P. v. Guzman
Filed 5/10/13 P. v. Guzman CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE M. GUZMAN,
Defendant and Appellant.
B241144
(Los Angeles
County
Super. Ct.
No. MA051433)
APPEAL from
a judgment of the Superior Court
of
County.
Kathleen Blanchard, Judge.
Affirmed as modified.
Christine
C. Shaver, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Lawrence M. Daniels and
Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Appellant
Jose Manuel Guzman was convicted, following a jury trial, of one count of
robbery in violation of Penal Code section 211,
section 245, subdivision (a)(2), one count of aggravated mayhem in violation of
section 205 and one count of torture
in violation of section 206. The jury
found true the allegations that appellant committed the crimes for the benefit
of a criminal street gang within the meaning of section 186.22, subdivision
(b)(1)(C), and the allegations that a principal personally and intentionally
discharged a firearm in the commission of the robbery, mayhem and torture
within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1). The trial court sentenced appellant to life
with the possibility of parole for the torture conviction, plus 25 years to
life in state prison for the firearm and gang allegations. The court stayed sentence on the other counts
pursuant to section 654.
Appellant
appeals from the judgment of conviction, contending that there is insufficient
evidence to support the mayhem and torture convictions and the true finding on
the gang enhancement. Respondent
contends that the abstract of judgment should be corrected to reflect the trial
court's oral pronouncement of sentence.
We order the correction and affirm the judgment of conviction in all
other respects.
Facts
Around December 20, 2010, Ruben Castro purchased $100
worth of marijuana from Shawn Jackson on credit.
was a member of the Temple Street 13 gang, and was known as
"Fly." Jackson
contacted Castro two days later and demanded that Castro pay him $300 for the
marijuana. Castro did not pay.
On December 24, 2010, Castro called appellant, a close
friend. Appellant was a member of the
Junior Mafia 13 gang. Castro was not a
member of any gang. Appellant told
Castro that his parents were out of town so they agreed to meet at appellant's
house. Castro was expecting a small
party.
When Castro arrived at appellant's
house, appellant was just arriving as well and the house was dark. Appellant was with an individual Castro did
not recognize. Castro was surprised that
the house was dark and that no one else was home, as he was expecting a
party. Inside the house, appellant told
Castro to go into his mother's room and offered to go out and buy some
alcohol. Castro gave appellant some
money for alcohol, and appellant quickly left.
Five to ten minutes after appellant
left, Castro saw Jackson standing
by the doorway to the bedroom. Another
individual Castro did not recognize stood behind Jackson. Jackson
said, "What's up, mother fucker" and took out a gun and shot Castro
above his left knee. Castro jumped up
from the bed and tried to defend himself.
Jackson hit Castro in the
head three times with the barrel of the gun.
On the third blow, the gun went off.
Castro "blacked out" and "thought it was all over." While Castro lay on the floor, Jackson
started to kick him wherever he could, including his face. Castro tried to protect his face from being
kicked further. Castro was in
"excruciating pain." Jackson
tried to take Castro's pants off and when he was unable to do so, he reached
into Castro's back pocket and took his wallet.
At some point, appellant entered
the room and Castro heard Jackson
talking to appellant. Jackson
asked appellant if he wanted the money or if he wanted the "dope" for
setting Castro up. Appellant responded
that he wanted the drugs. Jackson
handed appellant something and left the room.
Appellant stayed in the room and a neighbor came in. Castro was able to call a friend, Juan Saenz,
to pick him up. Appellant and his neighbor
carried Castro out of the house, onto the porch and left him there. Saenz took Castro to his girlfriend's house
and her uncle called an ambulance to take Castro to the hospital.
Before the ambulance arrived,
Deputy Charles Dana from the Palmdale Sheriff's Office came to Saenz's
house. Castro told Deputy Dana that he
had been shot at appellant's home by a person named Jackson. Deputy Dana spoke with Saenz, who identified
the location of the shooting.
Deputy Dana then went to
appellant's home. No one was there. Deputy Dana saw an open sliding glass door at
the back of the residence. He also
observed a bullet hole in a nearby window.
