P. v. Solorio
Filed 5/13/13 P. v. Solorio CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
SALVADOR
SOLORIO et al.,
Defendants and
Appellants.
2d Crim. No.
B233913
(Super. Ct.
No. F449063)
(San
Luis Obispo County)
Salvador Solorio and
Frank Jamesricky Sanchez appeal the judgment following their convictions for
the assault was committed by Solorio and Sanchez for the benefit of a
personally used a firearm in the assault.
consisting of three years for the assault, plus 10 years for committing a
violent felony for the benefit of his gang.
(§ 186.22, subd. (b)(1)(C).)
His sentence for negligently discharging a firearm was stayed. Solorio was sentenced to eight years
consisting of three years for the assault, plus a five-year gang
enhancement. (§ 186.22, subd.
(b)(1)(B).)
Solorio and Sanchez
contend that there was insufficient
evidence to support the gang enhancement, ineffective assistance of
counsel, juror misconduct, and sentencing error. Solorio also contends that there was
insufficient evidence that he aided and abetted Sanchez in the
FACTS AND PROCEDURAL HISTORY
Isaac Abarca was
associated with a gang known as Mexican Pride.
Solorio and Sanchez were members of a rival gang known as Paso Robles
13. Abarca had participated in previous
gang-related fights with Solorio. Abarca
and Solorio also had a personal connection.
Abarca had fathered two children with Sarah K., a woman who was romantically
involved with Solorio at the time of the charged offenses.
On July 10, 2010, Abarca was having a birthday
party for his five-year-old son in the front yard of his residence. The mother of the son was the woman then in a
relationship with Solorio. Solorio and
Sanchez drove by in a Chevy Blazer.
Sanchez was driving and Solorio was a passenger. Seeing Solorio in the car, Abarca threw a can
of beer at the car. The beer can hit a
tree, not the car. Abarca then hopped
the fence and ran towards the car seeking to fight with Solorio. Solorio got out of the passenger side of the
Blazer holding a knife. Sanchez got out
of the driver's side holding a semiautomatic firearm. Abarca stopped when Sanchez pointed the
firearm at him. There was some
yelling. Abarca's father tried to pull
Abarca away, and told Sanchez not to shoot his son.
Sanchez and Solorio
appeared to be getting back into their car when Solorio told Sanchez,
"Shoot him, shoot him."
Sanchez turned and fired a shot which hit the ground in front of the
feet of Abarca's father. The impact from
bullet fragments or debris on the ground caused minor injuries to the father's
leg.
After the shot, Abarca
ran towards the car and hit its back window as it started to drive away. A friend of Abarca reached the car as Solorio
and Sanchez drove off. A witness saw the
car and a portion of the confrontation.
She heard yelling and gesturing.
She saw Sanchez fire a shot at the men standing in the road.
In his initial interview
with the police, Abarca's father recited the facts as set forth above but did
not state that he heard Solorio say, "shoot him, shoot him" to
Sanchez. In another police interview the
following day, Abarca's father told police that he heard Solorio repeatedly
tell Sanchez to shoot him. Abarca
claimed the shooting occurred because of the people he and Solorio associated
with in the past, namely, the Mexican Pride and Paso Robles 13 gangs.
DISCUSSION
Substantial
Evidence Supports Solorio Conviction
Solorio contends there
was insufficient evidence to support
his conviction as an aider and abettor of Sanchez because he was unaware of
Sanchez's criminal purpose and did not aid, encourage, or facilitate commission
of the offense. We disagree.
In evaluating a
sufficiency of the evidence claim, we examine the entire record and draw all
reasonable inferences from the record in favor of the judgment to determine
whether there is reasonable and credible evidence from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. (People
v. Streeter (2012) 54 Cal.4th 205, 241.)
We do not reweigh the evidence or assess the credibility of witnesses. (People
v. Albillar (2010) 51 Cal.4th 47, 60.)
