1 Filed 12/9/14 P. v. Mendoza CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. FERNANDO FLORES MENDOZA, Defendant and Appellant. A136323
(Sonoma County Super. Ct. No. SCR569814)

I. INTRODUCTION
Defendant was convicted of the first de gree murder (Pen. Code, § 187, subd. (a)) 1 of Luis Suarez as well as active participati on in a criminal stre et gang (§ 186.22, subd. (a)). The jury also found true allegations that defe ndant was an active participant in a street gang who carried out the murder to further the activities of the gang (§§ 190.2, subd. (a)(22) and 186.22, subd . (b)(5)), personally and intenti onally discharged a firearm causing death (§ 12022.53, subd s. (b)-(e)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). Defendant was sentenced to lif e without the possi bility of parole with an additional 25 years to life for use of a firearm caus ing injury and one year for a prior prison term. On appeal, defendant argues that the co urt erred in denying his new trial motion
based on his assertion that his trial counsel was ineffective, that there was insufficient evidence to support the gang allegations, th at the conviction for participation in a

1 All further statutory references are to the Penal Code, unless otherwise noted.2 criminal street gang must be reversed and, if the conviction on count 2 is upheld, the trial court was required to stay the term pursuant to section 654. The conviction for participation in a crimin al street gang must be reversed because
defendant committed the murder alone. With that exception, we find no error and the remainder of the judgment is affirmed.
II. FACTUAL AND PROC EDURAL BACKGROUND
A. The Murder The evening of April 6, 2009, Gerardo Muno z was sitting on the front porch of his house in Santa Rosa, California, when he h eard what he thought was “a little bang in a garbage can down th e street.” Across the street, he saw a young man wearing a hat walk by and then cross over to the sidewalk in fro nt of Munoz. Munoz couldn’t see the young man’s face and didn’t recognize him. Munoz lost sight of the young man. A minute later, a car passed, “running slow” and then stopped. He “heard a couple word s said” and then a gunshot. Munoz walked toward the car and saw the driver, a man in his early to mid 20’s with short hair wearing a
hoodie or sweatshirt. Munoz hid himself. As soon as the car drove off, he went ou t to the sidewalk and found a body lying there. It appeared to him to be the same person who ha d walked by his house a few
minutes earlier. He tried to administer CPR but the person was already dead. His wife called 911. This call was received at 9:38 p.m.
Munoz described the car as a dark red seda n with an “L” shape, or a straight line, on the trunk. The tail lights were “like five si de corner lights . . . a five side pentagon light.” The car’s wheels were “mag like wheels . . . old style wheels, the chrome wheels.” At trial, Munoz was shown photogra phs of rims and a trunk of a car that was driven by defendant and his then-girlfriend, No ra Montes. He said they were similar. When he was earlier shown the car by Santa Rosa police, Munoz ag ain said he thought
the wheels were similar to those of the car he remembered seeing the night of the murder. Bradley Conners, a detective with the Santa Rosa Police Department, arrived at the scene at 10:00 p.m. Conne rs ultimately determined the identity of the victim, whose3 name was Luis Suarez. Conn ers noticed that there were no bullet casings at the scene and believed it was likely that the weapon used to murder Suarez was probably a revolver. He based this opinion on the fact th at there were no casings found at the scene and unlike other guns a revolver’s spent cart ridges remain in the gun’s cylinder after firing. Kelly Arthur-Kenney perform ed an autopsy on the victim on April 8, 2009. She discovered five gunshot wounds and recovered four bullets during the autopsy. In Arthur-Kenney’s opinion Suarez “died as the result of multiple gunshot wounds [to] his
torso.”
B. Testimony Regarding Events Before and After the Murder
1. Nora Montes The day after the murder, Ap ril 7, 2009, the police took defendant, his girlfriend Nora Montes, and defendant’s cousin, Marc o Meza, into custody. Detective Conners
testified about his interview of Montes at her home on April 9, 2009. Montes told him that on the night of the murd er she was working at Arby’s in Santa Rosa. She called defendant at home, where they lived with his parents, at 9:28 p.m., a time about which she was absolutely certain because she “checked the ca ller ID” on defendant’s home phone. Defendant picked her up at work by at least 10:00 p.m. and possibly later. Montes told Conners she though t it was possible for defendant to leave home at 9:30 p.m., go to the place where the crime was committ ed and then on to Ar by’s to pick her up by 10:00 p.m.
Montes also told Detective Conners that when she woke up the next day (April 7, 2009) at around 11:00 a.m., defendant was no t home. Later that afternoon, defendant told her to go with his cousin , Guadalupe Flores, to pick up the burgundy colored Lexus
he and Montes both drove. Montes told C onners “that she and [defendant] had had a
conversation about the fact that there had been a shooting in the South Park area and that he told her that he wanted her and their baby to be safe, so she need ed to get rid of the
vehicle.”4 Montes also testified about the events that occurred the day and night of the murder and in the days afterwar d. On April 6, defendant dr opped her off at work earlier that day, driving the burgundy Lexis. Her sh ift ended that day at around 10:40 p.m. She called defendant at home at 9:28 p.m., a time she remembered specifically because, as she explained, “I looked at the . . . caller ID when I came home because I always check the caller ID.” She recalled seeing severa l other calls, but she did not check the time those incoming calls were received, despite the fact that she had claimed that she “always” checked the caller ID. Defendant arrived “right away” after sh e called him and was alone in the car. Montes put the time of his arrival at her wo rk at “9:30, 9:30 some thing he was already outside.” She did not recall making a contradi ctory statement to the police earlier that
defendant arrived at her work at around 10:30 p.m. Montes admitted that it would have
taken defendant between 10 and 15 minutes to get to her work from his house and that he actually probably arrived to pick her up at around 9:40. She also did not recall telling the police earlier that her child wa s with defendant when he picked her up that night. She
