v. Mancilla
Filed
1/9/13 P. v. Mancilla CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW ROGILLO
MANCILLA,
Defendant and Appellant.
F061394
(Super. Ct. Nos. 10CM7002 & 09CM7180)
APPEAL
from a judgment of the Superior Court of
Kyle
Gee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On
June 4, 2009, appellant Andrew Rogillo Mancilla entered into a negotiated plea
agreement in Kings County case No. 09CM7180.
In exchange for his no contest plea to one count of robbery and one
count of active participation in a criminal street gang, he was placed on
felony probation for five years. (Pen.
Code,
title="">[1] §§ 211, 186.22, subd.
(a).)
On October 19,
2010, appellant was convicted after jury trial in Kings County case No.
10CM7002 of two counts of attempted murder (§§ 664/187, subd. (a); counts
1 & 2), three counts of assault with a deadly weapon (§ 245, subd.
(a)(1); counts 3, 4, 5), one count of burglary (§ 459; count 6), three
counts of felony vandalism (§ 594, subd. (a); counts 7, 8, 9); and one
count of active participation in a criminal street gang (§ 186.22, subd.
(a); count 10). The jury found true special allegations that appellant
personally inflicted great bodily injury during the commission of counts 1, 2,
4, 5, 6, and 10 (§ 12022.7, subd. (a)) and that counts 1 through 9 were
committed for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)). The jury found true two prior
strike allegations arising from the convictions in case No. 09CM7180. (§§ 1170.12, subds. (a)-(d), 667, subds.
(b)-(i).)
title="">[2] After the verdicts were
entered, the court found in case No. 09CM7180 that appellant violated his
probation by failing to obey all laws and by associating with gang
members.
Appellant was
sentenced in both cases on November 17, 2010.
In case No. 10CM7002, the court imposed two aggregate terms of 40 years
to life for counts 1 and 2, plus an aggregate term of 30 years to life for
count 3, and three aggregate terms of 28 years to life for counts 7, 8 and
9. All of the terms were ordered to run
consecutively. Sentences were imposed
and stayed on counts 4, 5, 6 and 10. In
case No. 09CM7180, the court imposed three years for count 1 and a consecutive
term of eight months for count 2. The
sentence in case No. 09CM7180 was ordered to run consecutive to the sentence in
case No. 10CM7002.
Appellant
argues that section 654 precludes imposition of separate punishment for the two
convictions in case No. 09CM7180. Following
and applying our Supreme Court’s recent decision in People v. Mesa (2012) 54 Cal.4th 191 (Mesa), we agree; the eight-month term that was imposed for the
street terrorism conviction must be stayed.
Appellant raises several additional appellate issues. He presents three challenges to the vandalism
convictions, arguing: (1) he can
properly be convicted of only one felony violation of section 594; (2) the
absence of an instruction on aggregation was either judicial error or
ineffective assistance of counsel; and (3) count 9 is not supported by
substantial evidence. Appellant
challenges the sufficiency of the evidence supporting the great bodily injury
enhancements attached to the attempted murder counts. He argues that the trial court erred by
giving CALCRIM No. 416 because conspiracy is not a valid theory of derivative
criminal liability. Finally, appellant
argues that defense counsel was ineffective because he did not file a motion to
dismiss one of the prior strikes in the interests of justice. None of these arguments is persuasive. We will modify the sentence in case No.
09CM7180 and, as modified, affirm the judgments.
FACTS
Oscar
Ocampa (Oscar) and Zaira Ramirez (Zaira) lived with their children in a house
located on Dairy Avenue in Corcoran (Oscar’s house). Zaira’s brother, Edgar Ramirez (Edgar), lived
with them. Edgar’s bedroom area was in
the garage, which had two doors; one door led inside the house and the other
one led to an outdoor parking area (the outside door).
On the evening of
January 2, 2010,
name="_ftnref3" title="">[3] Julio Diaz, Manuel Andrade
(Manuel) and Manuel’s brother, Juan Ruiz, were drinking and playing video games
in the garage. Around midnight, Ruiz
went into the front yard to smoke cigarettes.
Appellant and Juan Alvarez walked by Oscar’s house.
stuff like that.†Ruiz and one of the
men began fistfighting. Edgar, Diaz and
Manuel heard the commotion and went outside.
Manuel attempted to break up the fight and someone hit him on the back
of the head. Oscar heard appellant and
Alvarez say, “[W]e are Norte and we are going to fuck you up, we are coming
back.†Then they left. Edgar and his friends went back inside the
garage.
Manuel’s cousin,
Tony Andrade (Tony), passed by Oscar’s house.
Seeing Ruiz’s parked car, he stopped and joined the group in the
garage. When Tony learned that appellant
and Alvarez said that they were going to return, Tony armed himself with a
large tree branch and stood outside Oscar’s house. Edgar, Manuel and Ruiz armed themselves with
large sticks and joined Tony outside.
Oscar, Zaira and the children remained inside the house. Oscar called the police.
Appellant and
Alvarez returned to Oscar’s house.
Malaquias Guzman accompanied them.
