P. v. Latscha

Filed 11/7/18 P. v. Latscha CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
RUDY LATSCHA,
Defendant and Appellant.
B283284
(Los Angeles County
Super. Ct. No. KA111966)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Juan Carlos Dominguez, Judge. Conviction
affirmed, sentence vacated, and remanded with directions.
Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.

-- 1 of 21 --

2
Rudy Latscha (Latscha) was convicted of the January 28,
2016 attempted murder of Louie Gomez; the January 28, 2016
assault with a firearm against Maribel Montoya and Jose
Navarro; the February 8, 2016 attempted murder of Gomez; and
shooting at an occupied motor vehicle. Firearm and gang
allegations were found true, as were allegations that he suffered
one prior strike conviction and had served one prior prison term.
On appeal, appellant contends: (1) the attempted murder
and discharge of a firearm at a motor vehicle violate the double
jeopardy clause of the United States and California constitutions;
(2) the assault with a firearm convictions should be reversed
under Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett);
(3) all convictions should be reversed because the trial court’s
appointment of retained counsel was unauthorized by law; (4) the
attempted murder convictions should be reversed because the
court failed to sua sponte instruct on the crime of assault with a
firearm; (5) the Navarro assault conviction should be reversed for
insufficiency of the evidence; (6) all convictions should be
reversed for insufficiency of the evidence with respect to shooter
identity; (7) the two 10-year gang enhancement punishments for
the attempted murders must be vacated; and (8) the case must be
remanded to the trial court to permit the court to exercise its
discretion to strike the firearm enhancements.
We agree, and the People concede, that the two 10-year
gang enhancements must be vacated and that the case must be
remanded for the trial court to exercise its discretion whether to
strike the firearm enhancements.

-- 2 of 21 --

3
FACTUAL BACKGROUND
Latscha, also known as “Tito,” was a member of the Bassett
Grande gang in the San Gabriel Valley. Latscha had a number of
gang-related tattoos, including the letter “B” on his chin
(representing the Bassett Grande gang), and the word “Sureno”
on the top of his head. A Sureno is a member of any street gang
who enters prison and commits crimes for the benefit of the
Mexican Mafia prison gang.
Gomez, also known as “Trigger,” was a former member of
the Bassett Grande gang. Gomez and Latscha grew up in the
same neighborhood, and Gomez testified that he had seen
Latscha “maybe a handful of times” over the years. Due to safety
concerns, Gomez dropped out of the gang while serving a prison
sentence and was placed in protective custody. After his release
from prison in 2010, Gomez began selling methamphetamine in
his neighborhood. In 2013 or 2014, Gomez began providing
information to the police to avoid arrests for minor infractions; on
occasion, the Los Angeles Police Department paid Gomez in
exchange for information. Prior to Latscha’s trial, Gomez was
arrested for possession of a loaded firearm, which subjected him
to a life sentence under the “Three Strikes” law. After Gomez’s
testimony at Latscha’s preliminary hearing, he entered into a
leniency agreement with the district attorney’s office, whereby he
would be sentenced to one year in jail for his gun possession case
in exchange for testifying in Latscha’s case.
Montoya, Gomez’s girlfriend, testified that she had met
Latscha in 2012 on a county jail bus, and had a brief conversation
with him. In addition, Montoya had spoken with Latscha on the
telephone a few times in early to mid January of 2016. Montoya

