P. v. Serrano





























Filed 2/6/13 P. v. Serrano CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
TWO


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THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JESUS SERRANO, Defendant and Appellant.

A134211 (Sonoma County Super. Ct. No. SCR586595)

A jury found
defendant Francisco Jesus Serrano guilty of aggravated
assault and active participation in a criminal street gang, and determined
that related enhancement allegations were true.
Defendant received a total sentence of 14 years and 8 months in state
prison. Defendant seeks reversal of the
judgment on the ground that there was insufficient
evidence to convict him. He also
argues the trial court should have stayed the eight-month sentence he received
for active participation in a criminal
street gang. The People argue we
should affirm the judgment, but agree that defendant’s eight-month sentence
should have been stayed. We affirm the
judgment, except that we order that his eight-month sentence is stayed.

>BACKGROUND

By a second amended information
filed in October 2011, the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Sonoma
County District Attorney alleged defendant had engaged in premeditated
murder (Pen. Code, §§ 664, 187, subd. (a)href="#_ftn1" name="_ftnref1" title="">>[1]),
aggravated assault (§ 245, subd. (a)(1)), and active participation in a
criminal street gang (§ 186.22, subd. (a)).
Regarding the attempted murder and aggravated assault charges, the
district attorney also alleged personal infliction of great bodily injury (§
12022.7, subd. (a)) (also citing § 1203.075 regarding the murder charge), that
the crimes were committed to benefit a criminal
street gang (§ 186.22, subd. (b)(1)(C)), and that defendant was a minor
acting to benefit a criminal street gang when he committed the crimes (Welf.
& Inst. Code, § 707, subd. (d)(2)(C)(ii).)
A jury trial followed. We review
the evidence presented at trial that is relevant to this appeal.

Testimony of Detective John Cregan

John Cregan of the Santa Rosa Police
Department testified that he was a detective assigned to the department’s gang
crimes team. On July 21, 2010 at 7:54
p.m., he responded to a radio dispatch that a stabbing had occurred on
Washington Street in Santa Rosa. He
drove to the reported scene of the incident and saw a “young man” with “visible
injuries.” The young man, identified as
Jose Cortez by Cregan at trial, had “numerous bleeding wounds on his back and
chest area.” Cortez was accompanied by
his “girlfriend, Cindy Chavarria,” who was “wearing a bright red, zip up
sweater.” At trial he identified a
photograph he took of “Chavarria” at the police department showing the “red
little zip up sweater, or sweatshirt, that she was wearing the night of this incident,”
as well as photographs of the sweater itself.


Cregan viewed the private home
surveillance video of a resident in the vicinity that depicted the incident,
and, based on the video, he broadcast “what suspect descriptions [he] could
see” and a vehicle description to patrol officers. He obtained a copy of the video and booked it
into evidence.

Testimony of Area Residents

Brittany Baer testified that she was
in the living room of her Washington Street home, which was “100 feet, maybe”
from the street, when she heard “a bunch of feet stomping.” She looked outside and “noticed a boy. It looked like he tripped and fell. Two people ran past him, and another boy came
and stood over top of him.” This boy,
who was a “light skinned, Hispanic male,” stood over the victim and made “arm
movements” over the top of the victim that were “[n]ot your typical punches; it
was more side motion, into the victim’s side.”
Baer saw a “small object sticking out of the attacker’s hand” that
“looked like a small blade,” and she thought he was stabbing the victim. The attacker “looked very young;” he seemed
younger than Baer, who was 25 years old.


According to Baer, the attacker
stabbed the victim at least 15 times.
Two other men stood watching. The
attacker ran when a neighbor came outside and yelled at him. The victim yelled for an ambulance and asked
people to call 911.

Jason Taylor testified that he also
lived on Washington Street. On the
evening in question, he was watching television when he heard someone run by
his window. When he heard some
commotion, he and his wife opened their front door and took a look
outside. They saw “a car out on the
street.” Three men were kicking and
punching a man on the ground. He noticed
one attacker leaning over the victim and “kind of punching on him.” After his wife yelled at the attackers to
“[g]et off him,” the attackers jumped into a “little sedan type car” that sped
off. The victim came stumbling towards
his house and asked them to call 911 and for an ambulance.