Appellant stood in the middle of the street swinging a stick or
bat. Manuel told Guzman that the police
were coming. Guzman pulled a gun out of
his pocket. Everyone fell to the ground except
appellant and Alvarez. Ruiz tried to
crawl under Zaira’s Chevrolet Tahoe.
Appellant broke the Tahoe’s back window, windshield and a side
window. Appellant also broke the back
window of Ruiz’s Chevrolet Camaro and two windows on Oscar’s house.
Manuel, Tony and
Ruiz got into the Camaro and drove away.
Appellant’s mother lived in a house located on Lorena Avenue, which is
around the block from Dairy Avenue. Tony
got out of the Camaro and broke one of the windows on appellant’s mother’s
house.
Meanwhile, Edgar
and Diaz went back inside the garage.
About six men in dark clothes joined appellant and Alvarez in front of
Oscar’s house. The men ran towards the
house and threw beer bottles at it.
Five
young-looking men kicked open the outside door and entered the garage. Zaira and Oscar heard the sounds of
fighting. Oscar did not recognize any of
the voices. Then Oscar saw five young
men exit the garage by the outside door.
One of the men, not appellant, had a cut on his head and his shirt was
covered in blood. The men who exited the
garage all fled in the same direction towards Lorena Avenue. The injured man fell, and “his other friends
picked him up.†The men who had not gone
into the garage ran away along a different street.
When Zaira went
into the garage she saw that Diaz was bleeding from the back of his head and
Edgar was unconscious.
name="_ftnref5" title="">[5] Both men were hospitalized. Diaz sustained puncture wounds to his
abdomen, rib cage and one armpit. He had
lacerations on the back of his head, over his left eyebrow, right arm and hand. Edgar sustained puncture wounds to his torso,
below his right armpit and his right leg.
One of his lungs collapsed. He
had lacerations on his head, left arm and right thigh.
Former Corcoran
Police Detective Sergeant Jason Bietz testified that when he arrived at the
crime scene he noticed “a large amount of blood in the driveway, sidewalk and
the asphalt in front of the residence.â€
Blood drops were discovered leading from the outside door to the
sidewalk, “north to Lorena Avenue, and then west on Lorena Avenue.†The blood drops ended at the house where
appellant’s mother lived. Sergeant Bietz
estimated that there were more than 100 blood drops. He placed evidence placards on the blood
drops, photographed them and requested that some of them be collected for
testing. Sergeant Bietz testified that
he directed crime scene technicians to take two samples of blood that was
deposited on the outside doorway because “I believe that I had two distinct
different trails of blood that were left by two different people, and by taking
the swab from each of those trails would identify the person who left those two
samples behind.â€
Some of the
blood drops were sampled and tested for DNA identification. A sample from blood found on the outside
doorway was consistent with the DNA profile of Nathaniel. A sample of the blood found outside the house
where appellant’s mother lived was consistent with the DNA profile of
Nathaniel. Another sample of the blood
found outside the house where appellant’s mother lived was consistent with
appellant’s DNA profile.
name="_ftnref6" title="">[6] Deposits of blood were found
inside the garage, on the driveway of Oscar’s house, the fence in front of
Oscar’s house, the sidewalk and the street in front of Oscar’s house. A sample of blood on the Camaro’s trunk lid
was collected; it was consistent with appellant’s DNA profile.
Police found two
clubs made from tree branches, an aluminum bat and a kitchen knife inside the
garage. Swabs taken from the bat and one
of the clubs were consistent with Alvarez’s DNA profile. A swab taken from the other club and a sample
of blood that was deposited on the handle of the knife were consistent with
Diaz’s DNA profile. A swab taken from
the knife blade produced a mixture that was consistent with DNA profiles of
Diaz, Nathaniel and Francisco.
A photographic
lineup of 12 persons that included appellant, Alvarez and Guzman was
compiled. Manuel and Tony selected
photographs of all three men. Oscar
selected photographs of appellant and Guzman.
Ruiz selected a photograph of Guzman.
When appellant
was arrested, his right hand was swollen and there was a cut on the middle
finger. Alvarez had a black eye, several
abrasions on the back of his head and a laceration on his scalp. Nathaniel and Francisco were injured.
Corcoran Police
Officer Frank Castellanoz testified as a gang expert. He opined that appellant was an active
Norteno gang member. Based on a
hypothetical, he opined that the acts at Oscar’s house during the night of
January 2 and January 3 were committed in association with, at the direction
of, or for the benefit of a Norteno criminal street gang.
Appellant
testified that he was standing in his mother’s backyard during the early
morning hours of January 3 when he heard glass shattering. He walked to the front of her house and saw
many people fighting in the street. The
front window of his mother’s house was broken.
He picked up a large stick and started swinging it around. He hit the back window of the Camaro, cutting
his finger. At this point, the fights
stopped. Some of the people got into a
car and drove away. The other people
“took off.†Appellant said that he
telephoned an unnamed female and drove to Fresno with her, where they remained
until approximately 9:30 a.m.
