P. v. Guzman
Filed 3/21/13 P. v. Guzman CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTIAN GUZMAN et al.,
Defendants and Appellants.
B239850
(Los Angeles
County
Super. Ct.
No. TA117370)
APPEALS
from judgments of the Superior Court
of
County, Patrick Connolly, Judge. Affirmed.
Katharine
Eileen Greenebaum, under Appointment by the Court of Appeal, for Defendant and
Appellant, Christian Guzman.
Kevin D.
Sheehy, under Appointment by the Court of Appeal, for Defendant and Appellant,
Agustine Edgar Cuevas.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
William N. Frank, Deputy Attorneys General, for Respondent.
___________________________
>
Christian
Guzman and Agustine Edgar Cuevas appeal from the judgments entered after a jury
convicted them of assault with a firearm
and other crimes committed for the benefit of a
conceded by the Attorney General, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Information
Guzman was
charged by amended information with making a criminal threat (Pen. Code,
§ 422) (count 1),
name="_ftnref2" title="">[2] carrying
a concealed firearm (§ 12025, subd. (a)(2)) (count 2) and assault
with a firearm (§ 245, subd. (a)(2)) (count 4) with special
allegations the crimes had been committed for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)(A) & (b)(1)(C)) and he had personally
used a firearm in committing the offenses charged in counts 1 and 4 (§ 12022.5,
subd. (a)). Cuevas was charged with
making a criminal threat (count 1), the unlawful driving or taking of a vehicle
(Veh. Code, § 10851, subd. (a)) (count 3) and assault with a firearm
(count 4) with special allegations the crimes had been committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A) & (b)(1)(C))
and a principal had been armed with a firearm in connection with counts 1 and 4
(§ 12022, subd. (a)(1)). Guzman and
Cuevas pleaded not guilty.
2. Summary
of the Evidence Presented at Trial
a. The
People’s evidence
Luis
Estrada was collecting admission fees at a party in Watts
after midnight on March 26, 2011 when Guzman, Cuevas and three
other men approached. Estrada testified,
after he had repeatedly refused Guzman’s demand his group be admitted free,
Guzman said, “Let us in or I’m going to shoot you.†Estrada felt something cold and metallic
pressed against his stomach. Cuevas, who
was standing inches behind Guzman, said, “Step aside if you don’t want to get
shot.†During the confrontation Estrada
heard someone say the group would not pay because “this is our hood,â€
Watts.†The group then pushed Estrada
aside and barged into the party. Estrada
told the disc jockey to stop the party because he did not want anyone to get
hurt. As people began to leave, Estrada saw a
white truck, driven by Cuevas, spinning its tires before driving off.
Justin
Mancillas was standing about 10 feet away from Estrada when he saw Guzman “had
[Estrada] against the fence.†Guzman and
the four men with him appeared to Mancillas to be gang members: They wore baggy clothes, and one had
tattoos. Mancillas initially denied he
had told friends and officers who responded to the scene that Guzman had a
gun. Upon further questioning on direct
examination, Mancillas acknowledged he had testified at the
black gun at Estrada and explained he was afraid to testify at trial. Mancillas then testified he did see Guzman
pointing a gun toward Estrada’s stomach “from the side angle.†However, during cross-examination by Cuevas’s
counsel Mancillas clarified he did not actually see the gun. Rather, he saw Guzman first reach his right hand
to his waist band and then raise his arm toward the front of his body;
Mancillas assumed, and Estrada told him, Guzman had a gun. Mancillas told his friend to call the police.
Los Angeles
Police Officer Mario Leonidas testified he saw a white truck spinning its tires
when he and his partner arrived at the scene.
Estrada and Mancillas flagged down Leonidas, telling him, “Those two
guys in the car pointed guns at us.â€
Leonidas pursued the white truck, which had driven away. After detaining Cuevas, who was driving, and
the passenger, Yony Lima, Leonidas returned to the scene and located
Mancillas. Mancillas then identified
Guzman, who was leaning on an SUV parked in a driveway, as the assailant with
the gun. Leonidas saw Guzman place a
revolver between the tire and wheel well as he was looking at him. Leonidas and another officer immediately
approached, recovered a blue steel revolver loaded with five rounds of
ammunition and detained Guzman. Six more
rounds of ammunition were recovered from the floorboard of the white truck
Cuevas had been driving.
Los Angeles
County Sheriff’s Deputy Chris Mezzano, testifying as a gang expert, explained
he was assigned to a gang unit that monitors the Florencia 13 criminal street
gang, one of the largest gangs in Los Angeles County. The gang has numerous rivals, including the
South Side Watts,
title="">[5] which claims as its territory the area where
the party occurred. Mezzano opined
Guzman was a member of the “Termite†clique of Florencia 13 based on several
facts, including that he had “F-13†tattooed on his left wrist and “Los
Termites†tattooed on his neck, had been served with a criminal street gang
injunction issued against members of Florencia 13, and had been arrested
twice with another Florencia 13 gang member.
