P. v. Mendez













Filed 4/11/13 P. v. Mendez CA4/3























>NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties
from citing or relying on opinions not certified for publication or ordered
published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN THE
COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. JOSE VICTOR MENDEZ, Defendant and Appellant.

G046167 (Super. Ct. No. 11WF0570) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William R. Froeberg, Judge. Affirmed in part and reversed in part.

Barbara A. Smith, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy
Attorneys General, for Plaintiff and Respondent.



Appellant was convicted
of aggravated assault, making a criminal
threat, possessing a weapon on school grounds and actively participating in a
criminal street gang, aka street terrorism.
The jury also found to be true enhancement allegations appellant used a
knife and acted for the benefit of a gang.
We hold there is sufficient evidence to uphold the gang
enhancement. However, because appellant
acted alone in committing his crimes, his conviction for street terrorism must
be reversed. In all other respects, we
affirm the judgment.

FACTS

Appellant is a
self-professed member of West Trece, a Hispanic criminal
street gang that claims territory in Westminster. He is also the “honorary uncle” of a West
Trece member known as “Little Penguin.” Appellant and Little Penguin frequented a
house located in West Trece territory. The victim in this case, Manuel Reyes, rented
a room at the house but was not a gang member.
He was aware, however, that appellant was affiliated with West
Trece.

On March 8, 2011, a dispute arose at the house when
the landlady accused Little Penguin of stealing something from her. The accusation escalated into a fight between
Little Penguin and the landlady’s 15 year-old son. Reyes intervened by punching Little
Penguin. Little Penguin pulled a knife,
prompting Reyes to back away. At that
point, Little Penguin retreated as well and the confrontation ended.

The next morning, Reyes
was approached on the street by appellant, who was riding a small bike. Appellant pulled out a knife and chased
Reyes. Appellant told him, “You beat up
my little homie so now you’re gonna get yours.”
He also threatened to “stick” Reyes and to kill him. Appellant came within five feet of Reyes but
never touched him. The chase ended
abruptly on the grounds of Johnson Middle
School when a counselor yelled out the police
were coming. Upon hearing this,
appellant warned Reyes, “Don’t worry, I’m gonna come back and I’m gonna get
you.” He then fled the area.

Reyes was so scared
during the incident that he defecated in his pants. When the police arrived, he spoke to several
officers at the scene and told them what happened. Officer Michael Ogawa wanted to know if
appellant ever said he was from West Trece during the
incident, and Reyes said, “He never came up and said . . . I’m from West . . .
.” Phrasing the question differently,
Ogawa then asked Reyes if appellant “did the old, you know, West, ‘Hey, man,
I’m fuckin’ this and that’. . . .”
Again, Reyes said no.

However,
a few minutes later, when Ogawa asked if appellant “yell[ed] out ‘I’m going to
get you from West’ or ‘hey . . . my homies from West we’re going to get you?’”
Reyes replied, “Yeah. He said
that.” Reyes then quoted appellant
shouting “We’re going to get you, we’re from West, fuck you.” Recognizing this was a change from Reyes’
previous answers, Ogawa asked him, “Oh, so he did claim he’s from West?” “Yeah”
was Reyes’s reply.

While the police were
questioning Reyes, Police Officer James Bodine stopped appellant less than a
mile away. Bodine asked appellant if he
had a knife on him, and appellant said he had one in his pocket. Bodine did not find a knife when he searched
appellant, but a knife was found near the school later that day.

At trial, Reyes
testified appellant said he was from West Trece when he
was chasing him. On this point, defense
counsel attempted to impeach Reyes with his prior inconsistent statements to
Officer Ogawa. Defense counsel also
brought out the fact Reyes had previously been convicted of several crimes,
including assault with a deadly weapon.
There was evidence Reyes pulled a knife during the assault and later
damaged the victim’s car out of revenge.
Defense counsel argued this showed Reyes was vindictive and likely
exaggerated appellant’s actions in the instant case to get him in trouble.

Police Officer Edward
Esqueda testified as the prosecution’s gang expert. He said respect is very important to criminal
street gangs, and if a gang member is disrespected, the gang is expected to
retaliate with equal or greater force.
Retaliation instills fear and restores respect for the gang. And if the retaliating member uses a weapon,
it will increase the amount of respect he and his gang receive.

Testifying
further, Esqueda said assault with a deadly weapon is one of the primary
activities of the West Trece gang. He also opined appellant’s attack on Reyes
had many of the trappings of gang-related payback. For instance, the attack came on the heels of
the incident involving Little Penguin, which appellant referenced during the
attack. Also, appellant allegedly yelled
out his gang’s name during the attack, which, according to Esqueda, is
something gang members often do to intimidate their victims and to let them
know who is behind the attack. Esqueda
concluded that, even if appellant did not shout out West Trece
to Reyes, the attack still would have benefited his gang because it
demonstrated the gang was not going to tolerate any hostility or disrespect
toward its members.