In rebuttal,
Corcoran Police Officer Eric Essman testified that appellant told him that
“earlier†in the evening on January 2, he and a female named “Sophia†traveled
to Fresno, where they remained “throughout the evening.†Appellant said that “he had fallen off of a
bicycle while doing a trick and cut his finger on a piece of glass.†Appellant did not mention anything about
people fighting in front of his mother’s house.
Officer Essman did not see any glass that was consistent with a car
window in the street in front of appellant’s mother’s house during the morning
of January 3.
DISCUSSION
I. Appellant Was Properly Convicted Of
Three Counts Of Felony Vandalism.
A. The
of the three acts of vandalism.
Appellant argues
that two of the vandalism convictions must be reversed because he acted
pursuant to a single intent, impulse and general plan when he broke the windows
on Oscar’s house, Zaira’s Tahoe and Ruiz’s Camaro. Acceptance of appellant’s argument requires
this court to extend the holding of In re
Arthur V. (2008) 166 Cal.App.4th 61 (Arthur),
which is itself an extension of People v.
Bailey (1961) 55 Cal.2d 514 (Bailey),
to cases where the defendant’s crimes involve separate acts of vandalism on
property that is owned by different victims.
In In re David D. (1997) 52
Cal.App.4th 304 (David), this court
held that “one limitation of the Bailey
doctrine is its inapplicability to offenses involving multiple victims.†(Id.
at p. 310.) We continue to adhere to
this view. Even if we were to assume
arguendo that the Bailey rule is
properly extended to the crime of vandalism, it is not applicable in this case
because appellant’s crimes involved multiple victims.
In 1961, the
California Supreme Court decided Bailey,
supra, 55 Cal.2d 514. There, the
defendant committed welfare fraud and received a number of payments, none of
which alone sufficed to constitute grand theft, but collectively they did. The court decided that defendant was properly
convicted of grand theft rather than
a series of petty thefts. It authorized
the aggregation of separate acts of theft into a single offense for the purpose
of bringing a felony allegation when the thefts were committed pursuant to a
single intent, impulse and plan. (
known as the Bailey rule. The Bailey
rule has been extended to prevent a defendant from being convicted of more than
one count of grand theft where the takings were committed against a single
victim and the evidence discloses only one general intent. (People
v. Richardson (1978) 83 Cal.App.3d 853, 858; People v. Packard (1982) 131 Cal.App.3d 622, 626;
Cal.App.3d 314, 324, 363-364.) For the
next 47 years, the Bailey rule was
limited to theft cases. (
846, 852 [not extended to forgery]; People
v. Drake (1996) 42 Cal.App.4th 592, 596 [not extended to fraud];
Cal.App.4th 568, 575, 577-578 [not extended to burglary].)
In
whether the Bailey rule was properly
extended to the non-theft crime of vandalism.
We decided that the lower court erred by allowing aggregation of 34
separate acts of vandalism into a single count felony count. Our decision identified “an additional factor
which the previous authorities have not emphasized, but which we think is
important—whether the count involved crimes against a single victim or multiple
victims.†(Id. at p. 309.) Application
of the Bailey rule “has been limited
not only to the crime of theft, but generally to thefts involving a single
victim.†(Ibid., fn. omitted.) Relying
on People v. Church (1989) 215
Cal.App.3d 1151 and People v. Garcia
(1990) 224 Cal.App.3d 297, we concluded that “one limitation of the
to offenses involving multiple victims.â€
(David, supra, 52 Cal.App.4th
at p. 310.) The Bailey rule did not apply because David “and his friends drove
throughout the city, tagging property they happened upon which appeared
isolated and safe from witnesses.†(
‘same transaction’; they arose out of 34 ‘transactions,’ one occurring each
time he or a co-perpetrator sprayed an item of property.†(Id.
at pp. 310-311.) People v. Tabb, supra, 170 Cal.App.4th at page 1149 cited
the Bailey rule “has also generally
been limited to thefts involving a single victim.â€
In 2008,
decided by Division One of the Fourth Appellate District. The Arthur
decision diverged from the line of authority limiting the Bailey rule to theft crimes.
There, the minor broke the victim’s car windshield. Then he kicked the escaping victim, which
caused the victim to drop his cell phone and it broke on impact. The minor was found to have committed one
count of felony vandalism; on appeal, he argued that the evidence supported two
counts of misdemeanor vandalism. The appellate
court rejected the reasoning and result in David,
supra, 52 Cal.App.4th 304. It
acknowledged that “the modern case law demonstrates a clear trend toward
limiting the Bailey doctrine to theft
cases†and recognized that “[t]he potential hardness of this result—allowing
multiple convictions in circumstances that might be viewed as a single crime—is
mitigated by the application of section 654, which ‘limits the
committed during a single transaction.’
[Citations.]†(
67.) Nonetheless, the court found “that the
rule announced in Bailey applies with
equal force to the offense of vandalism.â€
(Ibid.) In the court’s “view, the principal
analytical distinction to be drawn in applying Bailey is not between theft and nontheft crimes (the rough
distinction that has arisen in the case law), but rather between offenses that
can be aggregated to create a felony offense, such as petty theft and
misdemeanor vandalism, and those that cannot, such as burglary.†(Ibid.,
fn. omitted.) Based on this reasoning,
it held that “[t]he Bailey rule … has
application whenever, as here, a defendant is charged with a felony offense
based on an aggregation of multiple misdemeanor offenses.†(Id.
at pp. 67-68.)