The
elements of assault with a semiautomatic firearm are that
in a manner that by its nature would directly and probably result in the
application of force to someone, (2) acted willfully, (3) was aware of facts
that would lead a reasonable person to realize the act by its nature would
directly and probably result in application of force to someone, and (4) had
the ability to apply force with the firearm.
(See People v. Golde (2008) 163 Cal.App.4th 101, 121; CALCRIM No.
875.) A person aids and abets an offense if he or she aids,
encourages or facilitates the commission of the offense, with knowledge of the
criminal purpose of the direct perpetrator, and with the intent to aid,
encourage or facilitate the offense. (
1118; see also People v.
1224.)
conviction. Solorio and Sanchez were
members of the same gang. They drove
together to a party being given by a member of a rival gang. Solorio was armed with a knife and Sanchez
was armed with a semiautomatic firearm.
They stopped in front of the Abarca residence, both got out of their
car, and both participated in a threatening verbal altercation with Abarca and
others. While outside their car, both
held their respective weapons. During
the altercation, Solorio encouraged Sanchez to shoot Abarca, stating
"shoot him, shoot him."
Solorio argues that mere
presence at the crime scene and membership in the same gang standing alone are
insufficient to establish aiding and abetting.
We do not dispute this assertion, but gang affiliation, companionship,
and conduct before and after the offense are relevant factors in determining
aider and abettor liability. (See Calderon
v. Superior Court (2001) 87 Cal.App.4th 933, 940–941; Mitchell v. Prunty
(9th Cir. 1997) 107 F.3d 1337, 1342, overruled on other grounds in
133 F.3d 1242.) Moreover, the evidence
in this case extended far beyond mere presence and common gang membership. The evidence shows Solorio was not a passive
bystander but rather drove to the party with Sanchez with weapons and with the
intent to engage in a fight with Abarca.
Gang
Enhancement Alleged Against Solorio
Solorio contends that
the prosecution's failure to allege the gang enhancement in an amended
information filed after the evidentiary phase of the trial prevents a true
finding on the enhancement against him.
We disagree.
Section
952 requires an accusatory pleading to include express allegations of all
offenses charged and enhancements alleged.
(§ 1170.1, subd. (e).) The
purpose of this requirement is to provide the accused with reasonable notice of
all charges against him. (People v.
Sandoval (2006) 140 Cal.App.4th 111, 132.) Any defect in the form of an
prejudices a substantial right of the defendant on the merits. (Ibid.) Also, under modern pleading procedures,
notice of the circumstances of an alleged crime is provided more by evidence at
a preliminary hearing than the
contents of the pleading. (People v.
Jennings (1991) 53 Cal.3d 334, 358.)
In any event, the record shows that the amended information alleged the
gang enhancement against both defendants.
The original September 2010
information included an allegation against both Solorio and Sanchez that the
use of a semiautomatic gun offense was committed for the benefit of a criminal
street gang. The September 2010
information was the operative accusatory pleading until after completion
of the evidentiary phase of trial. On or
about November 22, 2010,
the court questioned whether the correct firearm enhancement was alleged in the
information. In response, the
prosecution prepared an amended information which changed the firearm
enhancement but also deleted Solorio from the gang enhancement. The proposed amended information, dated November 23, 2010, was stamped as
"received" by the trial court.
Based on the record, this proposed amended information was not filed
with the court. Instead, the prosecution
prepared another version of the amended information which was stamped as
"filed" by the trial court on November 29, 2010.
The amended information filed with the court included an allegation of
the gang enhancement against both Solorio and Sanchez.
Accordingly,
Solorio has not shown that any operative version of the information omitted the
gang enhancement against him. The
appellant has the burden to
court to assess any purported error. (Haywood
v. Superior Court (2000) 77 Cal.App.4th 949, 955; People v. Neilson
(2007) 154 Cal.App.4th 1529, 1534.)