-- 3 of 21 --

4
testified that she had regularly used methamphetamine for eight
years up to the time of the January 28 shooting. In addition,
Montoya lived with Gomez at the time of the shootings without
paying rent, was unemployed, and relied on Gomez for money.
In mid-January of 2016, Gomez was in his front yard with a
friend, “Wolfie,” when a white truck pulled up. Latscha was in
the passenger seat and yelled at Wolfie to “take flight” on Gomez
and “get [him]” because Gomez was a “PC,” and “no good.” A
“PC” is a gang drop-out and/or a “green-lighter,” which is
somebody the gang wants to hurt. To “take flight” means to beat
somebody up. Wolfie did not comply. Montoya observed the
incident through a window.
On January 28, 2016, Gomez was in front of his house
flying a drone airplane with his friend, Navarro. Montoya drove
to Gomez’s house and parked in the driveway. Shortly
thereafter, Gomez saw a silver car drive up and stop in front of
his house; Latscha was hanging out of one of the windows
shooting a gun. Latscha aimed the gun at Gomez, but Montoya
was between them. As Gomez ran toward his house, he heard
nine or 10 gunshots. Gomez was shot in the thigh and ankle.
Montoya was shot once in the leg and Navarro, who had been
between Latscha and Gomez at one point during the shooting,
suffered a graze wound to the leg.
Los Angeles County Sheriff’s Department (LASD) Deputy
George Meza and his trainee, Deputy Perez, responded to the
scene. Deputy Meza recovered five bullet casings from the street
and sidewalk. Gomez and Montoya were transported to
LAC+USC Medical Center; Navarro was transported to a local
hospital. Deputy Vishtasp Munshi interviewed Gomez at the
hospital, and Gomez informed the deputy that “Tito” had shot

-- 4 of 21 --

5
him. Gomez testified that he was “100 percent certain” that
Latscha had shot him and that he saw Latscha’s chin tattoo
“clear as day.”
Montoya testified that she talked to the police at Gomez’s
request. She initially did not want to for fear of being labeled a
snitch. Montoya identified Latscha in a six-pack photo display
and stated she was “100 percent sure” that Latscha was the
shooter. Montoya testified that she saw Latscha in the car
pointing a gun at her, and recognized his chin tattoo. Although it
was dark outside, the car was lit by a nearby light pole.
On February 8, 2016, Gomez was driving in Bassett Grande
territory when he saw Latscha standing on a corner. Latscha
pointed a gun at Gomez and shot several times. There were eight
bullet holes in Gomez’s car, including some in the area of the
driver’s side door. Deputies Meza and Perez responded to the
scene and discovered one bullet casing in the street. The LASD
determined that this casing, and the casings recovered from the
January 28 shooting, had all been fired from the same gun.
Gomez testified he was “100 percent sure” that Latscha was the
person who shot him.
PROCEDURAL BACKGROUND
On June 21, 2016, the Los Angeles County District
Attorney’s office charged Latscha via information with:
attempted willful, deliberate, and premeditated murder on
February 8 as to Gomez (Pen. Code,1 §§ 187, subd. (a), 664;
1 All further statutory references are to the Penal Code
unless otherwise indicated.

-- 5 of 21 --

6
count 1); shooting at on occupied motor vehicle on February 8
(§ 246; count 2); and attempted willful, deliberate, and
premeditated murder on January 28 as to Gomez, Montoya, and
Navarro (§§ 187, subd. (a), 664; counts 3, 4, and 5, respectively).
As to counts 1, 3, 4, and 5, the People alleged Latscha personally
used a firearm within the meaning of section 12022.53,
subdivision (b), and personally and intentionally discharged a
firearm within the meaning of 12022.53, subdivision (c). As to
counts 3, 4, and 5, the People alleged Latscha personally and
intentionally discharged a firearm, which caused great bodily
injury to Gomez, Montoya, and Navarro within the meaning of
section 12022.53, subdivision (d). As to all counts, the People
alleged Latscha’s offenses were committed for the benefit of, at
the direction of, or in association with a criminal street gang with
the specific intent to promote, further, and assist in criminal
gang conduct within the meaning of section 186.22, subdivision
(b)(1)(C).
At the preliminary hearing, Gomez testified that he did not
tell police officers that Latscha was the person who shot him on
January 28. At trial, however, Gomez testified adamantly on
cross-examination that he had identified Latscha as the shooter
to Deputy Munshi while Gomez was in the hospital. After
Gomez’s trial testimony, the prosecutor contacted the People’s
record clerk, and uncovered a two-page supplemental police
report by Deputy Munshi that had inadvertently been excluded
from discovery. Latscha’s attorney moved for a mistrial based on
late discovery of Deputy Munshi’s report. Recognizing that
Latscha’s theory of the case relied heavily on Gomez not
identifying Latscha after the first shooting, the court granted a
mistrial on March 29, 2017. The parties agreed that the People