Most recently,
in People v. Carrasco (2012) 209
Cal.App.4th 715, Division Four of the Second Appellate District applied the
analysis in Arthur, supra, 166
Cal.App.4th 61 and held “that where a defendant commits multiple acts of
vandalism pursuant to a single general impulse, intention or plan, the fact
that the damage is to property owned by more than one victim does not preclude
aggregation resulting in an offense of felony vandalism.†(Carrasco,
supra, at p. 717.)
We remain
persuaded by our analysis in David, supra,
52 Cal.App.4th 304. Each act of
vandalism in this case represents a separate offense affecting a different
victim. To convict appellant of only one
count of vandalism in circumstances such as the one before us would not be
commensurate with his culpability.
Following and applying David,
we conclude that appellant’s vandalism of the Camaro, the Tahoe and Oscar’s
house each constitutes a separate crime.
The Bailey rule does not apply
to vandalism convictions involving multiple victims. Therefore, we reject appellant’s argument
that the three vandalism counts must be aggregated into one felony vandalism
conviction.
B. The
court did not have a sua sponte duty to instruct on the Bailey rule; defense counsel was not ineffective because he did not
request such an instruction.
Appellant argues
that conviction of one count of vandalism is “for all logical, practical, and
legal purposes, lesser-included within three counts of violation of the same
statute.†Therefore, the trial court had
a sua sponte duty to craft an instruction on the principle of aggregation.
defense counsel’s failure to request an instruction on aggregation constitutes
ineffective assistance. We are not
convinced.
As we have
explained, the Bailey rule does not
apply in circumstances such as this case where appellant committed three acts
of vandalism on property owned by different people. Even if this court were to have concluded
that the Bailey rule was applicable,
the theory that appellant should have been convicted of only one felony
vandalism count is an affirmative defense.
It is not a lesser included offense.
Trial courts have a sua sponte duty to instruct on affirmative defenses
“‘only if it appears that the defendant is relying on such a defense, or if
there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of
the case.’ [Citation.]†(People
v. Breverman (1998) 19 Cal.4th 142, 157.)
Here,
appellant’s defense was inconsistent with the theory that is advanced on
appeal. Appellant testified that he
broke the Camaro’s windows after the car’s occupants broke a window on his
mother’s house. He denied going to
Oscar’s house and testified that he did not break the Tahoe’s windows or break
a window at Oscar’s house. Defense
counsel’s closing argument was consistent with appellant’s testimony; he argued
that appellant did not vandalize the Tahoe or Oscar’s house. If defense counsel were to have requested an
instruction on aggregation it would have directly conflicted with appellant’s
testimony and defense counsel’s closing argument.
trial court did not have a sua sponte obligation to instruct on
aggregation. The ineffective assistance
claim fails for the same reason. If defense
counsel had requested an aggregation instruction it would have been
inconsistent with the theory of the defense.
(See People v. Wader (1993) 5
Cal.4th 610, 643 [ineffective assistance claim rejected where instruction would
have been inconsistent with theory of the case].) Thus, neither instructional error nor
ineffective assistance appears.
C. Count 9 is supported by substantial
evidence.
Subdivision
(b)(1) of section 594 provides: “If the
amount of defacement, damage, or destruction is four hundred dollars ($400) or
more, vandalism is punishable by imprisonment ….†“If the amount of defacement, damage, or
destruction is less than four hundred dollars ($400), vandalism is punishable
by imprisonment in a county jail .…â€
(§ 594, subd. (b)(2)(A).)
Count 9 charged
appellant with felony vandalism on the Camaro.
Ruiz testified that he obtained an estimate of $780 to replace the
broken Camaro window. Instead, he
replaced the broken window with a used window that cost $250.
Appellant argues
the conviction on count 9 must be reduced to the lesser-included crime of
misdemeanor vandalism because the evidence does not prove that the damage to
the Camaro met the $400 threshold for felony vandalism. He reasons that the correct standard for
valuing damage is the $250 Ruiz spent on a used window.
Respondent
argues that valuation for the crime of vandalism should be “the fair market
value of replacing any damaged property.â€
Ruiz’s testimony that he obtained an estimate of $780 to replace the
window was sufficient to prove that the replacement cost of the broken window
was more than $400.
This issue
arises by way of a challenge to the sufficiency of the evidence supporting the
jury’s guilty verdict on count 9. In
reviewing the sufficiency of the evidence, we apply the substantial evidence
standard of review. Substantial evidence
is that which is reasonable, credible and of solid value. (People
v. Bradford (1997) 15 Cal.4th 1229, 1329.)
The question on appeal is whether the record contains substantial
evidence from which a reasonable trier of fact could have found that the
prosecution sustained its burden of proving the essential elements of the
charged crime beyond a reasonable doubt.
