THE PEOPLE v. JOSE LUIS RODRIGUEZ

Reset A A Font size: Print

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS RODRIGUEZ, Defendant and Appellant.

B218361

Decided: January 24, 2011

Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

* * * * * *

Appellant Jose Luis Rodriguez appeals from a judgment of conviction.   We conclude that the record lacks sufficient evidence to support the jury finding that he committed great bodily injury on David Ostos.   We also find that appellant was entitled to an additional 12 days of conduct credit.   We reject appellant's remaining arguments, challenging (1) the use of Ostos's preliminary hearing testimony;  (2) the admission of gang expert testimony;  and (3) the instruction on flight from the scene.   We reverse the finding of great bodily injury on Ostos, modify appellant's conduct credits, and otherwise affirm the judgment.

PROCEDURAL BACKGROUND

Appellant was charged with the attempted premeditated murder of Josue Perez and Davis Ostos.   The information further alleged that in committing the attempted murders, appellant personally and intentionally discharged a firearm proximately causing great bodily injury.   Appellant also was charged with possession of a firearm by a felon and resisting an executive officer.

During trial, the prosecutor amended the information to add two counts of assault with a semiautomatic weapon.   Those counts identified Perez and Ostos as the victims, and the People alleged that appellant inflicted great bodily injury on each victim.   The information further alleged that appellant personally used a firearm within the meaning of Penal Code section 12022.5.1  A gang enhancement was alleged with respect to all counts except resisting an executive officer.   The People also alleged that appellant suffered a prior conviction and did not remain free from custody for a period of five years within the meaning of section 667.5, subdivision (b).

Prior to trial, the court found Ostos's preliminary hearing testimony admissible at trial.   Appellant pled no contest to resisting an executive officer.   The jury found all remaining allegations true, except the prior conviction allegation, which the court found true.

The court sentenced appellant to consecutive 25-year-to-life sentences for each attempted murder and to a three-year term for evading an executive officer.   For possession of a firearm by a felon, the court imposed and stayed a three-year term for the offense and a three-year term for the gang enhancement.   For each assault with a semiautomatic firearm, the court imposed and stayed a 26-year term consisting of 9 years for the offense, 4 years for the firearm use enhancement, 3 years for the great bodily injury enhancement, and 10 years for the gang enhancement.   The court struck the one-year prior conviction enhancement pursuant to section 1385.   The court awarded appellant 999 days of actual custody credit and 149 days of work time credit for a total of 1,148 days.

Appellant timely appealed.

FACTUAL BACKGROUND

At approximately 5:30 in the morning on October 18, 2006, appellant shot Perez and Ostos outside an apartment building located on Langdon Avenue, where Perez's mother lived.   The apartment was located in territory claimed by the Langdon street gang.   Appellant was a member of the Langdon street gang.

The next day, officers located appellant inside a 7-Eleven store and ordered him to put his hands up.   Initially, appellant complied, but then he took a step backwards and lowered his hands.   Notwithstanding appellant's movement, the officers were able to gain control of appellant and arrest him.

1. Perez's In-court Testimony and Factual Stipulations About Perez

On October 18, 2006, at 5:30 a.m., Perez and Ostos walked toward Perez's apartment located on Langdon Avenue.   Appellant and an unidentified male were inside the apartment building, peering out a third-story window.   Appellant and the unidentified male exited the building as Perez and Ostos approached the building.

Appellant asked Perez, “Where are you from?” and Perez understood appellant was asking whether Perez belonged to a gang.   Ostos told appellant to put the gun away and said, “Let's get down,” by which Ostos meant “let's fight.”   Appellant pointed the gun at Perez's stomach and shot Perez.   Appellant also shot Perez in the lower back.

After shooting Perez, appellant was about to run away, but he stopped when Perez called appellant derogatory names.   Appellant stood less than two feet from Perez and aimed his gun at Perez.   Perez denied being a gang member and pleaded with appellant to spare him.   Appellant left the scene without shooting Perez again.   Police and paramedics arrived shortly thereafter.

Perez suffered gunshot wounds in his stomach and lower back resulting in a limp and loss of feeling in one leg.   One bullet was permanently lodged in Perez's spine.   Perez spent eight days in the hospital and required physical therapy.

Perez identified appellant in a photographic lineup and in court.   Perez testified that he was certain of his identification.