Kira Lee, Taylor’s wife, testified
that she was in her living room watching television on the night of the
incident when she noticed a car stopped in the middle of the street. She went outside and saw “four guys” “beating
up” someone. She yelled that they should
stop and when they did not, she called the police. She saw a car in the middle of the street,
and the attackers get in it and take off.
She did not realize someone was being stabbed or “how bad it was until
the victim stood up and he said, ‘I need help.
I need an ambulance.’ And then,
all of a sudden, he just started bleeding everywhere.”

Testimony of Cindy Sarabia
Antonia and Jose Rafael Cortez

Cindy Sarabia Antonia, also
identified in the reporter’s transcript as “Cindy Sarabia-Chavarria” (Sarabia),
testified that she was 19 years old, and that Jose Rafael Cortez (Cortez) was
her boyfriend at the time he was stabbed.
On the evening in question, Cortez was walking with her on Ninth Street
as they headed to her home. Sarabia was
wearing a burgundy-colored sweater. As
they walked past a church, a gold car with four doors, with four or five people
inside, gave Cortez “attention.” One of
them, a man, asked Cortez if he was Norteño, and “what hood he was from.” According to Sarabia, Cortez was not a
Norteño, but he did “hang out” with Norteños.


At some point, the car turned
around, Cortez pushed her away and told her to run, he ran towards the other
side of the church, and three “guys,” all male, from the car “chased him around
the corner, all the way down.” As they
chased him, they asked him “what hood are you from?” She thought it was some kind of gang
challenge directed at Cortez.

Sarabia, without a cell phone,
looked everywhere to get help because she knew something was going to happen. As soon as the car left, she started walking
quickly to Cortez. When she caught up to
him, he was on the ground, alone. He
said “they had stabbed him” and she saw that he was bleeding. Cortez underwent surgery and was hospitalized
for two days. She assumed his attackers
were Sureños because she was wearing a burgundy-colored sweater. She did not see their faces.

Cortez testified that he was 17
years old at the time of trial, and indicated that he did not want to appear in
court. He acknowledged that he had been
hospitalized in July 2010 for stab wounds, that the day he was stabbed he was
walking his girlfriend, Sarabia, home, that he ran because he wanted to and was
stabbed when he stopped running, and said that he did not know who stabbed him. He did not “hang out” with Sureños or
Norteños, and had heard of the “Varrio Santa Rosa Norte” (VSRN) and thought it
would be okay to “hang out” with someone who said they were VSRN.

Physician Chris Kosakowski, a
surgeon, testified that according to his records, he treated Cortez on July 21,
2010. His dictation of the treatment
provided indicated that he treated 17 stab wounds on Cortez’s neck, chest, and
arms.

Testimony Regarding Evidence
Obtained by Police

Technician Janice Wohlert, an evidence
technician with the Santa Rosa Police Department, testified that she processed
a vehicle on July 22, 2010, which was the day after the incident. She was able to develop latent fingerprint
samples from various parts of the outside of the car, including from the car
rear window. She looked for, but did not
find, any blood evidence in the vehicle.
It was not disputed at trial that the vehicle belonged to Lorenzo Medina
Avalos (Avalos), whose testimony we summarize below.

Forensic specialist John Jaynes testified
as a latent print expert. He processed a
latent print taken from the rear car window of the vehicle processed by
Wohlert, entered the print into an automated fingerprint search computer, and
received information linking the print to fingerprint samples taken from
defendant on July 22, 2007. Jaynes
conducted a manual comparison and determined that the print matched defendant’s
right palm print. He “rolled” another
set of defendant’s palm prints the morning that he testified, compared the
latent print to that sample, and after a manual comparison determined that they
were from the same person.

Testimony of Lorenzo Medina
Avalos

Avalos testified pursuant to an
agreement with the prosecution. He said
he was 29 years old and had joined the Sureño gang when he was around 13 years
old. He had Sureño gang-related tattoos,
including the gang sign “13” on his elbow.
His record included a youth authority commitment, convictions for
misdemeanor domestic violence and receiving stolen property, and parole
violations for associating with gang members.
He had been arrested for the current incident and pled guilty to felony
assault with a gang enhancement. He had
agreed to a maximum four-year state prison sentence if he testified truthfully
in this case. He testified that no other
promises had been made to him concerning his testimony.

Avalos testified that he no longer
considered himself a member of the Sureño gang.
He said that he did not expect the Sureño gang to ever accept him for
testifying in court, as his testimony was a violation of the gang code of
conduct.