Inside, Deputy Dana saw that the bullet hole was from the master bedroom
window. Deputy Dana saw a bloody rag, a
laundry basket with blood, and an unexpended .22 caliber bullet on the master
bedroom floor.
Castro had surgery the next day to
place a metal rod from his left hip to his knee. He had three screws implanted for a fractured
femur and could not walk on his left leg for three months. He also sustained a six-inch gash to the back
of his head, which required six staples as a result of being hit in the
head. The pain in his left leg lasted
nine months. Castro felt depressed,
upset, and betrayed by appellant because he thought they were friends.
Detective Richard O'Neal, a gang
detective for the Los Angeles County Sheriff's Department, was assigned to
investigate the circumstances surrounding the shooting. He spoke with Castro a few days after the
shooting. Castro told him that appellant
and Jackson were involved in the
shooting and positively identified them both in a six-pack photographic
lineup. Castro identified Jackson
as the shooter.
On December 30, 2010, Detective O'Neal executed the search
warrant on Jackson's
residence. There were surveillance
cameras and barred screen doors at the exterior of the residence. Inside, in Jackson's
room, Detective O'Neal saw gang-related items.
There was a corkboard filled with gang graffiti such as "Jackson,
T-S-T." A photograph of suspected
gang members with "Temple Streeters"
etched on it showed Jackson with
tattoos indicating his membership in the gang.
Detective O'Neal also saw a "pay-and-owe" sheet, narcotics
paraphernalia, and syringes for narcotic use.
The pay-and-owe sheet had Castro's name with "100" written
next to it, identifying that Castro owed Jackson
$100.
In January 2011, a search warrant
was executed on appellant's residence.
Appellant was not home. Appellant
was not located until his arrest on November
20, 2011. A search of
appellant's room revealed clothing associated with Hispanic gangs, and a notebook
with gang graffiti, including "Varrio Junior Mafiosos" and
appellant's gang name, "Flaco."
At trial, Detective O'Neal
testified as an expert on gangs. He had
been a gang detective for over four years and was familiar with the Temple
Street gang, a Hispanic gang that started in West
Los Angeles. Most Temple
Street gang members were in the Los
Angeles area, but there was a small group in the Antelope
Valley area. Detective O'Neal was also familiar with the
Junior Mafia 13 gang, a Hispanic gang which began in Bell
Gardens. It is
a small but violent gang. Most members
are in the Bell Gardens area, but a small number are in the Antelope Valley
area. Detective O'Neal explained that
the gangs in the Antelope Valley tended to group together to give them strength
in numbers. Members of different gangs
committed crimes together which empowered them and allowed them to survive
among other gangs in the area. Temple
Street 13 gang members and Junior Mafia 13 gang members were known to often
work together based on their affiliation with the Mexican Mafia.
Detective O'Neal knew appellant to
be a member of the Junior Mafia 13 gang.
A field identification card identified appellant as a member of Junior
Mafia 13 in 2007, 2008, and 2010.
Appellant had numerous tattoos showing allegiance to the gang.
Los Angeles Police Officer Jason
Abner also testified as a gang expert.
He was assigned to monitor the Temple Street gang, among others, and
testified as an expert witness on Temple Street gang cases. Officer Abner testified that Temple Street
considered areas of downtown Los Angeles, parts of the San Fernando Valley,
South Central Los Angeles, and the Palmdale area as its territory. The primary activities of Temple Street
included homicide, robberies, assault with a deadly weapon, weapons possession,
narcotic sales, and vandalism. Narcotic
sales were important to the gang as it produced revenue for the gang. The profit gained from narcotic sales were
often used to purchase more drugs and weapons.
Temple Street also gave some of
their profits from narcotic sales to the Mexican Mafia to serve as protection
for gang members who were incarcerated.
Officer Abner explained that Temple Street 13 members were affiliated
with the Mexican Mafia and as required, Temple Street paid taxes to the Mexican
Mafia in exchange for protection inside the prisons. Generally, if a gang was under the Mexican
Mafia, the gang was required to pay taxes to the Mexican Mafia, which was a
percentage of the revenue from the sales of narcotics. Failure to pay taxes would result in a
"green light," which was a term used to signal an assault on the gang
or its gang members. The Junior Mafia 13
gang was also affiliated with the Mexican Mafia, and members of Temple Street
13 had been known to associate and work with Junior Mafia 13 members based on
their affiliation.
