Filed 12/12/17 P. v. Hernandez CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

REYNALDO HERNANDEZ, JR.,

Defendant and Appellant.


G053440

(Super. Ct. No. 12NF2796)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Reynaldo Hernandez, Jr., of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and one count of street terrorism (Pen. Code, § 186.22, subd. (a)). The jury also found true that each of the assaults with a deadly weapon was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1) (the gang enhancement)). Defendant admitted having suffered three prior strike convictions (§§ 667, subds. (d) & (e)(2)(A), two serious felony convictions (§ 667, subd. (a)(1)), and having previously served two prior prison terms (§ 667.5, subd. (b)).
For purposes of sentencing, the court dismissed two of defendant’s prior strike convictions, leaving one prior strike conviction under the Three Strikes Law (§§ 667, subd. (b), 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)(1)), and one prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate state prison term of 19 years 8 months as follows: (1) On the first count of assault with a deadly weapon, 11 years (the midterm of three years, doubled to six years for the prior strike, plus a consecutive five years for the gang enhancement); (2) On the second count of assault with a deadly weapon, a consecutive three years and eight months (one-third the midterm doubled to two years for the strike, plus an additional one year and eight months for the gang enhancement); (3) The street terrorism conviction was stayed pursuant to section 654; (4) A consecutive five year term was imposed for the prior serious felony enhancement; and (5) the prior prison term enhancement was stricken.
Defendant appeals, claiming: (1) there was insufficient evidence to support a conviction on one of the counts of assault with a deadly weapon, which the prosecution had pursued on an aiding and abetting theory; (2) the trial court erred in failing to modify its instruction to the jury concerning prior inconsistent statements so as to prevent the jury from considering inadmissible hearsay; and (3) the trial court erred in failing to instruct on the lesser included offense of simple assault. We find no error and affirm the judgment.

FACTS

Just after midnight on New Year’s Day in the City of Placentia, a fight broke out on a residential street in front of a house where people were gathered to celebrate the new year. Two men were injured in the brawl, with both sustaining non life threatening injuries. Francisco Vargas was treated for a one-quarter inch deep laceration on the side of his torso, and Jesus Vasquez was treated for a laceration on the top of his head.
When police arrived on the scene, officers spoke separately with Vargas and with Vasquez. In describing what occurred, Vargas said right before the fight broke out, he heard someone yell, “Where you from?”
A different officer spoke with a woman, Claudia Corona, who appeared “frantic” and said she witnessed the fight. Corona stated she was standing six or seven feet away from her husband, Vasquez, when she saw a male walk up to him, hit him in the head with an object, and run away. Although too intoxicated to provide a description of the person who attacked her husband, Corona said she thought it was a man named Fernando who lived down the street and whom she knew to be a member of the Plas criminal street gang. She also relayed that Vasquez grew up in territory claimed by the Wicked Minds criminal street gang, a rival to Plas.
Investigators found a broken brick on the ground across the street from the house where the party took place. They also found a box cutter on the front lawn at the house. No DNA evidence was found on either object.
Two days after the incident, Corona went to the Placentia Police Department and spoke with Detective Jose Uceda. He showed her a photographic lineup and asked if she recognized any of the individuals as being the assailants. Corona pointed to a picture of defendant, whom she referred to as “Woody,” and stated she was 100 percent sure he was the one who stabbed Vargas. She also pointed to a picture of Christian Cisneros, who she called “Stretch,” and said she was 100 percent sure he was the one who hit Vasquez on the head with a brick. She explained to the detective she knew both men from having grown up in the same neighborhood as them. Because she was aware they were members of the Plas gang, she expressed concern about potential gang retaliation.
After making the identifications, Corona reiterated many of the same details she had provided to officers on the night of the incident, including that she was in the front yard of the house when the fight broke out, and that she saw Vasquez and Vargas being attacked. She explained that Vargas walked out in the street after the fight started, and she saw defendant stab him twice with a knife in the lower left torso. Corona said she tried to pull defendant away from Vargas. When defendant turned toward her, she recognized him and said, “Woody, it’s me, Claudia,” and he ran away.
As she described the attacks, she used the names “Woody” and “Stretch” in a manner consistent with her photo lineup identifications.
After being subpoenaed by the prosecution for trial, Corona met with a district attorney investigator. She told the investigator she had lied to officers about having seen everything and said her prior statements were based on what she overheard from others.
At trial, Corona testified she did not see the fight occur, but instead first observed the scene after “everything was done.” She said she was outside on the side of the house where the party was taking place and heard screaming, so she ran in the direction of the screams and saw blood on the ground. She also reiterated what she had told the district attorney investigator—she originally lied to police and had made identifications based on what she heard others say.
In addition, and also contrary to her prior statements to police, Corona testified she did not know Plas is a criminal street gang and did not know any Plas gang members. She confirmed, however, she recognized defendant from the neighborhood in which she grew up.
Vargas also testified, but he was unable to identify the attackers. He stated he was inside the house where the party was occurring when he heard yelling and people fighting outside. When the sounds continued, he went outside and yelled at people in the street to “go away.” He remembered pushing someone and then feeling another person start hitting him in the stomach. It was not until he went back inside the house as people dispersed that Vargas noticed he had been stabbed and was bleeding.
Defendant’s friend testified she was with defendant on the evening of New Year’s Eve. They were at a party at a house located approximately one half mile from the house where the fight later broke out. She testified the last time she saw defendant was around 11:00 or 11:30 p.m., and she did not know what time he left the party.