(People v. Hill (1998) 17
Cal.4th 800, 848-849.) We examine the
entire record, not merely “‘“isolated bits of evidence.â€â€™â€ (People
v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
“In making this determination, we ‘“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.â€â€™ [Citation.]†(People
v. Rayford (1994) 9 Cal.4th 1, 23.)
Matters pertaining to the credibility of witnesses and the weight of the
evidence are “‘the exclusive province’†of the trier of fact. (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“The uncorroborated testimony of a single witness is sufficient to
sustain a conviction, unless the testimony is physically impossible or
inherently improbable.†(
296.)
Section 594 does
not contain any method for valuing damaged property. Published decisions involving vandalism
convictions have not addressed this topic.
Arthur, supra, 166 Cal.App.4th
61 set forth the ways that the crime of vandalism is similar to theft
crimes. In theft cases, the value of
stolen property is its fair market value.
102-104.) Yet, the concept of fair
market value is of little assistance where property has been damaged and
repaired. Section 1202.4 addresses
court-ordered restitution. It provides
that the value of damaged property shall be the actual cost of repairing it
when repair is possible. (§ 1202.4,
subd. (f)(3)(A).)
In this case, the
window is not a separate piece of property that is divisible from the
Camaro. It is a component of the
car. There is evidence from which a
reasonable trier of fact could conclude that the actual cost of repair was
$780. Ruiz testified that he received an
estimate in this amount to replace the window.
This sum is the actual cost of repairing the damage to the vehicle. Appellant is not entitled to a windfall
because Ruiz chose to replace the window with a used part. There is substantial evidence from which the
jury could conclude beyond a reasonable doubt that the cost of repairing the
damage to the Camaro is $780. Therefore,
we reject appellant’s challenge to the sufficiency of the evidence supporting
the guilty verdict in count 9.
II. The
Great Bodily Injury Enhancements Attached To Counts 1 And 2 Are Supported By
Substantial Evidence.
Appellant
challenges the sufficiency of the evidence supporting the true findings on the
great bodily injury enhancements attached to the attempted murder convictions
(counts 1 and 2). He argues that the
record lacks substantial evidence proving that appellant personally inflicted
any of the injuries Diaz and Edgar sustained during the attack in the garage. This argument is not persuasive. Reasonable inferences that can be derived
from the physical and testimonial evidence adequately support the jury’s
determination that appellant personally inflicted great bodily injury on Diaz
and Edgar during the commission of the attempted murders.
As previously
set forth, when the sufficiency of evidence is challenged the appellate court
applies the substantial evidence standard of review. The appellate court views the evidence in the
light most favorable to the judgment below to determine whether it contains
substantial evidence from which the trier of fact could find the essential
elements of the enhancement allegation proven beyond a reasonable doubt. (People
v. Johnson (1980) 26 Cal.3d 557, 578.)
All inferences that can be reasonably drawn from the evidence are made in
support of the judgment. The testimony
of a single witness is sufficient to prove a disputed factual point. (People
v. Scott, supra, 21 Cal.3d at p. 296.)
We do not reweigh the evidence, resolve conflicts in the evidence or
reevaluate the credibility of witnesses.
(People v. Mayberry (1975) 15
Cal.3d 143, 150.)
Section 12022.7,
subdivision (a) increases the sentence where the defendant personally inflicted
great bodily injury on another, who is not his or her accomplice, during the
commission of a felony. “To ‘personally
inflict’ injury, the actor must do more than take some direct action which
proximately causes injury. The defendant
must directly, personally, himself inflict the injury.†(People
v. Rodriguez (1999) 69 Cal.App.4th 341, 349.) The plain language of section 12022.7
requires that the defendant personally inflict great bodily injury on the
victim. “The intent to inflict great
bodily injury need not be proven by direct evidence. Such intent may be inferred or
presumed.†(In re Sergio R. (1991) 228 Cal.App.3d 588, 601.)
Several courts
have recognized an exception to this rule.
“[W]hen a defendant participates in a group beating and when it is not
possible to determine which assailant inflicted which injuries, the defendant
may be punished with a great bodily injury enhancement if his conduct was of a
nature that it could have caused the great bodily injury suffered.†(People
v. Corona (1989) 213 Cal.App.3d 589, 594.)
A great bodily injury enhancement is properly sustained when the
defendant “directly applies force to the victim sufficient to inflict, or
contribute to the infliction of, great bodily harm.†(People
v. Modiri (2006) 39 Cal.4th 481, 486.)
Nothing in the terms “‘personally’†or “‘inflicts’†as used in
conjunction with “‘great bodily injury’†requires the defendant to act alone in
causing the victim’s injuries. (
inconsistent with a group melee in which it cannot be determined which
assailant, weapon, or blow had the prohibited effect.†(Ibid.) “[T]he defendant need not be the sole or
definite cause of a specific injury.†(
[enhancement proper when group attacked victim and struck about head, even though
surgeon could not tell exactly which object caused injuries];
at pp. 601-602 [enhancement proper where defendant was one of several
assailants who fired guns into a group of people].)
