P. v. Farias
Filed 12/9/13 P. v. Farias CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
EDGAR JESUS FARIAS,
Defendant and
Appellant.
G047674
(Super. Ct.
No. 11CF0716)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, John Conley, Judge.
Affirmed.
Denise M. Rudasill,
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 Adrianne S. Denault,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A
jury convicted defendant Edgar Jesus Farias of
Code, §§ 459-460, subd. (b), count 1; all further statutory references are
to this code unless otherwise indicated) and
(a), count 3.) It further found he
committed the burglary to promote, further, or assist criminal street gang
activity (§ 186.22, subd. (b)(1)).
The court sentenced him to state prison for three years and four months
(16 months on for the burglary and two years consecutively for the gang
enhancement).
Defendant’s appeal
raises three issues: (1) the evidence fails
to support the vehicle burglary conviction because there was insufficient
evidence the vehicle was locked; (2) the court erred in admitting evidence that
defendant’s companion in committing the crimes was carrying a gun; and (3)
insufficient evidence supports the gang charge or the gang enhancement. We disagree with his contentions and affirm
the judgment.
FACTS
Early in the morning, Santa
Ana police received a report of a possible vehicle
burglary. Officer David Prewett
responded and saw two men, later identified as defendant and Israel
Sanchez. After Prewett shined his car
spotlight on the two, Sanchez dropped an object; Prewett subsequently discovered
the object was a handgun. After other
officers arrived and assisted in detaining defendant and Sanchez, defendant was
found to possess various items that had been taken from a truck belonging to
Marco Batalla. One of the truck’s
windows was shattered and the stereo was missing.
DISCUSSION
1. Sufficient evidence supports defendant’s
conviction of vehicle burglary.
Section
459’s definition of burglary includes entering “any . . . vehicle . . . when
the doors are locked . . . with intent to commit grand or petit larceny or any
felony
. . . .†There was no direct evidence
the truck had been locked before the burglary, however there was evidence that
a window had been broken. Relying on
Cal.App.2d 566 (Burns), defendant
argues this is insufficient. The
Attorney General argues that the breaking of the window provides sufficient
circumstantial evidence that the vehicle was locked.
In Burns, the court reversed a conviction for vehicle burglary where
there was no direct evidence the vehicle had been locked, although the evidence
did show that a “windwing†window was broken. In a rather cursory opinion, the court stated:
“The fact that the windwing was broken
and glass was on the front seat was not proof that the doors of the Buick were
locked, and an inference could not be drawn from that fact that the doors were
locked. There was no evidence as to the
condition of the windwing at the time the Buick was left at the parking place ‒
the broken condition could have been caused in various ways not related to the
alleged burglary. The evidence was
insufficient to support a finding that the doors of the Buick were locked.†(Burns,
supra, 114 Cal.App.2d at p. 570.)
We disagree with this
holding. The fact a window was broken
supports an inference defendant used this means to enter the vehicle and that
this manner of entry would have been unnecessary unless the vehicle was locked.
“In reviewing the sufficiency of
evidence to support a conviction, we examine the entire record and draw all
reasonable inferences therefrom 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. [Citation.] Our review is the same in a prosecution
primarily resting upon circumstantial evidence. [Citation.] We do not reweigh the evidence or the credibility
of witnesses. [Citation.] We must accept logical inferences that the
jury might have drawn from the evidence although we would have concluded
otherwise. [Citation.] ‘If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding.’ [Citation.]†(People
v. Ogg (2013) 219 Cal.App.4th 173, 180.)
As the Attorney General
points out, this case is similar to People
v. Rivera (2003) 109 Cal.App.4th 1241 (Rivera). There a police
officer found defendants inside a car with a broken window, but no direct
evidence that the car had been locked. As
distinguished from the present case there was evidence in Rivera that the car window had not been broken six or eight hours
earlier. No such evidence was presented
here. Nevertheless we do not view the absence of such evidence fatal to the
conviction. A car window does not
generally break without a human applying force to it. The jury could infer that defendant here, who
was found in possession of some of the vehicle’s contents, who either applied or
participated in applying such force. And,
as noted, it was similarly a permissible inference that the reason he did so
was because the vehicle was locked.
As the court noted in
of insufficient evidence unless there is no reasonable hypothesis supporting
the verdict.†(People v. Rivera, supra, 109 Cal.App.4th at p. 1244.) And “[i]t is not rational to conclude someone
would break a car window in the early morning hours in order to enter a car
that is unlocked. Substantial
finding necessary to a conviction that the car was locked when entry occurred.â€
(Id.
at p. 1245.)
2. The trial court did not err in admitting
evidence defendant’s cohort was carrying a gun.