DISCUSSION

Defendant challenges the sufficiency of the evidence supporting his conviction for assault with a deadly weapon against Vasquez. He also contends the court erred in failing to modify its jury instruction concerning prior inconsistent statements to account for potential hearsay and failing to instruct on the lesser included offense of simple assault. Each of these claims is without merit.

Aiding and Abetting
Defendant challenges his conviction for assault with a deadly weapon against Vasquez, a charge which the prosecution advanced on the theory defendant had aided and abetted the assault committed by Cisneros. He claims there was insufficient evidence to support the guilty verdict. We disagree. A review of “the whole record in the light most favorable to the judgment . . . discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could [have found] the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
“A person who aids and abets the commission of a criminal offense is considered a principal in the crime. [Citation.] In order for criminal liability to be imposed under an aiding and abetting theory, the person must ‘act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]’” (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 740.) Although mere presence at the scene of a crime is not sufficient, alone, knowledge of the criminal purpose need not be obtained long prior to commission of the crime. (Id. at p. 742 [“[A]dvance knowledge is not a prerequisite for liability as an aider and abettor”].) “‘Aiding and abetting may be committed “on the spur of the moment,” that is, as instantaneously as the criminal act itself. [Citation.]’ [Citation.]” (Ibid.)
Here, there was evidence defendant and Cisneros were both active members of the Plas gang, and Vasquez grew up in a neighborhood claimed by a rival gang, Wicked Minds. The incident took place in territory claimed by Plas, and there was evidence that immediately before the fight broke out, someone yelled, “Where you from?” A prosecution gang expert testified gang members make such a statement to signal to others the events which are about to occur are gang related.
An aider and abettor is liable for any crime committed by the person he or she aids and abets “that is the ‘natural and probable consequence’ of the target crime.” (People v. Prettyman (1996) 14 Cal.4th 248, 261.) “When rival gangs clash today, verbal taunting can quickly give way to physical violence . . . . No one immersed in the gang culture is unaware of these realities, and we [will not] turn a blind eye to them.” (People v. Montes (1999) 74 Cal.App.4th 1050, 1056.) The jury was entitled reasonably to infer that Plas gang members, defendant and Cisneros, observing a party taking place in territory they claimed, and involving persons not from their neighborhood, would share a common purpose in their assault of Vasquez and Vargas. Viewing the entire record in the light most favorable to the judgment, there was ample evidence to support defendant’s conviction for the felony assault of Vasquez on the theory defendant aided and abetted Cisneros in his assault against Vasquez.