Substantial
Evidence Supports Gang Enhancement
Solorio and Sanchez
contend there was insufficient evidence to support the gang enhancement. They argue that the offenses were committed
for a personal reason and that the only evidence of a gang-related motive was the
testimony of the prosecution gang expert.
Applying the usual substantial evidence standard set forth in this
opinion, we conclude that substantial evidence supports the enhancement against
both Solorio and Sanchez. (
pp. 59-60.)
A gang enhancement
requires proof of the existence of a criminal street gang and that the offense
was "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 . . . ." (§ 186.22, subd. (b)(4).) Expert testimony is admissible to prove these
elements, including the motivation for a crime, and whether it was committed to
benefit or promote a gang. (
p. 63; People v. Garcia (2007) 153
Cal.App.4th 1499, 1512.)
Here, the prosecution
presented expert testimony from sheriff's deputy Michael Hoier. Deputy Hoier testified that Solorio and
Sanchez were members of the Paso Robles 13 gang whose criminal activities
included assaults with deadly weapons and other crimes likely to cause great
bodily injury. He testified that
Abarca's Mexican Pride gang was a rival of Paso Robles 13. He testified to various predicate offenses by
the gang, including offenses involving confrontations between Solorio and
Abarca.
Deputy Hoier testified
that respect was of critical importance to gang members, and that a gang member
will confront anyone who shows him disrespect.
A gang member who avoids confrontation or fails to confront disrespect
loses status in the gang. An enemy of
one gang member will become the enemy of the entire gang and gang members are
expected to stand up for each other.
In response to a
hypothetical question using the facts of this case, Deputy Hoier opined that
the assault with a semiautomatic weapon offense was committed for the benefit
of, in association with, and at the direction of a criminal street gang. He testified that a crime committed with a
firearm would benefit the gang because of its terrorizing effect on the public,
and that a crime committed by multiple gang members is committed in association
with and at the direction of the gang because gang members are required to
support and assist fellow gang members.
Solorio and Sanchez
argue that an expert's testimony alone is insufficient to support the gang
enhancement. Although some earlier cases
imply such a rule, our Supreme Court has recently concluded that "[e]xpert
opinion that particular criminal conduct benefited a gang by enhancing its
reputation for viciousness can be sufficient to raise the inference that the
conduct was 'committed for the benefit of . . . a[] criminal street gang' . . .
." (People v. Albillar, supra, 51 Cal.4th at p. 63;
1048.)
Here, the jury could
reasonably infer from the expert opinion and other evidence that the assault
with a semiautomatic firearm was committed for the benefit of, in association
with, and/or at the direction of the Paso Robles 13 gang. In addition, inferences from the evidence are
sufficient to support a finding that the offenses were committed "with the
specific intent to promote, further, or assist in any
members." (§ 186.22, subd.
(b)(1).) If substantial evidence
otherwise establishes that the offense was gang related, the jury reasonably
may infer that the defendant had the specific intent to promote, further, or
assist criminal conduct by gang members.
(See People v. Albillar, supra,
51 Cal.4th at pp. 67-68.)
Solorio repeatedly
characterizes the offense as being personally motivated. He asserts that the confrontation was
initiated by Abarca who was jealous that Solorio was in a relationship with the
mother of his children. This argument
has no merit, even assuming that Abarca initiated the confrontation. First, Abarca's jealousy does not support the
inference that Solorio was similarly jealous.
Second, even if the evidence could reasonably have been interpreted by the
jury as Solorio suggests, the existence of some evidence which would support a
contrary finding is not a basis for reversal.
(People v. Letner and Tobin (2010)
50 Cal.4th 99, 162.)
No
Ineffective Assistance of Counsel
Solorio and Sanchez
contend that they received ineffective assistance of counsel when counsel
failed to object to the prosecutor's statement during argument that he believed
Solorio and Sanchez were guilty. We
disagree.
