NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

Defendant Duane Barnett appeals from the judgment entered following his conviction by jury of attempted murder and assault with a firearm. (Pen. Code, §§ 664/187, subd. (a), 245, subd. (a)(2).)1 The jury also found that the attempted murder was willful, deliberate, and premeditated, that defendant personally used and intentionally discharged a firearm, causing great bodily injury to the victim, and that the crimes were committed with the specific intent to benefit a criminal street gang. (§§ 664, subd. (a), 12022.53, subds. (b) through (d), 12022.5, subd. (a), 186.22, subd. (b)(1)(C).) He appeals, contending there is insufficient evidence to support the attempted murder conviction and the gang allegation finding, counsel provided ineffective assistance, and the trial court committed sentencing error. Finding no merit to his contentions, we affirm.

STATEMENT OF FACTS

I. The Prosecution Case

On April 15, 2009, Jessica Lomeli drove to Martin Luther King, Jr. Park (the park) in her truck. Accompanying Lomeli were her boyfriend Christopher Sanchez, Lomeli's younger brother Jimmy, and her child. After dropping off Jimmy and her child at the park, Lomeli and Sanchez drove to the 99 Cents store. Upon returning to the park, Lomeli noticed a problem with the tire on the driver's side of the vehicle. She parked and Sanchez got out to look at the tire. Sanchez retrieved a stick and tried to straighten a dent near the tire. As he did so, he was lying on his side with his back facing the park. (Lomeli said he was squatting.)

As Lomeli sat in the truck shuffling through some paperwork, she heard approximately six to eight gunshots that seemed to have been fired very close to her location.2 She looked up and saw defendant pointing a gun at Sanchez's back and shooting from a distance of about a foot to a foot and a half. Sanchez felt a burning sensation in his foot. Lomeli started screaming and defendant ran. She recognized defendant as someone she had seen often in her neighborhood over the past 15 years. After being shot, Sanchez turned and saw defendant running.

Lomeli got out of the truck and noticed that Sanchez was bleeding from his legs. She helped him get into the passenger side of the truck. Bleeding heavily, he passed out. Lomeli took Sanchez to the hospital, driving erratically and running red lights. As a result, when she arrived at the hospital, a police car was behind her. Lomeli told the officers that defendant, who she knew as Duane, had shot Sanchez.

Sanchez also spoke to an officer at the hospital and said that Duane had shot him. That officer returned approximately 20 minutes later and showed Sanchez a photo six-pack. Sanchez pointed to one of the photos, circled it, and said the photo was of Duane.3

Sanchez suffered two gunshot wounds, one to his left foot and another to his right leg, above the knee. He spent five days in the hospital.

Two days prior to the shooting, Sanchez and defendant were involved in an altercation at a liquor store. Sanchez, who is much larger than defendant, knocked defendant down and left him lying on the ground. The next day, defendant approached Sanchez as Sanchez was leaving Lomeli's house. Defendant pointed a gun at him and left. Neither man spoke.

Sanchez used to belong to a tagging crew called T.K. T.K. stands for tinto killer, and tinto is the Spanish word for black. He knows that T.K. does not get along with the South Side Village Crips gang, an African-American gang.

Sanchez testified at the preliminary hearing that he did not see who shot him. At trial, he explained that he had lied because he did not want to be a rat, someone who snitches. He believed snitches were killed. Sanchez stated he was threatened after he testified at the preliminary hearing and moved as a result.

At the time of the shooting, Moises Isordia was in his car at an intersection near the park. As he waited at a stop light, Isordia saw an African-American male cross in front of his car. Isordia took note of the male because he was wearing a big sweater with a hood and it was a warm day. Isordia continued to watch the male because he looked "kind of funny." The male walked across the park. Isordia observed the male take out a gun and, from a distance of four to five feet, shoot a Hispanic man who was fixing a car tire. Isordia believed he heard three shots. The African-American ran and Isordia called 911.

