P. v. Maldonado

Filed 1/21/10 P. v. Maldonado CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Robert Malachi Maldonado was convicted after jury trial of attempting to dissuade a witness by use of force or threat of force (Pen. Code, 136.1, subd. (c)(1))[1] for the benefit of and in association with a criminal street gang ( 186.22, subd. (b)(4)). Defendant admitted that he had a prior conviction that qualified as both a serious felony ( 667, subd. (a)) and a strike ( 667, subds. (b)-(i); 1170.12). The trial court denied defendants request to strike the prior and the punishment for the gang enhancement, and sentenced him to prison for the indeterminate term of 14 years to life consecutive to the determinate term of five years.

On appeal, defendant contends that (1) his conviction for witness intimidation must be reversed as the record affirmatively demonstrates that the jury relied on a factually inadequate theory to find him guilty, (2) there is insufficient evidence to support the gang enhancement, and (3) the trial court abused its discretion in denying defendants motion to strike the punishment for the gang enhancement. As we find no error or abuse of discretion, we will affirm the judgment.

BACKGROUND

Defendant was charged by second amended information with dissuading or attempting to dissuade a witness by use of force or threat of force. ( 136.1, subd. (c)(1).) The information further alleged that the offense was committed for the benefit of and in association with a criminal street gang ( 186.22, subd. (b)(4)),[2] and that defendant had a prior serious felony conviction ( 667, subd. (a)) that also qualified as a strike ( 667, subds. (b)-(i); 1170.12). On June 9, 2008, the court granted defendants request to bifurcate trial on the prior allegations, but denied his request to bifurcate trial on the gang allegation.

The Trial Evidence[3]

Around 6:20 p.m. on April 11, 2007, several parents were watching their childrens soccer practice at an elementary school on Bal Harbor Way in San Jose when two men walked by carrying bats or boards inside the back of their shirts. The two men stopped and watched some men playing basketball. One of the men watching the basketball players talked on his cell phone. He was soon joined by other men, one with a knife. The basketball players ran from the school, and the men who had been watching them chased them while brandishing their weapons. The majority of the men were Hispanic, between the ages of 15 and 20.

One of the men being chased fell to the ground during the chase and was hit in the ear with a screwdriver. All of the men being chased were able to escape by jumping over a fence. A maroon Chevy Impala with tinted windows pulled up across the street from the school. The driver of the Impala waived to three of the men who had been chasing the basketball players and the three got into the car. Christian Vega and Marta Arevalo, two parents watching the soccer practice, tried to get the license plate number of the Impala, but somebody got out of the car and covered the back plate with something, then returned to the car before it sped off towards Everglades. Afraid and concerned for their safety and the safety of the children playing soccer, Vega and Arevalo called the police. Arevalo was not able to identify defendant at trial as one of the men who had been at the school.

San Jose Police Officer Michael Ghezzi was dispatched to the school at 6:24 p.m. When he arrived at 6:26 p.m., he was not able to find any suspects or anyone who had been injured, but he spoke to Vega. Vega gave the officer a description of the Impala and the officer broadcast that description over his radio.

Around 6:30 p.m. on the evening of April 11, 2007, Angel Ruiz Diaz (Ruiz) drove to the home on Loyola Drive he shared with Noe Isidro Gasga (Isidro)[4] by way of King, Biscayne, and Bermuda. He passed a group of men who were in front of a house on Loyola, and he parked his truck in his driveway with his window open halfway. As Ruiz stayed inside his truck, talking to his cousin on his cell phone, Isidro was in the street behind a truck, working on a car.

Two men from the group Ruiz had passed approached his truck, one on the drivers side and one on the passenger side. The man on the drivers side, who was wearing a red hooded sweatshirt and blue jeans, and who appeared to be older than the others in the group, tried to open the trucks door, but Ruiz was able to keep it locked. The man banged on the window with his hand and kicked the door while yelling something angrily in English. Because Ruiz does not understand English, he did not know what the man was yelling, but he believed that the man was asking him whether or not he was talking to the police. Isidro, who was watching what was happening, also thought that the two men believed that Ruiz was calling the police.

