strike” conviction, and had previously served time in prison.

Defendant was ordered to serve a prison term of 15 years to life, plus a consecutive

four-year determinate term. This appeal followed.

DISCUSSION

Defendant argues there is insufficient evidence to support the finding of 

premeditation and deliberation, and the finding that defendant committed attempted 

murder for the benefit of a criminal street gang.

“The law we apply in assessing a claim of sufficiency of the evidence is well 

established: ‘ “ ‘ “[T]he court must review the whole record in the light most favorable 

to the judgment below to determine whether it discloses substantial evidence—that is, 

evidence which is reasonable, credible, and of solid value—such that a reasonable trier of 

fact could find the defendant guilty beyond a reasonable doubt.” ’ ” ’ [Citation.] The 

standard is the same under the state and federal due process clauses. [Citation.] ‘We 

presume “ ‘in support of the judgment the existence of every fact the trier could 

reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct 

or circumstantial evidence is involved.” [Citations.]’ [Citation.]” (People v. Gonzales 

and Soliz (2011) 52 Cal.4th 254, 294.)

Premeditation and Deliberation

“Like first degree murder, attempted first degree murder requires a finding of 

premeditation and deliberation.” (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223, 

fn. omitted.) “ ‘Deliberation’ refers to careful weighing of considerations in forming a 

course of action; ‘premeditation’ means thought over in advance.” (People v. Koontz

(2002) 27 Cal.4th 1041, 1080.) “An intentional killing is premeditated and deliberate if it 

occurred as the result of preexisting thought and reflection rather than unconsidered or 
12

rash impulse. [Citations.] However, the requisite reflection need not span a specific or 

extended period of time.” (People v. Stitely (2005) 35 Cal.4th 514, 543.)

“ ‘ “ ‘Thoughts may follow each other with great rapidity and cold, calculated 

judgment may be arrived at quickly . . . .’ ” ’ [Citation.]” (People v. Stitely, supra, 35 

Cal.4th at p. 543.) “The test is not time, but reflection.” (People v. Bloyd (1987) 43 

Cal.3d 333, 348.)

In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the California 

Supreme Court described three categories of evidence that can show premeditaton and 

deliberation: motive, planning activity, and manner of killing. These categories are not 

exclusive of others or invariably necessary or required. (People v. Koontz, supra, 27 

Cal.4th at p. 1081.) Nor must they “be present in any particular combination to find 

substantial evidence of premeditation and deliberation. [Citation.] ‘However, [w]hen the 

record discloses evidence in all three categories, the verdict generally will be sustained.’ 

[Citation.]” (People v. Stitely, supra, 35 Cal.4th at p. 543.)

Defendant argues that the evidence in this case does not satisfy the Anderson

framework, because there was little evidence of motive, scant evidence of planning, and 

the fact that defendant stabbed Salazar Garcia twice in the chest does not show that his 

attempt to kill Salazar Garcia was “so particular and exacting that [he] must have 

[attempted to] intentionally kill[] according to a ‘preconceived design’ to take the 

victim’s life in a particular way.” (Anderson, supra, 70 Cal.2d at p. 27) Defendant 

further asserts that the surrounding circumstances show that he stabbed Salazar Garcia as 

the result of a hasty impulse in an “explosion of violence,” and not as a result of a 

calculated plan. 

In our view of the record, there was sufficient evidence from which a jury could 

infer that “ ‘the [attack] occurred as the result of preexisting reflection rather than 

unconsidered or rash impulse.’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) First,

there was evidence of motive and planning. Defendant, a Norten͂o, intentionally went 
13

into Suren͂o territory dressed all in black, at night, armed with a knife. The jury was 

entitled to disbelieve defendant’s testimony that he was there by “accident,” and instead 

believe the gang expert’s testimony that Norten͂os sometimes enter Suren͂o territory to 

commit crimes in order to disrespect Suren͂os. The fact that defendant was in Suren͂o

territory and was armed suggests that his attack on Salazar Garcia was premeditated. 

(People v. Felix (2009) 172 Cal.App.4th 1618, 1627 (Felix).)

In addition to the surrounding circumstances of the attack, defendant’s own words 

directed at Salazar Garcia evince premeditation. Salazar Garcia testified that when 

defendant approached him, defendant said in Spanish, “Puro Norte Te voy a cargar 

chingada.” The first part of the phrase means, “Pure North,” references defendant’s 

Norten͂o affiliation, and the latter part means, “I’m going to fuck you up.” Salazar Garcia 

testified he understood defendant to mean, “he’s going to kill me.” The jury was entitled 

to give weight to defendant’s verbal threats to Salazar Garcia made close to the attack as 

evidence of premeditation. (See, e.g., Felix, supra, 172 Cal.App.4th at p. 1626-1627.)

