P. v. Salazar
Filed 9/4/12 P. v. Salazar CA4/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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.
JONATHAN RICARDO SALAZAR,
Defendant and Appellant.
G045549
(Super. Ct. No. 09CF1886)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Carla Singer, Judge.
Affirmed in part, reversed in part, and remanded.
Gregory Marshall, 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, Melissa Mandel and Meredith S. White, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury found Jonathan
Ricardo Salazar guilty of conspiracy to
commit aggravated assault (count 4), assault
with a deadly weapon (count 5), robbery (count 6), assault by means of
force likely to commit great bodily
to commit vandalism (count 8), gang-related vandalism (count 9), active
participation in a criminal street gang (counts 10 and 13), first degree
burglary (count 11), and gang-related vandalism (count 12). The jury also found true great bodily injury
enhancements and gang enhancements related to the above counts. It found Salazar not guilty of commercial
burglary (count 2), the prosecution withdrew count 1, and the court dismissed
count 3 (which were charges relating to the burglary).
On appeal, Salazar
challenges the sufficiency of the evidence for the
6 and 11), and he claims there was instructional error regarding count 6. We find these contentions lack merit and we
affirm the convictions. However, we
conclude there was error with respect to sentencing and the judgment must be
reversed in part and remanded for resentencing.
I
Salazar is an active
participant in the “Orange County Criminals” (also known as OCC or Criminals)
street gang. He goes by the gang moniker
“Cougar.”
OCC
and Orange Varrio Cypress (OVC) gang are rivals.
July 14,
2009—Relating to Counts
4, 5, 6, 7, 8, 9 & 10
At 10:00 p.m., Ariana Pena and Oscar Arriola walked from
Arriola’s residence to Pena’s residence in the City of Orange. A group of three to five men exited their
vehicle and approached Pena and Arriola.
Pena recalled she saw the men walk from the direction where she earlier
saw a gold four-door car make a U-turn and stop.
One of the men demanded
Pena hand over her purse. Pena refused,
and the man replied, “Give me your purse or else I am going to get it from
you.” As the group of men walked closer,
Pena could hear spray cans rattle in their pockets. They also “threw up” the hand sign “C”
proclaiming their affiliation with the OCC street
gang.
One of the men asked
Arriola where he was from and specifically if he was from the OVC gang. Arriola responded, “Please don’t
disrespect. I am with my lady right
now.” The man replied, “I don’t give a
fuck.” Then, one of the men hit Arriola
in the face. The others joined in
kicking and punching Arriola, and one of the attackers yelled out, “Criminals.” During the assault, Arriola fell to the
ground, where the men continued to punch and kick him.
When Pena saw one of the
men holding a knife start towards Arriola, she entered the fray. First, she grabbed the knife-wielding man’s
shirt and pulled him towards her until his shirt ripped. Pena recalled she dropped her purse as she
continued her efforts to get the men away from Arriola. She later testified her purse was taken when
“they were on [Arriola]. And I don’t
remember who grabbed it. All I remember
was trying to get the guys away from him.”
After the attack, most of the men returned to the vehicle and drove
away. Pena saw that one of the men
stayed at his lookout position on the nearby street corner, as he had during
the assault. Pena’s purse was no longer
where she had set it down during the fight.
Arriola suffered various
injuries, including cuts
to his face that required stitches, and a long knife cut to his arm. He did not want to report the incident to the
police. He told police he thought things
could get worse for him if he went to the police. Arriola did not want to view a photographic
line up of suspects because he feared he would be labeled a snitch. However, Pena was willing to testify about
the incident. At trial Pena recalled she
was afraid “[o]f getting stabbed myself or [Arriola getting] stabbed. I mean[] my boyfriend. I care about him. I was just scared.” Pena also reiterated the story she told the
police: She confirmed the man asked for
her purse several times before the fighting began, she was afraid of the men, and she did not want to give them her
purse.