The man on the drivers side of the truck hit Ruiz in the face with his left hand, causing Ruizs nose to bleed, and took Ruizs cell phone and threw it down into the street. Ruiz got out of his truck and asked for his phone back. By this time, the rest of the group that had been at the other house were standing nearby, and somebody had come up behind Isidro and had told him not to turn around. The young man who had been on the passenger side of Ruizs truck, and who was wearing a white shirt and black pants, picked up Ruizs phone and brought it back to the truck. He told Ruiz in Spanish that he would get his phone back, but that he should not call the police or they would come back and beat him up. The man returned the phone to Ruiz and all of the men in the group then went back to and entered the house on Loyola near Bermuda where they had been before the incident.

Isidro went to help Ruiz, and told him that they had to report to the police what had happened. Ruiz did not want to report it, but Isidros young daughter, who had also witnessed the incident, grabbed Ruiz and pulled him towards an officer who was down the street. Ruiz flagged down two officers who were at the corner of Loyola and Bermuda around 6:34 p.m., and told them what had happened to him and which house the group had entered. He said that he recognized two or three of the men as gang members who lived on his street. Those officers and two others went to the house Ruiz pointed out. One officer watched the back of the house while the other officers knocked on the front door. Two men ran out of the back of the house and jumped the fence. Other officers were in the area, and one officer detained the two men on Biscayne, which is the street just north of Loyola. The two men were later determined to be Thomas Cooper and Jesse Lara. Officers then took Ruiz to Biscayne, where they separately showed him the two detained men and asked him if he could identify them as being involved in the attack on him. Ruiz identified both men, but could not specify at that time what they had done.

Defendant and a juvenile, Jorge A., were detained and brought outside the Loyola house by officers. Ruiz identified both men as also being part of the group that attacked him but he could not at that time specify what they had done. Isidro identified one of the men as the one who had hit Ruiz. Ruiz identified two photos of defendant at both the preliminary hearing and at trial as that of the man who had hit him, but he could not identify defendant at trial. Isidro identified a photo of defendant at trial as that of the man who had hit Ruiz and who had thrown the phone into the street. Both Ruiz and Isidro testified at trial that the man who had hit Ruiz was not wearing a red sweatshirt when they saw him detained just after the assault.

Around 6:40 p.m., officers found a maroon Impala parked on Loyola that matched the description of the one involved in the school incident, and Officer Ghezzi took Vega to Loyola to see if Vega could recognize the car. The Impala had a plastic bag tucked into the license plate holder that was obstructing the view of the license plate. Vega identified the Impala as the car he had seen at the school. Vega was also shown a group of people and was asked if he could identify any one of them as having been at the school. He was only able to identify Jorge A. Officers determined that the registered owner of the Impala was Esther Marquez, and that her address was the house on Loyola where the group involved in the assault on Ruiz had been. Before having the Impala towed, officers searched it and found a screwdriver and a hammer on the rear passengers side of the vehicle.

Thomas Cooper, who is Esther Marquezs son and who lived with her at her Loyola Drive home, was one of the men who was taken into custody on Biscayne for having been involved in the assault on Ruiz. At the time of his arrest, Cooper was wearing a black T-shirt, black pants, black Nike shoes with white laces, and a red belt. Esther Marquez testified at trial that her Impala was available to Cooper for him to drive in April 2007, and that she was not using the car on April 11, 2007.

Jesse Lara was the other man who was taken into custody on Biscayne. At the time, Lara was wearing a white shirt and blue jeans.

On April 12, 2007, San Jose Police Detective Kevin Nishita interviewed Ruiz and Isidro with the help of Spanish-speaking officers. Ruiz said that one of the men in the first group he had identified the day before was the one who threatened him in Spanish, and one of the men in the second group was the man who hit him and took his phone. After speaking with Ruiz, Detective Nishita was able to obtain several fingerprints and handprints from the outside of the drivers side window of Ruizs truck. One of the handprints was identified by a latent print examiner as matching defendants left palm print. The detective showed two photographic lineups to Isidro, because Isidro had only been asked to identify defendant and Jorge A. the day before. The lineups included photos of Cooper and Lara. Isidro identified Cooper as the person who returned Ruizs phone to him.

The Gang Evidence

Detective Nishita testified as an expert in the field of Hispanic criminal street gangs that San Jose has two primary Hispanic gangs, Norteos and Sureos. There are over one thousand Norteo gang members in San Jose. Norteos associate with the color red; the number 14, which signifies N, the 14th letter of the alphabet; and the Huelga bird. There are over 20 subgroups within the Norteos, and each has their own name which will identify them with a particular neighborhood. Sureos identify with the color blue and the number 13. Both Norteo and Sureo gangs are active in the east side of San Jose, and both San Jose gangs associate with the number 408. Norteos and Sureos are rivals, and turf-oriented, which means that violence and assaults with the use of weapons occur if a rival gang member is seen in another gangs neighborhood.