Mezzano testified he believed Cuevas was an Florencia 13 gang member
based on the “SC†tattoo on his arm, which, although not necessarily related to
a gang, is a common tattoo for members of Florencia 13, and his association
with other Florencia 13 gang members, including Juan Lozano, one of the people
who had confronted Estrada.
name="_ftnref6" title="">[6] Mezzano opined Guzman and Cuevas had
committed their crimes to benefit the Florencia 13 gang: By going to a party as a group in South Side
Watts territory and threatening the doorman after he refused to let them in
free, they were sending a message that Florencia 13 was to be feared,
permitting its members to do what they want.
By threatening to shoot the doorman, they were enhancing their individual
reputations in the gang. Additionally,
by concealing a firearm, they were making the firearm available to any gang
member who may want to use it should the need arise.
Acknowledging
the only gang name announced was South Side Watts, not Florencia 13,
Mezzano conceded on cross-examination gang members would not shout out a rival
gang name in order to gain notoriety for their own gang. Nonetheless, minimizing the significance of
the apparent contradiction, Mezzano explained, “When they commit crimes, they
don’t want to be directly associated with the crime. . . . So it’s not uncommon and it does happen. And I’ve investigated cases where oftentimes
gang members will shout out a rival gang’s name after they commit a crime
because they don’t want the attention to come right back on them.â€
party or wherever that’s occurring, [for] the most part, have an idea who they
are. I mean, the fact that they yell out
a rival’s name doesn’t necessarily mean they’re not trying to put their gang
out there, they’re not putting in work for the gang. It actually helps them amongst each other, it
gives them bragging rights, look what we did for Florencia, you know, them
going out there [committing violent crimes] together.â€
b. The
defense evidence
Guzman admitted he is a member
of the Termite clique of the Florencia 13 gang and the gun and bullets
recovered were his. He testified he went
to the party with some friends to have a good time, and his brother dropped him
off. While he was waiting in line, Guzman
heard people in front of him say they would not pay to get into a party in
their “hood,†“South Side Watts.†He
knew they were members of a rival gang, but he could not leave because his
brother had left; so he walked in behind the rival gang members without
paying. Realizing he was “in the wrong
place,†Guzman called his brother to pick him up. While he was waiting outside, Guzman saw
Lima, who he knew was a fellow Florencia 13 gang member, in the white
truck. Lima agreed to give Guzman a
ride. However, before they drove away,
Guzman’s brother arrived. Guzman got out
of the truck, leaving behind bullets he had taken out of his pocket. Guzman then saw the police, panicked and put
the gun in the wheel well of the SUV.
Guzman testified he would not claim “South Side Watts†because “it’s not
even my hood†and he “could get beaten up or even killed†if his fellow gang
members ever found out he was doing that.
Cuevas
testified his girlfriend called, asking him to pick her up from the party after
midnight. She sounded afraid and said
people were fighting. Cuevas called
Lima, an old friend and a Florencia 13 gang member, to accompany him because he
felt more comfortable with him there.
Cuevas borrowed the white truck and left Lima in it while he got into
line. Suddenly, “everybody just burst
into the party,†and Cuevas followed.
After the music stopped, Cuevas went outside where he saw Guzman talking
to Lima. Cuevas claimed he did not know
Guzman. As Lima asked Cuevas if they
could give Guzman a ride, Guzman’s brother arrived; and Guzman left. For “fun,†Cuevas decided to “show off and
burn . . . my tires†after seeing other cars do the same. Police officers pulled over the truck shortly
thereafter. Cuevas denied he was a
member of a gang and insisted he got his “SC†tattoo because he was a fan of
USC football.
Lima
admitted he is a member of the Malditos clique of Florencia 13. He testified he and Cuevas had been best
friends since high school but Cuevas was not a member of the gang. Lima’s description of his and Cuevas’s
presence at the scene was largely consistent with Cuevas’s.
3. The
Trial Court’s Ruling No Instruction on Simple Assault Was Warranted
After
informing counsel it would instruct the jury on assault with a firearm, the trial
court indicated it did not intend to instruct on the lesser included offense of
simple assault because the defendants’ theory of the case was “the witnesses in
this matter were confused as to who they saw complete this action or do
whatever was done out there . . . .†Defense counsel confirmed the court’s
understanding. The court ruled, “So
under [People v. Breverman (1998) 19
Cal.4th 142 (Breverman)], I think
that they’re either going to find it was an assault that was done [by] one or
both of the defendants, or it’s nothing at all, or its going to be not
guilty. So I think under
be appropriate to give a misdemeanor instruction of simple assault.†Defense counsel did not object.