Appellant
asserts that the record does not contain evidence proving that he “inflicted
reasonable inferences that can be drawn from it reveals substantial evidence
from which any reasonable jury could find that appellant actively participated
in the group beating of Ruiz and Edgar during which they suffered lacerations
and stab wounds. The evidence is
sufficient to conclude that appellant’s “conduct was of a nature that it could
have caused the great bodily injury [that the victims] suffered.†(People
v. Corona, supra, 213 Cal.App.3d at p. 594.)
Oscar testified
that he heard people beating up Edgar and Diaz.
Then he saw five assailants leave the garage. One of the assailants was bleeding heavily
and had to be helped by the others. The
assailants all fled from Oscar’s house using Lorena Avenue; another group of
people, who had not been inside the garage, fled by way of a different street. A blood trail was discovered leading away
from the outside door onto Lorena Avenue and ending at the house where
appellant’s mother lived. Sergeant Bietz
testified that he directed crime scene technicians to take two samples of blood
deposited on the outside doorway because “I believe that I had two distinct
different trails of blood that were left by two different people, and by taking
the swab from each of those trails would identify the person who left those two
samples behind.†A sample from blood
found on the outside doorway was consistent with Nathaniel’s DNA profile. Two samples of the blood found outside the
house where appellant’s mother lived were collected. One sample was consistent with appellant’s DNA
profile. The other sample was consistent
with Nathaniel’s DNA profile. The rest
of the blood drops along the blood trails were not tested. From this evidence and inferences that can be
derived from it a jury could reasonably conclude that appellant was one of the
assailants who fled from the garage to his mother’s house.
Manuel testified
that appellant was holding a “stick or a bat†when he returned to Oscar’s house
after briefly leaving. Appellant smashed
windows on the Tahoe and a window on the Camaro. Manuel’s testimony is corroborated by
presence of blood consistent with appellant’s DNA profile was found on the
Camaro’s trunk lid. Also, appellant had
a laceration on his right middle finger.
This is significant because police found two clubs made from tree
branches, an aluminum bat and a kitchen knife inside the garage after Edgar and
Ruiz were stabbed. Edgar and Ruiz
suffered lacerations consistent with being beaten with a stick or bat and
puncture wounds. This evidence and
reasonable inferences that can be derived from it supports a determination that
appellant struck Edgar and Ruiz with one of the sticks or the bat or that he
stabbed them.
name="_ftnref11" title="">[11]
Based on the
foregoing, we hold that the true findings on the great bodily injury
enhancements attached to the attempted murder counts (counts 1 and 2) are
supported by substantial evidence from which a reasonable jury could find them
true beyond a reasonable doubt and reject appellant’s challenge to the
sufficiency of the evidence.
No. 416 In The Jury Charge.
The trial court
gave a modified version of CALCRIM No. 416, which instructs on conspiracy as a
theory of derivative liability.
court infringed his federal constitutional right
to due process because it was a legally incorrect theory of criminal
liability. He argues that “based on the
language of Penal Code section 31, … ‘conspiracy’ is not a statutory basis on
which to impose derivative criminal liability†and “principals are limited to
those who actually commit a crime and those who aid and abet in the commission
of a crime, and not those who conspire to commit a crime.â€
recognizes that People v. Mohamed
(2011) 201 Cal.App.4th 515 (Mohamed)
rejected this same argument. We agree
with the Mohamed decision’s reasoning
and reject appellant’s argument for the reasons expressed in that decision.
“Under
California law, a party to a crime is either a principal or an accessory.
(§ 30.)†(Mohamed, supra, 201 Cal.App.4th at p. 523.) Section 31 provides:
“All persons
concerned in the commission of a crime, whether it be felony or misdemeanor,
and whether they directly commit the act constituting the offense, or aid and
abet in its commission, or, not being present, have advised and encouraged its
commission, and all persons counseling, advising, or encouraging children under
the age of fourteen years, or person who are mentally incapacitated, to commit
any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of
another for the purpose of causing him to commit any crime, or who, by threats,
menaces, command, or coercion, compel another to commit any crime, are
principals in any crime so committed.â€
(§ 31.)
The
California Supreme Court has repeatedly held that conspirators are liable as
principals for substantive crimes committed by another conspirator. “It is long and firmly established that an
uncharged conspiracy may properly be used to prove criminal liability for acts
of a coconspirator.†(
744, 788; see also People v. Kauffman
(1907) 152 Cal. 331; People v. Creeks
(1915) 170 Cal. 368, 374-375; People v.
Harper (1945) 25 Cal.2d 862, 871-873; People
v. Weiss (1958) 50 Cal.2d 535, 563.)
Most recently, in In re Hardy
(2007) 41 Cal.4th 977 the Supreme Court wrote:
“One who conspires with others to commit a felony is guilty as a
principal. (§ 31.)†(
inconsistent with the express language of the Penal Code must fail because we
are bound under the principle of stares decisis to follow the decisions of our
Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455-456.) “Courts exercising inferior
jurisdiction must accept the law declared by courts of superior
jurisdiction. It is not their function
to attempt to overrule decisions of a higher court.†(Id.
at p. 455.)