Avalos further testified that he
“claimed” the Puro Sureño Cholo (PSC) set of the Sureño gang, which rival was
the Norteño gang. The area around West
Ninth Street in Santa Rosa was within PSC territory. PSC gang members gathered at Jacobs Park,
drinking and using drugs. Norteños were
not welcome near that park.

Avalos said that young teens were
considered “pee wees” and were allowed to associate with gang members, and that
those considered worthy were “jumped” into the gang. Defendant was a PSC gang member. Avalos also identified photographs of PSC
gang members named Miguel and Jesus. At
the time of the incident, Avalos said, defendant was 17 years old, and Miguel
and Jesus were each 21.

On July 21, 2010, Avalos testified
he went to Jacobs Park, where he heard that gang members had been jumping
prospective members into the gang. He
saw defendant, Miguel, and Jesus drinking beer, smoking marijuana, and
ingesting cocaine, and joined them. A
young boy reported that there were Norteños down the street; there was some
talk about confronting them, and some went off to confront them. About 10 or 15 minutes later, he saw police
cars speed by and he, defendant, Miguel, and Jesus drove away in his car, a
Honda, at Avalos’s suggestion.

Avalos further testified that, as he
drove down West Ninth Street, near Saint Rose Church, he saw “an individual
walking with his girlfriend” walking down the street and noticed that the
female was wearing a “red flannel sweater,” and thought the male was dressed
like a northerner. In the car, defendant
said that he recognized the male because defendant had been previously “jumped”
by him on a bus. Avalos joined the
others in making hand gestures, and some may have flashed gang signs, at the
couple. Avalos did a u-turn with his car
to head back towards the couple and defendant jumped out of the car and chased
the male down the street. Miguel and
Jesus jumped out to join defendant as Avalos drove after him.

Avalos
said he saw defendant attacking the victim, who was on the ground. Avalos parked his car and joined in, kicking
and punching the victim. Miguel and
Jesus arrived and attacked the victim as well.
Avalos struck the victim with his fist and noticed that his hands were
“real slippery.” He saw blood on his
hands and realized that the victim was getting stabbed. He did not have a weapon and did not see the
others with weapons. When he saw the
blood, he said, “let’s go,” and they all jumped in the car and left.

As
they fled, Avalos asked defendant if he had “stuck” the victim, and defendant
said, “Yeah, I stuck him.” Defendant had
blood on his shirt and his hand was bleeding.
Defendant was handling a folding knife with a dark-colored handle. Defendant buried the knife, left his bloody
shirt on a roof, and got rid of the victim’s phone, which he had taken during
the assault.

The
next day, Avalos testified, he received a call from a detective, who told him
that the police had a video of the incident.
Avalos told defendant. Avalos
went to the police station, where he looked at the video and identified
everyone, including defendant. He did so
because he thought what had happened “wasn’t right,” as he expected a beating,
but not a stabbing, was going to occur, and he had learned that the victim was
his wife’s cousin. He admitted that he
lied to police at first about where the four went after the attack, but said
that he otherwise told them the truth.

Avalos
also testified that after he made a court appearance in the case, defendant
walked past him, said, “You fucking snitch,” and attacked him.

Avalos
reviewed the home surveillance video, which consisted of two different views,
at trial and testified that it showed him, his car, and the other participants
in the attack, including depicting defendant stabbing the victim.

This court has reviewed the video as
well. In the view that shows the most of
the incident, an individual who appears to be male can be seen in the distance
running down a sidewalk of a residential neighborhood and turning into the
street, where he falls, as he is chased by another person. That person, who also appears to be male,
catches up to him and attacks him repeatedly with both hands around his head
and body. Cries can be heard. As this is taking place, a car comes into the
frame and another person, apparently male, gets out and begins kicking and
hitting the victim. Two other
individuals, also apparently male, run over to the victim and attack him as
well. Moments later, there are
shouts. The four attackers appear to get
into the car, a light-colored sedan, and drive away. People come out of houses and the victim gets
up and walks toward a house, apparently seeking help; the victim appears to
twice shout in a particular direction, “He stuck me.” A few moments later, a female in a red top of
some kind approaches him from that direction.
No one’s face can be seen distinctly in the video.





Testimony Regarding Defendant’s
Arrest

Manuel
Acevedo, with United States Customs Border Protection, testified that on July
28, 2010, he was informed by Mexican authorities that they were turning over an
individual to United States authorities at the port of entry. Acevedo, who learned this individual was
defendant, took custody of him and booked him into the San Diego County Jail
based on a pending felony warrant.