admitted that she lied to th e police about that fact. The next day, April 7, when she woke at 8:00 a.m., defendant was with her. She then dropped him off at a friend’s house. Sh e didn’t know who the friend was. She later went to work, and then met defendant at his cousin Guadalupe Flores’s house after work. At around 11:00 p.m., she and defendant did so me errands, and she dropped him back off
at Flores’s house. At ab out 1:00 a.m., he returned. When she woke the following morning he was gone, and then returned a sh ort while later with his cousin, Marco Meza. At around 11:00 a.m. on April 8, she, Meza and defendant went to several car dealerships in order to trade in the Lexus. According to Montes, they were trading in the
car because defendant had told her a week earlier “that he was in a fight. And since we lived in the area of South Park, I didn’t want to get my windows . . . broken or my tires slashed . . . because . . . he was in a fight with some Norteños.” Defendant also said that
“he wanted me and him and the baby to be safe.”5 Montes agreed that defendant may have made this comment about selling the car to keep them safe after he showed her a ne wspaper article about the April 6 murder of a
Norteño. Montes also admitted that she initially gave the police other, more neutral reasons for wanting to trade th e car in before she told the truth. In fact, she had not talked to her mother-in-law, the car’s owner, about trading it in, and she did not have the pink slip with her when she was visiting dealerships. As she was driving away from the car de alerships, she was stopped by the police. Montes was ultimately charged w ith being an accessory to murder and released later that night.
2. Marco Meza
Meza testified that on the date of the murd er, he was a member of a Sureño street gang called “Angelino Heights.” The weekend of April 6, 20 09, he was with his mother in Lake County, where he had lived his entire life. The weekend before April 6, he had been in Santa Rosa for a day and night atte nding a memorial for a fellow gang member. His sister, Guadalupe Flores, and her boyfriend Jose Orozco , were with him. Flores drove them to the memorial in her car, a burgundy Honda Accord. The Honda was a
similar color to the Lexus that Montes and defenda nt both drove. On April 6, Meza worked with his dad in the mornin g and then went to his brother, Jamie Flores’s, house. He was there for three or four hours. He and Jamie left Jamie’s house between 5:30 and 6:00 p.m. Ja mie drove them in his white Honda. After they left Jamie’s house, they “got into a fight with the enemy ga ng members.” As the incident was occurring, Flores drove by with her son, who was two or three years old. The fight ended when Flores told him the police were coming. Concerned that the police were looking for them, he and Jamie got back in the car
and went to Hefrain Panteleon’ s house in Kelseyville. He a nd Jamie were at Panteleon’s
house for two hours. Meza next had a friend give him a ride to Hopland, and from there he met his
sister and drove with her in her red Honda to her house in Santa Rosa. At around 10:306 p.m. the evening of April 6, he and Flores pi cked up a friend and th en went back to her house, where they stayed th e rest of the evening. At around 11:30 or 12:00 p.m., defendant called. Defendant told Meza that “it finally happened.” Meza understood that to mean that defendant “had killed somebody.” Meza explained that he “had seen one of hi s [defendant’s] guns tw o months before, and he would talk about wanting to put in wo rk and stuff” on behalf of the gang. Meza went to sleep and in the morning, defendant came over. Defendant showed Meza a newspaper story about the murder. Afte r the other people in the house left to do an errand, defendant and Meza had a longer conversation abou t the incident. Defendant told Meza that the victim was a “mayate,” an “African-American guy, with a[n] afro.”
Defendant described the incident to Meza as follows: “[H]e [defendant] was driving
around with his loud music in the car. He ha d seen these two guys, and they were maddogging him, giving him dirty lo oks. So he goes up to the park, and he gets off. He’s walking around. He don’t see nobody, so he gets back in his car. And that’s when he drives away, and he sees that same guy. A nd that’s when everything happened, I guess.”
Defendant said the man he k illed was alone, and “he [defenda nt] walked up to him and told him that he was his friend, that he wa s a Norteño also. And he had shot him.”
Defendant also told Meza that he then went to Hector Santan a’s house to drop off the gun and the car. Meza had seen the gun before: it was a .38 revolver that defendant generally kept in a safe in his mother’s house. Meza hung out with de fendant for three or four hour s by themselves at Flores’s house. At some point, Flores came home, and defendant’s girlfriend, Montes, and her daughter also came over. Montes dropped her daughter off with de fendant so she could go to work. Montes’s daughter spent the ni ght at Flores’s house with defendant. During the day, while he was with de fendant, Meza admitted texting “some girls . . . that like gangsters” a nd “took credit” for the murder. With regard to his gang membership, Meza testified th at he became a member of Angelino Heights when he was 12. Defend ant became a member sometime before the murder, although Meza could no t remember the exact date. Meza was present during7 defendant’s “beat down,” when he was initiated into the gang . Jose Orozco was also a member of the gang, and because he was in the gang a few years longer than Meza, Orozco was considered “OG to me or to the newer generation.” Meza was asked what would happen to a person “who brags ab out doing a murder of a Norteño who didn’t actually do that murder and is a gang member.” Meza testified that in this situation, “[t]hey can consider you a snitch or check you, which is a beat down, or stab you or—it depe nds how personal they take it. ” He did not, however, take these consequences into consideration when he lied about his role in the murder because he was “on drugs.” Specifically, he had sm oked marijuana and done methamphetamine on the day after the murder. Defendant and Meza stayed at Flores’s hous e overnight on April 7, and both took showers while they were there. Defendant had Flor es go and get him a change of clothes earlier in the day. At the same time, defendant asked her to gi ve Montes a ride to pick up
defendant’s car so she would have transportation to get to work. On April 8, defendant wo ke Meza and asked him if he wanted to go to his (defendant’s) mother’s house. At around 9:30 a.m. they went to her house for about two hours. On the way, they stopped at 7-El even and bought a newspaper. There was an article in the paper about the murder. There was a picture of the victim and defendant said, “look, that’s him.” At defendant’s mother’s house, he, Montes and defendant went into the back of