That same evening, a
City of Orange police officer, Brian Chambers, responded to a citizen’s report
of three men spraying graffiti on city property. The citizen, who wished to remain anonymous
due to fear of gang retaliation, provided Chambers with a license plate
number. Chambers saw the graffiti was
freshly painted and depicted three gang monikers (“Cougar,” “Slim,” and
“Panther”
and the words “OCC” and “Criminals.” Later that night, Chambers stopped and searched a gold Buick driving
nearby that had a similar license number to the one the citizen provided. There were cans of black spray paint under
the front passenger seat and in the back seat.
Salazar was seated in the front passenger seat, and after officers asked
him to exit the vehicle, Salazar fled.
Officers failed to apprehend Salazar that day.
& 13
Jeffrey Estevez lived in
an upstairs apartment (Unit 6) in an apartment complex on Wilson Street with
his two brothers, Rodrigo Estevez and Victor Estevez
OVC gang. Jeffrey saw Salazar outside
his window, and Jeffrey began taunting him with a derogatory term for OCC. Salazar yelled “Criminals,” waved the OCC
gang hand sign, and challenged Jeffrey to fight.
Rodrigo later told the
police he heard Salazar challenging his little brother to a fight and yell he
was going to come into their house.
Salazar, clad in a burgundy
T-shirt
over a tank top, came up the stairs, punched a hole through the window with his
fist, and entered the Estevez apartment.
Salazar acknowledged giving Jeffrey a “couple of socks” once he got
inside the apartment. Victor
corroborated these events, and added that Rodrigo helped push Salazar back out
through the window and out of the apartment.
When officers arrived at
the apartment they saw a broken window and shards of glass in the hallway next
to the apartment. They also discovered
blood on the window and the staircase leading down from the unit. They found a burgundy T-shirt and white tank
top nearby.
3
Salazar, accompanied by
two OCC gang members, entered a Sears store in Tustin. One of the men stole a pair of pants from
Sears by concealing the pants under his own pants. The events were caught on tape.
July 30, 2009, police officer Miguel Cuenca interviewed Salazar and the
recording of their conversation was played for the jury. Salazar admitted being a member of OCC and
being involved in the tagging incident, Arriola’s assault, and Jeffrey’s
assault. He admitted he and his fellow
gang members were looking for OVC gang members to “hit up.” As for the assault against Arriola, Salazar
admitted hitting and punching Arriola.
He heard Pena yelling at them and trying to intervene. He denied knowing anything about Pena’s
purse.
Salazar recounted he was
very angry with Jeffrey and described the victim as a “little wanna be” who
consistently disrespected Salazar. He
explained this was not the first time Jeffrey had taunted him from inside the
apartment. When Jeffrey called him
“nalga,” a derogatory term OVC members use to call OCC members, Salazar
admitted this “pumped [him] more” and it was time to give Jeffrey a
warning. Salazar therefore challenged
Jeffrey to a fight and threatened to come upstairs to his apartment and “do
something about it.” Salazar stated
Jeffrey had “pushed him to the limit” so he “smashed the window and . . . just
broke in there and . . . gave [Jeffrey] a couple of socks.” Salazar explained he quickly left the
apartment because he heard his mother calling for him.
trial, a gang expert testified about the nature of the crimes and Salazar’s
involvement in the OCC gang. Several of
the victims also testified, but some of them recanted their statements
previously given to police and claimed to no longer remember the offenses. The prosecution built its case-in-chief
primarily upon the police officers’ recollections of the victims’
statements.
The jury found Salazar
guilty of counts 3 through 13 and not guilty of count 2. It found true the great bodily injury
enhancements on counts 5 and 7, and the gang enhancements on counts 4, 6, 7, 8,
9, 11 and 12. The prosecution withdrew
count 1 (relating to the Sears theft), which caused the court to dismiss count
3. Salazar received a total prison
sentence of 18 years and 4 months.