-- 6 of 21 --

7
did not commit any misconduct, but that the omission of the
report was an oversight by the LASD. The court inquired of
Latscha whether he was asking the court for a mistrial, and
advised him of the consequences of declaring a mistrial. Latscha
stated that he understood the consequences, and that he wanted
the court to declare a mistrial.
At a readiness hearing on April 5, 2017, the court
appointed the same attorney who represented Latscha at the first
trial to represent Latscha in the retrial. On April 14, 2017, the
People amended the information to dismiss counts 4 and 5—the
attempted murder charges regarding Montoya and Navarro—and
added two counts of assault with a firearm as to Montoya and
Navarro (§ 245, subd. (a); counts 6 and 7, respectively). As to
count 6, the information alleged that Latscha personally inflicted
great bodily injury against Montoya within the meaning of
section 12022.7, subdivision (a). As to counts 6 and 7, the
amended information alleged gang enhancements pursuant to
section 186.22, subdivision (b)(1)(B), and firearm enhancements
pursuant to section 12022.5, subdivision (a).
The retrial jury convicted Latscha on all counts, and found
all special allegations true. In a bifurcated proceeding, Latscha
admitted he had suffered one prior strike conviction and served
one prior prison term. The trial court sentenced Latscha to an
aggregated term of 23 years and eight months, plus 107 years to
life. Latscha timely appealed.

-- 7 of 21 --

8
DISCUSSION
I. Double Jeopardy
The United States and California constitutions prohibit the
government from putting a person in jeopardy twice for the same
offense, thereby protecting criminal defendants from multiple
punishments for the same offense. (U.S. Const., 5th Amend.; Cal.
Const., art. I, § 15; People v. Anderson (2009) 47 Cal.4th 92, 103.)
The constitutional guarantee against double jeopardy also
protects a defendant’s right to “ ‘have his trial completed by a
particular tribunal.’ ” (Oregon v. Kennedy (1982) 456 U.S. 667,
671 [102 S.Ct. 2083, 72 L.Ed.2d 416].) In a jury trial, jeopardy
attaches once the jurors have been impaneled and sworn. (Crist
v. Bretz (1978) 437 U.S. 28, 38 [98 S.Ct. 2146, 57 L.Ed.2d 24];
People v. Fields (1996) 13 Cal.4th 289, 299.)
Where a mistrial has been declared, the defendant’s
“ ‘valued right to have his trial completed by a particular
tribunal’ is . . . implicated” (United States v. Dinitz (1976) 424
U.S. 600, 606 [96 S.Ct. 1075, 47 L.Ed.2d 267]) and discharge of a
jury without a verdict is usually “tantamount to an acquittal and
prevents a retrial.” (Stone v. Superior Court (1982) 31 Cal.3d
503, 516.) When a defendant persuades the court to declare a
mistrial, however, or even consents to a mistrial, retrial is
generally allowed unless “the conduct giving rise to the successful
motion for a mistrial was intended to provoke the defendant into
moving for a mistrial.” (Oregon v. Kennedy, supra, 456 U.S. at
p. 679; Stone, at p. 516; Evans v. Michigan (2013) 568 U.S. 313,
318 [133 S.Ct. 1069, 185 L.Ed.2d 124]; .) In other words, only
when the government intends to “subvert the protections afforded
by the Double Jeopardy Clause” and “the government conduct in

-- 8 of 21 --

9
question is intended to ‘goad’ the defendant into moving for a
mistrial” will retrial be prohibited after a defendant’s successful
motion for a mistrial. (Oregon, at pp. 675-676.)
Absent governmental misconduct, the “general rule” is that
a defendant’s motion for a mistrial amounts to “ ‘a deliberate
election on his part to forgo his valued right to have his guilt or
innocence determined’ ” before the first tribunal. (Oregon v.
Kennedy, supra, 456 U.S. at p. 676; People v. Batts (2003) 30
Cal.4th 660, 679-680.) After all, “[t]he important consideration,
for purposes of the Double Jeopardy Clause, is that the defendant
retain primary control over the course to be followed.” (United
States v. Dinitz, supra, 424 U.S. at p. 609.)
Here, defense counsel expressly moved for a mistrial. Prior
to granting the motion, the court asked Latscha whether he
“understood what we are referring to with regards to a mistrial”;
whether he understood that he was “asking this court to stop
these proceedings to let these jurors go home” and begin the case
“all over again”; and whether he understood that “now this
evidence will come in a new trial against you.” Latscha replied,
“Yes,” to all three questions. The court then asked Latscha,
“you’re asking the court to declare a mistrial at this time?”
Latscha replied, “Yes.”
Latscha concedes that he requested a mistrial, and even
concedes that his motion for a mistrial was not the result of
governmental misconduct. Rather, Latscha argues that defense
counsel’s failure to request Deputy Munshi’s supplemental report
before trial constitutes deficient performance and the resulting
request for a mistrial is the product of a conflict of interest. The
conflict of interest Latscha contemplates here is defense counsel’s
advising him of a choice whether or not to request a mistrial

