Filed 2/6/14 P. v. Garcia CA2/6 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SIX 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

BRAULIO S. GARCIA, 

 Defendant and Appellant. 

2d Crim. No. B241780 

(Super. Ct. No. LA065394) 

(Los Angeles County) 

 Braulio S. Garcia appeals from the judgment following his conviction by 

jury of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664, 187, 

subd. (a));1 possession of a firearm by a felon (former § 12021, subd. (a)(1)); and 

attempted criminal threats (§§ 664, 422). The jury found true allegations that appellant 

personally used a firearm in the attempted murder (§ 12022.53, subds. (b) & (d)), and that 

he intended to benefit a criminal street gang when he attempted to murder and threaten 

the victim (§ 186.22, subd. (b)(1)(C)). The trial court sentenced him to state prison for 31 

years to life. Appellant contends the trial court violated his Sixth Amendment right to 

confrontation in finding the victim was unavailable for trial and admitting his preliminary 

hearing testimony, and deprived him of his right to present a defense by excluding the 

victim's statement expressing fear of third parties. He also challenges the sufficiency of 

 1 All statutory references are to the Penal Code unless otherwise stated. 
2 

the evidence to support his attempted criminal threat conviction and the finding that he 

intended to benefit a gang when he attempted to threaten and kill the victim. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

Attempted Criminal Threat - June 2010 

 In early June 2010, Francisco Bautista left his Variel Street residence in 

Canoga Park to walk to work. Juan Tellez nearly hit Bautista with his truck. He 

recognized Juan, who lived with his brother Jose, across the street from Bautista. Juan 

and Jose were known as the "Michoacán brothers." Appellant, whom Bautista knew as 

Necio, was with Juan. Bautista argued with Juan and pushed him. During the fight, 

appellant told Bautista, "Be very careful. When I was out of jail I killed two people. I 

killed two people in El Cielito. You don't know who I am[.] I know who you are. . . . I'm 

Canoga." Minutes later, Bautista continued walking to work. 

June 21, 2010, Attempted Murder 

 On June 21, 2010, just before 8:00 p.m., Bautista and several other men 

were gathered in the back yard of Carlos Padillos' equestrian property at 7449 Eton 

Avenue in Canoga Park. Bautista was sitting at a table, drinking beer and talking with 

other men. About 10 minutes after Bautista's arrival, appellant arrived with two men 

known as "Sicko" and "Flaco." They approached Bautista. Sicko greeted Bautista 

briefly, then stepped aside. Appellant, who had been behind Sicko, said, "Here you go[,] 

[h]ere you go[, [c]]abron," and shot Bautista from a distance of about 15 feet. Sicko is 

the moniker of Canoga member Alejandro Flores. 

 Everyone except Padillos fled from his back yard immediately after the 

shooting. Los Angeles Police Department Officers Eloy Navarro and Cesar Flores 

responded to an "ambulance shooting" call at 8449 Eton Avenue. They found Bautista 

lying in a pool of blood in the front yard of a residence. When asked who shot him, 

Bautista responded, "The Michoacán brothers did it." He gave Navarro their address at 

8325 Variel Avenue, apartment 19. Bautista said, "I think I'm going to die." An 

ambulance took him to a hospital, where he remained for 22 days. As a result of the 

shooting, Bautista must wear a colostomy bag. 
3 

 Several officers immediately went to the Tellez apartment. One of the 

Tellez brothers answered the door. They both complied when officers directed them to 

step outside. Officers handcuffed and detained both Juan and Jose before searching the 

apartment. Officer Peter Victorino found a .45-caliber semiautomatic handgun and an 

empty magazine hidden inside the apartment's wall heater. The gun was not loaded. 

Victorino also found a .38-caliber revolver in the family room. It was concealed under a 

bag, inside a trash container. The officers found appellant hiding under a bed. 

 While investigating the crime scene on the night of the shooting, Detective 

Foster Rains recovered seven expended .45-caliber cartridge casings and one expended 

projectile from Padillos' back yard. Subsequent testing established that all seven 

cartridge casings were fired by the .45-caliber handgun. 