Perez believed that Ostos was a member of the Columbus street gang.   Perez denied being a gang member, but the parties stipulated that Perez previously had admitted his membership in the Blythe street gang.   Perez acknowledged that he had been arrested numerous times.

2. Ostos's Preliminary Hearing Testimony and Factual Stipulations About Ostos

At the preliminary hearing, Ostos testified that on October 18, 2006, as he and Perez walked to Perez's apartment, two male Hispanics observed them from the window of the apartment complex.   Appellant and the unidentified male exited the apartment building and asked Perez, “where you from?”   Appellant mentioned the Langdon street gang.   Ostos heard a shot and saw Perez fall to the ground.   Ostos tussled with appellant's companion.   Ostos then heard a second shot.

Ostos did not know he was hit at the time of the shooting, but later learned that a bullet grazed his back.   He went to the hospital for a few hours, where X-rays were taken.   X-rays confirmed that the bullet did not hit his spine.   Ostos had a scar from the graze wound.

Ostos identified appellant in a photographic lineup and in court but was not positive appellant was the shooter.   Ostos testified that he had used drugs the night of the shooting.   The parties stipulated that Ostos previously had admitted to being a Columbus street gang member.

3. Gang Expert Testimony

Officer Martin Contreras testified as a gang expert.   He received training in criminal street gangs, and worked as an officer and detective assigned to gangs for over seven years.   He monitored the Langdon street gang and was familiar with that gang.   Columbus street and Blythe street gangs were rivals to the Langdon street gang.

According to Officer Contreras, gang members often tattoo their bodies to demonstrate allegiance to their gang.   Openly visible tattoos demonstrate pride for the gang.   Appellant had numerous tattoos signifying membership to the Langdon street gang.   His numerous tattoos show a high level of commitment to the Langdon street gang.   Contreras knew appellant since 2000.   Appellant used two monikers - Hero and Little Rana. Appellant identified himself as a Langdon street gang member, and officers had documented him associating with other Langdon street gang members.

The apartment building on Langdon was within territory claimed by the Langdon street gang.   Pictures of that building showed graffiti from the Columbus street gang.   According to Officer Contreras, putting graffiti on the building was a “brazen move,” because it challenged the Langdon street gang's turf.   Placing graffiti in territory claimed by a rival gang may result in acts of violence including murder.

Officer Contreras opined that a hypothetical crime with facts similar to the present one was committed for the benefit of a gang.   Contreras explained that the person committing the assault may have believed the victim was from a rival gang, especially because the assailant asked the victim “where you from?”   Contreras also relied on the evidence of graffiti from a rival gang in territory claimed by the Langdon street gang.

DISCUSSION

Appellant argues (1) the record lacks sufficient evidence to support the finding that Ostos suffered great bodily injury, (2) Ostos's preliminary hearing testimony should not have been admitted because the prosecution did not exercise due diligence in securing Ostos's presence at trial, (3) gang evidence was improperly admitted, (4) the jury should not have been instructed on appellant's flight, and (5) appellant is entitled to additional conduct credit.   Respondent concedes the last issue, but disputes the remaining ones.   We discuss them seriatim.

1. Sufficiency of the Evidence of Great Bodily Injury on Ostos

On count 6 (assault with a firearm), the People alleged that appellant “personally inflicted great bodily injury upon David Ostos ․ within the meaning of ․ section 12022.7[, subdivision] (a)․”  The jury found the great bodily injury allegation true.   Appellant argues the true finding is not supported by substantial evidence.

Section 12022.7, subdivision (a) provides:  “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.”

“In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one.  ‘ “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.   [Citations.]  On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.   [Citation.]” ’ ”  (People v. Smith (2005) 37 Cal.4th 733, 738-739, quoting People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)  “ ‘ “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends.’ ” ”  (Ibid.) “ ‘ “If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.” ’   [Citations.]”  (People v. Escobar (1992) 3 Cal.4th 740, 750.)

“Great bodily injury ‘means a significant or substantial physical injury.’   [Citations.]”  (People v. Cross (2008) 45 Cal.4th 58, 63 (Cross ).)   To the same effect, CALCRIM No. 3160 provides in pertinent part:  “Great bodily injury means significant or substantial physical injury.   It is an injury that is greater than minor or moderate harm.”