Expert Testimony Regarding Gangs


Detective
Cregan also testified as an expert in the Sureño criminal street gang. Cregan said he got his definition of a
criminal street gang from the California Penal Code, and summarized that
definition as a formal or informal association of individuals which has as one
of its primary activities the commission of one or more of the 33 criminal acts
enumerated in section 186.22, subdivision (e), including assault with a deadly
weapon. He also referred to a common
name and common identifying sign or symbol.


Cregan
testified about the history of Mexican gangs in California, including the
Sureños and Norteños, which, he said, were the primary gangs in Sonoma County
and rivals of each other. In Cregan’s
view, the Sureño gang met the legal definition of a criminal street gang, and
he said its primary activities were aggravated assaults, homicides, drive-by
shootings, and vehicle thefts. The color
blue and the number 13 were primary signs or symbols of Sureños. The color red and the number 14 were primary
signs or symbols of Norteños, and gang members wore a lot of red clothing.

Cregan
testified that the PSC was a Santa Rosa subset of the Sureño gang that
controlled the west side of Santa Rosa and was one of the largest criminal
street gangs in Sonoma County. West
Ninth Street and Jacobs Park were among the PSC strongholds. He said various members of this subset had
been involved in three documented court cases, which resulted in felony
convictions for assaults, including gang assaults.

Cregan
further testified that, in his opinion, defendant was an “active Sureño gang
participant,” based on his approximately 20 separate contacts with law
enforcement, tattoos, clothing, association with Sureños, criminal arrests, and
prior incidents of gang involvement.
This included an assault by defendant on Avalos in May 2011 in the
courthouse hallway after it had been divulged at a href="http://www.mcmillanlaw.com/">preliminary hearing that Avalos was
cooperating with police. Also, defendant
told a jail classification deputy in December 2010 that he was an active Sureño
gang participant and “specifically claimed the subset of PSC[.]” In April 2010, defendant fled from a deputy
sheriff near Jacobs Park and then assaulted the sheriff when cornered by
him. He was subsequently convicted of
assault and received “gang terms on his probation.” In April 2009, police investigating a report
that two subjects were spray painting gang graffiti on the side of businesses
found defendant in possession of a can of spray paint and the reporting party
identified him as the person spraying the gang graffiti, which included “PSC.”

Cregan
further opined that the victim, Cortez, was an active Norteño gang member who
associated with the “subset of VSRN or Vario Santa Rosa Norteño” gang. Cregan also opined that “Jesus Nunez Camacho,
Miguel Galvan Morphin, and Medina Avalos” were “active Sureño gang
members.”

According
to Cregan, the commission of a violent act by a gang member benefits that
member, and also benefits his street gang because “the more violent acts that
are committed in Sonoma County by Sureño gang participants shows the other
gangs that they’re a force to be reckoned with, that they are a powerful gang,
violent gang, and they won’t tolerate rival gang members coming into their area
or disrespecting them, and that disrespect will be met with violence. So it greatly benefits the reputation of that
gang as a whole.”

Jury Verdict and Sentence

The jury convicted
defendant of aggravated assault, found the associated enhancement allegations
submitted to it to be true, and also convicted him of active participation in a
criminal street gang. It deadlocked on
the attempted premeditated murder count, and the trial court declared a
mistrial on this count.

The trial court subsequently imposed
a total sentence of 14 years and 8 months in state prison, and ordered payment
of certain fines and fees. This included
four years for aggravated assault; a consecutive term of 10 years for the
section 186.22, subdivision (b)(10(C) enhancement; a concurrent term of three
years for the section 12022.7, subdivision (a) enhancement; and a consecutive
term of 8 months for active participation in a criminal gang. Defendant filed a timely appeal.

DISCUSSION

I. Defendant’s
Claims of Insufficient Evidence

Defendant argues there was not
sufficient proof of the aggravated assault or active participation in a href="http://www.fearnotlaw.com/">criminal street gang allegations, or
sufficient corroboration of Avalos’s incriminating testimony. We disagree.

A. Relevant Proceedings Below

After the prosecution presented its
case, defendant moved for dismissal pursuant to section 1118.1 on the ground
that there was insufficient independent proof or corroboration of Avalos’s
incriminating testimony and, therefore, grounds for acquittal. The court denied the motion.

