P. v. Flores>

















Filed 1/29/13 P. v. Flores
CA4/2

















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. DANIEL EDWARD FLORES, Defendant and Appellant.

E055182 (Super.Ct.No. RIF154014) O P I N I O N

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Paul M. Bryant,
Judge. (Retired judge of the San
Bernardino Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.

Christian C. Buckley, under
appointment by the Court of Appeal, for Defendant and Appellant.



Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and James D. Dutton, Michael Murphy, Emily R. Hanks, and
Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant and appellant Daniel
Edward Flores was charged by information with two counts: assault by means of force likely to produce
great bodily injury (count 1; Pen. Code, § 245, subd. (a)(1));href="#_ftn1" name="_ftnref1" title="">^[1] and active participation in a href="http://www.fearnotlaw.com/">criminal street gang (count 2;
§ 186.22, subd. (a)).href="#_ftn2"
name="_ftnref2" title="">^[2] The assault charge under count 1 was based
upon an alleged assault against Matthew Carranza. An element of the active gang participation crime
under count 2 is that defendant willfully promoted, furthered, or assisted in
felonious criminal conduct by members of a criminal street gang. In this case, the specific felony relied on
by the prosecution to establish this element was the assault against Carranza
alleged in count 1.



A jury acquitted defendant of the
assault alleged in count 1 and found the related enhancement allegations not
true. The jury found him guilty of
active participation in a criminal street gang under count 2. The court sentenced him to one year four
months in prison, suspended the sentence, and granted defendant three years’
probation.

In this appeal, defendant contends
there is insufficient evidence to sustain the conviction on count 2 for the
sole reason that the jury acquitted him of the assault charge in count 1. For the reasons expressed below, we conclude
that the acquittal on count 1 is not inconsistent with, and does not preclude,
the jury’s verdict on count 2. We
therefore affirm the judgment.

II. FACTUAL SUMMARY

On
August 19, 2007,
Carranza went to a party at a house in Corona with three female friends, A.J., M.H., and
A.E. Carranza did not know any other
people at the party.

Defendant
was at the party. According to the
prosecution’s gang expert, defendant is a member of the El Cerrito Boys gang
(ECB). The expert described ECB as a
“fight crew,” or “party crew.” Their
reputation was not established by dealing drugs, but by “being the big dogs at
the parties and being the ones that can fight and beat up other people
. . . .”



According to Carranza, defendant “all of a sudden . . .
started confronting [him], talking trash from a distance.” Defendant asked Carranza in an aggressive
manner, “Where are you from?” According
to the gang expert, the question is a common manner of inquiring about gang
membership. Carranza said he lived in
the Woodcrest area of Riverside.

Carranza
became uncomfortable and afraid of being assaulted. He wanted to leave immediately, but his
friends wanted to stay. About 15 minutes
later, they decided to leave.

As
Carranza and his friends were leaving, defendant and a friend of his were
standing on the front porch. Defendant
told Carranza he was sorry for what he had said, and asked, “Are we cool?” Carranza said, “Yeah. We’re fine.
Thank you for apologizing.”

Carranza
and his friends walked to their car parked down the street. Defendant and another man walked quickly
toward them. The two men were yelling,
and one of them said something about disrespecting them or their crew. A.J. believed they referred to “El Cerrito or ECB, something with an E.”

Carranza
tried to get into the car, but it was locked.
He then moved toward the middle of the street to defend himself. He and the two men began fighting. At one point, Carranza was on top of
defendant’s friend, punching him, while defendant was punching the back of
Carranza’s head. Two or three other men
joined in the fight and kicked Carranza in the face and hit him with beer bottles. Carranza lost consciousness.

The
fight ended when A.E. yelled out that she had telephoned the police. Defendant and the other assailants got into
an older model Cadillac and drove away.
According to the prosecution’s gang expert, members of ECB are known to
drive older model Cadillacs.

Carranza
suffered a broken jaw, and bruises and cuts to his face. His mouth was wired shut for six weeks.

III. ANALYSIS

Section 186.22, subdivision (a)
imposes punishment for “[a]ny person who actively participates in any href="http://www.mcmillanlaw.com/">criminal street gang with knowledge that
its members engage in or have engaged in a pattern of criminal gang activity,
and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang . . . .” The elements of the offense are: “(1) active participation in a criminal
street gang, in the sense of participation that is more than nominal or
passive; (2) knowledge that the gang’s members engage in or have engaged in a
pattern of criminal gang activity; and (3) the willful promotion, furtherance,
or assistance in any felonious criminal conduct by members of that gang.” (People
v. Albillar (2010) 51 Cal.4th 47, 56.)