A victim sustained great bodily injury when a bullet entered the victim's calf, tearing muscle tissue and shattered bullet fragments cut the victim's arms and legs.  (People v. Wolcott (1983) 34 Cal.3d 92, 107.)   When a robbery victim suffered a broken nose, lost a tooth, and sustained cuts requiring sutures, an appellate court upheld a finding of great bodily injury.  (People v. Salas (1978) 77 Cal.App.3d 600, 606.)   Similarly, a court affirmed a finding of great bodily injury when the victim felt a bullet enter her thigh.  (People v. Lopez, supra, 176 Cal.App.3d at p. 465.)   There was sufficient evidence of great bodily injury when a victim suffered a penetrating wound in his hip.  (Ibid.) A victim suffered great bodily injury when he was unable to walk, stand or sit unassisted for weeks after the defendant had shot him.  (People v. Le (2006) 137 Cal.App.4th 54, 59.)   In contrast, when the only evidence showed a minor laceration on the victim's back, the injury was not substantial.  (People v. Martinez (1985) 171 Cal.App.3d 727, 735.)  “Proof that a victim's bodily injury is ‘great’ - that is, significant or substantial within the meaning of section 12022.7 - is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury.”  (Cross, supra, 45 Cal.4th at p. 66.)

Here, the record lacked substantial evidence of great bodily injury.   Ostos did not testify at trial, and the record was not well developed.   The evidence showed, at most, that a bullet grazed Ostos's back, leaving a scar.   No evidence was presented regarding the length or depth of Ostos's scar.   There was no evidence that he suffered pain or that he required medical care to treat or repair the injury.   There was no evidence that Ostos's injury was substantial or severe.   To the contrary, the evidence showed that Ostos was discharged within hours of going to the hospital.   X-rays taken at the hospital confirmed that there was no penetrating wound.   Ostos did not even know that he was grazed by a bullet at the time he was hit.   Based solely on Ostos's preliminary hearing testimony - the only testimony in the record - there was no evidence Ostos suffered significant or substantial bodily injury.   At most, the evidence presented showed that Ostos suffered “minor or moderate harm.”  (See CALCRIM No. 3160.)   Accordingly, the finding that he suffered great bodily injury must be reversed.2

2. Admission of Ostos's Preliminary Hearing Testimony

After a hearing, the court found the prosecution exercised due diligence in attempting to locate Ostos and allowed the admission of his preliminary hearing testimony at trial.   Appellant challenges the trial court's finding, arguing that because the prosecutor did not exercise reasonable diligence, the admission of Ostos's preliminary hearing testimony violated his right to confront witnesses against him.

“A criminal defendant has the right, guaranteed by the confrontation clauses of both the federal and state Constitutions, to confront the prosecution's witnesses.  (U.S. Const., 6th Amend.;  Cal. Const., art. 1, § 15.)  ․ [¶] Although important, the constitutional right of confrontation is not absolute.  [Citations.]  ‘Traditionally, there has been “an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination․”  [Citation.]’   Pursuant to this exception, the preliminary hearing testimony of an unavailable witness may be admitted at trial without violating a defendant's confrontation right.   [Citation.]  [¶] This traditional exception is codified in the California Evidence Code. [Citation.]  [Evidence Code] [s]ection 1291, subdivision (a)(2), provides that ‘former testimony,’ such as preliminary hearing testimony, is not made inadmissible by the hearsay rule if ‘the declarant is unavailable as a witness,’ and ‘[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.’   Thus, when the requirements of [Evidence Code] section 1291 are met, the admission of former testimony in evidence does not violate a defendant's constitutional right of confrontation.”  (People v. Herrera (2010) 49 Cal.4th 613, 620-621, fns. and some citations omitted.)

A. Background

Ostos appeared at the preliminary hearing in February 2007.   He testified that he was present only out of fear that he would be arrested if he did not appear in court.   He made clear that he did not want to testify.   In November 2007, Ostos appeared at a hearing and testified that he was afraid for his safety and wanted his address to remain confidential.   Ostos's mother had been served with a subpoena for the November hearing.

Detective John Macchiarella and David Higuera, an investigator with the district attorney's office, testified at a hearing to determine if Ostos's preliminary hearing testimony would be admitted at trial.   Macchiarella initially mistakenly testified that Ostos appeared voluntarily at the preliminary hearing.   Macchiarella later recognized that Ostos had been served with a subpoena to appear at that hearing.   Macchiarella did not serve a subpoena on Ostos for a January 13, 2009 trial date.   Ostos had told Macchiarella that he would appear, but Ostos failed to appear.   Trial was continued until March 10, 2009.