-- 9 of 21 --

10
when defense counsel’s own conduct was a “substantial factor” in
creating the need for a mistrial. Under these circumstances,
Latscha argues, a defendant does not retain the “primary control
over the course of to be followed” that the double jeopardy clause
aims to protect. Latscha asserts that some form of advisement
that his counsel’s deficient performance contributed to
governmental misconduct was required in order to cure this
apparent conflict of interest.
First, we do not agree that the omission of Deputy Munshi’s
report was the result of misconduct by any of the parties. As the
court found, and we agree, the oversight here was not
unreasonable under the circumstances. At the preliminary
hearing, Gomez testified that he did not speak to any police
officers after the January 28 shooting. There was therefore no
reason for the parties to expect to find anything in the discovery
materials that would indicate otherwise.
In addition, the only mention of Deputy Munshi’s
supplemental report appears in a brief statement within Deputy
Perez’s report: “Deputy Munshi contacted Victim 1 and Victim 2
at L.A. County USC. He collected a GSR sample from both
victims. He also interviewed Victim 1 and Victim 2. See his
attached supplemental report.” A supplemental report was
attached, however it was a report authored by Deputy Davanzo,
who spoke with Navarro at a different hospital. The confusion,
therefore, resulted from the fact that there was a supplemental
report attached to Deputy Perez’s report, but it related to
Navarro, not Gomez.
Second, Latscha provides no state or federal authority for
the proposition that double jeopardy principles impose a duty
upon the court to advise a defendant that his or her motion for a

-- 10 of 21 --

11
mistrial may have resulted from defense counsel’s allegedly
deficient performance. We therefore reject Latscha’s urging that
we carve out another exception to the rule that only
governmental misconduct will bar retrial after a defendant
successfully moves for a mistrial.
II. Kellett
In Kellett, our Supreme Court held that when “the
prosecution is or should be aware of more than one offense in
which the same act or course of conduct plays a significant part,
all such offenses must be prosecuted in a single proceeding.”
Kellett, supra, 63 Cal.2d at p. 827.) Failure to do so, “will result
in a bar to subsequent prosecution of any offense omitted if the
initial proceedings culminate in either acquittal or conviction and
sentence.” (Ibid., italics added.)
During the retrial, the People dismissed counts 4 and 5 for
the attempted murders of Montoya and Navarro, and filed an
amended information to add counts 6 and 7 for assault with a
firearm against those victims. Latscha argues that Kellett
precluded the People from filing these charges in the retrial
because a “dismissal of the jury . . . constitutes an acquittal of all
charged offenses.”
Decisions of the California Supreme Court have “settled the
now familiar rule” that, “if a jury is discharged without returning
a verdict, the defendant cannot be retried unless the defendant
consented to the discharge, or manifest necessity required it.”
(People v. Fields (1996) 13 Cal.4th 289, 299; Curry v. Superior
Court (1970) 2 Cal.3d 707, 712.)

