(Super. Ct. No. 7A066266) (Los Angeles County) Vernon Meigs, Judge.
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
Gilbert Vazquez appeals his conviction, by jury, of first degree murder in the shooting death of Juan Lopez. (Pen. Code, §§ 187, 189.)*fn1 The jury also found true special allegations that appellant intentionally and personally used a handgun (§§ 12022.53, subd. (b)-(d)), and that he committed the murder for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subdivision (b)(1)(C).) Appellant was sentenced to a total term in state prison of 50 years to life. He contends the gang enhancement should be reversed because there is no substantial evidence that he committed the murder with "the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b).) He further contends the trial court erred when it conditioned the amount of a restitution fine on appellant's payment of direct victim restitution. We modify the restitution fine and, in all other respects, affirm the judgment.
In September 2006, Juan Lopez (the victim) lived in Inglewood with his girlfriend, Griselene Flores, and their child. At about 10 p.m. on the night of September 29, Lopez and Flores drove to a nearby fast food restaurant while Flores' parents stayed with the child. When they returned, Lopez parked in the alley behind their apartment building. Just as they were about to leave the car, a pickup truck drove up from behind and stopped next to the passenger side door. Appellant got out of the passenger side of the truck holding a handgun at his waist. He walked to the front of Lopez's car. Two other men stayed in the truck, telling appellant, "Get him, get him."
Flores thought the men looked like gang members. They all had shaved heads and there was a lot of gang crime in the neighborhood. She got out of the car and started pleading with appellant that Lopez was "not from nowhere." The passengers continued telling appellant to "get him." One told Flores to "shut up or we're going to get you too." She ran toward their apartment. Just as she reached the door, Flores looked back over her shoulder and saw appellant shoot Lopez the first time. Flores heard three or four more shots. By the time she got back to the car, Lopez was not breathing. He had been shot five times by appellant. Flores' mother called police from their apartment. A neighbor also witnessed the shooting from the balcony of her upper-floor apartment. Her description of appellant and of the incident was consistent with Flores'.
Meanwhile, appellant got back into the truck which sped away. At some point, he got out of the truck and into a minivan with another gang member and his girlfriend. Appellant was arrested about 30 minutes later, after the driver of the minivan led Inglewood police officers on a short chase. When the minivan finally stopped, a male passenger immediately jumped out and ran away. Appellant stayed inside, hiding in the back. The murder weapon was lying nearby, on the rear floorboard. Flores identified appellant as the shooter in a field "show up" later that night.
The prosecution's expert witness on gangs, Detective Milchovich, testified that Lopez was killed in an area that is claimed as the "territory" of two rival gangs, Krazy Crowd 13 and 18th Street. There was graffiti in the alley only a few feet from the site of the shooting, in which 18th Street members had crossed out graffiti by Krazy Crowd, a sign of disrespect and of a willingness to fight over that territory. Appellant has tattoos on his abdomen and right arm that identify him as a member of 18th Street. His hair and clothing followed a style favored by gang members.
Detective Milchovich opined that appellant is a member of 18th Street. He based that opinion on a past contact with appellant, appellant's association with other gang members, the location of the crime, his tattoos and the fact that he did not also shoot Flores. Appellant's tattoos are significant because they are "permanent markings . . . . Tattoos signify allegiance to a gang, it's kind of your signal that you're pretty dedicated to your gang." According to Milchovich, tattoos are a "badge" signifying a gang member's "commitment to the gang."
Milchovich further explained that appellant would have earned "respect" in gang culture by shooting Lopez because Lopez might have appeared to be a member of a rival gang. However, in gang culture, "targeting women as victims of crime is . . . kind of hands off, taboo, you don't target women specifically. That brings . . . some disrespect to the gang. But to shoot at someone you believe or appears to be a rival gang member would build that respect level." The fact that appellant was with two other apparent gang members when he committed the crime and that he moved to a second vehicle only minutes after the shooting also indicated the crime was gang related.
Milchovich testified that, in his opinion, appellant committed this murder for the benefit of 18th Street. Violent crimes that create fear and intimidate others are thought, in gang culture, to increase "respect" for the gang. According to Milchovich, "A gang member who carries a gun, commits a shooting, commits a murder, proves not only his hundred percent dedication to the gang but also to promoting or furthering the gang status in the gang world as well as the reputation or respect level of that particular gang." Crimes of violence also benefit the gang because they intimidate people in the neighborhood into refusing to cooperate with police, making it easier for the gang to operate.
The trial court instructed the jury that, to find the gang enhancement allegation true, it had to find beyond reasonable doubt that, "1. The crime charged was committed for the benefit of, at the direction of, or in association with a criminal street gang; and 2. This crime was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members." It further instructed the jury: "The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find . . . the allegation that the defendant committed the crime for the benefit of a criminal street gang to be true, unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent or mental state but (2) cannot be reconciled with any other rational conclusion." Finally, the trial court instructed the jury that, gang enhancement allegation requires "a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists . . . the allegation to which it relates . . . is not true."
After trial, the jury found appellant guilty of first degree murder. It found true the special allegations that appellant personally and intentionally discharged a firearm (§§ 12022.53, subd. (c), (d)), that he personally used a firearm (§ 12022.53, subd. (b)), and that he committed the murder for the benefit of a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1)(C).) The trial court sentenced appellant to a term of 25 years to life on the murder conviction and a consecutive term of 25 years for discharging a firearm (§ 12022.53, subd. (d)), for a total term of 50 years to life. Because the trial court imposed a life sentence, appellant was not sentenced to an additional term of years for the gang enhancement. (§ 186.22, subd. (b)(5).) ...