Between January 13 and March 10, 2009, Detective Macchiarella made several attempts to locate Ostos.   Macchiarella began searching for Ostos two days after Ostos failed to appear in court.   Macchiarella visited Ostos's last place of employment, his last residence, and his girlfriend's residence.   Macchiarella knew Ostos's last residence because officers relocated Ostos after he informed them that members of his own gang were harassing him for cooperating with the police.   Macchiarella contacted Ostos's sister and attempted to contact Ostos several times.   Macchiarella also tried unsuccessfully to locate Ostos in custody.   Macchiarella was unable to serve Ostos with a subpoena for the March trial date.

Investigator Higuera also attempted to locate Ostos.   On March 5, 2009, Higuera spoke to Ostos, and Ostos said he had relocated to Oregon.   Ostos was “adamant” in his refusal to appear and testify at appellant's trial.   Higuera spoke to Ostos's grandfather, who did not know Ostos's whereabouts.   Higuera searched databases with Ostos's Social Security number, but was unable to locate him.   Higuera also checked if Ostos was incarcerated, but that effort to locate Ostos was also unsuccessful.

The court found that the search, which began within two days after Ostos's failure to appear at the January court date was timely.   The court concluded that Detective Macchiarella and investigator Higuera explored leads, including checking Ostos's employment, residence, grandfather's residence, and girlfriend's residence.   The court found no evidence that additional diligence would have resulted in Ostos's appearance.   The court also noted that appellant's counsel had an opportunity to cross-examine Ostos at the preliminary hearing.   The court found that Ostos's preliminary hearing was admissible even though Ostos was an important witness.

B. Analysis

We review the trial court's determination of due diligence de novo.   (People v. Cromer (2001) 24 Cal.4th 889, 893-894.)   Considerations relevant to the due diligence inquiry “ ‘include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.’  [Citations.]”  (People v. Herrera, supra, 49 Cal.4th at p. 622.)   We may also consider whether the witness would have been produced if reasonable diligence had been exercised.   (People v. Sanders (1995) 11 Cal.4th 475, 523.)  “[D]iligence has been found when the prosecution's efforts are timely, reasonably extensive and carried out over a reasonable period.”  (People v. Bunyard (2009) 45 Cal.4th 836, 856.)   In contrast, diligence was lacking where the prosecution's efforts were “perfunctory or obviously negligent.”  (Id. at p. 855.)

In this case, the prosecution's efforts were “timely, reasonably extensive and carried out over a reasonable period.”  (People v. Bunyard, supra, 45 Cal.4th at p. 856.)   Detective Macchiarella's search was timely because it commenced within days of Ostos's failure to appear in January and almost two months before the rescheduled trial.  (People v. Hovey (1988) 44 Cal.3d 543, 562-564 [due diligence where investigators began search one month before trial].)   This is not a case where officers waited until the day of trial to try to locate a witness.  (People v. Avila (2005) 131 Cal.App.4th 163, 170 [waiting until day of trial to serve a subpoena was not due diligence];  People v. Sanders, supra, 11 Cal.4th at p. 524 [no due diligence where defendant made no effort to subpoena witness until trial had started].)   In their two-month search, the prosecution's efforts were diligent:  Macchiarella and investigator Higuera checked Ostos's residence as well as his girlfriend's and grandfather's residences.   Officers also checked to see if Ostos was incarcerated and tried to locate him using his Social Security number.   Although Ostos's testimony was clearly important to the prosecution, the trial court correctly found that the prosecution exercised due diligence in locating him.

Appellant criticizes the prosecution for failing to keep track of Ostos between the date of the preliminary hearing and the January 2009 trial date.   He argues that officers should have known he would not appear in January unless they served him with a subpoena.   However, the prosecution is not required “to keep ‘periodic tabs' on every material witness in a criminal case․”  (People v. Hovey, supra, 44 Cal.3d at p. 564.)   Also, the prosecution is not required, absent knowledge of a “ ‘substantial risk that this important witness would flee,’ to ‘take adequate preventative measures' to stop the witness from disappearing.”  (People v. Wilson (2005) 36 Cal.4th 309, 342.)   Appellant appeared at a November hearing, and the prosecution began looking for him right after his first nonappearance.   Because trial did not occur in January and officers spent the two months between appellant's no-show and the actual trial date searching for him, appellant's claim that they should have served him or apprehended him prior to the January date is not persuasive.