A prosecutor
may not express a personal
there is a substantial danger that the jury will view the comments as based on
information other than evidence at trial, or when the comments will induce the
jury to trust the prosecutor's
judgment rather than its own view of the evidence. (United States v. Young (1985) 470
U.S. 1, 18–19; People v. Lopez (2008) 42 Cal.4th 960, 971.) It is not misconduct for a prosecutor to express a belief in a defendant's guilt
based on the evidence. (People v. Mayfield (1997) 14 Cal.4th 668, 782.) The propriety of an assertion
of personal belief depends on the context and perspective
of the assertion. (Ibid.) Most importantly, a
belief is based in whole or in part on information that
has not been disclosed at trial. (People
v. Frye (1998) 18 Cal.4th 894, 975, overruled on another ground in
421.) "The danger that the jury
will view the prosecutor's expressed belief in the
defendant's guilt as being based on outside sources 'is
acute when the prosecutor offers his opinion
and does not explicitly state that it is based solely on inferences from the
evidence at trial.' [Citation.] Nevertheless, not all such comments are
improper. Rather, '[t]he
in which they were made, to ascertain if there was a substantial risk that the
jury would consider the remarks to be based on information extraneous to the
evidence presented at trial.'
[Citations.]" (Lopez, at
p. 971.)
examination of the record persuades us that the prosecutor's
comment was not misconduct in this case.
Nothing in the prosecutor's articulation of belief
in defendants' guilt suggested it was based in any part
on facts which were not presented to the jury as evidence. The prosecutor argued the evidence at length
and a reasonable juror would not have construed any of her remarks as
suggesting the existence of incriminating information which was not presented
at trial. (People v. Lopez, supra,
42 Cal.4th at p. 971.) Because there was
no misconduct, there was no ineffective assistance of counsel.
No
Prejudicial Juror Misconduct
Solorio and Sanchez
contend the trial court erred in denying a motion for new trial based on juror
misconduct. They argue that some jurors
discussed the case prior to deliberations and outside the presence of other
jurors and some jurors discussed punishment. We conclude
there was no abuse of discretion in denying the motion.
The court conducted an
extended hearing on the motion for new trial.
Nonjuror Carrie Watkins, a friend of appellant Sanchez, testified that
she and Sanchez's mother had lunch one day during trial and saw three jurors in
the same restaurant. She knew they were
jurors because she had attended portions of the trial. Watkins testified that she heard the three
jurors discussing the case and that one juror stated, "Of course he's
guilty; he shot the gun." Sanchez's
mother, Eva Sanchez, corroborated Watkins by testifying that she heard one
juror state the name "Frank" (Sanchez) and another say, "He shot
the gun."
Two jurors testified to
the contrary. Juror C.A.
testified that he was at the lunch in question but neither he nor other jurors
discussed the case. He specifically
testified that he heard no juror refer to anyone as "Frank" or refer
to who shot the gun. Juror F.C.
testified that he ate at the subject restaurant several times, saw members of
the Sanchez family there, but never discussed the case at lunch or heard any
other juror discuss the case.
There was also testimony
regarding a discussion of the three strikes law. Juror L.F. testified that, during
deliberations, he mentioned the three strikes law and Juror D.F., a corrections
officer, explained what it was. L.F. stated
that the discussion lasted no more than 30 seconds. Juror F.C. testified that he remembered a
discussion about the three strikes law during deliberations and stated that one
juror brought the three strikes law up and another explained it. He stated that the jury as a whole thought it
was irrelevant and the matter "didn't get much play." The discussion lasted approximately one
minute. Juror J.H. recalled a discussion
about the three strikes law during deliberations that lasted one or two
minutes.
The trial court denied
the new trial motion concluding that there was an insufficient showing of
prejudicial misconduct by the jury. The
court stated that it was inappropriate for the jury to discuss the three strikes
law but not prejudicial misconduct because the discussion was general and the
jury considered the law to be irrelevant.