Officer Abner opined that Jackson
was a member of the Temple Street gang based on Jackson's numerous gang tattoos
and self-admission to other law enforcement officers.
In response to a hypothetical that
included the circumstances of the instant crime, Officer Abner opined that the
shooting and subsequent assault was committed for the benefit of the gang. Officer Abner explained that the gang's
existence was based on fear and intimidation.
Once the fear was developed, gang members were free to commit crimes
without fear of prosecution. However, as
detailed in the hypothetical, if an individual ignored the gang member's
repeated requests for payment for drugs, this fear would be lost if that gang
member did not act on the uncollected drug sale. Not only was the gang member required to act
on the uncollected drug sale, but it benefited the gang to keep the victim
alive because the victim can serve as living proof that the gang was willing to
commit violent acts against anyone who "crosses" them. Further, the money obtained from the drug
sales promoted further criminal activity while a portion of the sales were used
to pay taxes to the Mexican Mafia.
Discussion
1. Mayhem and torture
Appellant
was convicted of aggravated mayhem and torture under a natural and probable
consequences theory of accomplice liability.
He contends that these crimes were not a natural and probable
consequence of the target crime of assault with a firearm. He further contends that there is no evidence
that Jackson had the specific intent to maim required for aggravated mayhem or
the specific intent to cause cruel and extreme pain required for torture. Appellant concludes that these convictions
violate his state and federal constitutional rights to due process and require
reversal.
A. Aggravated mayhem
A
conviction for aggravated mayhem requires the specific intent to cause the
maiming injury. (People v.
1162.) This specific intent "may be
inferred from the circumstances attending an act, the manner in which it is
done, and the means used, among other factors." (Ibid.)
"Evidence which shows no more
than an 'indiscriminate attack' is insufficient to prove the specific intent .
. . ." (People v.
835.) "'Furthermore, specific
intent to maim may not be inferred solely from evidence that the injury
inflicted actually constitutes mayhem . . . .
[Citation.]'" (
Cal.App.4th 61, 64.)
Appellant contends that in this
case there was evidence of only an indiscriminate attack. We do not agree.
The evidence showed that Jackson
came to appellant's house as part of a plan to collect an unpaid drug debt from
Castro. Jackson used far more violence
than was necessary to simply take money from Castro, however. In fact, Jackson shot Castro without making
any demand for payment, or giving Castro the opportunity to pay his debt. Jackson had the element of surprise, and fired
his gun when he was about seven feet from Castro. Thus, Jackson had the choice of where to hit
Castro. He chose to shoot Castro in the
thigh, shattering Castro's leg in three places.
It is more than reasonable to infer that Jackson intended to disable
Castro. Mayhem requires a permanent
disability. Officer Abner testified that
gangs often keep victims alive as proof that the gang is willing to commit
violent acts against those who "cross" them. Thus, it is reasonable to infer that Jackson
intended to inflict a permanent
disability on Castro as a warning to others not to "cross" him or
his gang.
B. Torture
A
conviction for torture requires a specific intent to cause cruel and extreme
pain. (People v. Burton (2006) 143
Cal.App.4th 447, 452; People
(2006) 142 Cal.App.4th 365, 371.) This
specific intent can be established by the circumstances of the offense. (People
v. Burton, supra, 143
Cal.App.4th at p. 452.)
Appellant
contends that the evidence shows only that Jackson continued his assault on
Castro after the shooting to render Castro completely helpless before he took
Castro's wallet. We do not agree.
After
Jackson hit Castro on the head three times with the barrel of the gun, and
after Castro collapsed to the ground and lapsed into semi-consciousness,
Jackson continued his assault. Castro
was "all twisted up on the floor" at that point. Jackson kicked Castro "wherever he
could," including Castro's face.