Because officers exercised due diligence, the requirements of Evidence Code section 1291, subdivision (a)(2) were satisfied, and the admission of Ostos's preliminary hearing testimony did not violate appellant's rights to confrontation.  (People v. Herrera, supra, 49 Cal.4th at p. 621.)   Here appellant was a party to the action in which testimony was given and had the opportunity to cross-examine Ostos.   Ostos's preliminary hearing testimony was properly admitted.

3. Gang Expert Testimony

Relying heavily on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew ), appellant argues that portions of Officer Contreras's testimony should have been excluded.   We first discuss the applicable legal principles and then consider each portion of the testimony appellant challenges.3  As we explain, appellant's argument lacks merit.

In Killebrew, the court held “testimony that a specific individual had specific knowledge or possessed a specific intent” was not a proper subject of gang expert testimony.  (Killebrew, supra, 103 Cal.App.4th at p. 658.)   The court found improper expert testimony that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun.  (Id. at pp. 652-659.)   The Killebrew court distinguished the expert testimony related to intent to possess a gun from expert testimony related to “whether and how a crime was committed to benefit or promote a gang.”  (Id. at p. 657.)

Our Supreme Court limited Killebrew to “merely ‘prohibit[ing] an expert from testifying to his or her

A. Graffiti

Officer Contreras testified that placing graffiti from the Columbus street gang on a building located on Langdon was a “brazen move” because the building was located in the center of Langdon street gang territory.   The Columbus street gang graffiti was a method of “challenging” the Langdon street gang.   Contreras further testified that in response to the Columbus street gang graffiti located on Langdon, a Langdon street gang member would become angry and may respond violently.   The acts of violence “sometimes” included murder.

Officer Contreras's testimony was proper expert testimony on the culture and habits of criminal street gang members.  (People v. Gonzalez, supra, 38 Cal.4th at p. 944;  People v. Gardeley (1996) 14 Cal.4th 605, 617.)   Testimony that placing one's gang graffiti on a building located in territory claimed by another gang is a challenge and that such a challenge may result in violence including murder is beyond the common experience of jurors such that expert testimony would assist them.  (Ibid.) Unlike the testimony found objectionable in Killebrew, Contreras's testimony regarding graffiti did not concern appellant's subjective expectation.  (See Killebrew, supra, 103 Cal.App.4th at p. 658.)

B. Tattoos

In response to a question regarding the “significance of tattoos in gang culture,” Officer Contreras testified that “by putting that certain tattoo on your body, you're showing your allegiance to a particular gang, that you're pretty much willing to do anything for that gang․”  Contreras further testified the more visible a gang member's tattoos the more pride the gang member was demonstrating for his gang.   He also explained that the number of tattoos a gang member has may be related to the number of crimes a gang member commits.   Contreras testified that appellant's numerous tattoos demonstrated a high level of commitment to the Langdon street gang.

The general testimony on gang tattoos was appropriate testimony regarding the culture and habits of criminal street gang members.  (People v. Gardeley, supra, 14 Cal.4th at p. 617 [recognizing that the habits or criminal street gang was admissible expert testimony];  see also People v. Parrish (2007) 152 Cal.App.4th 263, 279 [expert testimony that gang tattoos signified loyalty to gang admissible notwithstanding Evidence Code section 352 objection].)   Testimony on the significance of appellant's tattoos was also proper.   (People v. Ochoa (2001) 26 Cal.4th 398, 438-439 [testimony that defendant's tattoos signified his hardcore gang status properly admitted].) 4

C. Hypothetical

Officer Contreras testified that a hypothetical crime based on facts similar to this case was committed for the benefit of the Langdon street gang.   Contreras explained that the assailant may have mistaken the victim to be a member of a rival gang and asked the victim, “where are you from?”   Contreras also explained that violence often follows learning a person is from a different gang or where a gang member suspects a person wrote graffiti in territory claimed by the assailant's gang.   Appellant challenges this testimony, arguing that Killebrew forbids it.

Appellant's reliance on Killebrew is misplaced.  Killebrew distinguished the expert testimony related to intent to possess a gun from expert testimony related to “whether and how a crime was committed to benefit or promote a gang.”  (Killebrew, supra, 103 Cal.App.4th at p. 657.)   Thus, under Killebrew evidence of how a crime was committed to benefit a gang was admissible.   Appellant demonstrates no error in the admission of Contreras's opinion that the hypothetical crime was committed for the benefit of a gang.