the house and smoked some me thamphetamine. They also looked at the article, and
talked about the fact that there was a menti on of a “candy red apple car . . . .” Montes and defendant “got worried and were like, they got the desc ription. So they were talking about going to a dealer and changing the car.” Meza went with them in the burgundy Lexus to a car dealer. They st ayed at that dealership for 10 or 15 minutes and then went to another one. On the way, Defendant and Mo ntes talked about how “[t]hey didn’t want
to take in the car because it was salvaged, so they were tr ying to . . . get rid of the car . . . .” After spending 10 or 15 minutes at the second dealership, they left to get something to eat and were pulled over by the police almost immediately.8 Meza described his attitude during his in itial interview with the police as “not cooperating.” Three weeks later, after he “r ealized [he] wasn’t go ing to go down for something [he] didn’t do” he was again intervie wed by the police, with a lawyer present. He told the police at that time that defendant was the k iller. He did so because he “thought [defendant] was going to stick up for his own rap, and I realized he wasn’t. So I wasn’t going to go down for it.”
3. Jose Orozco Jose Orozco was Guadalupe Flores’s boyfri end. On April 6, 2009, Orozco, who lived in Santa Rosa, was in La ke County visiting Flores at her mother’s house. He spent the night at the house on April 6. During the day, Flores le ft the house in a red Honda to pick something up at her brother’s (Marco Me za) house. Later that day, he and Flores, who was still driving the red Honda, picked up her brother, Marco Meza, at the Hopland Grade. Meza had been in a fight and they were going to take him to Santa Rosa. During the drive, Meza used his cell phone. They arrived at Orozco’s house in Santa Ro sa that evening at around 9:00 or 9:30 p.m. Half an hour after they arrived in Sa nta Rosa, Flores left in her car with Meza. They came back about 15 minutes later with a friend named Cesar. They stayed together all night. About 45 minutes after Orozco woke up the next morning, defendant arrived. He had a newspaper with him th at he showed to Orozco. He told Orozco that he had “domed some mayate.” Orozco explained that “mayate” was a “put-down” term to
describe African-Americans and “domed” meant “[s]hot him in the head.”
Orozco and defendant discussed the even t for “a couple hours.” Defendant told Orozco “how he rolled up on the guy and asked him if he was—if he banged, and then—I don’t know. I guess I don’t know what the guy said, but that’s when he [defendant] said he just started shooting at him.” At some poi nt, defendant took a shower. He left a red bag of clothes at Orozco’s house. During this time, Flores left the house to return to Lake County to pick up some th ings she needed to bring back to Santa Rosa.9 In his initial interview with the police about the April 6 murder, Orozco was not
truthful because he didn’t want to be involved. In addition, as a gang member, he would not talk to the poli ce about a murder. With regard to his gang affiliation, Orozco testified that as of April 6, 2009, he was a member of Angelino Heights, a Sureño ga ng. At that point, he was an “O.G.” or “original gangster”—“one of the guys that star ted, started it or been in it longer than the other ones.” Cesar, Meza and defendant were also members at that time. Orozco had been convicted of a gang-related crime (felony vandalism) prior to the April 6 murder.
The crime had been committed for the gang’s benefit and one condition of his probation was that he was not permitted to associate with gang members.
4. Guadalupe Flores Guadalupe Flores is defendant’s cousin. Marco Meza is her brother, Jamie Flores her twin, and Jose Orozco her boyfriend. On April 6, 2009, sh e was living in Lake County with her mother and in the process of moving to Santa Rosa to a studio apartment she planned to share with Orozco and her son. Meza and Jamie lived together in Lake County. On April 6, in the morning, she drove by Meza and Jamie’s hous e in Lake County. As she pulled into the driveway, her brothers told her to follow them . She followed them down the street and she saw Meza get out of the car “and start fighting a guy.” She
intervened and told them the cops were coming and to stop fighting. Somewhere between 4:30 and 6:00 p.m., Meza and Jamie le ft in Jamie’s car. Flores went to her
mother’s house and Jamie and Meza went to a friend’s house. At around 8:00 or 9:00 p.m., after going back and forth between that friend’s house and her mother’s house, she picked up her son and her boyfri end so they could go to Santa Rosa. Meza didn’t want to go with her in her car at that point, for fear that the police would recognize her car and know he had been involved in the fight. Sh e met him instead in Hopland at around 10:0010 p.m., after a friend dropped him off there. Th ey bought gas in Clove rdale with her debit
card. 2 When they arrived in Santa Rosa, Flores took her brother to go pick up a friend of
his named Goblin. 3 They hung out and then went to sleep at around 1:00 or 1:30 a.m.
She was woken at around 7:00 or 8:00 a.m. when defendant knocked at the door. He was holding a newspaper. Defendant said that “t he guy I shot died.” Defendant spent the night of April 7 at her house. During the da y of the April 7th, Flores picked up Nora Montes and took her to get her car, a Lexus. Fl ores went back to Lake County to pick up something she needed th ere, and returned to her house in Santa Rosa at around 9:00 p.m. Defendant and his daughter were at her house, along w ith Jose Orozco, Meza and
Flores’s son. The next day, April 8, defendant and hi s daughter were gone when Flores woke up. Later in the day, Flores was arrested and taken to the police station. Initially, she gave the police false information because sh e was nervous. When she was asked about Meza, she told the truth about their wh ereabouts the day of the murder. A short time after the first interview, Me za’s lawyer advised her to talk to the police again. During this interv iew, she told the po lice the truth, including the fact that she “knew who’d killed the guy.” She wa s interviewed by the police a second time shortly afterwards. At that tim e, she told the police that de fendant said to the people in the house that “he shot a wanna be nigger.” She didn’t recall hearing him use the word “mayate.” Although defendant had told he r to burn his clothes, she did not and in fact turned them in to the police department.