Detective Greg Freeman has been a police officer for 15 years and a gang detective for 10. He comes in contact with gang members on a daily basis. He testified that respect is important to a gang, and a gang member gets ahead by committing crimes against members of other gangs who have shown disrespect. The T.K. tagging crew, primarily a Hispanic crew, does not get along with the South Side Village Crips. The primary activities of the South Side Village Crips gang are the sales of drugs, robberies, assaults, and murder. Their main activity is drug sales, as it makes money for the gang.4

Detective Freeman knew defendant, having spoken with him two or three times. Defendant admitted to Freeman that he is a South Side Village Crips gang member with the moniker of Waniac. Freeman was asked to consider the following hypothetical: (1) a South Side Village Crips gang member and a Hispanic T.K. crew member get involved in an altercation and the T.K. member gets the better of his opponent; (2) the following day, the South Side Village Crips member points a handgun at the T.K. member; and (3) the following day, the South Side Village Crips member approaches the T.K. member from behind, fires four rounds, and strikes the T.K. member twice. Freeman was then asked to offer an opinion as to whether the acts of the South Side Village Crips member were done for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote gang activities. He answered that the acts were performed to promote or benefit the gang because a gang member who was disrespected in an earlier fight would have to retaliate to regain respect for his gang. He also noted that to kill a rival gang member who was in the shooter's neighborhood "is a trophy or is work done (on behalf of the gang), there is no doubt about that." Freeman said, "[T]here's nothing better you can brag about th[a]n killing a rival gang member."

II. The Defense Case

On the day of the shooting, Frank Torres lived near the park. As he was sitting in his backyard, he heard two or three gunshots. Torres got up and looked toward the direction of where he believed the gunfire had come. He saw two young African-American men running down the street. One of the men dropped an item that sounded metallic, stopped, bent over to pick the item up, and continued to run. The two men ran to where a car was waiting. They got into the car and the car left.

Defendant told the jury that on the afternoon of the shooting, he and three friends, Curtis, Derrick, and D Boy, were driving in the vicinity of the park. Defendant and his friends saw Sanchez at the park. Curtis got out of the car and said he was going to shoot Sanchez because he did not like him. Defendant began to follow Curtis, remaining some distance behind. Curtis walked up behind Sanchez, shot him, and ran back to the car. Defendant denied that he and Curtis had a plan to attack Sanchez. As defendant walked back to the car, he dropped a brush from his pocket and picked it up. He got into the car and one of his friends drove away.

Defendant said that everyone who knows Sanchez dislikes him. Defendant admitted he "wasn't happy with him" because two days before the shooting, Sanchez had jumped him and stabbed him in an altercation near a local liquor store. Defendant did not report the incident to the police. He denied ever pointing a gun at Sanchez.

Defendant acknowledged that he spoke to detectives. He did not recall telling them during the initial interview that he did not get out of the car or that he did not see Curtis shoot Sanchez.

Defendant admitted he is a South Side Village Crips gang member known by the name of Waniac. He thought Sanchez was a member of the 12th Street gang, a rival. Defendant denied that he felt disrespected by Sanchez as a result of their fight in front of the liquor store or that his gang would expect him to retaliate.

III. The Prosecution Rebuttal

Detective Freeman interviewed defendant. Initially, defendant told him that he went to the area of the park with two other individuals, not three. He remained in the car while Curtis and someone named Little Cuz got out and shot Sanchez. In a later interview, defendant acknowledged that he got out of the car and said a fourth person accompanied the group to the park.

DISCUSSION

I. Substantial Evidence Supports the Attempted Murder Conviction

Defendant asserts the evidence is insufficient to establish that he intended to kill Sanchez or that the shooting was the product of premeditation and deliberation. He claims the only evidence supporting a conclusion that he intended to kill Sanchez is Detective Freeman's "speculation" that defendant would retaliate in order to regain respect for his gang after Sanchez had gotten the better of him in an earlier fight.