4. Flight Instruction

Perez testified that appellant was “about to run” when Perez yelled out “bitch.”   Appellant returned, pointed the gun at Perez and then left the scene.   The paramedics and police arrived shortly afterwards.

Over objection, the court gave the following instruction:  “If the defendant fled or tried to flee immediately after the crime was committed, or after he was accused of committing the crime, that conduct may show he was aware of his guilt.   If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct.   However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”   Appellant argues there was insufficient evidence of flight to warrant the instruction.

In general, a flight instruction “ ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’  [Citations.]”  (People v. Avila (2009) 46 Cal.4th 680, 710.)  “ ‘ “[F]light requires neither the physical act of running nor the reaching of a far-away haven.  [Citation.]  Flight manifestly does require, however, a purpose to avoid being observed or arrested.” ’  [Citation.]  ‘Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.’  [Citations.]”  (People v. Bradford (1997) 14 Cal.4th 1005, 1055, italics omitted.)  “To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence.”  (People v. Bonilla (2007) 41 Cal.4th 313, 328.)

The trial court properly instructed the jury.   The evidence showed that appellant started to run immediately after the shooting and stopped only to point his gun at Perez.   Appellant then left before police or paramedics arrived.   A reasonable jury could infer that appellant left in order to avoid being observed or arrested.  (People v. Jurado (2006) 38 Cal.4th 72, 126 [flight instruction properly given where evidence defendant left the scene to avoid being observed or arrested].)   This inference is strengthened by the evidence that appellant was inside the apartment building prior to the crime and did not return there afterwards, but instead left the scene.   The inference also is strengthened by appellant's efforts to avoid arrest when officers located him in the 7-Eleven store.

5. Custody Credits

The parties agree that appellant should have been awarded 1,160 days of conduct credit instead of 1,148 days.   As appellant argues, the award of custody credits did not reflect the total actual days appellant spent in custody and he was entitled to 15 percent credit for work time (§ 2933.1).   Upon remand, the court should award appellant an additional 12 days of conduct credit.

DISPOSITION

The finding that appellant committed great bodily injury upon Ostos is reversed.   The judgment is modified to reflect 1,160 days of conduct credit.   In all other respects, the judgment is affirmed.   The case is remanded to the trial court to resentence appellant.   After resentencing, the trial court is to forward a copy of the new abstract of judgment to the Department of Corrections and Rehabilitation.

We concur:

O'CONNELL, J.*

FOOTNOTES

FN1. All undesignated statutory references are to the Penal Code unless otherwise noted..  FN1. All undesignated statutory references are to the Penal Code unless otherwise noted.

FN2. This case involved a great bodily injury enhancement under section 12022.7, which required evidence defendant actually inflicted great bodily injury.   In contrast, section 245, defining assault by means “likely to produce” great bodily injury does not require the actual infliction of great bodily injury.   Although defendant's shooting Ostos was likely to produce great bodily injury, the evidence presented failed to show defendant in fact inflicted great bodily injury..  FN2. This case involved a great bodily injury enhancement under section 12022.7, which required evidence defendant actually inflicted great bodily injury.   In contrast, section 245, defining assault by means “likely to produce” great bodily injury does not require the actual infliction of great bodily injury.   Although defendant's shooting Ostos was likely to produce great bodily injury, the evidence presented failed to show defendant in fact inflicted great bodily injury.

FN3. Appellant's counsel objected to some of the gang evidence, but did not object to those portions challenged on appeal.   The issues raised on appeal therefore are technically forfeited.  (People v. Ward (2005) 36 Cal.4th 186, 211.)   We “exercise our discretion to address the issue on the merits to forestall any claim of ineffective assistance of counsel.”   (People v. Williams (2009) 170 Cal.App.4th 587, 621.).  FN3. Appellant's counsel objected to some of the gang evidence, but did not object to those portions challenged on appeal.   The issues raised on appeal therefore are technically forfeited.  (People v. Ward (2005) 36 Cal.4th 186, 211.)   We “exercise our discretion to address the issue on the merits to forestall any claim of ineffective assistance of counsel.”   (People v. Williams (2009) 170 Cal.App.4th 587, 621.)

FN4. People v. Ochoa,supra, 26 Cal.4th 398 was abrogated on another point as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, footnote 14..  FN4. People v. Ochoa,supra, 26 Cal.4th 398 was abrogated on another point as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, footnote 14.

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

RUBIN, Acting P. J.