 Jose Diaz testified that he was sitting with Bautista at the table in Padillos' 

back yard on June 21, 2010. He saw two men approach Bautista and say something like, 

"What's up?" The men moved away quickly and appellant shot Bautista. Appellant and 

his companions left. Bautista fell and Diaz hid behind a fence. When Diaz came back 

out, everyone was gone. 

 On June 21, 2010, Officer Juan Estrada took Padillos from his residence to 

the Tellez apartment on Variel. Padillos was crouching in the back seat of the police car, 

and sought reassurance that the suspect (appellant) could not see him. Padillos saw 

appellant and said, "Yes. That's him. I saw him running away from my backyard . . . 

after I heard the gun go off." Later that night, while he was alone with Officer Navarro in 

his back yard, Padillos said, "You have the right guy. You have the right guy. You have 

him. You have the right guy." At the time, Padillos seemed fearful, his voice quivered, 

and he was whispering although the back yard was empty. At trial, Padillos testified he 

heard gun shots but did not see the shooting because it occurred while he was busy caring 

for his horses. Padillos also denied that he saw the Michoacán brothers that night. He 

further testified he did not recall that he spoke with police officers that night or 

accompanied them to identify a suspect. 
4 

DISCUSSION 

Evidentiary Claims 

I 

Admission of Victim's Preliminary Hearing Testimony 

 Appellant argues that the trial court erred and violated his constitutional 

right to confrontation by admitting Bautista's preliminary hearing testimony because the 

prosecution did not exercise due diligence to secure his presence at trial. Appellant 

makes a related argument that his counsel's concession of due diligence at trial deprived 

him of the effective assistance of counsel. Respondent argues that appellant waived this 

claim by conceding the due diligence issue. Waiver aside, we reject appellant's 

arguments as meritless. 

 Bautista testified at appellant's preliminary hearing, and was crossexamined by counsel. Bautista failed to appear at trial, despite his repeated assurances 

that he would do so. The prosecution moved to introduce Bautista's preliminary hearing 

testimony at trial, based upon his unavailability. During the hearing on its motion, the 

prosecution presented the following evidence of its efforts to secure Bautista's attendance 

at trial: 

 In September 2010, Bautista went to Mexico to seek medical treatment for 

his gunshot wounds. He provided the prosecution with telephone numbers and addresses 

of his mother and his brother. In late October, Detective Ray Diaz received inquiries 

from Bautista about the status of this case. Diaz sensed that Bautista might be somewhat 

hesitant to testify, and fearful of retaliation. 

 On March 17, 2011, and May 4, 2011, Diaz sent email messages to 

Bautista. He did not reply. Diaz sought assistance from Department of Homeland 

Security Special Agent David Baltazar to contact Bautista in Mexico. Baltazar tried to 

contact Bautista by telephone. He eventually reached his brother, Rigoberto, who 

provided Baltazar with a different telephone number for their mother. Baltazar tried but 

failed to reach anyone at that number. Baltazar next called Rigoberto and asked him to 

convey a message to Bautista. He agreed to do so. 
5 

 On July 7, 2011, Bautista telephoned Baltazar. Bautista said he "was doing 

well health wise, but . . . needed financial assistance." On July 20, 2011, Baltazar told 

Bautista he needed to come to the United States to testify at trial. Bautista said he was 

willing to do so. Baltazar tried to contact Bautista in October 2011, to check on his 

status. He also called Rigoberto and learned Bautista no longer had a cell phone. On 

January 9, 2012, Baltazar called their mother's number and spoke with Rigoberto, who 

said Bautista was working in the field. Baltazar left a message asking that Bautista call 

him. 

 Baltazar called Bautista's number on January 17, 2012, and heard a 

recording with English and Spanish statements explaining he was no longer available or 

was out of the area. On January 19, 2012, Baltazar contacted Rigoberto and obtained 

Bautista's new telephone number. He reached Bautista, who again indicated he needed 

money. Bautista gave Baltazar another contact number. On January 20, 2012, Baltazar 

told Bautista the prosecution would take care of his travel expenses. Bautista said he 

wanted to stay in Mexico to care for his daughter. Bautista also told Baltazar he was 

afraid. Bautista "said the main reason for Michoacan is in Canoga Park [sic], and he was 

afraid to come over." Baltazar tried to call Bautista on January 30, 2012. His outgoing 

message stated his phone was outside the coverage area or no longer in service. 