The jury was instructed that Avalos
was an accomplice under the law, and about the type of evidence that was needed
to corroborate his testimony. In closing
argument, the prosecutor told the jury that “common sense dictate[ed]” that it
should view Avalos’s testimony “with caution” because of his criminal and gang
background and the agreement he had entered into with the prosecution to limit
his potential exposure in return for his testimony.

The prosecutor then argued that
there was “substantial corroboration”
of Avalos’s testimony. This included the
home surveillance video that showed four individuals pursuing a man, including
one individual who appeared to be consistent in appearance to the description
of a young, light-skinned Hispanic male identified by Baer in her testimony,
and a vehicle that was consistent in color and appearance with Avalos’s car, on
the outside rear window of which a partial palm print of defendant was
found. Also, another individual
appearing in the video was consistent in appearance to Avalos and could be seen
hitting the victim’s head. The video
depicted an incident that was consistent with that described by Taylor, Lee,
and Sarabia. Also, Sarabia’s account of
the gang references made during the incident was consistent with Avalos’s
account. There was also evidence that
defendant had fled after the incident to Mexico. Finally, there was expert testimony regarding
the gang motivation involved in defendant’s actions.

B. Legal Standards

Pursuant to section 1111, the
incriminating testimony of an accomplice to a crime is insufficient to sustain
a conviction unless it is corroborated by other evidence connecting the
defendant with the commission of the offense.
Section 1111 states:

“A conviction can not be had upon
the testimony of an accomplice unless it be corroborated by such other evidence
as shall tend to connect the defendant with the commission of the offense; and
the corroboration is not sufficient if it merely shows the commission of the
offense or the circumstances thereof. [¶] An accomplice is hereby defined as one
who is liable to prosecution for the identical offense charged against the
defendant on trial in the cause in which the testimony of the accomplice is
given.” (§ 1111.)

“To corroborate the testimony of an
accomplice, the prosecution must present ‘independent evidence,’ that is,
evidence that ‘tends to connect the defendant with the crime charged’ without
aid or assistance from the accomplice’s testimony. [Citation.]
Corroborating evidence is sufficient if it tends to implicate the
defendant and thus relates to some act or fact that is an element of the
crime. [Citations.] ‘ “[T]he corroborative evidence may be slight
and entitled to little consideration when standing alone.” [Citation.]’ ” (People
v. Avila (2006) 38 Cal.4th 491, 562-563.)
“ ‘ “Corroborating evidence ‘must tend to implicate the defendant and
therefore must relate to some act or fact which is an element of the crime but
it is not necessary that the corroborative evidence be sufficient in itself to
establish every element of the offense charged.’ ” ’ ” “ ‘ “Corroborating evidence is
sufficient if it substantiates enough of the accomplice’s testimony to
establish his credibility.” ’ ” (>People v. Rodrigues (1994) 8 Cal.4th
1060, 1128.) “ ‘ “The requisite
corroboration may be established entirely by circumstantial evidence.” ’ ” (>ibid), including “ ‘evidence of the
defendant’s conduct or his declarations.’ ”
(People v. Douglas (1990) 50
Cal.3d 468, 507.)

Accordingly, we are called upon to
review the evidence independent of Avalos’s testimony to determine whether it
meets the standard required by section 1111.
In doing so, we apply the general rules that apply to a challenge to the
sufficiency of evidence. That is, we “ ‘
“must review the whole record in the light most favorable to the judgment below
to determine whether it discloses substantial evidence—that is, evidence which
is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.”name=3061-943> [Citation.]’ [Citations.]
‘Substantial evidence includes circumstantial evidence and any
reasonable inferences drawn from that evidence.
[Citation.]’ [Citation.]’ We ‘ “ ‘presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the
evidence.’ ” [Citation.]’ ” (People
v. Clark (2011) 52 Cal.4th 856, 942-943.)


Furthermore, “ ‘[c]onflicts and even
testimony [that] is subject to justifiable suspicion do not justify the reversal
of a judgment, for 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
upon which a determination depends.
[Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support” ’ the jury’s verdict.” (People
v. Zamudio (2008) 43 Cal.4th 327, 357.)