The manner of the attack here also supports a finding of premeditation. Salazar 

Garcia sustained two knife wounds to his chest, just below the collarbone, and one or 

both caused a collapsed lung. Defendant used great force to inflict the wounds, using one 

hand to brace himself against the car while he swung the knife with the other hand. 

Based on the circumstances, and the fact that Salazar Garcia did not provoke defendant, 

the jury could conclude that defendant attacked with premeditation and deliberation.

(See, e.g., People v. Lunafelix (1985) 168 Cal.App.3d 97,102 [lack of provocation by the 

victim is a strong factor in concluding that an attack “was deliberately and reflectively 

conceived in advance”].) 

Here, the totality of evidence, including defendant’s gang affiliation, his 

statements at the time of the attack, the fact that he was armed, and the manner of the 

attack could lead a reasonable jury to conclude that defendant attempted to kill Salazar 
14

with premeditation and deliberation. We find there was substantial evidence to support 

defendant’s conviction for attempted premeditated murder.

Gang Enhancement

A section 186.22, subdivision (b)(1) gang allegation has two elements. The crime 

must be “committed for the benefit of, at the direction of, or in association with any 

criminal street gang,” and the defendant must harbor “the specific intent to promote, 

further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) 

Here, the prosecution’s theory in support of the gang enhancement was that defendant 

attempted to murder Salazar Garcia for the benefit of the Norten͂os, and did so with the 

specific intent to assist, further, or promote criminal conduct by Norten͂os. 

In support of the gang enhancement, the prosecution presented the evidence of 

their gang expert, Pisturino, who opined that defendant attempted to murder Salazar 

Garcia for the benefit of the Norten͂o gang. Pisturino based his opinion on a number of 

facts he considered important, including that defendant admitted to the jail classification 

personnel that he was a “Northerner,” defendant had gang-related tattoos, Salazar Garcia 

was wearing a blue shirt and had on a Dallas Cowboys hat that defendant may have 

mistook for an affiliation with the Suren͂o gang, defendant committed the crime in Suren͂o

territory and shouted out “Puro Norte,” during the attack, which Pisturino stated was 

consistent with defendant broadcasting “that he was a gang member,” and was giving 

credit to the Norten͂o gang for the crime.

Defendant argues that the gang expert’s conclusion that defendant’s attack on 

Salazar Garcia was gang related was speculative, and rested on nothing more than the 

commission of the crime by a gang member, which is insufficient evidence to support a 

gang enhancement as noted in both People v. Ochoa (2009) 179 Cal.App.4th 650, 662-

663 (Ochoa), and People v. Rios (2013) 222 Cal.App.4th 542, 573-574 (Rios). We find 

both cases factually distinguishable from the present case. The defendant in Ochoa

walked up to a person parked in a fast food restaurant’s parking lot, pointed a shotgun at 
15

him, demanded the car, and drove off. (Ochoa, supra, at p. 653.) The defendant in Rios

was stopped in a stolen car, with an unregistered firearm beneath the driver’s seat. (Rios,

supra, at pp. 547-548.) In both cases, the circumstances of the crimes were either 

unknown or unaccompanied by any reference to the defendant’s gang affiliation, and the 

theft of the cars was not followed by the car’s use for gang purposes; in each case, the

gang expert’s opinion that the car thefts was gang related was accordingly too speculative 

to support a gang enhancement in the absence of further evidence tying the car theft to a

gang. (Ochoa, surpa, at pp. 659-663; Rios, supra, at pp. 573-575.) This case is different.

Although defendant was alone when he attacked Salazar Garcia, he made his victim 

aware of his gang affiliation by saying “Puro Norte” immediately preceding the attack. 

In addition, the fact that defendant committed his crime in Suren͂o territory and identified 

himself as Norten͂o at the time demonstrates he acted with the specific intent of furthering 

the Norten͂o gang. Unlike Ochoa and Rios, the link between the crime and gang activity 

in this case is not speculative.

In addition to Ochoa and Rios, defendant relies on In re Frank S. (2006) 141 

Cal.App.4th 1192 (Frank S.) to support his claim that the gang expert’s testimony was 

speculative. In Frank S., the minor was stopped by police after he ran a red light on his 

bicycle. He gave a false name, and the officer found a concealed knife, a bindle of 

methamphetamine, and a red bandana in the minor’s possession. (Frank S., supra, at 

p. 1195.) The minor admitted that he carried the knife to protect himself against “ 

‘Southerners,’ ” as he was allied with northern street gangs. (Ibid.) A gang expert was 

permitted to testify that the minor’s possession of the knife benefitted the gang because 

“ ‘it helps provide them protection should they be assaulted by rival gang members.’ ” 