4. The
Jury’s Verdict and Sentencing
The jury
found both Guzman and Cuevas guilty on all counts and found true the special
allegations. The trial court sentenced
Guzman to an aggregate state prison term of 17 years, comprised of the low term
of two years for assault with a firearm plus the high term of 10 years for the
firearm enhancement plus five years for the criminal street gang
enhancement. Sentence for making a
criminal threat and carrying a concealed firearm was imposed and stayed pursuant
to section 654. The court sentenced
Cuevas to an aggregate state prison term of eight years eight months, comprised
of the low term of two years for assault with a firearm plus one year for the
firearm enhancement, plus eight months for the unlawful taking of a vehicle,
plus five years for the gang enhancement.
Sentence for making a criminal threat was imposed and stayed pursuant to
section 654.
CONTENTIONS
Cuevas contends the trial court
committed prejudicial error by failing to instruct the jury on assault as a
lesser included offense of assault with a firearm and the firearm enhancement
should be stricken as unauthorized.
Guzman contends there was insufficient evidence the crimes were
committed for the benefit of a criminal street gang.
DISCUSSION
Decision Not To Instruct on Simple Assault Was Not Prejudicial Error
The
trial court in a criminal case has a duty to instruct on general principles of
law applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745),
that is, “‘“‘those principles closely and openly connected with the facts
before the court, and which are necessary for the jury’s understanding of the
case.’â€â€™â€ (People v. Valdez
(2004) 32 Cal.4th 73, 115.) This
obligation includes the duty to instruct on a lesser
the elements of the lesser included
offense, but not the greater offense, are present. (Ibid.; Breverman, supra,
19 Cal.4th at p. 154.) The duty
“arises even against the defendant’s wishes, and regardless of the trial
theories or tactics the defendant has actually pursued.†(Breverman,
“‘any evidence, no matter how weak’â€
will not justify instructions on a lesser included offense. There must be “‘evidence that a reasonable
jury could find persuasive.’†(Ibid.;
see Blair, at p. 745 [“[t]o
justify a lesser included offense instruction, the evidence supporting the
instruction must be substantial—that is, it must be evidence from which a jury
composed of reasonable persons could conclude that the facts underlying the
particular instruction existâ€].) In
addition, the failure to instruct on a lesser
included offense in noncapital cases is “at most,
an error of California law alone†requiring reversal only when “an examination
of the entire record establishes a reasonable probability the error affected
the outcome.†(Breverman, at p. 165.)
Cuevas
contends the trial court had a duty to instruct on simple assault as a lesser
included offense of assault with a firearm because Mancillas’s testimony
presented “two materially divergent storiesâ€:
First, Mancillas testified he never saw a gun, but only heard about it
from Estrada. Later, Mancillas testified
he saw Guzman make motions consistent with the raising of a firearm and assumed
he had one, which Estrada subsequently confirmed. Cuevas argues Mancillas’s inconsistent
testimony constituted sufficient evidence to support a jury finding Guzman
assaulted Estrada without using a firearm.
Thus, Cuevas aided and abetted only a simple assault.
No simple
assault instruction was warranted. The
evidence was overwhelming a gun was used in the assault: Guzman admitted he brought a gun to the
party; Estrada testified Guzman and Cuevas threatened to shoot him and he felt
a cold, metallic object pressed against his stomach. Mancillas only briefly maintained at trial he
did not see a gun and readily explained when confronted with his contrary
testimony at the preliminary hearing, he was afraid to testify at trial. He then admitted he believed Guzman had a gun
because he saw motions consistent with the raising of a gun. Mancillas’s initial statement he only heard
about the gun from Estrada, standing alone, is simply not sufficient evidence
from which a reasonable jury could conclude an assault occurred without the use
of a firearm. Even if an instruction on
simple assault was arguably justified, moreover, on the record here there is no
reasonable probability Cuevas would have benefitted from it. (See Breverman,
supra, 19 Cal.4th at p. 165.)
2. Sufficient
Evidence Supports the True Finding on the Gang Enhancement
To obtain a
true finding on a gang enhancement allegation, the People must prove the
underlying offense was “committed for the benefit of, at the direction of, or
in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members . . .
.†(§ 186.22,
subd. (b)(1).) This, in turn,
requires proof of two related elements:
First, there must be evidence the underlying felony was “committed for
the benefit of, at the direction of, or in association with any criminal street
gang.†Second, there must be evidence
the defendant had “the specific intent to promote, further, or assist in any
criminal conduct by gang members.â€
(People v. Albillar (2010) 51 Cal.4th 47, 51 (Albillar); People
v. Gardeley (1996) 14 Cal.4th 605, 615-616.)