Witness intimidation is a crime that is commonly committed by Norteo gang members. They try to keep people from calling or helping the police, or reporting their activities, and it strengthens their gang to instill fear in a neighborhood. Witness intimidation strengthens gangs and promotes future criminal activity of gangs because people are afraid to report gang crimes to the police and to cooperate.

In Detective Nishitas opinion, defendant, who is in his mid-thirties, is a Norteo gang member. In August 1994, defendant was with two documented El Hoya Palmas (EHP) Norteo gang members when he was contacted by San Jose police officers. Inside defendants vehicle were a red bandana, and a red party flier that contained San Jose Norte, the letters VNH, which stands for Varios Norte Homeboys, a Norteo gang, and the letters XIV, which is 14 in Roman numerals. Defendant also had the letter N tattooed on his back. In September 1994, defendant was in a car with two admitted EHP gang members, a documented EHP gang member, and an admitted Eastside Hoods (ESH) gang member when he was contacted by officers. The ESH gang member was Lonny Marquez, who is the biological son of Esther Marquez.[5] In May 1996, defendant was wearing a maroon shirt, a pair of maroon shorts, and a maroon sweatshirt, and he had a tattoo of a Huelga bird on his back when he was contacted by an officer. In 1997, defendant was with a group, one of whose members had shouted puro and EHP, when he was contacted by officers. Defendant then admitted that he was a validated gang member. There is documentation from state law enforcement officials in 2001 determining that defendant was then a Northerner and affiliated with other Northerners and, in 2005, defendant admitted to a Santa Clara County official that he was a Northerner. Northerner is a term used to describe a Norteo gang member.

In Detective Nishitas opinion, Cooper is a Norteo gang member. In September 2004, Cooper and Jorge A. got into a fight at a high school, during which they called the victim a scrap. Scrap is a derogatory gang term for a Sureo gang member. As a result of that incident, Cooper was ordered not to associate with Jorge A. or any other gang members. In September 2005, an officer contacted Cooper when responding to a gang fight near King Road. At the time, Cooper was wearing a red belt that had an N on it and a hat that had S and J on it, and he had a cell phone that displayed the word Eastside. In February of 2007, Cooper was wearing a red belt with an N on it when he was contacted by an officer. When Cooper was detained on Biscayne in connection with this case, he was wearing a red belt. He has the number 408 tattooed on the back of his neck, four dots tattooed on his left hand and one dot tattooed on his right hand, and the word Eastside tattooed on his back. These tattoos are consistent with Cooper being a member of ESSJ, or Eastside San Jose, a Norteo gang with approximately 300 plus members. EHP is a sub set or within the umbrella of ESSJ.

Jorge A. has four dots tattooed on his left wrist. During the 2004 high school assault, Jorge yelled out VMF. VMF stands for Varios Meadow Fair, a Norteo gang with approximately 118 members. It is common for members of the various Norteo gangs in San Jose, such as EHP and VMF to associate with one another. Based on the facts of this case, Detective Nishita believes that defendant committed the witness intimidation on Loyola Drive for the benefit of the Norteo gang in general and ESSJ and VMF in particular, and that the assault that had occurred earlier at the school was a gang fight.