Discussion
Sufficiency of the Evidence to Support the Pena Robbery Conviction
Salazar contends his
conviction for robbery must be reversed because there was insufficient evidence
the taking was accomplished by force or fear.
Specifically, he asserts Pena was a victim of only a theft because her
purse was not directly taken via force or fear.
As will be shown, there is sufficient evidence Pena felt fear during the
taking.
Sufficiency of the
evidence is reviewed by examining the entire record in the light most favorable
to the prosecution. (
1128 (Kipp).) The evidence must be “reasonable, credible,
and of solid value, from which a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.”
(Ibid.)
Robbery is the felonious
taking of personal property in the possession of another, from his or her
immediate presence, against his or her will, and accomplished by means of force
or fear. (Pen. Code, § 211.)
threats of violence, or the victim’s presence.
(§ 484, subd. (a).) Thus,
evidence of either force or fear elevates a taking from a theft to a robbery.
Section 212 provides,
“The fear mentioned in section 211 may be either: [¶]
(1) The fear of an unlawful injury to the person or property of the
person robbed, or of any relative of his or member of his family; or [¶]
(2) The fear of an immediate and unlawful injury to the person or
property of anyone in the company of the person robbed at the time of the
robbery.” And “[a]lthough the victim
need not explicitly testify that he or she was afraid in order to show the use
of fear to facilitate the taking [citation], there must be evidence from which
it can be inferred that the victim was in fact afraid, and that such fear
allowed the crime to be accomplished.” (
234
Cal.App.3d 1703, 1709, fn. 2 [fear did not facilitate the perpetrator’s initial
taking].) “Further, the requisite force
or fear need not occur at the time of the initial taking. The use of force or fear to escape or
otherwise retain even temporary possession of the property constitutes
robbery.” (People v. Flynn (2000) 77 Cal.App.4th 766, 771-772 (
Salazar
contends Pena did not feel fear during the taking because the gang’s threats
and assault were directed to Arriola. We
find the Flynn case instructive. In that case a five-foot, four-inch female
victim was surrounded by six male gang members while walking alone at
night. (Flynn, supra, 77 Cal.App.4th at p. 770.) Defendant grabbed a bag hanging on the
victim’s left shoulder, causing her to be pulled backwards. After defendant took the bag, he removed a
gun and some money and showed them to the other gang members. The victim said she felt angry, shocked, and
afraid of being attacked. Defendant
argued he did not create the fear expressed by the victim and could not be
found guilty of robbery. The appellate court
disagreed, holding that although defendant made no verbal threats and did
nothing to instill fear prior to the taking, the victim’s fearful perception of
the circumstances was reasonable. (
robbery because, “defendant used fear to accomplish the robbery just as surely
as if he had verbalized the threats inherent in the surrounding
circumstances. Defendant’s argument
concerning his passivity and all the things he did not do ignores the fact that
his snatching of the bag, not to mention his subsequent display of the stolen
weapon, immediately changed what might have been an innocuous set of
circumstances into one of significant fear for the victim. To the extent that it was the victim’s
perceptions of her circumstances that directly caused the fear, those
perceptions were reasonable and a reasonable jury could have found that
defendant took advantage of them in a calculated fashion.” (Ibid.)
Stated another way, the
circumstances, without “specific words or actions designed to frighten,” can be
sufficient to satisfy the required fear element for a robbery. (Flynn,
supra, 77 Cal.App.4th at
p.
772.)
In the case before us, the circumstances surrounding the taking of
Pena’s purse were certainly intimidating and frightening for Pena. Like the victim in Flynn, Pena was outnumbered and confronted by a group of violent
and armed gang members. It is reasonable
to conclude Pena felt fear, being faced with the possibility of injury to
herself, having witnessed the terrible assault and injuries to Arriola. Her testimony at trial supports this
conclusion: After seeing one gang member
brandish a knife, Pena stated she was afraid “[o]f getting stabbed myself or [Arriola]
to get stabbed.” Pena set down her purse
to enter the fray and protect her boyfriend.
