Filed 1/28/14 P. v

. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 GARCIA, Defendant and Appellant. H038330 (Monterey County Super. Ct. No. SS100409)

A jury convicted defendant Raul Garcia of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187 , 664 ) 1 and shooting at an inhabited dwelling (§ 246)

. Allegations that he personally used and personally d ischarged a firearm ( § § 12022.5, 12022.53, subd. (c)) and committed both offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) were also found true. The trial court imposed a term of life with a minimum of 15 years for the attempted murder conviction
and an additional and consecutive 20

- year term for the gang enhancement. It imposed a consecutive term of life with a minimum of 15 years for the section 246 conviction. On appeal, defendant challenges (1) the admission of an investigat or’s testimony that victims of gang violence who testify at trial commonly recant their earlier statements, (2) the sufficiency of the evidence to support the true findings on the gang enhancement

1 Subsequent statutory references are to the Penal Code unless otherwise noted.2

allegations, and (3) the exclusion of evidence of two prior incidents tending to prove a feud between his and the victims’ families. We affirm.

I. Background James Santoyo lived in Castroville with his parents and his younger brothers

. He

w as at home on December 31, 2009, and his family was gathering to celebr ate New
Year’s Eve

. Santoyo’s parents owned an apartment building adjacent to their house. His sister
Marisela 2 lived in an upstairs apartment with her boyfriend Jose Contreras and their young children. They were in their kitchen making tamales that New Year’s Eve

. Around 10:00 p.m., Marisela telephoned Santoyo and asked him to come over

. As he
walked up the stairs to the apartment , someone across the street called out, “ ‘ Hey, who’s
that? ’ ” in a loud voice. “What’s up? What’s up Homie?” S antoyo turned around, and the person started shooting at him

. Santoyo “[h]it the floor” and crawled into the apartment. Marisela called 911. Monterey County Sheriff’s D eputies Brandon Smith and Maria Garcia were on patrol in the area that night. They heard the gunshots and drove to Wood and Jackson Streets, where the sounds came from. Santoyo, Marisela, and Contreras told them the suspects ran down a nearby alleyway

. An area search failed to locate the suspects, so t he deputies returned to the scene. Sergeant Randal Ragsac and Deputy Erik Schumacher
had arrived in the meantime. Santoyo , Marisela, and Contreras each told the deputies they recognized defendant
as one of the shooters

. Defendant “lived around the corner.” Santoyo said defendant
wore a black hoodie

.

2 Because Santoyo and Marisela share a surname, we refer to her by her first name, not out of disrespect but for convenience and clarity. For similar reasons, we refer to some of defendant’s relatives by their first names.3

S chumacher was assigned to the Monterey County Joint Gang Task Force . He had had “numerous contacts” with defendant

. Schumacher , Ragsac, and other deputies
walked down the alleyway behind the Santoyo s’ house to defendant’s residence

. A large group of people was leaving as the deputies approached

. S chumacher asked if defendant was among them, and defendant came out of the crowd. S chumacher handcuffed him , and he and another deputy and Ragsac walked him away from the house

. When
Schumacher told defendant he was being detained for a shooting, defendant asked “ how they knew it was him

. ” Schumacher asked what defendant meant by “ ‘ they

. ’ ”
D efendant responded, “ ‘ You know, the Santoyos. ’ ” N o one had told defendant that Santoyo was the target of the shooting

. Contreras positively identified defendant at a showup later that night

. Smith and Schumacher interviewed defendant at the sheriff’s office

. Defendant
told them that he was at home when he heard the gunshots . H e described them “exactly the same way” that Smith heard them

. Defendant later changed his story and said he was in his room listening to music when his brother said that some one was shooting. Defendant warned his family to get down and to stay away from the windows. When police i nformed defendant that the victims said he was the shooter, defendant replied,

“ ‘ [T]here’s no way it could have been me. ’ ” Defendant “readily admit ted that he was a gang member

. . . .” He said he had been active in the Northside Castroville gang for approximately five years , was in good standing, and was “ quote, . . . active to the fullest , end quote ” when outside his ho me. He
was aware that gang members committed shootings , armed robberies , and intimidations.
He described the significance of each of his Norteño gang tattoos. Smith contacted Santoyo a gain and asked how long he had known defendant. Santoyo said he had known defendant , who was ab out five years his junior, since
defendant was a child in the neighborhood . He had seen him “hanging out” with people
h e knew were Norteño gang members. When Santoyo encountered defendant on the4

street, defendant mimicked shooting him . As he did so, defendant would “either make comments or . . . make like a pop, pop, pop noise.” On January 2, 2010, d eputies executed a search warrant at defendant’s residence

. T hey found a black hooded 49er’s sweatshirt turned inside out on top of oth er items on
the floor . The sweatshirt had a red logo on it. D eputies also found a black beanie cap and Norteño gang indicia.
P rosecution investigator Allen Rowe interviewed Santoyo, Marisela, and
Contreras on March 10, 2010