(Frank S., supra, at p. 1199.) The court deemed this improper because, in its view, the 

expert opinion was not supported by any other evidence. “The prosecution did not 

present any evidence that the minor was in gang territory, had gang members with him, 

or had any reason to expect to use the knife in a gang-related offense.” (Ibid.) 
16

Frank S. is readily distinguishable. Here, defendant, a Norten͂o, entered Suren͂o

territory armed with a knife. When he attacked Salazar Garcia, he said “Puro Norte,” 

identifying his gang affiliation, and declaring to the Suren͂o neighborhood of his presence 

in “enemy territory.” This evidence provided sufficient support for the gang expert’s 

testimony that the attack was committed for the benefit of the Norten͂o gang. 

We find substantial evidence to support the jury’s finding that defendant attempted 

to kill Salazar Garcia for the benefit of the Norten͂o gang and with the specific intent to 

promote criminal conduct by the Norten͂os.

Jury Instruction-Voluntary Intoxication

Defendant asserts the trial court erred in failing to instruct the jury on voluntary 

intoxication as it relates to imperfect self defense. 

The trial court did instruct with the CALCRIM No. 625 about voluntary 

intoxication as follows: “You may consider evidence, if any, of the defendant’s 

voluntary intoxication only in a limited way. You may consider that evidence only in 

deciding whether the defendant acted with an intent to kill, or the defendant acted with 

deliberation and premeditation, or the defendant was unconscious when he acted. [¶] A 

person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any 

intoxicating drug, drink, or other substance knowing that it could produce an intoxicating 

effect, or willingly assuming the risk of that effect.” 

Defendant asserts this instruction was insufficient, because it specifically 

prohibited the jury from using evidence of voluntary intoxication for any purpose other 

than assessing whether defendant had the intent to kill or acted with premedication or 

deliberation. Defendant further argues that the theory of his case was that he was acting 

with the unreasonable belief in the need to use deadly force to defend himself, and that 

this unreasonable belief was as a result of voluntary intoxication. 

We note defendant’s argument of instructional error is waived for the purpose of 

this appeal. While defendant requested the instruction at trial, defense counsel did not 
17

ask the court to modify CALCRIM No. 625 to inform the jury that voluntary intoxication 

could be considered when deciding if defendant had an actual, but unreasonable belief 

that harm was imminent in the context of his claim of imperfect self defense. CALCRIM 

No. 625 as stated to the jury in this case is a correct statement of the law. “A trial court 

has no sua sponte duty to revise or improve upon an accurate statement of law without a

request from counsel [citation], and failure to request clarification of an otherwise correct 

instruction forfeits the claim of error for purposes of appeal. [Citations.]” (People v. Lee

(2011) 51 Cal.4th 620, 638.)

However, even if we were to deem defendant’s argument cognizable on appeal, 

we find any instructional error as to voluntary intoxication implicating his claim of 

imperfect self-defense harmless under both People v. Watson (1956) 46 Cal.2d 818, and 

the more stringent standard set forth in Chapman v. California (1967) 386 U.S. 18. 

Based on the evidence at trial, if so instructed, the jury could not have concluded 

that defendant acted with imperfect self-defense because he was intoxicated. The only 

evidence that defendant was intoxicated came from defendant’s own testimony at trial, 

and by all accounts, defendant was not a believable witness, having lied during testimony 

and during the investigation of the crime. Defendant did not provide a corroborating 

witness from the barbeque he attended immediately before the crime who could have 

testified about how much defendant drank that night or his drunken condition when he 

left. When interviewed by Detective Hedley following the attack and given the 

opportunity to tell his side of the story, defendant did not mention being intoxicated at the 

time of the crime. Moreover, defendant’s acts following the crime of throwing away his 

bloody clothes and hiding with his fellow gang members demonstrates a consciousness of 

guilt that is inconsistent with an honest, but unreasonable belief that he needed to use 

force to defend himself from an imminent threat of harm. Finally, the verdict 

demonstrates that the jury did not believe that defendant’s intoxication prevented him 

from premeditating and deliberating in forming the intent to kill Salazar Garcia.
18

Here, the scant evidence that defendant was intoxicated, coupled with the fact that 

the jury found that defendant acted with premeditation and deliberation in attempting to 

kill Salazar Garcia, and that he was not so drunk as to negate that intent, demonstrate that 

any instructional error regarding the impact of voluntary intoxication on a claim of 

imperfect self-defense was harmless beyond a reasonable doubt. (Chapman v. 

California, supra, 386 U.S. 18.) 

DISPOSITION

The judgment is affirmed.
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______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

ELIA, J.

___________________________________

WALSH, J.*

 

*

 Judge of the Santa Clara County Superior Court assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.