In
Mohamed, supra, 201 Cal.App.4th 515,
Division One of the Fourth Appellate District upheld instruction on conspiracy
as a theory of criminal liability. It
explained that, independent of California Supreme Court decisions on this
topic, conspiracy is a valid theory of derivative criminal liability. Mohamed
is particularly well-reasoned and worthy of extended quotation:
“Even if we
were reviewing the matter in the first instance, Mohamed’s arguments do not
persuade us. The ‘all-persons concerned’
language in section 31 indicates the Legislature intended the definition of
principal to apply broadly.
[Citation.] A broad application
of the language would necessarily include conspirators. As one appellate court explained, ‘“All
persons concerned in the commission of a crime … are principals’ and, when two
or more are “concerned,†they are bound by the acts and declarations of each
other, when such acts and declarations are part of the “transaction†in which
they are engaged, because they are “principals†and not because they are
conspirators…. [C]onspiracy comprehends
nothing that is not included in the definition of “who are principals.†Liability attaches to anyone “concerned,â€
however slight such concern may be, for the law establishes no degree of the
concern required to fix liability as a principal.’ [Citations.]â€
(Mohamed, supra, 201
Cal.App.4th at p. 524.)
Further:
“…
[W]e believe Mohamed misconstrues the language in section 31 clarifying that
all persons concerned are principals regardless of ‘whether they directly
commit the act constituting the offense, or aid and abet in its commission, or,
not being present, have advised and encouraged its commission ….’ This clarifying language reflects the
elimination of the common law distinctions among principals in the first
degree, principals in the second degree, and accessories before the fact. [Citations.]
Thus, instead of demonstrating a legislative intent to impose limits on
the class of persons who are principals, this clarifying language demonstrates
a legislative intent to remove previously existing limits. This language, therefore, provides no support
for Mohamed’s contention that conspiracy is an invalid theory of criminal
liability under California law.†(
524.)
For
the reasons cogently set forth in Mohamed,
supra, 201 Cal.App.4th 515, we hold that conspiracy is a valid theory of
derivative liability and uphold inclusion of CALCRIM No. 416 in the jury
charge.
Stayed.
A. Facts.
On March 29,
2009, appellant, together with two males and a female, chased an ice cream
vendor. When the vendor abandoned his
ice cream cart to evade them they stopped chasing him. Appellant stole an ice cream that fell from
the cart. The vendor recognized the
perpetrators because, two weeks before this incident, they chased him and stole
$25 and six ice cream bars.
Appellant was
charged with robbery (count 1) and active participation in a criminal street
gang (count 2). Appellant pled no
contest to one count of robbery and one count of active participation in a
criminal street gang (the Nortenos).
During the June 4, 2009, sentencing hearing, the court indicated that
the robbery proved the underlying felonious conduct element of the street
terrorism offense. Appellant was placed
on felony probation for five years.
On October 19,
2010, the court found appellant violated his probation in that he failed to
obey all laws and refrain from associating from gang members. He was sentenced to the mid-term of three
years for count 1 and a consecutive term of eight months for count 2.
B. Section 654 claims may be raised for the
first time on appeal.
“As relevant,
section 654, subdivision (a), provides:
‘An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.’†(People
v. Jones (2012)
During the
November 17, 2010, sentencing hearing defense counsel stated, “we intend to
submit on probation’s recommendation and the analysis of the [section] 654
issues as well.†Although appellant did
not specifically argue during the sentencing hearing that section 654 required
the sentence imposed for count 2 in case No. 09CM7180 to be stayed, the forfeiture rule does not bar consideration of
this sentencing challenge on appeal.
“‘Errors in the applicability of section 654 are corrected on appeal
regardless of whether the point was raised by objection in the trial court or
assigned as errors on appeal.’
[Citation.]†(
295.) Yet, “on direct appeal the
reviewing court is confined to the record.
We cannot remand a case to the trial court for the purpose of trying an
issue raised for the first time on appeal.â€
(People v. Sparks (1967) 257
Cal.App.2d 306, 311.)
C. Separate
punishment may not be imposed for the street terrorism conviction.
Appellant argues
that the sentence imposed for count 2 must be stayed pursuant to section
654. We agree.
Under
subdivision (a) of section 186.22, it is a crime to actively participate in a
criminal street gang with knowledge that the gang members engage in or have
engaged in a pattern of criminal gang activity, and to willfully promote,
further, or assist in any felonious criminal conduct by members of the gang.
After completion
of the briefing in this appeal our Supreme Court decided Mesa, supra, 54 Cal.4th 191.
In Mesa, the California
Supreme Court held that section 654 precludes imposition of separate punishment
for street terrorism and the underlying felony used to prove the “‘“felonious
criminal conductâ€â€™â€ element of the offense.
(Mesa, supra, at pp.
197-198.)
Appellant fits
squarely within the legal and factual rubric presented in Mesa, supra, 54 Cal.4th 191.