. The interviews were record ed. Santoyo ’s account of the shooting was consistent with what he told deputies at the scene. He identified defendant
as the shooter . He had known him since defendant w as “just a little kid” in the neighborhood, “ about maybe ten. ” Defendant ’s family had moved away

. The family
later moved back to Castroville . D efendant returned to the neighborhood around summer 2009

. T hat was when the trouble started.
When Rowe a sked Santoyo if defendant was affiliated with a gang, Santoyo said that “in the news when it came out t he y said that he was a Northerner.” Rowe followed
up, “And what does he think you guys are, Sureños?” Santoyo re plied , “You know what I mean? I don’t know. You know what I mean? The . . . the way I look I mean, that’s the way I . . . You know what I mean?”
Contreras told Rowe that his kitchen window look ed out on Jackson Street. It was
open that night , and as Santoyo came up the stairs, Contreras heard someone say,

“ ‘ What’s up Homie? What’s up Homie? ’ ” He looked out the window and saw defendant with the gun . Contreras knew it was defendant because the porch light was bright. Defendant was wearing a beanie. Contreras opened the door, “and they’re like ‘pow . . . pow . . . pow’ like shooting.”
Marisela testified at trial tha t she was in h er kitchen when s he heard voices say, “What’s up, homie” two or three times

. Concerned “ that something was wrong , ” s he
asked Contreras to look out the window. He opened the door . She heard her brother sa y ,5

“[G]et down , ” and then she heard gunshots

. Marisela called 911

. She recalled being interviewed that night but denied telling deputies that she looked out the window and s aw defendant. She testified that she did not see defendant or anyone shooting that night.
Marisela went to high school with defendant’s older sister . She also kn ew his
mother

. She met defendant when he was a preteen or a teenager. He moved back into
the neighborhood about eight months before the shooting

. Marisela sometimes saw him passing by

. O n about four occ asions before the shooting, he held his hand as if pointing a
gun at her and sa id , “pop, pop.” Santoyo testified under subpoena at trial. “[I] don’t want to remember this,” he said. “You know, just don’t even want to be here.” When he was a sked if he had been
truthful when deputies interviewed him that night, he re plied , “You know, I don’t know, you know. I don’t know what to say.” “No.” He was asked why he would lie, and he

re sponded , “Well, because I thought it was him , you know, and I don’t know for what reason, you know. It was just like I said, you know, it happened so quick.” Santoyo had known defendant for a “couple of years

. ” Defendant had moved back
into the neighborhood “months or [a] year” before the shooti ng

. Santoyo was “not sure”
if defendant was affiliated with a gang. He did not recall telling Rowe that defendant was “a Northerner.” He did not tell Marisela that defendant was the shooter. He did not recall telling Contreras that defendant was the sh ooter

. He denied telling deputies that he
had seen the shooter, that the shooter was defendant, and that defendant ran around the corner into the alleyway. Santoyo was a sked wh y he c hanged his story . He replied, “Well, because I, you know, I was so sca red. You know, I was so scared that, you know, I could’a died that day. Um, I was just, you know, shaking. Um, you know, don’t really remember.” He did not want his family “to be hurt from stuff like that.” He was a sked what he thought might happen if he identified defendant as the shooter in court . He said , “Well, you see

-- you see, I can’t say it’s him.”6

Santoyo testified that he had no idea why someone shot at him twice. N or did he
know why someone fired shots at his parent’ house in August 2009. He does not have
Sureño tattoos. He had not had any trouble with Norteños, “the rival street gang,” apart from the shootings. Santoyo was arrested for a gang crime when he was “ in school

. ” He

was convic ted of displaying a firearm in public “years, years, years back” but separated himself from the gang lifestyle when he was about 17. He was 27 when he testified at
trial. He pleaded guilty to an unspecified crime in 2009.
Contreras testified that he he ard someone say, “What’s up, homie” a s Santoyo

came up the stairs that night

. Contreras opened the door

. Santoyo told him to get down,
and the shooting started

. Contreras testified that he saw “two people in black” across the street “[m]inutes before” the shooting

. “[A]fter the shooting, there was one person in black. That’s all I
saw.” He denied telling deputies that he saw defendant shooting at Santoyo. He later
said , “I thought it was him.” He denied telling Rowe he saw defendant in the area bef ore the shooting. He denied telling Rowe he looked out the window when the shooting began and recognized one of two persons across the street as defendant. He denied telling the deputies he saw defendant run around the corner after the shooting. “I saw a person. I saw a person running into the alley.” He acknowledged that Marisela told the 911 dispatcher that defendant was the shooter.
Contreras said he identified “[t]he one I thought had done it” at the showup

. “Well, what I’m saying is I’m not sure exactly if it was him, but that’s what I thought.” Lighting illuminated the street and the area that the shooter shot from.
Contreras did not know defendant but had seen him passing by. “[O]ne time,” defendant acted like he had a gun raised t oward the apartment and said “pop, pop.” Contreras denied telling Rowe defendant did that more than once. The Santoyos’ house
had been shot at three times . The problems started when defendant moved back to the7

neighborhood. Contreras was “concerned” ab out what would happen to his children,
Marisela , and her family if he testified against defendant. “We’re all concerned.” Smith, Ragsac, and Schumacher testified about what occurred that night