The circumstances and testimony shows she relinquished her property out
of fear for her own safety and that of her boyfriend.
Salazar also contends
there was no evidence Pena was overcome by fear because she voluntarily set
down her purse to restrain the knife-wielding attacker. We disagree.
As stated in People v. Davison
(1995) 32 Cal.App.4th 206, 217, there are sufficient grounds for a robbery even
if the victim gives chase or stands her ground because a victim may
“experience[] emotions in addition to
fear . . . .” In that case, defendant
approached the victim at night while she withdrew money from an ATM.
(
feet from the ATM. (Id. at p. 210.) The court
reasoned, “The extent of the victim’s fear ‘do[es] not need to be extreme for
purposes of constituting robbery.
[Citations.]’ [Citation.] On the record in this case, the jury could
not have failed to find that [the victim] retreated from the ATM because
[defendant’s] conduct caused her to be afraid.
[Defendant] bases his contrary argument on evidence that ‘it just took a
matter of seconds for the taking of the money to have occurred’ and that [the
victim’s] ‘response was to yell obsenities [sic]
at the men and chase after the men . . . .’
Although this evidence permits an inference that [the victim]
experienced emotions in addition to
fear, it does not alter our conclusion that the record overwhelmingly
establishes that [the victim] stepped back from the ATM because [defendant’s]
conduct induced fear in her.” (
In this case, the fear
Pena felt for her boyfriend’s immediate safety prompted a bold response. Her feelings of protectiveness and aggression
were in addition to the fear she
described feeling when her purse was first demanded and when the assailant
brandished a knife. As acknowledged in
the Davison case, a victim need not passively respond to a taking in order for it
to be a robbery.
Alternatively, Salazar
claims the gang violence was directed at Arriola and that any ensuing force or
fear did not affect Pena. Not so. But for the knife and the threat of injury to
her boyfriend, Pena would have retained her property. People “do not ordinarily give up their
hard-earned cash to a stranger who threatens them with a gun, except for fear
of bodily injury in the event of a refusal to do so.” (People
v. Borra (1932) 123 Cal.App. 482, 485).
For an unarmed victim, a knife engenders the same fear of bodily injury
as a firearm. Pena was just a few feet
away from her boyfriend as a gang member approached with a knife primed for
attack. There was no reason to doubt her
testimony she felt fear for herself, as well as Arriola, under these dire
circumstances.
Instructional Error
contends the trial court erred by not instructing the jury about theft and
attempted robbery as lesser included offenses of robbery. A sua sponte duty to instruct on lesser
included offenses arises when it is doubtful all elements of the charged offense
were met and evidence justifying a conviction on the lesser included offense
exists. (People v. Hughes (2002) 27 Cal.4th 287, 365.) Theft is a necessarily included offense of
robbery because the greater statutory offense of robbery contains all the elements
of theft. (Id. at pp. 365-366.) If
either the force or fear requirement for robbery was not proven, an instruction
for theft would be required. (
54
Cal.3d 411, 443.) Attempted robbery is a
lesser included offense of robbery. (
67.) Under the Watson test, the failure to instruct on a lesser included offense
is harmless error and reversal is not required unless “it is reasonably
probable the jury would have returned a different verdict absent the error
.
. . .” (People v. Rogers (2006) 39 Cal.4th 826, 867-868, citing
836-837.)
Salazar’s argument
regarding instructional error is based largely on his contention the evidence
was insufficient to affirm the robbery conviction. As explained in more detail above, the
circumstances of the taking, Pena’s testimony, and the presence of a deadly
weapon all amply proved the fear element of robbery. Pena was confronted by three to five men
while walking home with her boyfriend at night.