-- 11 of 21 --

12
As discussed above, Latscha requested a mistrial. His first
trial, therefore, by no means resulted in an acquittal. Kellett is
thus inapplicable to Latscha’s case.
III. Court-appointment of Retained Counsel
Latscha argues that all his convictions must be reversed
because the court’s appointment of Latscha’s retained counsel
from the first trial to represent him in the retrial “was
unauthorized by state law.”
Section 987.2 sets forth the procedures for appointing
counsel for indigent criminal defendants. In pertinent part, the
statute directs trial court to “first utilize the services of the public
defender.” If the public defender is unavailable, the court shall
next appoint the second public defender, if such entity exists. If
the second public defender is unavailable, the court shall then
utilize the services of county-contracted attorneys. (§ 987.2,
subd. (e).) The statute also provides that “a court may depart
from that portion of the procedure requiring appointment of the
second public defender or a county-contracted attorney after
making a finding of good cause and stating the reasons therefor
on the record.” (Ibid.)
The record reflects that, after the mistrial, the trial court
re-appointed Latscha’s retained counsel after Latscha submitted
a declaration of indigency. There is no record of the trial court
inquiring into the availability of the public defender. Nor does
the record contain copies of Latscha’s declaration of indigency or
any other documents relevant to the court’s appointment of
Latscha’s attorney.
Latscha argues the court did not make a “ ‘good cause’
finding” when it appointed retained counsel, and did not place its

-- 12 of 21 --

13
reasons for the appointment on the record. Latscha argues that
prior to the appointment of retained counsel, he was not given an
opportunity to consult with the public defender or the alternate
public defender and the court never told him that the mistrial
may have resulted from his attorney’s ineffective assistance of
counsel.
Latscha never raised any objection to the appointment of
retained counsel in the trial court and has therefore forfeited
such a claim on appeal. It is a “well-established procedural
principle” that, with certain exceptions, a reviewing court will not
consider claims of error that were not raised in the trial court.
(People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Only those
errors implicating a fundamental or constitutional right may
excuse the failure to object. (Ibid.) Although the right to counsel
is a fundamental constitutional right, a criminal defendant who
requires appointed counsel does not have a constitutional right to
his or her attorney of choice. (People v. Thomas (2012) 54 Cal.4th
908, 924.)
Additionally, the appointment of counsel for an indigent
defendant rests within the sound discretion of the trial court.
(People v. Horton (1995) 11 Cal.4th 1068, 1098.) A trial court
abuses its discretion when “it acts unreasonably under the
circumstances of the particular case.” (People v. Cole (2004) 33
Cal.4th 1158, 1185.) Here, we find it entirely reasonable for the
court to appoint Latscha’s retained counsel given that retained
counsel was familiar with the facts of the case, and that Latscha
registered no objection to the appointment at trial. Furthermore,
Latscha has not produced any evidence that the trial court did
not inquire into the availability of the public defender prior to
Latscha’s first trial. It very well may be that the court’s initial

-- 13 of 21 --

14
appointment of Latscha’s attorney resulted from an inquiry into
the availability of the public defender and alternate public
defender’s offices prior to the first trial. Absent any evidence that
the trial court failed to make this inquiry upon appointing
Latscha’s attorney in the first proceeding, we cannot conclude
that the court did not follow the requirements of section 987.2
prior to Latscha’s retrial, much less that the court abused its
discretion in appointing Latscha’s retained counsel.
IV. Attempted Murder Jury Instructions
Latscha contends that his attempted murder convictions in
counts 1 and 3 should be reversed because the trial court failed to
instruct sua sponte on the lesser offense of assault with a
firearm.
Trial courts have a duty to instruct, sua sponte, on all
lesser included offenses which are supported by substantial
evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.)
They are not, however, required to instruct on lesser related
offenses. The law could be no more clear: a criminal defendant
does not have a “unilateral entitlement to instructions on lesser
offenses which are not necessarily included in the charge.”
(People v. Birks (1998) 19 Cal.4th 108, 136.)
Assault with a firearm is not a lesser included offense of
attempted murder, only a lesser related offense. (People v. Nelson
(2011) 51 Cal.4th 198, 215.) The court therefore had no duty to
instruct the jury on assault with a firearm as a lesser related
offense of attempted murder.