Castro testified that he was in "excruciating pain" from the
attack. Jackson continued his attack
well past the point that Castro was rendered completely helpless. It is thus reasonable to infer that Jackson
kicked Castro for the purpose of inflicting
C. Natural and probable consequences
The target
crime in this case was assault with a
firearm. Appellant does not dispute
that there is substantial evidence that he intended to aid and abet Jackson's
commission of that offense.
When a
person aids and abets a confederate in the commission of a criminal act, the
person is guilty not only of the crime that was originally contemplated and
committed, but also of any other crime committed by the confederate that is a
natural and probable consequence of the crime originally contemplated. (People
v. Prettyman (1996) 14 Cal.4th 248, 260-262.) Whether the other crime was a natural and
probable consequence of the act originally encouraged is a question of fact for
the jury. (People v.
1376.)
"For a criminal act to be
'reasonably foreseeable' or a 'natural and probable' consequence of another
criminal design, it is not necessary that the collateral act be specifically
planned or agreed upon, not even that it be substantially certain to result
from the commission of the planned act."
(People v. Nguyen (1993) 21
Cal.App.4th 518, 530-531.) The
"question is not whether the aider and abettor actually foresaw the . . . crime, but whether, judged objectively,
it was reasonably
foreseeable." (People v.
original italics.)
Here,
appellant knew that Castro had an unpaid drug debt to Jackson, and that Castro
had been avoiding paying it. Appellant
helped Jackson by tricking Castro into coming to an isolated location where
Castro could not escape or seek help. It
is reasonable to infer that appellant knew that Castro was likely to resist
paying his debt and that Jackson intended to force him to pay. Jackson had a gun, but it was more than
possible that simply pointing the gun would not produce the desired
results. Further, appellant was a gang
member, as was Jackson. Gangs rely on
fear and intimidation to operate.
Hurting but not killing someone who refuses to pay a debt to the gang
benefits the gang, because the victim becomes living proof that the gang is
willing to use physical violence against anyone who crosses them. Thus, it was reasonably foreseeable that
extreme physical violence designed to send a message would ensue, and so
reasonably foreseeable that aggravated
mayhem and torture would occur.
D. Constitutional claims
Since we have determined that
"a rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt, the due process clause of the
States Constitution is satisfied [citation], as is the due process clause
of article I, section 15, of the California Constitution [citation]." (People
v. Osband (1996) 13 Cal.4th 622, 690.)
2. Gang allegation
Appellant contends that there is
insufficient evidence to prove that he committed the crimes for the benefit of
the Temple Street gang with the specific intent to promote the gang's criminal
conduct, and that such a conviction violates his state and federal
constitutional rights to due process.
Appellant points out that he and Jackson belonged to different gangs and
neither of them made gang signs, called out a gang name, wore gang colors, or
in any other way referred to a gang. He
also points out that the evidence shows that he was paid for assisting
Jackson. He concludes that the evidence
proves only that he helped Jackson for personal benefit, not for gang benefit.
Section 186.22 requires that the
defendant commit the charged crime for the benefit of, at the direction of or
in association with, the gang and that he do so with the specific intent to
promote, further or assist any criminal conduct by the gang. (People
v. Albillar (2010) 51 Cal.4th 47, 51.)
The jury may rely on expert
testimony about gang membership, culture, habits, and activities to reach a finding
on a gang allegation. (
Cal.4th 932, 944; People
(1996) 14 Cal.4th 605, 617-620.) In
turn, the gang experts may rely on conversations with gang members, their own
personal investigations of gang-related crimes, and other information to render
their opinions. (People v.
"There is rarely direct evidence that a crime was committed for the
benefit of a gang. For this reason, 'we
routinely draw inferences about intent from the predictable results of
action. We cannot look into people's
minds directly to see their purposes. We
can discover mental state only from how people act and what they say.'" (People
v. Miranda (2011) 192 Cal.App.4th 398, 411-412.)