The men demanded her purse and assaulted her boyfriend. Pena testified she felt afraid when the men
attacked. One of the men brandished a
knife during the assault. Pena testified
she felt afraid for her own safety and that of her boyfriend upon seeing the
knife. Based on such overwhelming
evidence, a reasonable jury would not find the taking was not accomplished by
fear. The element of fear was not in
doubt. The trial court did not err in
failing to instruct on theft or attempted robbery as lesser included
offenses.
Sufficiency of the Evidence to Support the Estevez Burglary Conviction
claims there is no evidence he entered the Estevez dwelling with the specific
intent to commit a felony and therefore we must reverse his conviction for
first degree burglary. Specifically,
Salazar asserts it was speculative to infer he entered the dwelling intending
to commit assault with force likely to produce great bodily injury. He argues the evidence only proves he had the
intent to commit a simple assault (a misdemeanor). We conclude this contention lacks merit. There was sufficient evidence of Salazar’s
felonious intent necessary for first degree burglary.
First degree burglary
requires unlawful entry into a residence “with intent to commit grand or petit
larceny or any felony.” (§ 459.) Because Salazar did not commit grand or petit
larceny his felonious intent is an issue.
“[S]uch intent, as a mental fact, must usually be proved by
circumstantial evidence. ‘[Such] intent
must usually be inferred from all the facts and circumstances disclosed by the
evidence, rarely being directly provable.’
[Citation.]” (
698, 704.)
“Although in the typical
case, the intent of the burglar is to commit theft (whether felony or
misdemeanor), the relevant statute provides, and the decisional law
establishes, that the intent to commit any
felony will sustain a conviction of burglary.
(§ 459; see, e.g., People v.
Hicks (1993) 6 Cal.4th 784, 787-788 [intent to commit rape, sodomy and
penetration by foreign object]; People v.
Goldsworthy (1900) 130 Cal. 600, 602 [intent to commit arson]; . . .
280, 286 [intent to commit murder or felonious assault].)” (People
v. Montoya (1994) 7 Cal.4th 1027, 1041-1042, fn. 8.) As stated above, a claim of insufficient
evidence is reviewed by this court using the substantial evidence test. (Kipp,
supra, 26 Cal.4th at p. 1128.)
Salazar contends he
intended to assault Jeffrey with minimal force because the evidence only shows
a simple assault was committed. Indeed,
Salazar admitted giving Jeffrey “a couple of socks.” We agree Salazar’s actual assault on Jeffrey
was brief and did not reach the level of aggravated assault. However, actual great bodily injury was not
necessary to prove Salazar’s felonious intent.
Salazar’s completed offense is not at issue. The question is whether there are facts and
circumstantial evidence Salazar intended
to complete an aggravated assault upon entry into the residence.
Based on all the
evidence presented, we conclude the jury could reasonably conclude Salazar
intended to commit an aggravated assault.
Salazar was extremely angry with Jeffrey. Before the assault, Jeffrey had a history of
taunting Salazar with slurs against Salazar’s gang. On the day of this incident, Jeffrey called
Salazar a derogatory name, which Salazar admitted “pushed [him] to the limit.” The verbal attack prompted Salazar to
challenge Jeffrey to a fight, and he threatened to come upstairs to “do
something about it.” Salazar and
Jeffrey belonged to rival gangs, and thus Salazar’s statement he intended to
give Jeffrey a “warning” must be viewed in this context. The statements uttered by a member of a gang
(whose primary activities include attempted murder and assaults with deadly
weapons) demonstrate Salazar planned to violently retaliate against Jeffrey as
a means of forcibly gaining respect for himself and the gang. He gained entry into the apartment by
smashing a window. The jury could
reasonably infer Salazar would issue a gang-type “warning” by aggressively
assaulting Jeffrey in a manner most likely to achieve a greater status for the
gang. That the actual assault was
limited to a few punches is reasonably explained by the presence of Jeffrey’s
two brothers who pushed him back out the window and/or Salazar’s claim to have
been interrupted by Jeffrey’s mother.