-- 14 of 21 --

15
V. Sufficiency of the Evidence
Latscha contends there is insufficient evidence to support
the assault with a firearm conviction as to Navarro, and
insufficient evidence of shooter identity to support all of Latscha’s
convictions. Not so.
A. Standard of Review
When a defendant challenges the sufficiency of the
evidence to support a judgment, we review the evidence under
the familiar and deferential substantial evidence standard.
(People v. Hicks (1982) 128 Cal.App.3d 423, 429.) Substantial
evidence is evidence that is “reasonable, credible, and of solid
value.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We review
the record “ ‘ “in the light most favorable to the judgment” ’ ” and
presume the existence “ ‘ “of every fact the trier could reasonably
deduce from the evidence.” ’ ” (People v. Lee (2011) 51 Cal.4th
620, 632.) It is the “exclusive province of the trial judge or jury to
determine the credibility of a witness,” and to determine the
weight to be given to the testimony adduced at trial. (Ibid.;
Hicks, at p. 429.) Reversal under this standard of review “is
unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. The Navarro Assault With a Firearm Conviction
Latscha argues that the People did not prove Navarro’s
location in relationship to Gomez or Montoya’s location, that
there is no evidence Latscha directly shot at Navarro, and that
the People failed to prove that Navarro’s wound resulted from a
direct targeted hit rather than a ricochet. Even if Latscha is

-- 15 of 21 --

16
correct that Navarro’s location was not established, that Latscha
did not shoot directly at Navarro, and Navarro’s wound was the
result of a ricochet, the evidence nonetheless supports the assault
conviction as to Navarro.
It is of no consequence that Latscha did not shoot directly
at Navarro. “[I]t is clear that the question of intent for assault is
determined by the character of the defendant’s willful conduct
considered in conjunction with its direct and probable
consequences.” (People v. Colantuono (1994) 7 Cal.4th 206, 217.)
The evidence at trial established that Gomez and Navarro were
flying drones together in front of Gomez’s house. And, Gomez
testified that Navarro was between him and Latscha when
Navarro got hit. The evidence is clear that Latscha willfully fired
a gun multiple times in the direction of Gomez, Montoya, and
Navarro. There can therefore be no uncertainty that injury to all
three victims would be a direct and probable consequence of this
act. The People need not “prove a specific intent to inflict a
particular harm,” i.e., a direct hit rather than a ricochet. Nor
must they establish that Latscha intended to shoot Navarro by
shooting directly at him, as “a person who harbors the requisite
intent for assault is guilty of the assault of all persons actually
assaulted.” (People v. Trujillo (2010) 181 Cal.App.4th 1344, 1354-
1355.)
Again, the evidence established that Navarro was in
Gomez’s front yard when Latscha unleashed 10 bullets in their
direction. There can be no dispute that Latscha had the ability to
inflict a violent injury on any person standing in front of Gomez’s
house, and that he did in fact injure Gomez, Montoya, and
Navarro by firing 10 shots in their direction. Such evidence is

-- 16 of 21 --

17
more than sufficient to sustain the assault conviction as to
Navarro.
C. Shooter Identity
Latscha alleged there was insufficient evidence to establish
his identity as the shooter because “[n]o reasonable trier of fact
could find that Gomez’s identification testimony was reasonable,
credible and of solid value.” According to Latscha, Gomez was a
“liar and perjurer” who falsified his identity to shield himself
from a potential life sentence for gun possession. Latscha
attempts to further support his attack on Gomez’s credibility by
asserting that Gomez’s testimony identifying Latscha as the
shooter on January 28 and as the person who encouraged
Latscha’s friend to “take flight’ on him are uncorroborated.
Latscha also asks us to discredit Montoya’s testimony for two
reasons: (1) she only obeyed Gomez’s request to talk to the police
because she was dependent on him for housing, food, money, and
drugs; and (2) despite seeing Latscha shoot at her on January 28,
and identifying Latscha’s “B” chin tattoo, “she never saw
[Latscha’s] prominent Sureno forehead tattoo.”
With respect to Montoya, we cannot say that failing to
observe Latscha’s forehead tattoo sabotages the credibility or
value of her remaining testimony. Montoya testified that she
saw Latscha’s face on January 28, observed his chin tattoo, and
saw him pointing the gun toward her upper thigh. This
constitutes sufficient evidence from which the jury could
reasonably deduce that Latscha was the shooter. And, whether
Montoya’s dependence on Gomez infected her identification of
Latscha is a credibility issue for the fact-finder to decide. The
jury was aware that Montoya was unemployed, lived with Gomez