Emphasizing
that Estrada and Mancillas testified someone identified South Side Watts, not
Florencia 13, and no one displayed a gang sign or indicated in any way a gang motive,
Guzman contends there was insufficient evidence to support the jury’s true
finding because the crimes committed did nothing to enhance his own reputation
within the gang or otherwise benefit
Florencia 13.
name="_ftnref9" title="">[9] Guzman correctly observes not every crime
committed by a gang member is a gang-related crime for purposes of
section 186.22, subdivision (b)(1) (see, e.g., Albillar, supra, 51
Cal.4th at p. 60; People v. Morales (2003)
112 Cal.App.4th 1176, 1198) and “something more than an expert witness’s unsubstantiated
opinion that a crime was committed for the benefit of, at the direction of, or
in association with any criminal street gang is required to justify a true
finding on a gang enhancement.†(People
v. Ochoa (2009) 179 Cal.App.4th 650, 660.)
Viewing the
evidence in the light most favorable to the judgment, as we must, it is
sufficient to support the gang enhancement.
The first element may be established by substantial evidence the crime
was committed “in association with†a criminal street gang, that is, that two
or more gang members committed the crime together, unless there is evidence
that they were “on a frolic and detour unrelated to the gang.†(People
v. Morales, supra, 112
Cal.App.4th at p. 1198 [absent evidence of frolic and detour, “jury could
reasonably infer the requisite association from the very fact that defendant
committed the charged crimes in association with fellow gang members]; accord,
see Albillar, supra, 51 Cal.4th at p. 62 [when evidence establishes
defendants came together as gang members to attack the victim, jury properly
found they committed the crime in association with the gang].) The evidence is unassailable Guzman committed
the crimes with other Florencia 13 gang members: Lima admitted his membership in the gang, and
there was strong evidence Lozano and Cuevas were members of Florencia 13 as
well. As for the frolic-and-detour
contention, the jury, as it was permitted to do, rejected Guzman’s testimony he
simply went to the party to have fun and Cuevas and Lima’s testimony they went
to the party to pick up Cuevas’s girlfriend—the only evidence offered of
activity that might be unrelated to the gang.
In addition, Deputy Mezzano explained how the crimes benefitted Florencia
13’s reputation in the community—and the gang members status in the
gang—notwithstanding they did not announce the name of the gang. It was within the province of the jury to
credit Mezzano’s explanation, which was not inherently improbable, notwithstanding
Guzman’s and Cuevas’s arguments to the contrary.
The second
element—specific intent to promote, further or assist in any criminal conduct
by gang members—is also satisfied here from the evidence the crimes were
committed jointly by several gang members.
“[I]f substantial evidence establishes that the defendant intended to
and did commit the charged felony with known members of a gang, the jury may
fairly infer that the defendant had the specific intent to promote, further, or
assist criminal conduct by those gang members.â€
(Albillar,
People v. Livingston (2012) 53
Cal.4th 1145, 1171; see People v.
Villalobos (2006) 145 Cal.App.4th 310, 322 [“[c]ommission of a crime in
concert with known gang members is substantial evidence which supports the
inference that the defendant acted with the specific intent to promote, further
or assist gang members in the commission of the crimeâ€].)
3. The
Matter Must Be Remanded for Resentencing of Cuevas
As the Attorney General concedes,
the trial court’s imposition of the one-year-firearm enhancement pursuant to
section 12022, subdivision (a)(1), with respect to Cuevas’s conviction for
assault with a firearm was unauthorized because use of a firearm is an element
of the offenses. (See
Cal.App.4th 848, 855-856.) Although
Cuevas contends the enhancement should simply be struck, the proper action is
to remand for resentencing. (See
191 Cal.App.4th 269, 273 [“[w]hen an unlawful sentencing decision is made
. . . , the proper course of action is to allow the trial court
to lawfully exercise its discretion and impose a lawful sentenceâ€].) The trial court may have selected the middle
term of three years for the aggravated assault conviction, instead of the low
term of two years, if it realized it could not impose a one-year enhancement
under section 12022, subdivision (a)(1).
It is within the province of the trial court to consider this issue on
remand.
DISPOSITION
The judgment is reversed as to
Cuevas and remanded for further sentencing proceedings. The minute order entered following Guzman’s
and Cuevas’s convictions is modified to state the statutory basis for the
five-year gang enhancement is section 186.22, subdivision (b)(1)(B). In all other respects the judgments are
affirmed.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
JACKSON,
J.
addition to the sentencing error discussed in our opinion, the Attorney General
acknowledges the minute order entered following Guzman’s and Cuevas’s
convictions and the abstracts of judgment should be corrected to state the
statutory basis for the five-year criminal street gang enhancement is Penal
Code section 186.22, subdivision (b)(1)(B), not (b)(1)(C).
references are to the Penal Code unless otherwise indicated.