Baltazar's subsequent attempts to contact Bautista were fruitless. 

 In February 2012, Homeland Security Special Agent Eddy Wang obtained 

a second "significant public benefit parole visa" for Bautista to enter the United States to 

testify at trial. (Wang had obtained another visa for Bautista in December.) 

 In response to the trial court's inquiry about the adequacy of the 

prosecution's efforts to secure Bautista's attendance at trial, appellant's counsel stated: "I 

can't see what more the D.A. could have done if . . . the victim, does not want to come. 

[A]s far as their exhausting all their remedies, I'm fairly familiar with immigration law. 

And I know it's pretty difficult to get somebody to come here for 90 days and have to 

leave. . . . So there are issues here with the colostomy bag and everything. He didn't want 

to be here, and they can't force him. He did not want to be here. I can't find any 
6 

objection to the due diligence argument. I think they've done everything they could 

outside of locking him up." The court found that the prosecution had exercised due 

diligence in trying to secure Bautista's attendance at trial. It further found that Bautista 

was afraid to attend trial. The court ruled that the prosecution could read Bautista's 

preliminary hearing testimony at trial. Appellant's counsel stated, "We're okay with the 

preliminary hearing transcript . . . as redacted." 

 We independently decide the issue of due diligence. (People v. Cromer

(2001) 24 Cal.4th 889, 901 [appellate courts should independently review trial court's 

determination that prosecution's failed efforts to locate an absent witness are sufficient to 

justify an exception to the defendant's constitutionally guaranteed right of 

confrontation].) 

 The constitutional right to confront witnesses is not absolute. (People v. 

Herrera (2010) 49 Cal.4th 613, 621.) An exception exists where a witness is unavailable 

but has given testimony at a previous judicial proceeding against the same defendant and 

was subject to cross-examination. (Ibid.) "Pursuant to this exception, the preliminary 

hearing testimony of an unavailable witness may be admitted at trial without violating a 

defendant's confrontation right." (Ibid.) This traditional exception is codified in 

Evidence Code section 1291, subdivision (a)(2). (Ibid.) 

 A witness is unavailable within the meaning of Evidence Code section 

1291 if he is "[a]bsent from the hearing and the proponent of his or her statement has 

exercised reasonable diligence but has been unable to procure his or her attendance by the 

court's process." (Evid. Code, § 240, subd. (a)(5).) Factors that the court should consider 

in determining whether the prosecutor has shown reasonable diligence include the 

timeliness of the search, the importance of the witness's testimony, and whether leads to 

the witness's possible location were reasonably explored. (People v. Thomas (2011) 51 

Cal.4th 449, 500.) We independently review the prosecution's claim of good faith and 

reasonable diligence. (People v. Herrera, supra, 49 Cal.4th at p. 623.) 

 In arguing that the "prosecution did not establish due diligence in securing 

[Bautista's] attendance at trial," appellant relies in large part upon People v. Sandoval
7 

(2001) 87 Cal.App.4th 1425, 1432. He argues that the prosecution should have sought 

assistance from Mexico, pursuant to its treaty with the United States concerning 

cooperation in criminal cases, to bring Bautista to California, or arrange for him to testify 

in Mexico. We disagree. 

 "An appellate court 'will not reverse a trial court's determination [under 

Evid. Code, § 240] simply because the defendant can conceive of some further step or 

avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained 

and substantial good faith efforts were undertaken, the defendant's ability to suggest 

additional steps (usually, as here, with the benefit of hindsight) does not automatically 

render the prosecution's efforts "unreasonable." [Citations.] The law requires only 

reasonable efforts, not prescient perfection.' [Citations.] 'That additional efforts might 

have been made or other lines of inquiry pursued does not affect [a] conclusion [there 

was due diligence] . . . . It is enough that the People used reasonable efforts to locate the 

witness.' [Citation.]" (People v. Diaz (2002) 95 Cal.App.4th 695, 706.) The 

requirements to establish due diligence and unavailability under Evidence Code section 

240, subdivision (a)(5) and the federal Constitution "are the same." (People v. Herrera, 

supra, 49 Cal.4th at p. 622.) 