Defendant does not challenge the
sufficiency of the evidence to support the first two elements—that he actively
participated in a criminal street gang and had knowledge that the gang’s
members engage in a pattern of criminal gang activity. He challenges only the sufficiency of the
evidence to support the third element—that he willfully promoted, furthered, or
assisted in felonious criminal conduct by gang members.

In this case, the felonious criminal
conduct defendant allegedly promoted, furthered, or assisted was the assault
against Carranza. The conviction on
count 2, therefore, must be supported by substantial evidence of such an
assault.

Defendant does not dispute that the
evidence submitted at trial was sufficient to establish the alleged assault if
such evidence is viewed independently of the jury’s acquittal of the assault
charge on count 1. He contends, however,
that the evidence cannot be viewed independently. Indeed, he asserts that there was
insufficient evidence to support count 2 as a matter of law because “no
required felonious conduct existed after the Count 1 verdict was
returned.” We disagree.

The verdicts on the two counts are
not necessarily inconsistent. Under
count 1, the jury was instructed as to assault with force likely to produce
great bodily injury in accordance with CALCRIM No. 875 as follows: “To prove that the defendant is guilty of
this crime, the People must prove that:
[¶] 1A. The
defendant did an act that by its nature would directly and probably result
in the application of force to a person, and
[¶] 1B. The force used was likely to produce great
bodily injury; [¶] 2. >The defendant did that act willfully; [¶]
3. When the defendant acted, he was aware of facts that would lead a
reasonable person to realize that his act by its nature would directly and
probably result in the application of force to someone; [¶]
AND [¶] 4. >When the defendant acted, he had the
present ability to apply force likely to produce great bodily injury to a
person.”href="#_ftn3" name="_ftnref3" title="">^[3] (Italics added.)

Although one can be convicted of
assault by aiding and abetting another who directly perpetrates an assault, the
court did not instruct the jury as to aiding and abetting liability in
connection with the charge of assault.
(See, e.g., CALCRIM No. 401.) The
jury thus could have reasonably understood the instructions regarding count 1
as requiring that they find defendant committed the assaultive act
himself. Indeed, in the absence of an
aiding and abetting instruction regarding the assault count, it would appear
from the instructions that the jury must
find that defendant was a direct perpetrator.

By contrast, the court’s
instructions regarding the gang participation crime included the following
instruction as to the third element of the crime: “3.
The defendant willfully assisted, furthered, or promoted felonious
criminal conduct by members of the gang either by: [¶]
a. directly and actively
committing a felony offense; [¶] OR [¶]
b. aiding and abetting a felony offense.” (Italics added.) After instructing the jury that “[f]elonious
criminal conduct means committing or attempting to commit . . .
[a]ssault by means of force likely to produce great bodily injury,” the court
added the following: “To prove that the
defendant aided and abetted felonious criminal conduct by a member of the gang,
the People must prove that: [¶] 1. A
member of the gang committed the crime;
[¶] 2. The defendant knew that the gang member
intended to commit the crime; [¶] 3.
Before or during the commission of the crime, the defendant intended to
aid and abet the gang member in committing the crime; [¶]
AND [¶] 4. The
defendant’s words or conduct did in fact aid and abet the commission of the
crime.” After instructing on the intent
required for aiding and abetting liability, the court continued: “If you conclude that defendant was present
at the scene of the crime or failed to prevent the crime, you may consider that
fact in determining whether the defendant was an aider and abetter.”

Viewing the instructions as a whole,
they strongly suggest that a conviction on count 1 required the jurors to find
that defendant directly perpetrated an assault on Carranza, while a conviction
on count 2 required the jurors to find that defendant either committed the
assault himself or aided and abetted others in committing an assault. The crime of assault required that “the
defendant did an act . . .”; while the gang participation crime could
be committed if a “member of the gang committed the [felonious criminal
conduct].”

Thus, if the jurors found that
defendant aided and abetted an assault of Carranza, but did not directly
perpetrate the assault, they could have reasonably acquitted defendant on count
1 and convicted him on count 2. Such a
result is entirely consistent with the instructions the jurors were given. We therefore reject defendant’s premise that
the acquittal of the assault charge on count 1 means that there was no
felonious conduct on count 2 as a matter of law. Because he does not otherwise challenge the
sufficiency of the evidence to support his conviction, we affirm the judgment.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS



KING

J.





We concur:



RAMIREZ

P.
J.



MILLER

J.