As to the restaurant discussion, the trial court questioned the
credibility of witnesses Carrie Watkins and Eva Sanchez, and noted that no
juror admitted having any discussions about the case in the restaurant or
otherwise prior to deliberations.
A defendant is
entitled to trial by an impartial jury which has not been improperly influenced
and which decides the case solely on the evidence. (People v. Harris (2008) 43 Cal.4th
1269, 1303; In re Hamilton (1999) 20 Cal.4th 273, 294.) Juror misconduct occurs when there is a direct violation of
the oaths, duties, or admonitions imposed on jurors, such as when a juror
conceals bias on voir dire, consciously receives outside information about the
with other jurors. (Hamilton, at p. 294.)
When
a juror engages in misconduct, prejudice is presumed and must be rebutted by
the prosecution to avoid the granting of a new trial. (In re
Carpenter (1995) 9
Cal.4th 634, 651, 654; People v. Chavez (1991) 231 Cal.App.3d 1471,
1483-1485.) There is prejudice when the
jury's impartiality has been adversely affected, the prosecution's burden of
proof lightened, or any defense contradicted.
(People v. Zapien (1993) 4 Cal.4th 929, 994.)
The applicable standard
is whether there is a substantial likelihood that any of the jurors were
actually biased. A verdict will not be
disturbed when the surrounding circumstances indicate no reasonable probability
of prejudice, that is, no substantial likelihood a juror was actually biased
against the defendant by misconduct undermining the juror's impartiality. (People v. Foster (2010) 50 Cal.4th
1301, 1342.)
We defer to credibility
determinations by the trial court and its factual findings if supported by
substantial evidence, but exercise our independent judgment as to whether the
presumption of prejudice has been rebutted.
(People v. Ramos (2004) 34 Cal.4th 494, 520.) Any presumption of prejudice is rebutted
"if the entire record . . . , including the nature of the misconduct or
other event, and the surrounding circumstances, indicates there is no
reasonable probability of prejudice, i.e., no substantial likelihood
that one or more jurors were actually biased against the defendant." (In re Hamilton, supra, 20 Cal.4th at
p. 296.) "The standard is a
pragmatic one, mindful of the 'day-to-day realities of courtroom life'
[citation] and of society's strong competing interest in the stability of
criminal verdicts [citations]. It is
'virtually impossible to shield jurors from every contact or influence that
might theoretically affect their vote.'
[Citation.] . . . '. . . [Jurors] are imbued with human frailties
as well as virtues. If the system is to
function at all, we must tolerate a certain amount of imperfection short of
actual bias.'" (Ibid.)
on the record as a whole, we conclude that the presumption of prejudice was
rebutted and the trial court did not abuse its discretion in denying the new
trial motion.
No Error in Sanchez
Sentencing
Sanchez was sentenced to three years for
assault with a semiautomatic firearm, plus 10 years pursuant to section 186.22,
subdivision (b)(1)(C). Section 186.22,
subdivision (b) provides for an additional sentence when a felony is committed
for the benefit of a gang. The
additional sentence is 10 years for a "violent felony" as defined in
section 667.5, five years for a serious felony as defined in section 1192.7,
and 16 months, two years, or three years for other felonies. (§ 186.22, subd. (b)(1)(A)-(C).) Sanchez contends he was not convicted of a
"violent felony" and, therefore, the 10-year sentence was improperly
imposed and must be stricken or reduced.
We disagree. Despite a pleading
error, the jury finding that Sanchez personally used a firearm supports the
10-year additional sentence.
The original information alleged that Sanchez
"personally used a firearm" in committing assault with a
semiautomatic firearm "within the meaning of Penal Code Section
12022.5(a)," which caused the felony to become a serious felony as set
forth in section 1192.7, subdivision (c)(8) and a violent felony as set forth
in section 667.5, subdivision (c)(8).