The jury acquitted
appellant of attempted murder but found him guilty of the remaining charges
described in the introduction above. It
also found true allegations appellant acted for the benefit of a criminal
street gang and personally used a deadly weapon. After finding appellant had suffered a prior
serious felony conviction, the court sentenced him to 18 years in prison.

I

Appellant argues the
evidence is insufficient to support the jury’s finding he acted for the benefit
of a criminal street gang. Although he
admits he assaulted Reyes and threatened him with a knife, he claims there is
simply no credible evidence his actions were motivated by a desire to promote
his gang. We disagree.

“In
reviewing a challenge to the sufficiency of the evidence, ‘we “examine the
whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence . . . .”’”
(People v. Alexander (2010) 49
Cal.4th 846, 917.) “Although we
must ensure the evidence is reasonable, credible, and of solid value,
nonetheless it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts on
which that determination depends.
[Citation.]” (>People v. Jones (1990) 51 Cal.3d 294,
314.) “Conflicts and even testimony
which is subject to justifiable suspicion do not justify the reversal of a
judgment . . . . Unless it describes
facts or events that are physically impossible or inherently improbable, the
testimony of a single witness is sufficient to support a conviction. [Citation.]”
(People v. Elliott (2012) 53
Cal.4th 535, 585.)


Penal Code
section 186.22, subdivision (b) authorizes a sentence enhancement when the
defendant “is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist
in any criminal conduct by gang members . . . .” However, not name="SR;3556">every crime committed by a gang member
is a gang-related crime for purposes of this provision. (People
v. Albillar (2010) 51 Cal.4th 47, 60.)
With that in mind, appellant argues the evidence shows that, in assaulting Reyes, he was not trying to
benefit his gang, but simply standing up for his “nephew” Little Penguin as an
act of familial pride.

The
linchpin of appellant’s argument is that Reyes was lying when he claimed
appellant yelled out West Trece during the attack. Appellant claims the record is devoid of
credible evidence he actually yelled the name of his gang, and absent proof
that he did, the jury’s finding on the gang enhancement cannot stand. Appellant’s claim fails on both factual and
legal grounds.

In
assailing Reyes’ credibility, appellant argues his responses to Officer Ogawa’s
questions appear stilted, as though he was simply echoing the officer’s
suggestive questions. He also points out
that Reyes gave inconsistent statements to Ogawa, and he was impeached by
virtue of his prior convictions. Appellant
contends, as he did at trial, that in light of all these factors, no reasonable
person could possibly conclude Reyes was telling the truth on the witness
stand.

Reyes
was not a perfect witness, to be sure.
However, his testimony was neither physically impossible nor inherently
improbable. In speaking with Officer
Ogawa, he thrice stated that appellant referred to West Trece during the
attack. And at trial, he affirmed this
was true. Reyes was subjected to
rigorous cross-examination, and the jury had ample opportunity to assess his
credibility. We are simply not in a position
to second-guess the jury’s finding he was a believable witness. Rather, as explained above, we must accord
great deference to the jury’s findings and review the judgment in the light
most favorable to the judgment. Viewed
in that light, we are not inclined to presume Reyes was lying when he testified
that appellant referenced West Trece during the attack.

Even
if appellant did not mention his gang during the attack, the jury could still
reasonably find his crimes were gang-related, given the circumstances under
which they occurred. The day before the
crimes took place, Reyes punched one of appellant’s fellow gang members at a
house where the gang hangs out. As the gang
expert explained, gang members are not inclined to take such slights sitting
down. Rather, they are expected to
retaliate swiftly and forcibly to prove their toughness. True to form, appellant tracked down Reyes on
the street, pulled a knife on him, and threatened to kill him for messing with
his “homie.”

It is true that the
“homie” in question was not only appellant’s fellow gang member, but also his
honorary nephew. Appellant argues this
gave him a personal, nongang motive for going after Reyes. However, appellant’s intent was a question of
fact for the jury. When, as here, “the
jury, [is] presented with the competing inferences, [it is] entitled to credit
the evidence that the attack [in question] was gang related, not family
related.” (People v. Albillar, supra, 51 Cal.4th at p. 62.) Suffice it say, there is substantial proof,
both in the form of expert and nonexpert evidence, to support the jury’s
finding in that regard. Therefore, we
are powerless to disturb it.



II

Although the jury’s
finding on the gang enhancement must stand, the law is now clear that a defendant
cannot be convicted of the substantive crime of street terrorism if he acts
alone in committing the subject offenses.
(People v. Rodriguez (2012) 55
Cal.4th 1125.) Because appellant acted
by himself in this case, his conviction for street terrorism must be
reversed. (Id. at p. 1139.) However,
given that appellant’s sentence for that offense was stayed pursuant to Penal
Code section 654, there is no need for resentencing.

DISPOSITION

Appellant’s conviction
for street terrorism on count five is reversed.
The clerk of the trial court is directed to prepare a new abstract of
judgment reflecting this and to send a certified copy of the abstract to the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation.
In all other respects, the judgment
is affirmed.







BEDSWORTH,
ACTING P. J.



WE
CONCUR:







MOORE,
J.







ARONSON,
J.