2 The timestamp on the gas station receip t was 22:23:59. The receipt was dated April 6, 2009.

3 Goblin, whose given name is Cesar Cu evas, testified that defendant came to Flores’s house that morning.11 During the day of April 7, defendant used her cell phone to call and text people. She saw one text that had a reference to a song with the words “chap killer” in it. “Chap killer” refers to killing Norteños.
Flores testified that it was difficult for her to testify, that she feared retaliation, and that she had moved, with the assistance of the district attorney, out of Lake County. With regard to gang activity, Flores knew her brother Marco Meza, her boyfriend Jose Orozco and defendant were Sureños, and members of the Angelino Heights gang.
C. Cell Calls Defendant’s cousin, Marco Meza, used a ce ll phone on April 7, 2009, to send texts in which he appeared to take credit for th e April 6 murder. However, cell phone logs and cell phone tower locations pinpointed Meza’s whereabouts the night of the murder, and suggested that although the day after it occu rred Meza claimed to have committed the murder, he was not actually in Santa Rosa wh en the murder took pl ace. In contrast, defendant’s cell phone use indicated that he was in Santa Rosa that evening. Meza testified that the cell phone he used on April 6, 2009, and April 7, 2009, was not his, but was registered to hi s sister’s boyfriend, Jose Orozco. 4 He borrowed this phone because he was “on the run” and “didn’ t want the cops to track [him] down.” On April 6, 2009, this phone was in his possession at all times. District Attorney Investigator John McCu tcheon testified that the phone associated with Meza was used to place 53 calls made be tween 8:00 p.m. and 11:00 p.m. on April 6, 2009. He stated that the pa ttern of the calls was consiste nt with the phone being used first in Lake County between 8:00 p.m. and 10:00 p.m. Tower usage records then indicated that at around 11:00 p.m., Meza’s cell phone usage engaged phone towers in Santa Rosa, which would be consistent w ith Meza driving with his sister from Kelseyville in Lake County, then over th e Hopland Grade and into Santa Rosa.

4 This phone, which had the number 30 4-6775, was the phone used to send messages on April 7, 2009, claiming res ponsibility for the April 6 murder.12 Detective Conners obtained a cell phone l og for Meza’s phone, and discussed this log with Meza. From the times and locations reflected by the log, it was apparent that the phone used by Meza was used in Lake Count y at the time the killing occurred. These logs included texts at 2033, 2134, 2332, that said, respectively “[N]ada,” “I just cracked a buster” and “going to Santa Ro sa. Had to shake the stop.”
McCutcheon also stated that a number associated with defendant 5 was in use at various times between 7:27 p.m. and 9:03 p. m. The phone used a cell tower north of
Guerneville Road in Santa Rosa. Meza testified at length about the texts he sent the day after the killing in which he claimed responsibility fo r the killing. The afternoon of April 7, 2009, while he was at Guadalupe Flores’s house he texted Jenee Pere z (“the girl that [he was] trying to impress by all this”) that he had arrived in Santa Rosa at 8:00 p.m. the night before. As their texts
went back and forth Perez “seemed to indicate that she didn’t believe [he] had killed this guy . . . .” This made him angry because he was “try[ing] to get the credit . . . to impress her . . . to make myself look good.”
Meza’s next text said “LOL . . . is that wh o I got last night in South Park?” In the next text, he wrote “Don’t fucking say shit, th ough. Well, that’s the life of a gangster. He told me he was a Norteño, so I let him have it, chap killer.” In the texts that followed he said “[w]hy the fuck you crying ? . . . [¶] . . . [H]e told me he was a Norteño. Shot that fool. He was screaming like a bitch. That’s when I shot the rest. Don’t be sad. Be glad.” At that point in the conversation, Defenda nt arrived, and Meza told Perez that he couldn’t answer. Nevertheless, he then te xted her, “fuck that. They took my homey— my home 13 Moreno. RIP life 3 shit. Th ey had it coming. About time we get pay

5 Defendant’s sister, Yolanda Mendoza, test ified that she had a cell phone with the number 228-4464 and defenda nt borrowed it at some time in April 2009.13 back. 6 ” Meza described the victim to Perez as: “he was like a afro, kind of looks black. What else you want to know.” He also told her that the vi ctim was wearing a white shirt and that “the newspaper got their shit tw isted. It wasn’t a drive-by.”
The defense rested withou t calling any witnesses. The jury convicted defendant of first de gree murder (§ 187, subd. (a)) and active participation in a criminal street gang (§ 1 86.22, subd. (a)). The jury also found true allegations that defendant was an active par ticipant in a street gang who carried out the
murder to further the activ ities of the gang (§§ 190.2, subd. (a)(22) and 186.22, subd.(b)(5)), personally and inte ntionally discharged a firear m causing death (§12022.53, subds. (b)-(e)) and personally inflicted gr eat bodily injury (§ 12022.7, subd. (a)).
Defendant was sentenced to lif e without the possib ility of parole with an additional 25 years to life for use of a firearm causing inju ry and one year for a prior prison term. This timely appeal followed.
III. DISCUSSION
A. Ineffective Assistance of Counsel Following the guilty verdic t, defendant hired new c ounsel and unsuccessfully
moved for a new trial. Defe ndant now contends the trial court erred in denying his
motion because counsel was ineffective on two grounds. 7 First, he asserts that counsel
mishandled his alibi defense in that he neith er called defendant’s parents to the stand nor sufficiently investigated his alibi defense. Second, he contends trial counsel denied him his constitutional right to testify. He is incorrect on both grounds.

6 The reference in this conversation to “Moreno” was to a gang member who had died four years earlier, for wh om a memorial had been held in Santa Rosa on April 4.

7 In his new trial motion, defendant also argued that counsel was deficient because he “was disloyal,” in that “[h] e always believed [defendant] guilty . . . .” In addition, he contended that counsel failed to explain why the tattoos defend ant got while in prison that indicated he had killed rival gang members we re not claims to be taken seriously. Although he mentions these matt ers in his summary of the issu es raised below, he does not make these arguments on appeal, and th erefore, we do not address them.14 1. Factual Background
Defendant’s alibi was that he was at hom e with his parents, his girlfriend, Nora Montes, and their child in Santa Rosa when the murder took place, leaving only long enough to drive Montes to work in the mid-afternoon and then again to pick her up in the evening. Based on the time of the 911 call (9:38 p.m.) and Gerard o Munoz’s testimony,
Luis Suarez was killed within mi nutes of the time Montes says she called him to pick her up. Given that defendant lived “a few bloc ks” from the shooting, it was possible that he murdered Suarez, somethi ng Montes admitted to Detective Conners.
At the core of defendant’s alibi was M ontes’s testimony at trial that she called defendant on his parents’ home phone to ask him to pick her up from work. She recalled the exact time of the call—9:28 p.m.—becau se she checked the caller ID of the home phone. She testified that defendant arrived 5 or 10 minutes later to pick her up. When questioned about the precision w ith which she could identify the time of this particular call, Montes testified that she checked the home phone ’s caller ID for the time record, although she did no t check the time to any other calls on the phone, could not remember the times for any other calls sh e might have seen, or recall the identity of other callers who might have made calls to that same number. 8 However, in her interview with Detective Conners at her home on April 9, 2009, Montes gave a different timeline for the events of the evening. Mont es told Conners that she was working at Arby’s in Santa Rosa the night of the murder and defendant picked her up from work. Conners testif ied that although Montes “d idn’t give . . . a specific
time . . . she said that it was at least 10 o’cl ock p.m.” Montes told Conners, consistent with her testimony at trial, that she called defendant at 9:28, a time about which she was absolutely certain because she “checked th e caller ID.” Montes told Conner s she thought it was possible for defendant to leave his home at 9:30 p.m., go to the place where the
crime was committed and then on to Arby’s to pick her up by 10:00.