Defendant
does not argue the evidence that his companion carried a gun was not relevant. He implicitly acknowledges that the evidence
was relevant to prove both the substantive gang crime and the gang enhancement.
He claims the evidence was “only
minimally probative on the gang enhancement issues and it was highly
prejudicial.†His attack on the
admission of this evidence is based on Evidence Code section 352. That statute provides in part: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability
that its admission will . . . (b) create substantial danger of undue prejudice.â€
A trial court’s decision to exclude evidence
under Evidence Code section 352 is reviewed for an abuse of discretion. (People
v. Avila (2006) 38 Cal.4th 491, 578; People
v. Rodriguez (1999) 20 Cal.4th 1, 9–10.) After fairly extensive argument by counsel on
defendant’s in limine motion to exclude evidence of the gun, the court stated, “The
court is going to permit the fact that the co-defendant . . . had a gun. It shows, it is some evidence of active
participation. It’s some evidence that
they were out doing something for the gang, not just for totally private
purpose. As I read the prosecutor’s
trial brief, the thought struck me, well, how was this gang involved? Maybe a guy needed a radio and decided to get
it the quick way. How does that benefit
the gang? What does that prove? And I think a jury may have some of the same
questions. [¶] The court is concerned
about 352, but I would cite . . . [People
v. Gionis (1995)] 9 Cal.4th [1196], which indicates that all sorts of
evidence that is probative, may be prejudicial. And . . . 352 is designed for something which
proves very little, but has a high negative impact. And I don’t find that to be the case here.â€
In People v. Gionis, supra, 9 Cal.4th 1196, where our Supreme Court
considered the admissibility of incriminating statements defendant made more
than a year before the assault which was the subject of the action. The court stated, “‘The prejudice which
exclusion of evidence under Evidence Code section 352 is designed to avoid is
not the prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence. “[A]ll
evidence which tends to prove guilt is prejudicial or damaging to the defendant’s
case. The stronger the evidence, the
more it is ‘prejudicial.’ The ‘prejudice’
referred to in Evidence Code section 352 applies to evidence which uniquely
tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not
synonymous with ‘damaging.’†[Citation.]’
[Citation.]†(Id.
at p. 1214, italics omitted.) We cannot
conclude that the introduction of evidence of possession of a gun in this case
qualifies as “‘“uniquely tend[ing] to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues.â€â€™â€ (Ibid.) Therefore, the trial court did not abuse its
discretion.
charges.
Defendant claims there
was insufficient evidence to support the gang charges. We only need to summarize the testimony of the
gang expert to show this argument must fail.
Santa Ana Police Officer
Gerardo Zuniga testified as a gang expert. No question has been raised about his
qualifications as an expert. He
testified that weapons are vitally important to criminal street gangs and that
such guns are generally not owned by a specific gang member, but rather are
available to any member of the gang. Frequently
members of criminal gangs commit their crimes in association with other members
of the same gang. He described a group
identified as SAS, SASK, or SASC, which stands for Santa Ana Stoners, Sick Ass
Stoners, and Smoking all Snitches. The “Kâ€
or “C†stands for “Krew†or “Crew.†The
group has 30 to 40 members. Zuiniga
testified that the group, which he characterized as a “gang,†engages in
robberies and felony firearm possession.
The Seattle Mariners logo baseball cap, which has a large “Sâ€, is used
by the gang members to identify themselves.
Gang members would
commit an automobile burglary to sell the items stolen. Whatever is gained from the crimes is shared
with the gang. Zuiniga identified two
active members of the gang having been convicted of stealing a motor vehicle and
robbery. Defendant was identified in
connection with SAS graffiti in two instances.
A baseball cap and a shot glass with the letters “SAS†were found in
defendant’s room. Based on these facts, Zuiniga
opined that defendant was an active member of SAS. The prosecutor then presented a hypothetical
question based on the facts of this case.
Zuiniga expressed the opinion that the crime would have been committed
for the benefit of or in association with, the
burglary would have promoted, furthered, or assisted the gang.
In support of his
argument, defendant notes that evidence of such gang affiliation as gang
tattoos and admission of gang membership were missing. But not every case must necessarily rely on
the same evidence. The expert testimony
was sufficient. There was sufficient
evidence that SAS is a criminal street gang, the vehicle burglary was related
to activities of the gang, and
defendant
actively participated in that gang. In
reviewing a challenge to the sufficiency of the evidence, we consider whether a
rational jury “‘could have found the essential elements of the crime beyond a
reasonable doubt.’†(
957, 977, disapproved on another point in People
v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10.)
DISPOSITION
The
judgment is affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.