During the June 4, 2009, sentencing hearing, the court indicated that
the robbery proved the underlying felonious conduct element of the street
terrorism offense. Therefore,
imposition of separate punishment both street terrorism and robbery. The proper remedy is for this court to stay
the sentence imposed for count 2 in case No. 09CM7180. (Id.
at p. 201; People v. Lopez (2004) 119
Cal.App.4th 132, 139.)
In
a final claim, appellant argues that he received ineffective assistance of
counsel because his attorney did not bring a motion to strike one of the prior
convictions in the interest of justice.
This claim fails on direct appeal and is properly pursued in a habeas
corpus proceeding. (
426-428 (Pope).)
Appellant
bears the burden of establishing inadequate assistance of counsel. (Pope,
supra, 23 Cal.3d at p. 425.) To
prevail, he must show both deficient performance and a reasonable probability
of a more favorable outcome. (
966 (Duncan).) When a defendant claims incompetence of
counsel on direct appeal, he must overcome the presumption that, under the
circumstances, the challenged error or omission might have been a strategic
decision. Where the deficiency could
have been a tactical choice, the claim is properly pursued in a petition for
writ of habeas corpus. (
426-428.)
In reviewing
counsel’s performance we are “to be highly deferential…. ‘… Because of the difficulties inherent
in making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action “might be considered sound trial
strategy.â€â€™â€ (Duncan, supra, 53 Cal.3d at p. 966.) We “accord great deference to counsel’s
tactical decisions.†(
674.) Otherwise, it would be “all too
tempting for a defendant to second-guess counsel’s assistance after conviction
or adverse sentence, and … too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable.
[Citation.] A fair assessment of
attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.†(Strickland v. Washington (1984) 466 U.S. 668, 689.) There are countless ways to provide effective
assistance and even the best attorneys would not defend a client in the same
way. (Ibid.) Counsel does not have
a duty to make futile or frivolous objections.
(People v. Memro (1995) 11 Cal.4th 786, 834.)
To
resolve an ineffective assistance claim on direct appeal, the appellate record
must clearly demonstrate that the alleged error was a “mistake beyond the range
of reasonable competence.†(
911.) When the record does not
illuminate the basis for the challenged act or omission and it is not necessarily
an incompetent mistake, an ineffective assistance claim is more appropriately
made in a petition for habeas corpus.
Reviewing courts are not to become engaged “‘in the perilous process of
second-guessing.’†(Pope, supra, 23 Cal.3d at p. 426.)
They will not run the risk of unnecessarily ordering reversal in a case
“where there were, in fact, good reasons for the aspect of counsel’s
representation under attack. Indeed,
such reasons might lead a new defense counsel on retrial to do exactly what the
original counsel did, making manifest the waste of judicial resources caused by
reversal on an incomplete record.†(
After
carefully reviewing the record in this case, we conclude that it is
insufficient to allow us to determine whether defense counsel’s failure to
bring a motion to dismiss one of the prior strikes was an intentional tactical
decision. Even if this court were to
assume that appellant’s two prior strikes arose out of the same act, this
“provide[s] a factor for a trial court to consider, but do[es] not
v. Scott (2009) 179 Cal.App.4th 920, 931.)
The nature of appellant’s prior offenses is but one factor to be
considered by the trial court when exercising its discretion to dismiss a prior
strike in the interests of justice. (
supra, 179 Cal.App.4th at page 931, appellant “chose to reoffend, knowing
he had two prior strike convictions.â€
Appellant’s current offenses are gang related and show a substantial
increase in violence above and beyond the violence involved in the prior
strikes. He was on felony probation when
he committed these crimes. His criminal
record spans his juvenile and adult years.
He has not gone any appreciable amount of time free of crime and did not
benefit from juvenile programs or grants of probation.
On the silent
record before us, we cannot simply assume that defense counsel’s failure to
file a motion to dismiss one of the prior strikes was an incompetent error. The omission could have resulted from a
tactical decision that such a motion would not have been successful. (People
v. Diaz (1992) 3 Cal.4th 495, 566.)
Appellant failed to meet his burden of establishing ineffective
assistance on direct appeal. Any further
challenge in this regard must be pursued in a habeas corpus proceeding. (Ibid.;
People v. Cummings (1993) 4 Cal.4th
1233, 1340.)
DISPOSITION
In Kings
Superior Court case No. 09CM7180, the sentence imposed for count 2 is
stayed. The superior court is directed
to prepare an amended abstract of judgment reflecting this sentencing
modification and transmit a copy of it to the parties and the California
_____________________
LEVY,
J.
WE CONCUR:
_____________________
WISEMAN, Acting P.J.
_____________________
POOCHIGIAN, J.
name="_ftn1" title="">[1] Unless otherwise specified all statutory references are to
the Penal Code.
name="_ftn2" title="">[2] Appellant was jointly tried with Francisco Anthony Carmona
(Francisco), Nathaniel Christopher Ojeda-Carmona (Nathaniel), Juan Carlos
Alvarez and Malaquias Gomes Guzman.
Solely to
avoid confusion, some individuals will be referenced by their first names. No disrespect is intended or implied by this
informality.