8 However, she later testified that she did remember from the caller ID that defendant’s sister had calle d at about 9:20 p.m.15 At the hearing on defendant’s new trial motion, defendant’s mother testified that
defendant’s father received a phone call from Montes at aro und 9:30 p.m. on the night of the murder, handed the phone to defenda nt, and defendant left the house shortly
afterwards in his Lexus. Defendant’s mother had no independent memory of the time of the call, but had simply heard about it from others.
Trial counsel was aware that defendant’s parents would testify that the phone call
to defendant at their house occurred at 9:30 p.m. According to de fendant’s parents and Montes, trial counsel confirmed with them th at they would not lie for defendant. They
further testified that counsel told defendant’s parents they were his main witnesses and without them, defendant would be a “lost cause .” Defendant testified that trial counsel also set up but then cancelle d an appointment to discu ss the parents’ testimony. Ultimately, defense counsel did not call de fendant’s parents as witnesses, although he did place them on the witness list. Instead, as counsel explained at the hearing on the new trial motion, his strategy was to presen t defendant’s alibi, which he considered questionable, through the two strongest methods: Montes’s testimony on direct examination and excerpts of defendant’s in terviews with the police, which were videotaped and shown to the jury. In these ex cerpts, defendant talked about his whereabouts the night of the murder.
Defendant testified that counsel admitted to him that he had been deficient in not calling defendant or his parents to testify. Defense counsel denied doing so. Instead, when defendant asked him to bring a new tria l motion based on ineffective assistance of counsel, trial counsel told him that a la wyer does not make an argument which he believes has no legal basis. Defendant later claimed, however, that he did not remember counsel saying this. At the hearing on the new trial motion, an d in a declaration filed by the People in their opposition to defendant’s motion, trial counsel justif ied his decision not to call defendant’s parents on the basis that he belie ved, on balance, their testimony would not be helpful to defendant. The parents did not have an explanation for why they waited to report defendant’s alibi to the police until he was arrested and charged with murder. He16 believed that the delay in reporting defendan t’s alibi would appear to be disingenuous and as a result their testimony less believable to the jury. Moreov er, counsel made the strategic decision that an alibi presented th rough defense witnesse s would undercut the advantage of having Montes pr esent defendant’s alibi as a “friendly” prosecution witness
who would seem more reliable th an defendant’s parents. He also believed that having the alibi further presented through cross-ex amination strengthene d its believability. With regard to his right to testify, defenda nt stated in his declaration that counsel told him that he shouldn’t testify because th e jury would learn he had a prior criminal
record. Defendant’s criminal record “consi sted of a single adult conviction for a felony violation” for possession of a switch-blade. He also told defendant that one of his duties as a lawyer was to refrain from presenting perjured testimony, which made defendant think he believed he (defendant) was lying. Counsel did not tell him that the final decision to testify was his a nd had he known that he woul d have testified. Defense
counsel told his client that “if he insisted on testifying that that would be taken up with the court.” Defendant interprete d this statement as a threat that the court might not allow him to exercise his right to te stify in his own defense. Trial counsel disagreed with defendant’s account of their discussions regarding his right to testify. He had in fact explained to his client that he had a right to testify if he
chose and that he would honor that decision. He believed defendant’s alibi was a weak defense because even given the time of the phone call there was still a window within
which the defendant could have committed the murder. He was relieved his client chose
to follow his recommendation that he not do so be cause he “felt very strongly that if he testified and was asked to expl ain his statements and behavior following his arrest . . . a rapid conviction would follow.” With regard to his statement to defendant that if he insisted on testifying this matter would be “taken up” by the court, he explained that this was a reference to the issue of whether defendant’s disregard of his trial strategy would necessitate the
substitution of another attorn ey as defendant’s lawyer.17 Defendant’s contention that counsel failed to investigate his alibi was based on the
fact that he knew that counsel had hired a private investigator, but he did not know whether counsel “made any effo rt to develop add itional corroboration of [his] alibi.” Counsel, however, stated in a declaration that he went to the scene of the murder 6 or 7
times and twice drove the distance “of a fe w blocks from the Mendoza house to where the murder took place” in orde r to check the distance betw een the scene of the murder
and defendant’s house.
The trial court denied the new trial moti on on the ground that defendant had failed to establish he was prejudiced by counsel’s performance. The court specifically found that counsel’s decision not to call certain witnesses to the stand (including defendant’s parents) we re tactical decisions and not prompted by improper motives such as racial animosity or a belief that th e witnesses would be lying. Further, the court held that defendant’s cl aim failed because he presented no evidence that he was prejudiced by the manner in whic h counsel presented his alibi. The court observed that “the jury was presented with alib i evidence . . . that [defendant] provided to the police following his arrest, the testimony of the police detectives regarding their interviews with defendant and Nora Montes, and the trial testimony of Ms. Montes.” The court also noted that “[a]lthough Ms. Montes was called as a prosecution witness at trial, she provided testimony that was supportive of defendant’s alibi claim.” The prosecutor not only questioned Montes clos ely regarding her alibi testimony, but also discussed it in closing argument. The court concluded that “t his is not a case where an alibi defense was not in front of the jury.” The court also found that there was no reasonable probability that defendant’s parents would have made any difference in his presentation of his alibi in that “neither parent could place defendant an ywhere other than the murder scene at the time of the shooting.”
The court noted that defendant failed to present any evidence to back up his statement that counsel had not investigated hi s alibi defense, nor had he established that any further investigation woul d have established that defe ndant was somewhere else at the time of the shooting.18 With regard to defendant’s assertion th at counsel misinformed him regarding his right to testify, the court found that “trial counsel did inform defendant that the decision whether to testify was defend ant’s decision to make.” Having concluded that defendant failed to show any prejudice from counsel’s performance the trial court denied his motion for a new trial.
2. Discussion In general, a defendant who claims that counsel was ineffective must show both that counsel’s performance was deficient and th at, as a result, defendant was prejudiced. ( Strickland v. Washington (1984) 466 U.S. 668, 687.) In reviewing ineffective assistance of counsel claims, appellate courts are wary of second guessing defe nse counsel’s tactical decisions. ( People v. Hinton (2006) 37 Cal.4th 839, 876; People v. Holt (1997) 15 Cal.4th 619, 703.) Thus, when we review a trial court’s fi nding that a defendant received adequate representation, we defer to the court’s decision. ( People v. Andrade (2000) 79 Cal.App.4th 651, 660.) As the Andrade court puts it: “ ‘After all, the trial court is in the best position to make an initial determina tion, and intelligently evaluate whether
counsel’s acts or omissions were those of a reasonably competent attorney.’ [Citation.]” ( Ibid. ) For that reason, on appeal we must give great weight to the trial court’s findings regarding competency and “[a] bsent a showing of clear and unmistakable abuse, we will
not disturb his decisi on. [Citations.]” ( People v. Wallin (1981) 124 Cal.App.3d 479, 483.) We agree with the trial court that defe ndant failed to show he was prejudiced by counsel’s decisions with regard to the presen tation and investigation of his alibi defense and that, in fact, counsel did inform him of his right to testify. As the court pointed out, defendant did not put forward any evidence that further investigation of his alibi claim
would have show n that he was, in fact, somewhere el se when the murder was committed. In addition, defendant’s parents’ testimony would not have done anything more than corroborate Montes’s testimony that defendant received a call from her at around the time
she said she made this call. Nothing defendants’ parents could have said would have changed the fact that between 9:28 p.m. and 9:38 p.m. defendant would have had time to19 drive a few blocks to the scene of the murd er and commit the crime. In fact, Montes
stated that she believed he would have had time to do so. Moreover, Montes’s testimony regarding the specific timing of the call, her shifting story about wh en defendant arrived to pick her up from work, and the parents’ la te decision to corrobora te her memory of the timing also undermined the alibi. Further, although the trial court did not specifically find that counsel’s representation was not deficient, the record supports a conclu sion that counsel’s decisions regarding the presentation of de fendant’s alibi defense were reasonable tactical decisions designed to present what was a weak story in the best light possible. Counsel’s decision to present this defense 9 through Montes’s testimony as a witness for the People was a reasonable decision designed to give her questionable story an aura of credibility since she was on the stand testifying as a “friendl y” witness for the state. Similarly, defendant’s description of his whereabouts on the night of the murder was presented to the jury in the form of videot aped interviews he had with the police after his arrest and thus he was not subject to damaging cross- examination. Finally, because defendant’s parents would not have added anything new to the alib i evidence, and might well have served to emphasize its weakness upon cross-ex amination, counsel’s tactical decision to forgo using them as witnesses was sound. Defendant’s counter-argument, namely that his parents’ testimony would have strengthened Montes’s story, does not mean that counsel was ineffective in choosing not to call them. As counsel explained, defendan t’s alibi was a weak one, and would, in his opinion, be made even weaker by the testimony of his parents. Thus, even if the strategy suggested by defendant might also have b een an acceptable course, counsel was not required to adopt this tactic. He employe d a trial strategy that he, not incorrectly,