In Detective Nishitas opinion, the San Jose Norteo gang in general and ESSJ and VMF in particular are involved in the commission of crimes listed in section 186.22, subdivision (e), and have participated in a pattern of criminal activity involving intimidation. His opinion is based in part on the following. In October 2006, an assault and robbery occurred at a gas station on Story Road and Jackson Avenue. The victim was wearing a Los Angeles Dodgers shirt with some blue in it. The assailant, a Norteo gang member, confronted the victim, asked him what he claims, and yelled norte catorse (North 14) before assaulting the victim and taking his wallet. The victim sustained a broken nose and lost consciousness. The assailant was convicted of robbery with great bodily injury for the benefit of and in association with a criminal street gang. In July 2006, vandalism occurred on the house of a suspected Sureo gang member on Balboa Street in east San Jose. During the incident, the vandal, a Norteo gang member, yelled out norte, and XIV bitch, threw a beer can through the window of the house, and attempted to escape in a vehicle. The vandal was convicted of theft or unauthorized use of a vehicle for the benefit of or in association with a criminal street gang and felony vandalism. In August 2005, a VMF gang member and three other people approached a car, confronted the victim, called him a scrap and assaulted him. The gang member was convicted by plea of violating section 245, subdivision (a)(1), and he admitted a gang enhancement. Cooper admitted having committed assault by means of force likely to produce great bodily injury as a result of the September 2004 school assault, and was placed on probation by the juvenile court with gang conditions. In April 2003, after a homicide took place in Linder Park in San Jose, a VMF gang member tried to dissuade a witness to the homicide from being a witness in the court case. As a result, the gang member was convicted of witness intimidation.

Defendants Admission of the Priors, the Verdicts, and Sentencing

On June 17, 2008, after the jury retired to deliberate and outside its presence, defendant admitted that he had a prior serious felony conviction that also qualified as a strike. ( 667, subds. (a) & (b)-(i), 1170.12.) On June 18, 2008, the jury found defendant guilty of attempting to dissuade a witness by use of force or threat of force ( 136.1, subd. (c)(1)), and found true the allegation that he committed the offense for the benefit of and in association with a criminal street gang ( 186.22, subd. (b)(4)).

On October 2, 2008, defendant filed a statement in mitigation and a request that his priors be stricken pursuant to section 1385. He separately filed a request that the court strike the sentence for the gang enhancement. The prosecutor filed opposition to both requests. On October 31, 2008, the court denied the request to strike the prior allegations and the punishment for the gang enhancement, and sentenced defendant to the indeterminate term of 14 years to life consecutive to the determinate term of five years.

DISCUSSION

Attempting to Dissuade a Witness

Defendant contends that his conviction for attempting to dissuade a witness violates due process and must be reversed because there is insufficient evidence to support the conviction. Citing People v. Guiton (1993) 4 Cal.4th 1116 (Guiton), he argues that the record shows that the jury relied on a factually inadequate theory to find him guilty of that offense. At trial there was scant evidence to connect the schoolyard incident and the assault on Ruiz, or to establish that [defendant] actually believed Ruiz witnessed the earlier fight. There was no evidence beyond conjecture to support an inference that such a belief was an objectively reasonable one, other than the mere fact that the second incident occurred a short time and a short distance from the first. Because the prosecutor relied almost exclusively on this factually unsupported theory in his presentation and argument to the jury, [defendants] witness intimidation conviction must be reversed.

The Attorney General contends that the prosecutor presented two theories upon which to convict [defendant] under section 136.1. One theory was that Mr. Ruiz witnessed the attack at the elementary school. The other theory was that Mr. Ruiz was a victim. The Attorney General further contends that the evidence is sufficient to support defendants section 136.1 conviction because [s]ubstantial evidence demonstrates that any reasonable person would have believed that Mr. Ruiz had witnessed the attack at the elementary school and was reporting it to the police when [defendant] ordered him not to call the police, punched him in the face, and took his cell phone.

In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential element of the crime beyond a reasonable doubt. [Citations.] We apply an identical standard under the California Constitution. [Citation.] In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonable deduce from the evidence. [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1175.)

A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork. [] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citation.] (People v. Raley (1992) 2 Cal.4th 870, 891.) A trier of fact may rely on inferences to support a conviction only if those inferences are of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt that the inferred facts are true. (Ibid.) Evidence is sufficient to support a conviction only if it is substantial, that is, if it reasonably inspires confidence [citation] and is credible and of solid value. [Citations.] (Ibid.)

An appellate court must accept logical inferences that the jury might have drawn from . . . circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)

In Guiton, our Supreme Court distinguished between two types of cases involving insufficient evidence: (a) those in which a particular theory of conviction . . . is contrary to law, or, phrased slightly differently, cases involving a legally inadequate theory; and (b) those in which the jury has merely been left the option of relying upon a factually inadequate theory, or, also phrased slightly differently, cases in which there was an insufficiency of proof. [Citation.] (Guiton, supra, 4 Cal.4th at p. 1128.) If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. (Id. at p. 1129.)