C. Aggravated Assault

Defendant argues
there was “no sufficient and independent corroboration of [Avalos’s]
incriminating testimony.” Specifically,
he contends, citing People v. Bowley (1963)
59 Cal.2d 855, that the home surveillance video “did not provide corroboration
because it had no meaning other than what was read into it” by Avalos because
it “showed nothing specific.” Baer’s
testimony also “provided no corroboration” connecting defendant to the
commission of the crime, as her “description of the stabber remained both
generic and subjectively vague” and should be considered in the context of
evidence that very young “pee wees” associated with gangs, Cregan’s testimony
that none of the persons identified by Avalos were pee wees, and the “lighting,
angle of view and subjective perceptions,” such as about age. Thus, defendant argues “while Baer’s
description of the stabber could be interpreted in a way which allowed for the
possibility of [defendant’s] inclusion in the class of possible participants,
it did not immediately and directly connect him
to anything.” Although defendant
concedes that among the four alleged attackers, defendant appeared to be the
youngest, he asserts this fact is not significant because it presumes the
attackers were as testified to by Avalos.
As defendant correctly points out, evidence is not sufficient
corroboration if its meaning can only be discerned by relying on the testimony of
the accomplice.

Defendant similarly argues that the
other corroborating evidence is not significant. As he correctly notes, “ ‘evidence
independent of the testimony of the accomplice must tend to connect a defendant
with the crime itself, and not simply with its perpetrators. It is not with the thief that the connection
must be had but with the commission of the crime itself.’ ” (People
v. Robinson (1964) 61 Cal.2d 373, 400.)
Defendant also correctly points out that a finding of fact must be an
inference drawn from evidence rather than on mere speculation. (Reese
v. Smith (1937) 9 Cal.2d 324, 328, Gyerman
v. United States Lines Co. (1972) 7 Cal.3d 488, 503.) He contends that Cregan’s testimony about
defendant’s involvement with PSC, and his testimony about the gang affiliations
of Jesus, Miguel, and Avalos, arguably create an inference that they were
acquainted with each other, but do not connect defendant to the crime. He also contends that nothing but speculation
can be drawn from defendant’s arrest a week later at the Mexican border.

Defendant’s arguments and
contentions, while appropriate at trial, are unpersuasive under our substantial
evidence standard of review because he ignores the inferences that >can be reasonably inferred from each
piece of evidence and their totality, independent of Avalos’s testimony. From the testimony of Cregan, Sarabia,
Cortez, Baer, Taylor, and Lee, the surveillance home video, and the other
evidence, such as the quick discovery by police of the video and Avalos’s car,
the partial palm print of defendant found on that car, and the circumstances of
defendant’s arrest, the jury could reasonably infer that defendant was in a
gang with Avalos and two other members named Miguel and Jesus that claimed the
area of the attack as its territory against its rival gang, that Cortez was a
member of that rival gang and was attacked as he walked with his girlfriend,
whose clothing displayed that gang’s colors, that the attack on Cortez was
gang-related, that Avalos’s car was used in the attack and that defendant had been
in or around the car, that the chief attacker repeatedly stabbed Cortez and was
a young-looking, light-skinned Hispanic male whose physical appearance
defendant does not challenge was consistent with his own, that three others
participated in the attack and that one of them appeared to be Avalos
(defendant does not challenge that the video depicted an attacker whose
physical appearance was consistent with Avalos’s appearance), that police
immediately obtained a video of the incident and began an investigation based
on what was depicted that quickly led them to Avalos and his car, and that
defendant left the area for Mexico very soon after the incident, turning up a
week later in the custody of Mexican authorities.

Defendant does not effectively discount
this evidence. He essentially argues
that each piece of evidence could be interpreted in a way that does not
necessarily incriminate him, but this is not the issue under our substantial
evidence standard of review. As the
People note, whether corroboration is “as compatible with innocence as it is
with guilt is a question of weight for the trier of fact.” (People
v. Gallardo (1953) 41 Cal.2d 57, 63, disapproved on other grounds in >People v. Chapman (1959) 52 Cal.2d 95; >People v. Ruscoe (1976) 54 Cal.App.3d
1005, 1012 [quoting Gallardo]; >In re B.D. (2007) 156 Cal.App.4th 975,
985 [quoting Ruscoe].) For example, the video and Baer’s testimony
each provides some support, however slight, that defendant committed aggravated
assault because it was not disputed that the subject person depicted or
described had features consistent with defendant’s, and the events depicted or
described were consistent with those described by Avalos.