. They
described the investigation. Schumacher also testifi ed as an expert on Monterey County criminal street gangs. He opined that defendant was an active participant in a Norteño criminal street gang

. His opinion was based in part on defendant’s tattoos, one of which
he acquired in jail after the shootings. S chumacher’s opinion was also based o n defendant’s admission s, prior police contacts, and intake screening questionnaire , which
reflected his association with the Norteño s

. Schumacher told the jury that the Norteño gang’s primary activities included homicide , violent assaults , and trafficking in drug s and
firearms . He identified three predicate offenses : possession of a firearm by a gang
member in 2007 and two attempted murder s of suspected Sureño s, one in 2005 and
another in 2004

. Certified court records establishing those convictions were admitted
into evidence.
Schumacher explained that Norteños and Sureños are rivals. Castroville is Norteño territory . There is only “[ a ] small handful” of Sureños in the area. The primary
reason Norteños have firearms is “to carry out actions against rival gang members.” Firearms help them establish their gang territory , since a ttacks on rival gang members “will typically force small numbers of rivals or people who aren ’ t like them to m ove out of the area .” T hat “allows more Norteños . . . to move in and saturate that area.” Attempted murder promotes the gang by “put[ting] the notoriety out for everybody to

see

. ” That makes it easier for the gang to recruit new members. Shooting at an inhabited dwelling ben efits the gang for the same reasons. It also intimidates the public. “[I]f the public sees they’re just shooting at a house and have total disregard for everybody inside the house, they know that that could be their house. If they go tell law enforcemen t

. . . this is what they saw, if somebody finds out, they could be getting shot at.”8

Schumacher said a gang member who testifie d against another gang member or about something that would harm the organization “could have some type of retribution

. ” He would be considered a snitch, and “ ‘ [s] nitches get stitches

. ’ ” T heir families “and anybody else associated closely with them” would be threatened. Gang members are not the only ones who suffer retribution. A snitch “can be anybody.”
Rowe describe d his investigation. He authenticated the recordings of his
interviews with Santoyo and Contreras , and they were played for the jury. The jury viewed photographs that Rowe had taken and a diagram of the apartment

. D efendant’s uncle Saloman Garcia testif ied for the defense. He and his family arrived at his brother’s house in Castroville around 9:50 p.m. that New Year’s Eve. “We were trying to get there before ten, before that new show came out

. . . Jersey Shore

. ” A
littl e after 10:00 p.m. , he and his niece left to buy sodas

. T hey returned and were getting
out of the car when Saloman heard “maybe about between four and five” shots

. A “couple seconds later that’s when [defendant] pops out the top window and tells us that there was shooting happening an d to get inside the house.” Saloman conceded that he did not share that story until the week before he testified. Defendant’s 16

- year

- old sister S elena testified that she accompanied her uncle to
the store

. They left “ [ a ] little before ” 10:00 p.m. She heard “four or more gunshots” when they returned, and defendant “popped out his head and said get in the house.” Defendant’s mother Guadalupe Nicasio said she was upstairs in her daughter Jennifer’s room around 10:00 p.m. that evening getting ready to g o to a party. Her daughters Vanessa and Selena were w ith her . Defendant was sitting on Jennifer’s bed watching Jersey Shore

. He was in the room with Nicasio “the whole time.” The house “was chaos” with grandchildren and family members

. Nicasio did not hear gunshots. Nicasio maintained that her various statements about defendant’s whereabouts around 10:00 p.m. were “consistent.” He “ was in and out.” He was “up and down the
stairs. He could have been

-- he was downstairs, he was upstairs” wh en the commotion9

occurred. H er son Daniel came into the room “and said there was gunshots.” Defendant came back into the room “[r]ight away.” “[H]e came right back up stairs [ sic ]” and “stood by the window” that faces the alley , “concerned for his siste r and his uncle to get inside.”
Nicasio testified that t he deputies arrived “like maybe 15, 20 minutes after Selena and them got home.” Nicasio told the m that she was with defendant “the whole time.”
She asked them to review the Santoyo family’s survei llance video and to do a gunshot
residue test. Three days later, the deputies returned with a search warrant. “They were looking for a .45 caliber gun.” They took jerseys, shoes, and CD ’ s. They did not find a
gun. Nicasio told the jury that she went to get her mail about a month before trial and

saw Santoyo and another man painting an apartment. The man was Santoyo’s brother Gogie . He waved to her, and Nicasio “took it upon [herself]” to approach “as a friendly gesture.” She told Gogie that she did not want the family to feel “like we were, you know, enemies because we’re not enemies.” She testified that Santoyo told her that he “didn’t have any problems with anybody.”
Nicasio testified that Santoyo approached her two weeks later when she w as outside speaking with her neighbors . “And, uh, and, uh, before the conversation was over, he told me that, um, before