"`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.]' [Citation.]" (People v. Perez (2010) 50 Cal.4th 222, 229.)

Defendant argues the manner in which the shooting was carried out demonstrates that he did not intend to kill the victim. He points out that, according to witnesses, he fired at least four shots at Sanchez from a very short distance. Despite standing so close, he inflicted wounds only to Sanchez's foot and leg. He asserts that failing to kill Sanchez when he had a clear opportunity and the ability to do so necessarily means he did not have the requisite intent to kill. We disagree. The evidence established that after defendant began shooting, Lomeli screamed, causing him to flee. "The fact that the shooter . . . abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter's poor marksmanship necessarily establish a less culpable state of mind." (People v. Lashley (1991) 1 Cal.App.4th 938, 945.)

The flaw in defendant's argument is that it ignores the standard of review on appeal. He is asking that we presume the existence of every fact that would support a finding in his favor, rather than in favor of the judgment. Defendant pressed the same argument at trial and the jury rejected it. We will not disturb the judgment of the jury as long as the verdict is supported by substantial evidence. (People v. Smith (2005) 37 Cal.4th 733, 739.) It is.

There can be no question that firing at a person from close range is sufficient to support an inference of intent to kill. (People v. Smith, supra, 37 Cal.4th at p. 739; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225.) When one adds the evidence that the victim had knocked defendant down in an altercation two days prior to the shooting, thus providing a motive for the shooting, that defendant pointed a gun at the victim the day before the shooting, and that a gang member would have reason to retaliate against a rival who had disrespected him, and there is nothing better for a gang member to "brag about th[a]n killing a rival gang member," there is ample proof to support the jury's conclusion that defendant harbored the intent to kill Sanchez.

As demonstrated above, defendant's claim that the only evidence of intent came in the form of the expert's opinion is unavailing. Thus, we need not address his assertion that the expert's testimony alone is not sufficient to establish intent to kill.

Defendant's contention that there is insufficient evidence showing the shooting was premeditated and deliberate also misses the mark. "A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing—but `[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.' [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 118-119.) Nor do all three factors have to be present to establish premeditation and deliberation. (Id. at p. 119.)

Here, there is a great deal of evidence of preexisting motive. As we have discussed, Sanchez had gotten the better of defendant in a fight that occurred just two days before the shooting. Defendant made it clear that he did not like Sanchez as a result. In addition, as a South Side Village Crips member, defendant had reason to retaliate for Sanchez's show of disrespect to the gang.

There was evidence of planning activity as well. The jury was free to reject defendant's claim that he just happened to see Sanchez at the park on the day of the shooting. The fact that defendant was waiting for Sanchez to emerge from his girlfriend's house when he pointed a gun at Sanchez the day before the shooting and was able to approach Sanchez in the park from behind to accomplish the shooting supports the reasonable inference that defendant was stalking Sanchez and looking for the opportune moment to attack.

"Because this evidence of preexisting motive and planning activity was by itself sufficient to support the [attempted] murder conviction on a theory of premeditation and deliberation, we need not review the evidence concerning the manner of [the attempted] killing." (People v. Jurado, supra, 38 Cal.4th at p. 119.)

II. Counsel Was Not Ineffective by Failing to Seek Bifurcation of the Gang Enhancement

Defendant urges that given the facts of this case, the trial court would have abused its discretion had it denied a motion to bifurcate the gang enhancement from the other charges. Thus, he asserts, counsel was ineffective by failing to file a motion to bifurcate. We disagree.

"`"In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was `deficient' because his `representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.]"'" (In re Richardson (2011) 196 Cal.App.4th 647, 657.)

Where, as here, the gang enhancement is attached to the charged offense, it "is, by definition, inextricably intertwined with that offense." (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) As our Supreme Court explained, "This is not to say that a court should never bifurcate trial of the gang enhancement from trial of guilt." (Id. at p. 1049.) It may be necessary where the predicate offenses offered to establish a pattern of criminal activity are unduly prejudicial or where "some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Ibid.) That is not the case here.