It was not reasonable to
conclude Salazar would injure himself by punching his fist through a pane of
glass to give Jeffrey a few playful punches.
Indeed, given the facts surrounding Salazar’s self-destructive method of
entry, there is ample reason for the jury to infer Salazar had a violent temper
and due to his high level of anger that day he fully intended to inflict an
aggravated assault. Based on the entire
record, we conclude there is substantial evidence to support the burglary
conviction.
Sentencing Error
Salazar contends, and
the Attorney General concedes, the trial court’s sentence on the burglary
conviction (count 11) was erroneous and the case should be remanded for
resentencing. Section 186.22,
subdivisions (b)(1)(A) and (b)(1)(C) provides a defendant convicted of a felony
with a gang enhancement is subject to different punishments depending on the
severity of the felony. The court must
add a consecutive 10-year term for violent felonies (as defined in
§ 677.5, subd. (c)).
(§ 186.22, subd. (b)(1)(C).)
First degree burglary qualifies for a violent felony only where it is charged
and proved another person (other than an accomplice) was present when the
defendant burglarized the residence.
(§ 667.5, subd. (c)(21).
This fact was not charged or proved and therefore Salazar’s conviction
is not subject to the 10-year enhancement.
However, as pointed out by the Attorney General, Salazar’s other crimes
are considered violent felonies within the meaning of section 677.5,
subdivision (c). Because the trial court
may decide to impose the enhancement on one of the other offenses, we remand
the case for resentencing.
Salazar also maintains
the trial court erred in imposing sentence on
count
12 (vandalism for breaking the window to gain entrance to Jeffrey’s apartment)
because it was the same act that constituted the burglary in count 11. The Attorney General agrees the two crimes
were subject to section 654 [bars multiple punishment for separate offenses
arising out of a single occurrence and incident to one objective.] (see People
v. Lewis (2008) 43 Cal.4th 415, 519.)
“A trial court must impose sentence on every count but stay execution as
necessary to implement section 654. [¶]
. . . [¶] [T]he correct procedure is to
impose sentence on each count and stay execution as necessary.” (People
v. Alford (2010) 180 Cal.App.4th 1463, 1472 (Alford).)
However, as correctly
pointed out by the Attorney General, in this case the court stayed imposition
of the sentence on count 12 (vandalism), although it cited a reason other than
section 654. Thus, Salazar is mistaken
in his assertion the sentence needs to be stayed. That the court gave a different reason makes
no difference. We find no error.
Further Instructions on Remand
Finally, we note the
court selected count 11 (burglary) as the principal term and imposed the middle
term of four years. It imposed a
consecutive 10-year term for the gang enhancement. On count 6 (robbery), the court imposed a
consecutive term of
one-third
the middle term (one year), with a separate term of three years and four months
for the gang enhancement (one-third of 10 years). It imposed and stayed the prison terms on
counts 5, 7, and 8.
The Attorney General
correctly points out the court did not impose a sentence on counts 4 (assault),
9 (gang-related vandalism), 10 (active participation in a criminal street
gang), or 13 (active participation in a criminal street gang). The court stated it would not impose sentence
due to section 654. As noted above, the
court should have imposed a sentence on those counts and then stayed the
terms. (Alford, supra,
180
Cal.App.4th at p. 1472.) On remand, we
direct the court to resentence on these counts as well.
Disposition
The
sentence is reversed and the matter is remanded for resentencing consistent
with this opinion. In all other respect,
the judgment is affirmed.
O’LEARY,
P. J.
WE CONCUR:
RYLAARSDAM, J.
ARONSON, J.
refer to the Estevez brothers by their first names for ease of reading and to
avoid confusion, not out of disrespect.
(In re Marriage of James &
Christine C. (2008) 158 Cal.App.4th 1261, 1264, fn. 1.)
references are to the Penal Code.