-- that he goes the guy who did the shooting, he goes, pulled a gun on me twice before.” Santoyo did not tell Nicasio who that person was. “He just told me it was somebody, you know, I guess he grew up with.” She assumed Santoyo was talking about the New Year’s Eve shooting. Neighbor Roscoe Scally t old the jury that he knew defendant’s and the Santoyo s’
families “wel l” because he lived “literally in the middle of them” on Jackson Street. He met defendant two days before the shootings when defendant offered to help him move something off his truck. He knew Santoyo “through his kids.” Scally had pool tables and10

weigh ts at his house . “[P]retty much every kid that lives on that street,” including Santoyo’s two young children, used his house as a recreation center. Scally had moved from Los Angeles to Castroville “to get away from that [gang] stuff.” He was involved in a gang in Los Angeles but was not a gang member “in the [sense] of anything that pertains here.” He had “a couple ” felony convictions, including

one for armed robbery. Scally described a conversation he “very recently” had with Santoyo

. It occurred in April 2011, “right after I guess he had spoke to [defendant’s ] mother.” The conversation gave Scally “the impression” that Santoyo “didn’t feel comfortable [ with ] what was going on.” Santoyo “felt he didn’t want to testify.” He told Scally that he
kn ew who shot at him because the person pulled a gun on him twice before. The person’s street name was Pelon. Scally believed that Santoyo was talking about the New Year’s Eve incident “ based on

-- I didn’t know of another incident.” Pelon died “sometime this year or at the end of last year.” After his conversation with Santoyo, Scally “went and talked to [defendant’s mother] myself.” Santoyo testified in rebuttal that he did not tell defendant’s mother or Scally that someone else was the New Year’s Eve shooter. He did not tell Scally that Pelon was the
shooter. After deliberating for about three and a half hours, the jury returned guilty verdicts on both counts and found the enhancement allegations true. Defendant was sentenced as previously described . He filed a timely notice of appeal.

II. Discussion
A. Admission of Prosecutio n Investigator Rowe’s Testimony

1. B ackground
Rowe testified that he had 34 years of experience in law enforcement , 28 of those conducting investigations, partic ularly gang

- related investigations. During a five

- year11

assignment at a maximum security prison , he investigated “in the neighborhood of 2,500

- plus gang

- related crimes

. . . . ” He had been employed as an investigator by the Monterey County District Attorn ey’s Office for the previous 11 years . He had extensive experience working with crime victims and witnesses , verifying their statements , and assisting them through the court process. He had conducted “countless” interviews, “[t]housands probably

. ” The prosecutor told Rowe, “I’d like to talk to you a little bit more about your experience with victims and witnesses

. ” “ Approximately how many victims of gang crimes have you worked with?” Defense counsel interposed a one

- word “relevance” objection. A n unreported bench conference followed. The prosecutor then asked Rowe, “Based on your training and experience in that line so far, is it common or uncommon for victims and witnesses to change their story when they testify?” Rowe responded,

“ C ertain victi ms will or do

. ” “ Gang

- related victims, [domestic violence victims].” Defense counsel objected that the question called for a narrative. The trial court
i mplicitly overrul ed that objection , and R owe finish ed his answer. “ [V] ictims of [domestic violence] often recant, as well as gang

- related victims or victims of organized crime.” 2. Analysis Defendant challenges the admission of Rowe’s testimony about recanting victims

on several grounds. He argues that the prosecution did not offer Rowe as an expert witness and the court did not expressly qualify him as such, so his testimony must be
viewed as improper lay opinion evidence. Defendant also argues that the admission of Rowe’s testimony usurped the jury’s function as the sole arbiter of witness credibi lity and lessened the prosecution’s burden of proof in violation of his rights to due process and a fair trial. The Attorney General counters that defendant forfeited the argument.12

We agree with the Attorney General. Defendant raised none of these argu ments below. They are forfeited on appeal. (Evid. Code, § 353 ; People v. Partida (2005) 37 Cal.4th 428, 435 ( Partida ) .)
Defendant argues that he interposed a relevance objection when the prosecutor sought “to lay the groundwork for the target question” and asked Rowe how many victims of gang crimes he had worked with. Defendant claims i t would have been futile
to “reassert” his relevance objection because the court had already rejected it. The argument lacks merit. “A verdict or finding shall not be se t aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to

. . . the evidence that was timely made and so stated as to make clear the spe cific ground of the objection or motion.” (Evid. Code, § 353 ; P artida , supra , 37 Cal.4th at p. 435.) “ ‘ Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence. ’ [Citation.]” ( People v. Boyette (2002) 29 Cal.4th 381, 424 ( Boyette ).) “ ‘ “ While no particular form of objection is required [citation], the objection must be made in such a way as to alert the trial court
to the n ature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.” [Citation.]’ [Citations.]” ( People v. Rivera (2011) 201 Cal.App.4th 353, 361.)
D efendant’s relevance o bjection lacked the requisite specificity. The single word “relevance” provided no hint that the objection was based on the failure to formally qualify Rowe as an expert . This was an oversight that the prosecutor and the court could easily have corrected

. Defendant’s single word “relevance” objection did not suggest that the prosecutor’s question called for improper lay opinion testimony either