Although the expert testified that the activities of the South Side Village Crips gang included the crime of murder, he stated, "but the primary activity would be the sales of narcotics and making money for the gang that way." He did not paint the picture of a gang that wreaks havoc by killing citizens and other gang members. The three predicate offenses proffered by the prosecution included one drug sale and two assaults with a firearm, hardly more inflammatory than the charged offense of shooting an unarmed victim in the back. In this regard, the gang evidence was not so prejudicial that it threatened "to sway the jury to convict regardless of the defendant's actual guilt." (People v. Hernandez, supra, 33 Cal.4th at p. 1049.)

In an effort to show how the presence of the gang enhancement at trial prejudiced him, defendant cites People v. Bracamonte (1981) 119 Cal.App.3d 644, overruled in People v. Calderon (1994) 9 Cal.4th 69, 80, as "the watershed case on bifurcating trial of the truth of prior convictions from trial of the main charges." However, the Supreme Court explained that because a gang enhancement is "inextricably intertwined" with the charged offense, "less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation." (People v. Hernandez, supra, 33 Cal.4th at p. 1048.)

Defendant's assertion that the evidence of intent to kill was weak has been discussed and rejected. Thus, his claim that the gang evidence provided the only evidence of intent necessarily fails.

We conclude the trial court would not have abused its discretion by denying a motion to bifurcate the gang enhancement. (People v. Hernandez, supra, 33 Cal.4th at p. 1048 [denial of motion to bifurcate the gang enhancement is reviewed for abuse of discretion].) Because defendant cannot establish that a motion to bifurcate would have proven successful, his claim of ineffective assistance of counsel must be rejected. (See People v. Cudjo (1993) 6 Cal.4th 585, 627.)

III. Sufficient Evidence Supports the Finding on the Gang Enhancement

In his opening brief, defendant argued the evidence failed to establish that he committed the crime with the specific intent to promote, further, or assist in other criminal gang activity. In his reply brief, he correctly concedes the Supreme Court rejected the claim that a violation of the gang statute requires the specific intent to promote other criminal conduct by gang members. It is sufficient to establish the defendant had the specific intent to promote any criminal conduct by gang members, including the charged offenses. (People v. Albillar (2010) 51 Cal.4th 47, 64-66.)

IV. The Trial Court Properly Sentenced Defendant

At sentencing, the trial court imposed a life sentence for the attempted murder. It recognized that the true finding on the gang enhancement required that defendant serve a minimum of 15 calendar years before being eligible for parole. (§ 186.22, subd. (b)(5).) In addition, the court sentenced defendant to a consecutive term of 25-years-to-life for the firearm enhancement pursuant to section 12022.53, subdivision (d). It calculated defendant's total sentence to be 40 years to life.5 Defendant asserts this was error and the Attorney General concurs. We disagree.

Defendant argues the sentence should be "a life term for the attempted murder, a 25 to life term for the firearm enhancement, with a minimum parole date set at 15 calendar years of imprisonment for the gang enhancement." (Italics added.) He is incorrect.

Section 186.22, subdivision (b)(5) provides that "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." As defendant was convicted of premeditated attempted murder, which is punishable by a life sentence, the trial court correctly set his penalty at life with a minimum parole eligibility date of 15 years, or 15 to life. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1229.) Under defendant's construction, he is entitled to have a parole date set after serving 15 years. He misreads the statute.

The court properly sentenced defendant to a term of 15-years-to-life for the attempted murder and a consecutive term of 25-years-to-life for the firearm enhancement for a total term of 40-years-to-life. (People v. Villegas, supra, 92 Cal.App.4th at pp. 1228-1229.)

DISPOSITION

The judgment is affirmed.

EPSTEIN, P. J. and MANELLA, J., concurs.