9 The record belies defendant’s argument that counsel failed to present his alibi. As we have described, the alibi was presen ted to the jury in the form of Montes’s testimony and the videotape of defendant’s inte rrogation. Counsel’s decision not to focus on what he believed to be a weak defense in closing argu ment was clearly a tactical decision rather than ine ffective assistance.20 believed would be more effective. In so doing, he did not render defendant ineffective
assistance. Defendant argues that the c ourt could have found that co unsel’s alleged failure to do anything of substance to investigate defe ndant’s alibi was prejudicial so long as it found that “the defense was potentially merito rious and therefore could have affected the
verdict.” He cites People v. Shaw (1984) 35 Cal. 3d 535, 541 ( Shaw ) and People v.
Frierson (1979) 25 Cal.3d 142, 163 ( Frierson ) in support of this argument. Neither case is helpful, however. In Shaw , defense counsel learned from defendant that a number of people could corr oborate his alibi defense. However, counsel failed to speak to any of thes e potential witnesses and, in fact, did not present any alibi defense. In finding that counsel was ineffect ive, the court stressed counsel’s utter failure
to take defendant’s alibi into account in his representation of defendant. The court
observed that “the record reveals substantia l corroboration of the alibi defense which, although it might not have prevailed, at least had the potential of prevailing and was sufficient to warrant an adjudication.” ( Shaw, supra, 35 Cal.3d at pp. 541-542.) Here, the record indicates that counsel not only ensu red that defendant’s alibi was presented to the jury, but he made tactical choices designe d to present it in the most opportune ways. Nor is it the case that there were potential witnesses wh o could have substantially
corroborated defendant’s alib i that counsel ignored. Th e only other witnesses were defendant’s parents and, as we have noted, ne ither of them would have added to the alibi any information that was not already before the jury. Similarly, in Frierson, supra, 25 Cal.3d at page 163
, defense counsel could have put on a diminished capacity defense, but he failed to investigate any aspect of this defense. There, the court held “ ‘[by] his inaction, deliberate or otherwise, counsel deprived himself of the reasona ble bases upon which to reach informed tactical and strategic trial decisions. . . . . [¶] . . . [E]ven tactical decisions may demonstrate incompetence if made with out the benefit of ‘substantial fact ual inquiry.’ ” In contrast to
counsel in Frierson , the defense attorney in this case did ma ke an inquiry into defendant’s alibi and presented the relevant f acts behind it, namely that the time between21 the phone call defendant received from Montes and the time of the murder might have
been too short a time within wh ich defendant could have murdered the victim. Defendant did not bring to the court’s attention any additional witn esses who might have added anything useful to that scenario, and as th e trial court pointed out, did not present the court with any documentary evid ence that might have strengthened the defendant’s alibi. In the absence of any eviden ce of what additional useful investigation defense counsel could have conducted, we conclude that he was not ineffective in his investigation of
defendant’s alibi.
B. Gang Enhancements
1. Factual Background The jury found true the allegation that defe ndant participated in a criminal street gang when he murd ered Luis Suarez and the trial court imposed a three-year enhancement pursuant to the California Stre et Terrorism Enforcem ent and Prevention Act of 1988 (the STEP Act). (§ 186.20 et seq.; Stats.1988, ch. 1242, § 1.) The People’s principal witne ss regarding the activities of the Sureño street gang to which defendant belonged at the time of th e murder was Santa Rosa Police Detective Andrew Riley. From 2006 to 2009, Riley was assigned to the department’s gang crimes team and was qualified as an expert “in the area of criminal street gangs pursuant to Penal Code section 186.22, and in particular the Sureño and Norteño street gangs.”
In his interviews with de fendant during the investig ation of the murder, Riley discussed defendant’s gang involvement. Defendant admitted to being an Angelino Heights Sureño, a “subset or smaller gang with in the Sureño criminal street gang” located in Santa Rosa. In fact, a year earlier, on January 18, 2007, Riley had contact with
defendant in an incident in wh ich, as he testified, defendan t “was at a gas station and was
involved in an altercation w ith two suspected Norteños. And during the altercation he ended up getting pepper sprayed by the Norte ños.” This added to Riley’s belief that
defendant was an active Sureño participant. In sum, it was Riley’s opinion, “based on [his] training and experience, the contacts [to which he’d testified], the admissions22 [defendant] made, as well as his tattoos . . . on . . . 4-6 of ’09 [defendant] was an active Sureño participant.” According to Riley, there were severa l hundred Sureño gang members in Sonoma County. One of the Sureños’s primary activities was “committing Penal Code section 245(a)(1) [violations] such as an assault.” He identified tw o specific gang members with
whom he dealt in various inve stigations who had participated in such activities. One, Martin Camacho, was an active Sureño gang member at the time of an assault investigation Riley participated in. Camacho ultimately went to prison for that assault. He also described another Sureño, Omar Gallardo. Riley was involved in the “investigation of a case where he (Gallardo) and some of his fellow Sureños saw a car driving past them with who they believed were Norteños in the car. They threw a bunch of bottle[s] at the car, beer bottles. The car stopped, and a fight broke out. And during the fight Mr. Gallardo stabbed two different people causing serious injury. And Mr. Gallardo ended up pleading guilty to assault with a deadly w eapon, as well as being an active gang participant.” In his opinion Gallardo was an active Sureño at the time he
committed that offense. Riley was also familiar with the victim in this matter, Lu is Suarez. He had “heard Mr. Suarez’s name a couple of times. As I looked further into his police contacts and gang activity, based on my training and experi ence, it appeared to me that he was an
active . . . Norteño in the Sout h Park area of Santa Rosa.” One of Suarez’s nicknames was “Afro Man.” In addition, Riley made a number of observation s regarding Suarez’s memorial that were of significance in his co nclusion regarding Suarez’s gang affiliation. He observed graffiti, and red flags, handke rchiefs, and baseball hats that were all
characteristic of Norteños. In his opinion, Suarez’s murder was “one hundred percent” a gang-related crime. He opined that Suarez’ s murder “furthers the criminal st reet gang because . . . these gangs were formed to protect themselv es and are currently in a mode of what they call war with each other. And their main job, these gangs’ ma in jobs is to hurt each other and kill each
other. It has been for decades. And it curre ntly is Sureño on Norteñ o, Norteño on Sureño23 fights, stabbings, shootings, killings. And just like any organiza tion if you do—if you commit an act that is part of the main goal of your organization, you’re helping your organization.”
2. Discussion Defendant now argues that substantia l evidence does not support the gang enhancement allegation. Specifically, he conte nds that there is not substantial evidence to support the jury’s findings that (1) the primary activity of the Sureños was assault and murder, and (2) the Sureños enga ged in a pattern of criminal gang activity as that phrase is defined by statute. We disa gree with both contentions.