. The one

word objection was plainly insufficient to alert the trial court to the basis on which
exclusion of t he evidence was sought or to afford the People an opportunity to establish13

its admissibility. ( Rivera , supra , 201 Cal.App. 4th at p. 361.) It did not preserve defendant’s argument for appeal. (Evid. Code, § 353 ; Partida , supra , 37 Cal.4th at
p. 435.) We would reject defendant’s argument e ven if he properly preserved it

. Defendant does not challenge Rowe’s qualifications. On the contrary, he concedes that Rowe had “considerable experience interviewing crime victims, including gang

- crime victims.” His complaint is that “the court did not qualify [Rowe] as an expert, nor did the prosecution proffer him as one

. ” But t h at does not render Rowe’s testimony
inadmissible. “[W]hile Evidence Code section s 720 , subdivision (a), and 802 provide that the pers on testifying as an expert must be qualified by special knowledge, skill and experience, these foundational requirements need not be established in the absence of a specific objection or unless the court, in its discretion, requires it.” ( People v. Rodri g uez (1969) 274 Cal.App.2d 770, 776.) Defendant raised no such objection below , and the trial court did not require expert qualification

.

B . Sufficiency of the Evidence to Support the Gang Enhancement s Defendant contends that the true finding s on the ga ng enhancements must be
reversed because there was insufficient evidence to support a finding that his crimes were
committed “ for the benefit of , at the direction of, or in association with a criminal street
gang. ” (§ 186.22, subd. (b)(1).) We disagree

.

“ We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] ” ( People v. Wilson (2008) 44 Cal.4th 758, 806.) “ [W] e review the entire record in the light mo st favorable to the judgment to determine whether it contains substantial evidence

— that is, evidence that is reasonable, credible, and of solid value

— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact i n support of the judgment the trier of fact could have reasonably deduced from the14

evidence. ( Ibid. ) If the circumstances reasonably justify the trier of fact ’ s findings, reversal of the judgment is not warranted simply because the circumstances might al so reasonably be reconciled with a contrary finding. [Citation.] ‘ A reviewing court neither reweighs evidence nor reevaluates a witness ’ s credibility. ’ ” ( People v. Albillar (2010) 51 Cal.4th 47, 59

- 60 (

Albillar ) .)
Section 186.22 authorizes an enhancement when a defendant is convicted of a felony “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1). ) “ Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was ‘committed for the benefit of

. . . a []
criminal str eet gang’ within the meaning of section 186.22(b)(1) . [Citations.]” ( Albillar , supra , 51 Cal.4th at p. 63.) Here, there was ample evidence that defendant ’s crimes were committed for the benefit of his Northside Castroville gang. Defendant admitted that he was a Norteño and bragged about being “ active to the fullest” when outside his home

. There was evidence to support an inference that Santoyo was once associated with the Sureños

. Santoyo admitted participating in gang activities in high school . He r eferred to an arrest for “a gang crime” and to a conviction for displaying a firearm in public. Evidence that defendant lived in the neighborhood as a child supported an inference that he was aware of Santoyo’s Sureño gang ties.
T he jury heard e xpert testimony that Norteños and Sureños are rivals and that
Castroville is largely Norteño territory

. Schumacher explained that attacks on rival gang members help the gang establish its territory by forcing rivals to move out of the area, which “allows more Norteños . . . to move in.” He explained that the attempted murder of a rival gang member benefits the gang by “put[ting] the notoriety out for everybody to see.” Th at brings attention to the gang and makes recruitment easier. Shooting at an15

inhabi ted dwelling benefits the gang for the same reasons. It also intimidates the public.
We conclude that t here was sufficient evidence to supp ort the true findings on the gang enhancement allegations.
Defendant argues that there was “no evidence ” that his t hree victims were rival gang members

. Although h e concedes that Santoyo had been a Sureño “as a boy ,” he
claims there was no evidence Santoyo remained a gang member 10 years later. Whether Santoyo remained a gang member is not dispositive. Schumacher

t estified that Norteños establish their territory by forcing rivals “ or people who are not
like them to m ove out of the area.” As a former Sureño, Santoyo was “not like” Northside Castroville gang members

. T he jury could reasonably have concluded that
defendant shot at him for that reason. Defendant highlights Santoyo’s testimony that he separated himself from the gang lifestyle when he was 17. To the extent the jury believed Santoyo’s testimony , it could reasonably have concluded that defendant was not aware of Santoyo’s claimed disassociation from the gang because defendant had only recently returned to the neighborhood. Santoyo’s response when he was asked whether “people” who saw him on the street recognized his separation from the gang bolster ed that conclusion . He responded, “Well, they don’t tell me nothing . . . . I don’t tell them nothing.” Santoyo’s
statements about “the way I look” and how “I dress up” when Rowe asked him if defendant believed his family were Sureños further supported a conclusion that defendant believed Santoyo was still a Sureño . We conclude that there was substantial evidence
fro m which the jury could have found that defendant believed Santoyo was a rival gang
member and shot at him for that reason. Sufficient eviden ce thus supported the element that defendant committed his crimes “for the benefit of