 Here the prosecution expended considerable efforts to secure Bautista's 

attendance at trial. Bautista provided the prosecution with contact information (addresses 

and telephone numbers) for two of his relatives in Mexico. When the prosecution 

detective could not reach Bautista, he obtained help from the Department of Homeland 

Security. The prosecution detective and homeland security agents collectively attempted 

to contact Bautista, often with success, at least a dozen times following his September 

2010 departure for Mexico. In July 2011, Bautista told a homeland security agent he was 

willing to attend trial. A homeland security agent acquired a visa to facilitate Bautista's 

entering the United States to attend trial. When that visa expired, the agent acquired a 

second visa. After Bautista told the agent he needed financial assistance, the prosecution 

arranged to cover the expenses of his attending trial. The agent conveyed that 

information to Bautista. The record establishes that the prosecution exercised due 
8 

diligence to secure Bautista's attendance at trial. Consequently, trial counsel's concession 

of due diligence did not deprive appellant of the effective assistance of counsel. (In re 

Thomas (2006) 37 Cal.4th 1249, 1256, 1265 [ineffective assistance of counsel claim fails 

absent showing a reasonable probability that but for counsel's errors, the result of the 

proceeding would have been different].) 

II 

Exclusion of Evidence Relevant to Victim's Fear of Michoacán Brothers 

 Appellant further contends the trial court violated his constitutional right 

to present a defense by excluding Agent Baltazar's testimony describing statements 

Bautista made to him in January 2012. We disagree. 

 Before trial, the prosecution moved to exclude any reference to the reasons 

for Bautista's unavailability. Trial counsel objected and indicated his intention to call 

Agent Baltazar to testify that Bautista said he was afraid of the Michoacán brothers. 

Counsel argued that such statements were relevant to a key issue at trial, the identity of 

the shooter. Appellant subsequently filed a motion seeking to present the following 

portion of Baltazar's examination and testimony from the due diligence hearing: "Q Did 

[Bautista] mention in that contact that he was afraid to come back to the United States 

and testify? [¶] A He did state he was afraid. He said the main reason for Michoacán is 

in Canoga Park [sic], and he was afraid to come over." The court ruled the statement was 

inadmissible hearsay. It also excluded it pursuant to Evidence Code section 352,2

because it was unclear what Bautista meant when he said "Michoacán." 

 Appellant does not dispute that the proffered testimony constitutes hearsay. 

He argues the evidence was nonetheless admissible to impeach Bautista. The trial court 

properly rejected that argument below. (People v. Pearson (2013) 56 Cal.4th 393, 455 

 2 Evidence Code section 352 provides as follows: "The court in its 

discretion may exclude 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." 
9 

[exclusion of marginal impeachment evidence pursuant to Evid. Code, § 352 does not 

generally violate a defendant's constitutional rights to confrontation].) 

 The exclusion of the proffered testimony did not violate appellant's 

constitutional right to present a defense. In People v. Ayala (2000) 23 Cal.4th 225, 266, 

the defendant asserted that the trial court violated his constitutional rights by excluding 

potentially exculpatory but unreliable hearsay evidence. In rejecting his claim, our 

Supreme Court stated, "'[f]ew rights are more fundamental than that of an accused to 

present witnesses in his own defense. [Citations.] [But i]n the exercise of this right, the 

accused, as is required of the State, must comply with established rules of procedure and 

evidence designed to assure both fairness and reliability in the ascertainment of guilt and 

innocence.' [Citation.] Thus, '[a] defendant does not have a constitutional right to the 

admission of unreliable hearsay statements.' [Citations.] Moreover, both we [citation] 

and the United States Supreme Court [citation] have explained that Chambers [v. 

Mississippi (1973) 410 U.S. 284] is closely tied to the facts and the Mississippi evidence 

law that it considered. Chambers is not authority for the result defendant urges here." 

(Ayala, at p. 269; see also People v. Garcia (2005) 134 Cal.App.4th 521, 539 [exclusion 

of hearsay statement recounting another man's confession to charged crimes did not 

deprive defendant of fair trial]; People v. Abilez (2007) 41 Cal.4th 472, 503 [discretionary 

evidentiary ruling did not violate right to present a defense].) 