In this case, the jury was instructed that to find defendant guilty of attempting to dissuade a witness, it had to find that defendant maliciously tried to prevent or discourage Angel Ruiz from making a report that he or someone else was a victim of a crime to a peace officer or local law enforcement officer, Angel Ruiz was a witness or crime victim, and defendant knew he was trying to prevent or discourage Angel Ruiz from making a report that he or someone else was a victim of a crime to a peace officer or local law enforcement officer and intended to do so. [] . . . [] As used here, witness means someone or a person the defendant reasonably believed to be someone: [] Who knows about the existence or non existence of facts relating to a crime, or Who has reported a crime to a peace officer. (See CALCRIM No. 2622; see also  136, subd. (2) [for purposes of 136.1, a witness is a natural person who would be believed by any reasonable person to have knowledge of a crime or to have reported a crime to a peace officer].)

The prosecutions primary legal theory in this case was that defendant assaulted Ruiz because he was trying to prevent or discourage Ruiz from making a police report about the assault that had just happened at the elementary school. Defendant argues that [t]he only actual evidence available to link the two incidents, however that Jorge A. was present at both and that Tommy Cooper, who was present at Ruiz[s] truck, had access to the get-away car proves neither that [defendant] believed Ruiz was a witness nor that he assaulted Ruiz for that reason. However, this was not the only evidence linking the two incidents that the jury was presented; the jury was actually presented with much more.

As reasonably viewed, the evidence presented to the jury was as follows. Parents and young children playing soccer witnessed an assault at an elementary school. Witnesses reported to the police that one of the victims of the assault was hit in the ear with a screwdriver. One of the assailants was identified as Jorge A. Three assailants left the school in a maroon Impala with tinted windows driven by a fourth person, after someone from the car covered the cars rear license plate. Within a few minutes, Ruiz drove his truck past a group of men who were in front of a house a few blocks from the school, then Ruiz drove into a nearby driveway, parked, and talked on his cell phone. The group in front of the house included defendant, Jorge A., and Tommy Cooper, a person who lived in the house and who had access to a maroon Impala with tinted windows. Coopers maroon Impala with tinted windows, with a bag covering its rear license plate, and with a screwdriver inside the passenger compartment, was parked in the street nearby. Defendant and Cooper approached Ruizs truck and appeared to be yelling at him to not call the police. Defendant hit Ruiz, took his cell phone, and threw it down in the street. Cooper picked up the cell phone and returned it to Ruiz while telling him that the group would beat him up if he called the police. The group returned to Coopers house and, when police officers came to the house a few minutes later, Cooper and another man ran but defendant and Jorge A. were found still at the house.

On this evidence, we find that there is sufficient evidence from which the jury could properly find that defendant assaulted Ruiz because he reasonably believed that Ruiz was attempting to make a police report regarding the assault at the elementary school. The prosecution presented sufficient evidence from which the jury could infer that defendant believed that Ruiz was contacting the police about the assaults at the school. Accordingly, we find that substantial evidence supports defendants conviction for attempting to dissuade a witness, that no due process violation has been shown, and that reversal is not required. (Guiton, supra, 4 Cal.4th at p. 1129.)

Gang Enhancement

Defendant contends that the true finding on the gang enhancement violates due process and must be reversed because there is insufficient evidence to support that true finding. He acknowledges that, [u]nder the prosecutions theory of witness intimidation, the benefit to the gang was the straightforward one of protecting gang members from being arrested for a gang attack at the school, as Detective Nishita testified. Defendant argues, however, that if the witness intimidation offense was based on the legal theory that defendant intimidated Ruiz in an attempt to prevent Ruiz from reporting the assault on himself, then the prosecutor failed to present evidence of how this intimidation was intended to benefit the gang. As we have found that substantial evidence supports defendants conviction for attempting to dissuade a witness under the prosecutions legal theory of witness intimidation stated above, we need not address this contention.

Defendant separately contends that the trial court abused its discretion in denying his request to strike the punishment for the gang enhancement. He argues that he does not come within the spirit of the gang enhancement legislation as the underlying offenses . . . are modest in comparison to the violent offenses contemplated by the statutory scheme. The underlying offense for witness intimidation was an incipient schoolyard altercation which involved no injuries, and [defendants] assault on Ruiz consisted of a single angry punch to the nose. [] [Defendant] himself fell outside the spirit of the law as well: under no view of the evidence was he among the most dangerous few or a hardened criminal without respect for human life and beyond reach.