. . . a criminal street gang. ” (§ 186.22, subd. (b)(1).) Defendant does not challenge the sufficiency of the evidence to support any other element s of the gang enhancem ents . It follows that the true findings were supported by sufficient evidence.16

Defendant’s reliance on People v. Martinez (2004) 116 Cal.App.4th 753 ( Martinez ) is misplaced. In Martinez , the trial court imposed a gang registration requirement on a defen dant convicted of auto burglary. T he issue on appeal was whether sufficient evidence supported the trial court’s finding that the crime was “gang related” within the meaning of section 186.30, subdivision (b)(3). ( Martinez , at p. 756.) The

c ourt held that it did not because “nothing in the record connected [the] defendant’s conviction to gang activity.” ( Id . at p. 762.) Here, unlike in Martinez , there was
substantial evidence that defendant shot at Santoyo because he perceived him to be a rival gang member. Martinez is inapposite

. People v. Albarran (2007) 149 Cal.App. 4th 214 ( Albarran ) and In re Frank S. (2006 ) 141 Cal.App.4th 1192 ( Frank S .) are also inapposite

. Albarran says nothing about the sufficiency of evidence to support gang enhancement allegations. The gang enhancement allegations in that case were dismissed. ( Albarran , at p. 222.) In Frank S .,

a gang expert opined that a minor possessed a knife for the benefit of a criminal street gang. ( Frank S ., at pp. 1195

- 1196 .) The trial court agreed . ( Ibid .) T he C ourt of Appeal
reversed , because there was no evidence other than t he gang expert’s opinion regarding
gangs in general and her improper opinion on the ultimate issue of the minor’s specific
intent to support the juvenile court’s finding . ( Frank S

. , at pp

. 1192 , 1199 .) Here, unlike
in Frank S. , the gang expert did not improperly offer an opinion on the ultimate issue

. That issue was left for the jury to decide. Defendant’s reliance on Albarran and Frank S. is misplaced

.

C. Exclusion of Evidence
Defendant challenges the excl usion of evide nce of “two prior incidents in which [his] family members were accused by Santoyo family members of shooting or threatening them.”17 1. Defendant’s Cousin’ s Testimony

a. Background Santoyo’s mother was struck by bullets fired at her house on August 12, 2009. Deputies detained d efendant’s cousins Jeremy and Mitchell Rios , who lived nearby on
Jackson Street

. The y and a visiting friend were held for several hours on the street
outside the Rios’s house and released after gunshot residue tests were performed.
Toward the end of the prosecution ’s case

- in

- chief , the defense moved to recall Santoyo to elicit “information whether as a result of his accusations , ” d efendant’s cousins
and their friend were detained f or “roughly three or four hours

. ” Th e trial court conducted an Evidence Code section 402 hearing at which Jeremy testified

. He told the

court he heard gunshots that night . A little later, he heard a man “yelling at my house.”
He believed the “elderly” man was “a relative” of the Santoyos. Jeremy called 911.
When the p olice arrived , they detained him, Mitchell, and their friend Eunice in separate
vehicles outside his house

. Jeremy claimed deputie s told him that “[t]hey’re saying that I was the one that shot their mom.” Deputies did not name his accuser s

. Jeremy was “sure” the person he saw screaming outside his house was not Santoyo. He conceded that the deputies never said S antoyo accused him . “[T]hey just kept saying ‘them’ and ‘they,’ so I took it as the whole family was saying that I did it.” The trial court excluded the proffered evidence as irrelevant because there was no evidence tying Santoyo to a ny false accusation

. The court explained that “ [t] he only mention of James Santoyo in the entire [police report of the incident] is the following day . . . there’s nothing in the report to indicate he was present at the time of the shooting at his mother’s residence. He was n ot interviewed by the police on the 12th. He didn’t identify anyone on the 12th. He didn’t indicate which house the suspects allegedly came from. [¶] He’s contacted on the 13th at his mother’s residence, and his entire participation was to say that his mother had returned from the hospital, was resting and didn’t feel well enough to give a statement

. . . . [¶] There’s absolutely nothing in the18

report indicating he had anything to do with identifying anyone in regards to this shooting.” b. Analysis Defendant argues that the false

- accusation evidence was relevant to impeach his
three victims’ identifications of him as the New Year’s Eve shooter. We disagree. “Only relevant evidence is admissible, and the trial court has broad discretion to
determine the relevance of evidence.” ( People v. Cash (2002) 28 Cal.4th 703, 727.) “A trial court’s rulings on relevance and the admission or exclusion of evidence are reviewed for abuse of discretion.” ( People v. Aguilar (2010) 181 Cal.App.4th 966, 973.)
T he tr ial court did not abuse its discretion in excluding Jeremy’s testimony