 "Application of [the] ordinary rules of evidence to . . . proffered testimony 

did not impermissibly infringe on defendant's right to present a defense." (People v. 

Morrison (2004) 34 Cal.4th 698, 725.) The trial court did not deprive appellant of his 

right to present a defense by excluding Bautista's hearsay statement concerning Bautista's 

fear of Michoacan. Moreover, even if the exclusion of that evidence did constitute error, 

it would be harmless under any standard of review. (Chapman v. California (1967) 386 

U.S. 18, 24 [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 

818, 836 [harmless error].) Although Bautista originally told officers that the 

"Michoacán brothers did it [shot him]," he unequivocally identified appellant as the 

shooter when officers showed him a photographic lineup. Bautista explained that he 
10 

initially said the Michoacán brothers "did it," "because the fight was with them and . . . 

Necio [appellant] always hangs out with them." When asked how certain he was that it 

was Necio who shot him, Bautista responded that he "was in front of me [and] I'm not 

going to forget that face." Jose Diaz, who was sitting right next to Bautista when he was 

shot, identified appellant as the shooter. He had no doubt "[b]ecause [he] saw his face 

right in front of [him]." Padillos knew the Michoacán brothers, and said they were not at 

the scene during the shooting. Before trial, Padillos identified appellant as the shooter. 

When officers arrived at the Tellez apartment, Juan and Jose cooperated with them. In 

contrast, appellant was hiding under a bed, where he remained until officers found him, 

which provided strong evidence of his consciousness of guilt. 

III 

Substantial Evidence Claims 

 Appellant claims there is not sufficient evidence to support his conviction 

of an attempted criminal threat or the gang enhancement findings. The record belies his 

claims. 

 "When the sufficiency of the evidence to support a conviction is challenged 

on appeal, we review the entire record in the light most favorable to the judgment to 

determine whether it contains 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.] 'Conflicts and even testimony which is subject to justifiable suspicion 

do not justify the reversal of a judgment, for it is the exclusive province of the trial judge 

or jury to determine the credibility of a witness and the truth or falsity of the facts upon 

which a determination depends.' [Citation.] Unless it describes facts or events that are 

physically impossible or inherently improbable, the testimony of a single witness is 

sufficient to support a conviction. [Citation.]" (People v. Elliott (2012) 53 Cal.4th 535, 

585.) The substantial evidence standard also applies to gang enhancement findings. 

(People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) 
11 

Substantial Evidence - Attempted Threat 

 Appellant argues that there is insufficient evidence to support his attempted 

criminal threat conviction because his statements to the victim do not amount to a threat 

to commit a crime. We disagree. 

 Section 422 makes it a crime to "willfully threaten[] to commit a crime 

which will result in death or great bodily injury to another person, with the specific intent 

that the statement . . . is to be taken as a threat, even if there is no intent of actually 

carrying it out, which, on its face and under the circumstances in which it is made, is so 

unequivocal, unconditional, immediate, and specific as to convey to the person 

threatened, a gravity of purpose and an immediate prospect of execution of the threat, and 

thereby causes that person reasonably to be in sustained fear for his or her own safety or 

for his or her immediate family's safety . . . ." (See also People v. Toledo (2001) 26 

Cal.4th 221, 227-228.) "[I]f a defendant, again acting with the requisite intent, makes a 

sufficient threat that is received and understood by the threatened person, but, for 

whatever reason, the threat does not actually cause the threatened person to be in 

sustained fear for his or her safety even though, under the circumstances, that person 

reasonably could have been placed in such fear, the defendant properly may be found to 

have committed the offense of attempted criminal threat." (Toledo, at p. 231; In re 

Sylvester C. (2006) 137 Cal.App.4th 601, 607.) 