Defendant argues in various ways
that the evidence, while “consistent with an hypothesis of possible guilt . . .
is not sufficient to provide corroboration” because it does not connect
defendant directly to the crime. We
disagree. It does so in several respects
regarding both motive and actual commission of the aggravated assault. The evidence was consistent with, and
corroborative of, Avalos’s account regarding defendant’s active gang
participation, the gang-related circumstances of the crime, defendant’s
connection to Avalos and the car that appeared to have been used in the incident,
defendant’s engagement in the crime as the chief attacker who stabbed Cortez,
the police investigation that almost immediately led to Avalos, and defendant’s
quick departure from the area. It could
reasonably be interpreted by a jury as tending to implicate defendant in the
aggravated assault, and substantiates enough of Avalos’s testimony to establish
his credibility.

We conclude, therefore, pursuant to >People v. Rodrigues, >supra, 8 Cal.4th at page 1128 and the
other case law discussed herein, and based on our substantial evidence standard
of review, that the evidence independent of Avalos’s testimony satisfies the
corroboration requirements of section 1111 regarding his testimony. Defendant’s appellate claim lacks merit.

D. Active Participation in a Criminal Street Gang

Defendant also argues that there was
insufficient evidence to support his conviction for active participation in a
criminal street gang pursuant to section 186.22, subdivision (a), because his
conviction relied on his participation in the aggravated assault. Therefore, defendant argues, “[f]or all the
reasons stated [regarding insufficient evidence of aggravated assault], there
was insufficient evidence of [defendant’s] participation in that crime and
hence a failure of proof on a necessary element of the gang participation
charge,” which requires that the person willfully promote, further, or assist
any felonious criminal conduct by members of the gang. (People
v. Lamas (2007) 42 Cal.4th 516, 523 [discussing the elements required by
§ 186.22, subd. (a)].) Given our
conclusion that there was sufficient evidence to convict defendant of
aggravated assault, we conclude defendant’s argument regarding his conviction
for active participation in a criminal street gang lacks merit.

II. The Court Should Have Stayed Part of the Sentence

Finally, defendant argues that the
trial court should have stayed his sentence for active participation in a
criminal street gang, pursuant to section 654, and the People agree. The parties are correct.

At sentencing, the trial court
designated defendant’s conviction for aggravated assault as the principal
offense and imposed the upper term of four years, imposed an additional 10
years for the gang benefit enhancement allegation (§ 186.22, subd. (b)(1)),
and stayed sentencing on the weapons enhancement allegation (§ 12022.7,
subd. (a)) pursuant to section 1170.1, subdivision (g). The court also imposed a consecutive
subordinate sentence of eight months for defendant’s conviction for active
participation in a criminal street gang.


Section 654 states in relevant part
that “[a]n 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.” (§ 654, subd. (a).) Thus, “ ‘section 654 precludes multiple
punishment for both (1) gang participation, one element of which requires that
the defendant have “willfully promote[d], further[ed], or assist[ed] in any
felonious criminal conduct by members of th[e] gang” [citation], and (2) the
underlying felony that is used to satisfy this element of gang
participation.’ [Citation.] Section 654 applies where the ‘defendant
stands convicted of both (1) a crime that requires, as one of its elements, the
intentional commission of an underlying offense, and (2) the underlying offense
itself.’ ” (People v. Mesa (2012) 54 Cal.4th 191, 197-198.)

A sentence that violates section 654
is unauthorized and imposed in excess of the trial court’s jurisdiction. (People
v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) Ordinarily, a section 654 claim is not waived
by failing to object below. “ ‘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 error on
appeal.’ ” (People v. Hester (2000) 22 Cal.4th 290, 294-295.)

As the parties point out,
defendant’s active gang participation in the present case was based on his
participation in the aggravated assault on Cortez. Thus, pursuant to section 654, the trial
court should have stayed imposition of sentence on the subordinate term designated
for defendant’s active gang participation conviction. (People
v. Hunt (2011) 196 Cal.App.4th 811, 813.)
Accordingly, we order that this sentence is stayed and the abstract of
judgment be modified to reflect this stay.

DISPOSITION

The judgment is affirmed, except
that that the sentence of eight months imposed for active participation in a
criminal street gang is hereby stayed.
The clerk of the superior court is directed to modify the abstract of
judgment to reflect that the sentence of eight months imposed for active
participation in a criminal street gang is stayed pursuant to section 654 and
to forward a certified copy of the modified abstract of judgment to the href="http://www.fearnotlaw.com/">Department of Corrections and Rehabilitation.







_________________________

Lambden,
J.





We concur:





_________________________

Haerle, Acting
P.J.





_________________________

Richman, J.