. Jeremy conceded that deputies never named his accusers

. T here was “absolutely nothing” in their report to indicate that Santoyo had anything to do with identifying anyone involved in the shooting. Jeremy did not see Santoyo in the area that night.
There was no evidence that Santoyo was present. The proffered impeachment testimony suggested nothing about Santoyo’s veracity. On this record, it was not an abuse of
discretion to exclu de the proffered impeachment testimony.
D efendant claims the proffered testimony was also relevant to impeach Marisela ’s
and Contreras ’s identifications of him as the shooter. His failure to raise that argument below forfeited it on appeal. ( People v. Ha rtsch (2010) 49 Cal.4th 472, 496.) He also forfeited his argument that Jeremy’s testimony was relevant to establish that the shooting
was committed because of a “family feud ” rather than for the benefit of a criminal street gang. ( People v. Morrison (2004) 34 Cal.4th 698, 712 .)
2. Defendant’s Brother ’ s Testimony

a. Background The defense sought to introduce evidence that Santoyo wrongly accused defendant’s brother Daniel of brandishing a gun at him. Defense c ounsel told the court
that police went to defendant’s residence o n May 20, 2011, questioned his mother, and19

searched the house for Daniel . Daniel was at work in Seaside at the time. Police telephoned him there, and that was the end of the matter. Defense c ounsel told the court
the police “i ndicated ” that the person who accused Daniel was “ the person that lived on the corner of Wood and Jackson Street.” Defendant’s mother would testify about the
incident. “ Daniel would testify that he always saw [Santoyo] outside. And while they didn’t name [Santoyo] in particular, that it couldn’t be anybody but [Santoyo] that had identified him.”
T he trial court excluded the evidence as irrelevant. The court noted that there was “a whole group of males” in the Santoyo family . It observed “that there’s nothing that would place [Santoyo] as the person who erroneously identified Daniel on that date. There’s absolutely no police report that [Santoyo] even called the polic e.” The prosecutor confirmed the court’s understanding . She represented that she contacted the sheriff’s division and personally reviewed “every single report” that mentioned Santoyo “going back to 2004.” She found no indication that Santoyo had accused “anybody in the Garcia family” of a ny shooting or brandishing.
The court ruled the evidence inadmissible. “I don’t find it to be relevant. I don’t find any identification of [Santoyo] that would go to his credibility or show some motive
of his to fabri cate . . . .” The court cited Evidence Code section 352 as a second ground for excluding the evidence. “ Pursuant to 352, it would cause a mini

- trial. We would be proving up and disproving events that may or may not have happened. I don’t find that it

w ould be probative. I think it would confuse the jury . . . .”
b . Analysis
Defendant argues that the evidence was relevant to impeach his three victims’ credibility by establishing the Santoyo family’s bias against him and his family

. He contends that the trial court abused its discretion in excluding it because it “had great probative value and posed no risk of undue prejudice as that term is used in section 352.” We disagree.20

Evidence Code section 352 gives the court discretion to ex clude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. ” An appellate court will not disturb a trial court’s exercise of discretion in admitting or e xcluding evidence “except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifes t miscarriage of justice [citation].” ( People v. Rodriguez (1999) 20 Cal.4th 1, 9

- 10.)
There was no abuse of discretion here. The link between the Santoyos and the alleged false accusation was tenuous. Daniel’s proffered testimony that “it couldn’t be anybody but [ Santoyo ] ” w as entirely speculative. There was no police report of the
incident . There was no report that Santoyo called police on May 20, 2011

. The prosecutor’s review of “every single” poli ce report “going back to 2004” strongly suggested that to the extent a brandishing occurred, someone other than a Santoyo family member reported it. The Santoyos’ house was not the only one that fit the description “on the corner of Wood and Jackson Stree t.” A resident of a different house on the
corner coul d have witnessed and reported a brandishing. The proffered testimony provided only a speculative link between the alleged false accusation and the Santoyos

. Thus, it was only marginally probative.
The mar ginal probative value of the proffered evidence was greatly outweighed by
the likelihood that it would consume an undue amount of time and confuse the jury. A s the trial court correctly noted, a dmi ssion of the evidence would require mini trials to establish whether the alleged events happened and how, if at all, Santoyo and/or his family were involved. The potential for distracting the jury with tangential issues was great. Testimony from Daniel, his mother, his uncle, one or more officers, and w i tnesses offered by the prosecution would have consumed an undue amount of time. Exclusion of
the evidence was not an abuse of discretion.21

Defendant argues that exclusion of the false

- accusation testimony v iolated his constitutional rights to present a defense and to due process. We disagree

. “[T]he application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution . . . .” ( People v. Marks (2003) 31 Cal.4 th 197, 226

- 227.) Nor do those rules impermissibly infringe on the accused ’ s right to present a defense

. ( Peopl e v. Jones (1 998) 17 Cal.4th 279, 305 .) “ ‘ [ S ] tate and federal rulemakers
have broad latitude under the Constitution to establish rules exclud ing evidence from criminal trials.’ [Citations.] This latitude, however, has limits. ‘Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense. ” ’ [Citations.] This right is abridged by evidence rules that ‘infring[e] upon a weighty interest of the accused’
and are ‘ “ arbitrary” or “disproportion ate to the purposes they are designed to serve. ” ’ [Citations.]” ( Holmes v. South Carolina (2006) 547 U.S. 319, 324