The Attorney General contends that [t]he trial court here did not exercise its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice. [Defendant] simply did not present the court with an unusual case that warranted a departure from the usual sentencing scheme.

Section 186.22 prescribes certain penal consequences for crimes committed for the benefit of, at the direction of, or in association with a criminal street gang. (People v. Gardeley (1996) 14 Cal.4th 605, 615.) Underlying the enactment of this statutory scheme was a legislative finding declaring that California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against peaceful citizens of their neighborhoods. ( 186.21.) To combat the problem, the Legislature declared its intent to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs. (Ibid.) (Gardeley, supra, 14 Cal.4th at p. 615.)

Section 186.22, subdivision (g) provides that the court may strike the additional punishment for the enhancements provided in this section . . . in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition. In striking [a gang] enhancement in furtherance of justice the court may look to general principles, outside the framework of the sentencing scheme, or be guided, instead, by the particulars of the scheme itself, informed as well by generally applicable sentencing principles relating to matters such as the defendants background, character, and prospects, including the factors found in California Rules of Court, rule 410 [now rule 4.410] et seq. [Citations.] (People v. Torres (2008) 163 Cal.App.4th 1420, 1433, fn. 6; see also People v. Levingston (1982) 136 Cal.App.3d 724, 730-731.) We review the courts decision not to strike the enhancement for abuse of discretion. (Cf. People v. Williams (1998) 17 Cal.4th 148, 162.) To establish an abuse of discretion, defendant must demonstrate that the courts sentencing decision exceeds the bounds of reason, all of the circumstances being considered. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

The probation officer reported that defendants prior strike was for a violation of section 245, subdivision (a)(2) [assault with a firearm]. Defendant also has 19 prior misdemeanor convictions for drug/alcohol related offenses, Vehicle Code violations, and theft and domestic violence offenses. At the time of the current offense, he was on probation for misdemeanor violations of section 273.5, subdivision (e)(1) [inflicting corporal injury on a spouse within seven years of a previous conviction] and 243, subdivision (e) [battery on a spouse].

When it denied defendants request to strike the punishment for the gang enhancement, the court stated: Youre a 33-year-old member of society. And youre conducting yourself in a way that is reprehensible. What happened to the victim in this case was reprehensible. [] . . . [The prosecutor] says this undermines the legal system. I think it undermines our whole society when victims of crime are made to feel that they cannot avail themselves of the protection of the law, when theyre in their own driveway in their own vehicle and theyre threatened and intimidated and told, Dont you dare call the police. I think thats fundamentally wrong. [] This is not the first time that there have been gang allegations against you that have been found true by the jury or that have been admitted by you. And so Im not looking at somebody who says, Well, its just a coincidence. This isnt the case. Theres too many coincidences here. [] Im just concerned about the fact that there are no justifications for anything that happened. I dont think alcohol or drugs are a justification for anything that happened here. [] With respect to the gang enhancement, I am going to deny the request that I strike the enhancement because I dont find that there are unusual circumstances. [] I dont think this is the case where compassion is appropriate. My compassion here is for the victim and for a society that weve become where people in certain neighborhoods cant even engage in normal activities without the fear of . . . being intimidated and assaulted for some allegiance to some organization . . . the purposes of which are to thwart and harm other people.

Here, the court did not abandon individualized sentencing; instead it carefully considered defendants background, the offense involved, and the . . . probation report, and then deliberately based its decisions on these factors. The judges additional comments explaining rejection of defendants unusual claim for leniency properly considered the effect a reduced punishment would have on society. (People v. Levingston, supra, 136 Cal.App.3d at p. 731.) On this record, we cannot say that the courts decision to not strike the punishment for the gang enhancement exceeds the bounds of reason, all of the circumstances being considered. (People v. Carbajal, supra, 10 Cal.4th at p. 1121.)

DISPOSITION

The judgment is affirmed.

___________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

Mcadams, J.

_________________________

duffy, J.

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[1] All further statutory references are to the Penal Code.

[2] The information also included allegations against Thomas Cooper and Jesse Lara, neither of whom are subjects of this appeal.

[3] The defense did not call any witnesses.

[4] Isidro testified that he pleaded guilty to two counts of perjury in 1996, after he used his cousins name to get a drivers license.

[5] Esther Marquez testified that Lonny Marquez was adopted by someone else when he was five years old.