Had there been no amendment to the information, the 10-year sentence for
a "violent felony" under section 186.22, subdivision (b)(1)(C) would
have been indisputable. Section 667.5,
subdivision (c)(8) includes as violent felonies "any felony in which the
defendant uses a firearm which use has been charged and proved as provided in
subdivision (a) of . . . Section 12022.5."
Section 12022.5 broadly covers felonies in which the defendant
personally uses a firearm and expressly covers assault with a semiautomatic
weapon. (§ 12022.5, subds. (a),
(d).)
After completion of the evidentiary phase of
trial, however, the information was amended to delete the reference to section
12022.5 and substitute a reference to section 12022.53. The amended allegation was that Sanchez
personally used a firearm in the commission of the offense "within the
meaning of Penal Code Section 12022.53(c)."
Although a violation of section 12022.53 is a
violent felony, commission of an assault with a semiautomatic firearm did not
violate section 12022.53. Section
12022.53 covers only enumerated crimes and assault with a semiautomatic firearm
is not one of them. Therefore, section
12022.53, subdivision (c) does not apply and does not cause the offense to
"become" a violent felony under section 667.5.
The trial court acknowledged the problem at
the time of sentencing. The court stated
that section 12022.53, subdivision (c) was not applicable to an assault with a
semiautomatic firearm, but that "it appears the jury's intention with the
finding was that the defendant personally used the firearm. Therefore, the sentence imposed is based on
that premise." We conclude that the
trial court properly sentenced Sanchez.
The task of the jury was to determine whether Sanchez personally used a
firearm, not the applicability of a statute relevant solely to sentencing. The personal use factual finding is
unassailable and, standing alone, a sufficient finding to support the
enhancement imposed by the trial court.
Due process requires
a defendant to be given fair notice of the charges against him, including
enhancements so that he or she has an opportunity to prepare a defense and to
avoid unfair surprise at trial. (People
v. Tardy (2003) 112 Cal.App.4th 783, 786; People v. Neal (1984) 159 Cal.App.3d 69, 73.) Here,
Sanchez was
fully informed that he had to defend against an allegation that he personally
used a firearm in the commission of the offense, that a sentence enhancement
based on section 186.22, subdivision (b)(1) was being sought, and that the term
of the enhancement would turn on whether the offense was a serious and/or
violent felony.
name="_ftnref3" title="">[3] In fact, the version of the information in
effect through the completion of the evidentiary phase of the trial was
accurate and complete in all respects. "[W]here
the information puts the defendant on notice that a sentence enhancement will
be sought, and further notifies him of the facts supporting the alleged
enhancement, modification of the judgment for a misstatement of the underlying
enhancement statute is required only where the defendant has been misled to his
prejudice." (Neal, supra, at p. 73; see also People v.
Dixon (2007) 153 Cal.App.4th 985, 1001–1002.)
Error in Computation of
Solorio Conduct Credit
Solorio contends the trial court erred in its
calculation of conduct credits under section 4019, respondent concedes, and we
agree. Based on the version of section
4019 in effect, Solorio was entitled to one day of credit for every two days of
local custody. That computation results
in a total of 160 days of conduct credit.
The trial court awarded Solorio 158 days of conduct credit instead of
the required 160 days. Therefore, the
judgment against Solorio must be modified to reflect 160 days.
We order the trial court to amend the abstract of
judgment for Solorio to reflect 160 days of presentence conduct credit. The judgments are otherwise affirmed.
NOT
TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT,
P. J.
YEGAN,
J.
Teresa
Estrada-Mullaney, Judge
Superior Court County of San Luis Obispo
______________________________
Susan S. Bauguess, under appointment by the Court
of Appeal, for Defendant and Appellant Solorio.
Wilson & Wilson and Denton J. Wilson for
Defendant and Appellant Sanchez.
Kamala D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General,
Jonathan J. Kline, Brendan Sullivan, Deputy Attorneys General, for Plaintiff
and Respondent.
as to the negligent discharge of a firearm offense committed by Sanchez.