- 325 ( Holmes ).)
T he re was no application of an “ ‘ “ arbitrary ” ’ ” state rule of procedure here

. ( Holmes , supra , 547 U.S. at p. 324.) N or was exclusion of the evidence

“ ‘ disproportionate to the purposes ’ ” that Evidence Code section 352 is designed to serve. ( Holmes , at p. 324

. ) Here, u nlike in the cases he cites, defendant was not denied access to information necessary to prepare his defense

. ( Pennsylvania v. Richey (1987) 480 U.S. 39, 56

. ) He was not precluded from testifying on his own behalf

. ( Rock v. Arkansas (1987) 483 U.S. 44, 52

- 53; People v. Bradford (1997) 15 Cal.4th 1229, 1332

. ) The

ex cluded evidence did not involve thir d party culpability ( Chambers v. Mississippi (1973) 410 U.S. 284) or the way in which a confession was obtained. ( Crane v. Kentucky (1986) 476 U.S. 683, 690.) Defendant’s constitutional rights were not violated.22 3 . Claimed Ineffective Assistance of Coun sel
Defendant argues that his trial counsel was prejudicially deficient to the extent he forfeited arguments about the relevance of the family

- feud and false

- accusation evidence

. We disagree. A defendant seeking reversal for ineffective assistance of coun sel must prove both deficient performance and prejudice. ( People v. Ledesma (1987) 43 Cal.3d 171, 218;
Strickland v. Washington (1984) 466 U.S. 668, 687 ( Strickland ).) The first element “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” ( Strickland , at p. 687.) The court “must judge the reasonableness of counsel ’ s chal lenged conduct on the facts of the particular case, viewed at the time of counsel ’ s conduct.” ( Id. at p. 690.) When
counsel ’ s conduct can reasonably be attributed to sound strategy, a reviewing court will presume the conduct was the result of a competent tactical decision, and defendant must overcome that presumption to establish ineffective assistance. ( Ibid. ) “Second, the defendant must show that the deficient performance prejudiced the defense.” ( Id. at
p. 687 .) A court deciding an ineffective ass istance claim does not need to address the elements in order, or even to address both elements if the defendant makes an insufficient showing on one. ( Id . at p. 697.)
Defendant c laims his trial counsel was deficient in failing to argue that the false

accu sation evidence was relevant to attack not only Santoyo’s but also Marisela’s and
Contreras’s identification testimony

. Not so. Because nothing tied Santoyo to any false accusation, t he trial court properly excluded the evidence as irrelevant. T here was a similar lack of evidence tying Marisela or Contreras to the claimed false accusations . We
find n othing in the record to suggest that Marisela and Contreras were present when Santoyo’s mother was shot late at night in her home. Jeremy conceded that “the only one that I seen that lived at the apartments was the elderly man that was in front of my house yelling that night.” Th e argument that d efendant claims his counsel should have made23

has no support in the record . The failure to make a meritle ss argument is not deficient performance. ( Strickland , supra , 466 U.S. at p. 676 .)
Defendant c laims his trial counsel was deficient in failing to argue that the false

accusation evidence was relevant to show a personal rather than a gang motive for the shooting

. He argues that t he trial court recognized the existence of a feud and would
have been receptive to an argument that the evidence was relevant to prove motivation

“ for a Garcia to make an ill

- advised, personally

- motivated, non

- gang

- related attac k on the Santoyos

. ” He maintains that t he trial court would have admitted the evidence . He
thus asserts that it is reasonably probable that he would have achieved a more favorable outcome on both the substantive charges and the gang enhancements. We can not agree. Evidence that a ny Santoyo family member falsely accused Jeremy and/or Daniel was exceedingly we a k, and there was no other evidence of a family feud. The evidence

was to the contrary. Santoyo told Rowe that Daniel did not cause problems like
defendant did. D e fendant’s mother testified that her daughter went to high school with
and was “currently” friends with Marisela. Defendant’s mother also testified that she told Santoyo’s brother Gogie that she did not want the Santoyos to feel like the families were enemies “ because we’re not enemies.” Santoyo and Contreras said the neighborhood was quiet b efore defendant moved back , and it became quite again after his arrest. T here were “[n]o s hootings at all no more.” The fact that there was no evidence that anyone but defendant was feuding with the Santoyos support ed an inference that the feud was gang

- related. Given the weakness
of the false

- accusation evidence to support a family feud, th e strength of the evidence supporting a conclusion that defendant and Santoyo associated with rival gangs, and the lack of any evidence to suggest a “personal” rather than a gang

- related basis for defendant’s feud with the Santoyos, his tr ial counsel could reasonably have concluded that emphasizing the existence of a family feud would not advance his client’s position.24

A competent tactical decision is not deficient performance. ( Strickland , supra , 466 U.S. at p. 689.) Defendant’s trial counsel did not render ineffective assistance.

III. Disposition The judgment is affirmed

.

___________________________ Mihara, J.

WE CONCUR:

_____________________________ Premo , Acting P. J.

_____________________________ M árquez , J.