 Appellant's attempted threat conviction is based on the statement he made 

to Bautista during his fight with Jose Tellez: "Be very careful. When I was out of jail I 

killed two people. I killed two people in El Cielito. You don't know who I am[.] I know 

who you are. . . . I'm Canoga." Appellant argues that the "statement, 'Be very careful,' 

hardly amounts to a threat to commit any crime." Citing In re Ricky T. (2001) 87 

Cal.App.4th 1132, he further argues that "in examining the threats in the context and 

under the surrounding circumstances, it is clear that the threat was not a real, genuine, 

true threat." His reliance on Ricky T. is unavailing. Ricky T. addressed the sufficiency of 

the evidence to support a completed threat, rather than an attempted threat. Moreover, it 
12 

involved a high school student who became angry when a teacher accidentally hit him 

with a door as he opened it. After cursing the teacher and saying he would get him and 

"'kick [his] ass,'" the student was suspended from school. (Id. at p. 1137.) The teacher 

waited until the next day to call the police. The appellate court reversed the finding that 

the student made a terrorist threat, and concluded there was no immediacy to the threat or 

any showing of sustained fear. (Id. at pp. 1137-1138.) 

 In assessing whether a statement constitutes a threat, we must consider both 

the words and "all of the surrounding circumstances." (People v. Martinez (1997) 53 

Cal.App.4th 1212, 1218.) Here they support the inference that appellant's statement was 

a threat to cause Bautista physical harm. Unlike the emotional outburst in response to an 

accidental impact in Ricky T., appellant threatened Bautista in response to his aggression 

against appellant's companion. Moreover, we reject appellant's suggestions that his 

words were not threatening. He told Bautista to be careful, that appellant had killed two 

people, that appellant knew who Bautista was, and that appellant was "Canoga." Canoga 

was a local criminal street gang whose primary activities included murder and other 

violent crimes. Appellant made the statements in Canoga territory. Substantial evidence 

supports the attempted threat conviction. 

Substantial Evidence - Gang Benefit Enhancement 

 Appellant contends there is not sufficient evidence to support the gang 

benefit enhancements for the attempted murder and attempted threat because "there was 

no evidence presented that the shooting was gang related." We disagree. 

 Officer Flores testified as the prosecution's gang expert. He had special 

expertise concerning the Canoga Park Alabama Street gang. Canoga's territory includes 

the shooting scene and the Tellez brothers' Variel apartment. Canoga's primary activities 

include murder, robbery, assault, extortion, burglary, possession of firearms, vandalism, 

and narcotics offenses. 
13 

 Appellant is an admitted Canoga gang member who uses the moniker 

Necio. Alejandro Flores is also a Canoga member. His moniker is "Sicko." When 

presented with a hypothetical set of facts mirroring those of the charged crimes, Officer 

Flores opined that such activities would have been specifically intended to promote and 

assist criminal conduct by Canoga gang members. 

 A gang enhancement requires proof of the existence of a criminal street 

gang and that the offense was "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)(4).) 

 "In order to prove the elements of the criminal street gang enhancement, the 

prosecution may . . . present expert testimony on criminal street gangs." (People v. 

Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) An expert may give opinions regarding 

the knowledge and intent of a hypothetical gang member. (People v. Gonzalez (2006) 38 

Cal.4th 932, 946, fn. 3.) "[A] trier of fact may rely on expert testimony about gang 

culture and habits to reach a finding on a gang allegation." (In re Frank S. (2006) 141 

Cal.App.4th 1192, 1196.) 

 In challenging the sufficiency of the evidence to support the gang benefit 

enhancements, appellant argues there was no evidence that the shooting was gang related. 

Appellant is wrong. The commission of a crime in concert with known gang members is 

substantial evidence which supports the inference that the defendant acted with the 

specific intent to promote, further or assist gang members in the commission of the crime. 

(People v. Villalobos, supra, 145 Cal.App.4th at p. 322.) Appellant committed the 

attempted murder of Bautista with the assistance of Sicko, a fellow Canoga gang 

member. While attempting to threaten Bautista, appellant stressed his membership in 

Canoga. In addition, gang expert witness Flores opined that appellant committed the 

crimes for the benefit of the Canoga gang. (People v. Gardeley (1996) 14 Cal.4th 605, 

619 [expert testimony held sufficient to support finding that defendants committed crimes 
14 

with specific intent to promote criminal conduct by street gang].) Substantial evidence 

supports the gang benefit enhancements. 

DISPOSITION 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED. 

 PERREN, J. 

We concur: 

 GILBERT, P. J. 

 YEGAN, J. 
15 

Michael Jesic, Judge 

Superior Court County of Los Angeles 

______________________________ 

 Marilee Marshall, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. 

Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney 

General, for Plaintiff and Respondent.