a. Gang’s Primary Activities
In People v. Duran (2002) 97 Cal.App. 4th 1448, 1457 ( Duran ) the court aptly
summarized the law in this area. “Section 186.22, subdivision (b)(1 ) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or
in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, th e People must prove: (1) the group is an ongoing association of three or more pers ons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary ac tivities is the commiss ion of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. (§ 186.22, subd. (f); People v. Sengpadychith (2001) 26 Cal.4t h 316, 319-320; People v. Gardeley (1996) 14 Cal.4th 605, 616-617; People v. Loeun (1997) 17 Cal.4th 1, 8.)”
The Duran court further explains that “ ‘The phrase “primary activ ities,” as used in the gang statute, implies that the commission of one or more of the statutorily
enumerated crimes be one of the group’s “chief” or “principal” occupations. [Citation.]’ [Citation.] Proof that a gang ’s members consistently an d repeatedly have committed criminal activity listed in section 186.22, s ubdivision (e) is suffici ent to establish the gang’s primary activities. On the other ha nd, proof of only the occasional commission of crimes by the gang’s members is insufficient. [Citation.] Pa st offenses, as well as the circumstances of the charged crime, have so me tendency in reason to prove the group’s24 primary activities, and thus both may be cons idered by the jury on the issue of the group’s primary activities. [Citation.]” Further, “[t]he testimony of a gang expert,
founded on his or her conversa tions with gang members, pers onal investigation of crimes committed by gang members, a nd information obtained from co lleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang’s primary activities.” ( Duran, supra, 97 Cal.App.4th at pp. 1464-1465.) The testimony of Detective Riley, the Pe ople’s gang expert, constitutes substantial evidence that among the gang’s primary activ ities were the assa ult and murder of members of rival gangs. 10 Based on the three years he had been assigned to the Santa Rosa Police Department’s gang unit, and his considerable expertise specifically concerning Sureño and Norteño gangs in Sant a Rosa, Riley testified that one of the primary activities of Sureños in Sonoma County wa s “definitely” “committing [violations of] Penal Code section 245(a)(1) such as an assault.” He describe d Norteños and Sureños as having been formed to protect each other a nd thus “currently in a mode of what they
call war with each other.” As part of this war, these “gangs ’ main jobs is to hurt each
other or kill each other.” These activities in cluded “stabbings, shoo tings, killings.” He also described the “goal” of both Norteños and Sureños as the co mmission of “violent
acts.” Defendant, relying on In re Alexander L. (2007) 149 Cal.App.4th 605, 612 argues that Riley’s testimony was conclusory and base d on “vague generalities. We disagree. Riley specifically described the activities of several gang members that fit into his general description of Sureño members engagi ng in the assault and murder of rival Norteños. First, he described a gang memb er named Martin Cuevas Camacho (an active Sureño gang member at the tim e of the Suarez murder) with whom he dealt “on several occasions in different investigations, incl uding one investigation where he ultimately went to prison behind an a ssault” in 2008 and another Su reño gang member named Omar