Here, Officer Abner testified that
Jackson was a member of the Temple Street gang and that narcotic sales were a
primary activity of that gang. He
explained that the narcotic sales produced revenue for the gang, which it used
to purchase weapons and more narcotics, and also to pay the Mexican Mafia to
serve as protection for gang members who were in jail. Officer Abner also explained that gang
existence is based on fear and intimidation, and that a gang member would have
to act on an uncollected drug debt to maintain the community's fear of the
gang. In addition, Officer Abner opined
that leaving a victim alive but badly injured would provide living proof that
the gang was willing to commit violent acts against anyone who crossed them. This is more than sufficient evidence to
create a reasonable inference that Jackson committed the crimes for the benefit
of a criminal street gang.
To the extent that appellant
contends that expert testimony can never constitute sufficient evidence to
support a gang enhancement, appellant is mistaken. "'Expert opinion that particular
criminal conduct benefited a gang' is not only permissible but can be
sufficient to support the . . . gang enhancement." (People
v. Vang (2011) 52 Cal.4th 1038, 1048, quoting People v.
Further, expert opinion in this area is often necessary to prove that a
crime is gang-related because jurors may be unfamiliar with the culture and
psychology of criminal street gangs.
(See, e.g., People
(2005) 36 Cal.4th 186, 210 [expert may testify as to gang member's "likely
reaction to language or actions he perceived as gang challenges"].)
There is also sufficient evidence
to show that appellant committed the crime either for the benefit of or in
association with a criminal street gang.
There was ample testimony that
appellant was a member of the Junior Mafia 13 gang and Jackson a member of the
Temple Street 13 gang. Both Officer
Abner and Detective O'Neal testified that members of Temple Street 13 had been
known to associate and work with Junior Mafia 13 members based on their
affiliation with the Mexican Mafia.
Detective O'Neal explained that this gave them strength in numbers that
they would otherwise be lacking. The
evidence showed that appellant assisted Jackson from the beginning to the end
of the crimes. Not only did appellant
help set Castro up for the confrontation, he helped complete the crime by
carrying Castro out of the house. Thus,
there was evidence that appellant committed the offenses in this case in
association with a gang. (See
People v. Ochoa (2009) 179
Cal.App.4th 650, 661, fn. 7 [fact that defendant had fellow gang member in
stolen vehicle with him supported finding that he acted in association with the
gang]; People v. Leon (2008) 161
Cal.App.4th 149, 163 [because defendant committed offenses in association with
fellow gang member, he committed them "in association with any criminal
street gang"].)
The evidence was also sufficient to
establish that appellant acted with "the specific intent to promote,
further, or assist in any criminal conduct
by gang members." As the California
Supreme Court has explained, "[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." (People
v. Albillar, supra, 51
Cal.4th at p. 68; see also People
(2006) 145 Cal.App.4th 310, 322 ["Commission 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 crime."].) That was the case here, and the jury could
reasonably infer that appellant intended to assist in criminal conduct by a
fellow gang member.
Since we have determined that
"a rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt, the due process clause of the United
States Constitution is satisfied [citation], as is the due process clause of
article I, section 15, of the California Constitution [citation]." (People
v. Osband, supra, 13 Cal.4th at p. 690.)
3.
Sentence correction
Respondent contends that the
abstract of judgment does not clearly reflect the trial court's oral
pronouncement of sentence on the count 6 enhancements and must be
corrected. Appellant does not dispute
this claim. We agree that the abstract
should be clarified.
The trial court correctly imposed
life with the possibility of parole for the count 6 torture conviction, plus
one consecutive term of 25 years to life in prison for the firearm and gang
enhancements. (People v.
590.) The abstract shows "25Y"
for the firearm enhancement and "25Y" for the gang enhancement. The "25Y" notation for the gang
enhancement is ordered stricken and the "25Y" notation for the
firearm enhancement is clarified to read "25Y to life."
Disposition
The "25Y" notation in the
abstract of judgment for the gang enhancement is ordered stricken and the
"25Y" notation for the firearm enhancement is ordered clarified to
read "25Y to life." The clerk
of the superior court is instructed to prepare an amended abstract of judgment
reflecting this correction and to deliver a copy to the
respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
Acting P. J.
We concur:
KRIEGLER,
J.
O'NEILL,
J.
Code unless otherwise indicated.
Castro. Jackson filed a separate appeal
in case number B234802. His conviction
was affirmed.