Prior Inconsistent Statements
Defendant claims the trial court erred in failing to modify its jury instruction concerning prior inconsistent statements to account for potential hearsay. He argues the court should have advised the jury it could not consider Corona’s initial statements to police or those she made in conjunction with the photo lineup unless the jury first determined the statements were based on her personal knowledge, not information provided by others. Even assuming defendant did not forfeit this argument as the Attorney General suggests, given he did not request to modify or add additional language to the relevant instruction, we find no reversible error.
The court instructed the jury with the standard CALCRIM No. 318 instruction, stating: “You have heard evidence a statement that a witness made before the trial. If you decide the witness made those statements, you may use those statements in two ways: First, to evaluate whether the witness’s testimony in court is believable; and second, as evidence that the information in those earlier statements is true.” This is a correct statement of the law. (Evid. Code, § 1235; People v. Tuggles (2009) 179 Cal.App.4th 339, 366.)
Defendant asserts the instruction allowed the jury to impermissibly consider hearsay evidence under the circumstances, because it allowed them to take Corona’s out-of-court identifications as “true,” without first evaluating whether they were based on her own personal knowledge or information given to her by others. Not so. Pursuant to the instruction, the jurors were first obligated to determine whether Corona made the prior statements. Assuming they concluded she did, the instruction then allowed them to determine whether to believe her trial court testimony (that she did not witness the assaults and based the identifications on statements she overheard in order to blame someone), or whether to believe her prior statements (that she personally witnessed the assaults and defendant and Cisneros were the perpetrators). (See People v. Hudson (2009) 175 Cal.App.4th 1025, 1028 [CALCRIM No. 318 does not require jury to find content of witness’s prior inconsistent statements true].)
Given the jury’s guilty verdict, it must have disbelieved Corona’s trial testimony. In other words, the jury must have concluded Corona’s claim of not witnessing the attacks was false. The corollary to such a conclusion is that Corona, in fact, personally witnessed the events, meaning her identifications were not based on hearsay.
Because we conclude the court’s instruction was proper, we reject defendant’s claim his trial counsel was incompetent for not objecting to it. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836 [“Counsel’s failure to make a futile or unmeritorious motion or request is not ineffective assistance”].)

Lesser Included Offense
After both sides rested their case, the court determined it was not necessary to instruct the jury on the lesser included offense of simple assault. It relayed to all counsel its intention not to give such an instruction, and all counsel concurred in the court’s determination. Defendant now contends the court erred in failing to instruct on simple assault.
Preliminarily, we address the Attorney General’s contention that defendant forfeited his argument by expressly concurring with the court that a lesser included offense instruction was not required under the circumstances. Although “‘“‘[t]he obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given[,]’”’” there are circumstances under which a defendant may be deemed to have waived, under the doctrine of invited error, the ability to challenge the lack of such an instruction. (People v. Souza (2012) 54 Cal.4th 90, 114.) There are no such circumstances here. The record does not indicate defendant’s counsel “‘“intentionally caused the trial court to err[,]”’” and there is no indication his counsel “expresse[d] a deliberate tactical purpose” for agreeing with the court’s determination. (Ibid.)
“We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1218.) A trial court has a duty to instruct the jury, sua sponte, on all theories of a lesser included offense “whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]”’ that the lesser offense, but not the greater, was committed.” (Ibid.) “[T]he sua sponte duty . . . arises even against the defendant’s wishes, and regardless of the trial theories or tactics the defendant has actually pursued.” (Ibid.)
The difference between the crime charged and simple assault is the latter is committed without use of a deadly weapon. (People v. McGee (1993) 15 Cal.App.4th 107, 116.) Thus, the question before us is whether there is evidence in the record from which a reasonable jury could conclude the assault by defendant against Vargas was committed without use of a deadly weapon. (People v. Breverman, supra, 19 Cal.4th at 162.) There is not.
The evidence indicated Vargas was stabbed twice on the side of his torso, near his stomach, with an object that protruded one quarter inch into his body. Although the actual object used was not recovered, there was evidence concerning what the object may have been. Corona told Detective Uceda she personally saw defendant stab Vargas with a knife, and there was a stipulation indicating Vargas’s injuries may have been inflicted by glass from a broken bottle. Both a knife and a broken bottle are considered deadly weapons, particularly when used to slash a vulnerable area of a person’s body. (In re D.T. (2015) 237 Cal.App.4th 693, 699 [knife]; In re Todd L. (1980) 113 Cal.App.3d 14, 20 [“A broken bottle is traditionally viewed as a deadly weapon”]; People v. Sainz (1967) 253 Cal.App.2d 496, 501 [broken beer bottle]; People v. Claborn (1964) 224 Cal.App.2d 38, 42 [“When an instrument is capable of being used in a dangerous or deadly manner and it may fairly be inferred from the evidence in a specific case that the defendant intended so to use it, its character as such a weapon is established”].)
There simply was no evidence from which a reasonable jury could conclude the assault was committed with a non-deadly weapon. Accordingly, the court did not err in omitting an instruction on simple assault.

DISPOSITION

The judgment is affirmed.



IKOLA, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.