10 Assault and murder are among the statutor ily enumerated criminal offenses to which the enhancement applies. (§ 186.22, subds. (e)(1) and (e)(3).)25 Lugo Gallardo who sta bbed two Norteños “causing serious injury.” Gallardo ultimately pled “guilty to assault with a deadly weapon, as well as bein g an active gang participant.” The picture Riley painted for the jury wa s of two gangs, formed to protect their members, whose principal characteristic was th at they were “at war.” While engaged in this conflict, members of the gang to wh ich defendant belonged committed assault and
murder. The record ev idences what are essentially five skirmishes in this war, all involving the sort of violence Riley describe d as the gang’s primary activity: an incident
in which Meza attacked a Norteñ o with a baseball bat, defendant’s earlier involvement in
an attack on Norteños in which defenda nt was pepper sprayed, Martin Camacho’s
conviction for assault in an encounter with Norteños, Omar Gallardo’s plea for assault with a deadly weapon during a fight that seriously injured tw o Norteños and, finally, the murder of Luis Suarez, a Norteño, by defendant. In a similar case, Duran, supra, 97 Cal.App.4th at pages 1464-1466, the police gang expert testified that a gang’s prim ary activity was “ ‘putting fear into the community.’ ” Through “ ‘robber ies, assault with deadly we apons, narcotics sales . . . they start claiming certain terr itories within the city . . . . [¶] And they’re controlling
either the narcotics sales in th at area, they’re committing the ro bberies in this area, all for the purpose of fear and intimidation of the comm unity.’ ” As in this case, the gang expert
further corroborated his conclu sion with specific examples of situations in which gang members engaged in robbery and narcotics o ffenses. The court held that this testimony was sufficient to support a fi nding that this gang’s primary activities were the sale of narcotics, robbery, or assault. In sum, this evidence is sufficient to support the jury’s finding that the primary activities of the gang to which defendant be longed were among the required statutorily
enumerated offenses.
b. Pattern of Gang Activity Defendant also argues that there is not subs tantial evidence of a pattern of criminal gang activity consisting of at least two listed crimes committed within three years of each other as required under the statute. We disagree.26 “A ‘pattern of criminal ga ng activity’ is defined as ga ng members’ individual or collective ‘commission of, attempted co mmission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more’ enumerated ‘predicate offenses’ during a st atutorily defined time period. [Citations.] The predicate
offenses must have been comm itted on separate occasions, or by two or more persons. [Citations.] The charged crime may serve as a predicate offense [citations], as can
‘evidence of the offense with which the defend ant is charged and proof of another offense committed on the same occasion by a fello w gang member.’ [Citation.]” ( Duran, supra, 97 Cal.App.4th at p. 1457.) The testimonial evidence of the charged o ffense, namely defendant’s murder of Suarez, therefore constitutes one of the tw o predicate offenses. Two other predicate offenses contained in the record, the assau lt convictions of Camacho and Gallardo, were
introduced into evid ence through Riley’s testimony and through certified court dockets,
each of which contained the dates of the offe nses described by Riley. Evidence Code section 452.5, subdivision (a) makes admissib le “any computer-generated official court records, as specified by the Judicial Council which rela te to criminal convictions, when the record is certified by a clerk of the superi or court pursuant to Section 69844.5 of the Government Code at the time of computer entry.” The court dockets, therefore, are admissible and presumptively reliable. (See Duran, supra , 97 Cal.App.4th at p. 1461; Evid. Code, § 452.5, subd. (a).)

c. Ineffective Assistance of Counsel Defendant argues that, to the extent the People failed to prove what the primary activities of the Sureños were, counsel was in effective because his cross-examination of Riley may have resulted in pr oviding for the jury the remaining proof needed for a true finding on this enhancement. We have reviewed the reco rd and conclude substantial evidence supports the jury’s fi nding. Moreover, the facts on which this finding is based were introduced by the People and counsel’s cross-examina tion simply clarified a few matters to which Riley had already testified. No ine ffective assistance of counsel
occurred here.27 C. Gang Participation
Defendant was convicted of carrying out the murder in furtherance of the activities of the gang in which he was an active particip ant. (§ 186.22, subd. (a).) Defendant now argues that this conviction must be set aside because the People did not show, as required pursuant to People v. Rodriguez (2012) 55 Cal.4th 1125, 1132 , that two or more gang members participated in the mu rder. The People concede, and we agree, that there is no
evidence in the record to support a finding that two or more gang members participated in
the Suarez murder. Therefor e, the conviction on this count must be reversed.
D. Section 654 Stay Defendant argues that section 654 require s that the trial court stay the gang participation sentence. As the People point out, given that we have reversed the gang participation count and thus the correspon ding sentence, this issue is moot.
IV. DISPOSITION The judgment of conviction of active pa rticipation in a criminal street gang (§ 186.22, subd. (a)) is reve rsed. In all other respects the judgment is affirmed.28 _ ____________ ____________ Kline, P.J.

We concur:

_____________ ____________ Richman, J.

_____________ ____________ Stewart, J.