-- 17 of 21 --

18
rent-free, and relied on Gomez for money. They were aware that
Montoya did not want to testify, but only did so upon Gomez’s
request. It is not for us to determine that this impeachment
evidence outweighs Montoya’s remaining testimony.
With respect to Gomez’s uncorroborated testimony, “the
testimony of a single witness is sufficient to support a conviction”
unless it is “physically impossible or inherently improbable.”
(People v. Young (2005) 34 Cal.4th 1149, 1181.) There is nothing
physically impossible about Gomez’s identification of Latscha, as
Gomez was obviously present when Latscha shot at him in
January and February.
Nor is Gomez’s testimony inherently improbable because he
gained an advantage by testifying at Latscha’s trial. In
advancing the argument that Gomez had reasons to lie on the
witness stand, Latscha is asking us to evaluate Gomez’s
credibility. This we cannot do. Again, only the fact-finder is
entitled to determine the veracity of each witness’s testimony and
the weight to be given to impeachment evidence. The jury was
well aware that Gomez was a police informant who had been paid
to deliver information to the LAPD, and they knew that Gomez
agreed to testify in Latscha’s case in exchange for leniency in his
gun possession case. The fact that the jury credited Gomez’s
identification of Latscha despite the advantage he obtained for
doing so does not warrant reversal.
Based on the above, we cannot conclude that “ ‘upon no
hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ ” (People v. Bolin, supra, 18 Cal.4th at
p. 331.)

-- 18 of 21 --

19
VI. Gang Enhancements
Latscha argues, and the People concede, that the sentence
on the attempted murder counts must be modified to delete the
10-year gang enhancements. We agree.
Under People v. Lopez (2005) 34 Cal.4th 1002, 1004, a
violent felony punishable by a life term of imprisonment is not
subject to the 10-year enhancement under section 186.22,
subdivision (b)(1)(C). The trial court here imposed 10-year gang
enhancements under this statute for each of the attempted
murder convictions; attempted murder, however, is punishable by
a life term. (§§ 187, subd. (a), 664, subd. (a).)2 Accordingly, the
judgment must be modified to vacate the 10-year gang
enhancements on counts 1 and 3.
VII. Discretion To Strike Firearm Enhancements
Latscha argues, and the People concede, that Latscha’s
case must be remanded to the trial court to exercise its discretion
to strike the firearm enhancements on counts 1 and 3. We agree.
The trial court imposed a firearm enhancement of 20 years
pursuant to section 12022.53, subdivision (c), for the attempted
murder in count 1, and a 25 years-to-life firearm enhancement
pursuant to section 12022.53, subdivision (d), for the attempted
murder in count 3. At the time of Latscha’s sentencing, trial
courts had no authority to strike these firearm enhancements.
(See former §§ 12022.5, subd. (c), 12022.53, subd. (h).)
2 The trial court doubled Latscha’s seven-year-to-life
sentences for attempted murder to 14 years-to-life under the
three strikes law.

-- 19 of 21 --

20
Effective January 1, 2018, section 12022.53, subdivision
(h), was amended to allow a court to exercise its discretion to
strike or dismiss a section 12022.53 firearm enhancement at the
time of sentencing or resentencing. This new legislation applies
retroactively to all cases not yet final as of January 1, 2018.
(People v. Billingsley (2018) 22 Cal.App.5th 1076, 1080.)
Accordingly, the matter is remanded to allow the trial court to
exercise its discretion under section 12022.53, subdivision (h).

-- 20 of 21 --

21
DISPOSITION
The judgment of conviction is affirmed. The sentence is
vacated and the matter is remanded to the trial court with
directions to (1) strike the gang enhancements in counts 1 and 3,
and (2) exercise its discretion whether to strike or dismiss the
firearm enhancements under section 12022.53, subdivision (h),
and to resentence Latscha accordingly. The trial court is directed
to prepare an amended abstract of judgment reflecting its
changes to Latscha’s sentence and forward a copy to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
JOHNSON, Acting P. J.
We concur:
BENDIX, J.
CURREY, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

-- 21 of 21 --