Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. PA062789 Sanjay T. Kumar, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury convicted defendant and appellant Octavio Alcaraz of one count of assault with a firearm and two counts of witness dissuasion. The jury also found true gang allegations as to all counts. On appeal, defendant contends that there was insufficient evidence to support his convictions of witness dissuasion and the true findings on the gang allegations. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. Prosecution case.
John and Maria Kusters lived in Sylmar with Maria’s 97-year old father, who had lived in the home for almost 50 years. Their property had a guesthouse, which had been burglarized around June 2008. The Kusters reported that burglary to the police. Defendant lived about half a mile to a mile from the Kusters, and the Kusters would see him around the neighborhood. Sometimes, defendant and others sat in the storm drain adjacent to the Kusters’s house, and, once, Maria had a bad encounter with him.
On the night of September 14, 2008, John was outside locking the front gates. Defendant approached and said, “ ‘You motherfucker. You are spying on us. You think I’m just joking?’ ” He pointed a gun at John’s forehead. Although John was scared and thought his life was over, he turned and walked through the side door of the house into the kitchen.
John told Maria to call 911 because the “ ‘Hyena’ ”-John’s nickname for defendant-had just put a gun to his forehead. Before she could call, defendant knocked on the kitchen door. Maria answered it. Defendant introduced himself as Octavio, and his companion introduced himself as Manuel. Another man stood inside the front gate. Maria didn’t see a gun. Defendant told Maria he knew she’d called the police. She replied, “ ‘Well, I don’t call the police except when I’m robbed or somebody points a gun at my husband, then I will call the police.’ ” Defendant told her, “ ‘We’re gang members, and we protect the neighborhood, and we will protect you. Do not call the police.’ ” He told her that if she told him who robbed her, he would beat them up for her. She told him she wouldn’t call the police that night.
The Kusters stayed up all night deciding what to do. The next morning they reported the incident to the police and moved from the house.
Officer Cesar Larios went to defendant’s home to arrest him on September 16, 2008. When the officer got there, defendant was walking down his driveway. When defendant saw the officer, defendant ran but he was soon caught. He told Officer Alonso Menchaca that he hadn’t done anything. A loaded gun and a clip were found in defendant’s room in his house.
Officer Menchaca testified as a gang expert. The San Fer gang is one of the oldest gangs in the San Fernando Valley, dating back to the 1920’s. It has about 900 documented members. Murder, attempted murder, narcotics sales, carjacking, burglary, assaults with deadly weapons, shootings, stabbings and vandalism are the gang’s primary activities. The Kusters lived in San Fer’s territory, and members of the gang hung out at the storm drain running next to the Kusters’s property. Officer Menchaca first encountered defendant in the beginning of 2008. Defendant was with a San Fer gang member, and the officer saw a San Fer tattoo on defendant’s neck, and he has other gang tattoos on his body. When the officer told defendant he hadn’t seen him in the neighborhood before, defendant laughed and said, “ ‘You didn’t grow up here. This is my fucking neighborhood. I’m from San Fer.’ ” Defendant told Officer Menchaca he was a member of the San Fer gang and his nickname was Tavo, although his moniker was Stomper. In Officer Menchaca’s opinion, the assault on John Kusters and the dissuasion and intimidation were committed for the benefit of or in association with or at the direction of the gang. Gangs don’t want citizens to call the police because it creates attention and disrupts the gang’s business. The crimes created fear and intimidation in the community and increased defendant’s stature within the gang.
B. Defense case.
Defendant testified that he was friends with Maria’s father and had known him for years. He had nothing to do with the burglary of the guesthouse. He denied being at the Kusters’s home the night of September 14, 2008; he was at home, asleep. The gun found in his room wasn’t his. He used to be a gang member in “[19]99, 2000.”
II. Procedural background.
On March 10, 2009, the jury found defendant guilty of count 1, assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and found true gun (§ 12022.5) and gang (§ 186.22, subd. (b)(1)(C)) allegations and of counts 2 and 3, dissuading a witness (§ 136.1, subd. (c)(1)). The jury also found true as to counts 2 and 3 allegations that defendant acted maliciously and used or threatened to use force and that defendant committed the crimes for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members under section 186.22, subdivision (b)(4).
All further undesignated statutory references are to the Penal Code.
On May 28, 2009, the trial court sentenced defendant to the high term of nine years on count 1 plus four years for the gun use plus ten years for the gang enhancement. The court sentenced him to a consecutive life term on count 2, concurrent to a life term on count 3.
DISCUSSION
I. There was sufficient evidence to support defendant’s conviction of witness dissuasion.
Defendant contends that there was insufficient evidence to support his conviction for witness dissuasion, counts 2 and 3. We disagree.
Review for sufficiency of the evidence requires us to “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow (2003) 30 Cal.4th 43, 66; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “[A] reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 136.1, subdivision (b), provides in relevant part that “every person who attempts to prevent or dissuade another person who has been the victim of a crime” from “[m]aking any report of that victimization to any peace officer or state or local law enforcement officer... or prosecuting agency or to any judge” is guilty of a public offense. (§ 136.1, subd. (b)(1).) Subdivision (c) of the statute provides that every person who does such acts “knowingly and maliciously” “[w]here the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person” is guilty of a felony (§ 136.1, subd. (c)(1)). (See also CALCRIM Nos. 2622 & 2623.) The crime of dissuading a witness from testifying can involve a continuous course of conduct. (People v. Salvato (1991) 234 Cal.App.3d 872, 883.)
The jury was instructed with CALCRIM No. 2622: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant tried to prevent or discourage the alleged victim from cooperating or providing information so that a complaint or indictment or information could be sought and prosecuted and from helping to prosecute that action; [¶] Two, the victim alleged was a witness or a crime victim; [¶] And, three, the defendant knew he was trying to prevent or discourage the alleged victim from cooperating or providing information as set forth in element 1 above and he intended to do so. [¶] As used here, ‘witness’ means someone or a person the defendant reasonably believed to be someone: [¶] Who knows about the existence or nonexistence of facts relating to a crime; [¶] Or, who has reported a crime to a peace officer. [¶] A person is a victim if there is a reason to believe that a federal or state crime is being or has been committed or attempted against him or her. [¶]... [¶] It is not a defense that no one was actually physically injured or otherwise intimidated.”
Here, defendant argues that the evidence arises, at most, to a mere suspicion, that he was knowingly trying to dissuade the Kusters from reporting the assault to the police and that he used force or threatened the Kusters. What he was really doing, defendant continues, was “assisting” the Kusters. The argument is meritless. The incident began with defendant pointing a gun at John Kusters’s head. When a terrified John walked away and into the house, defendant and another man followed him and told Maria not to call the police, stating that he, a gang member, would protect them. Perhaps this was defendant’s misguided way of assisting the Kusters. But a rational trier of fact could certainly have found that defendant was making an implied threat-i.e., don’t call the police or else. That the Kusters, whose father had lived in the house for almost 50 years, moved out the very next day shows how they took defendant’s words. It was no less reasonable for the jury to interpret the evidence in the same way. The evidence supports defendant’s conviction of witness dissuasion.
II. There was sufficient evidence to support the true findings on the gang allegation.
We similarly reject defendant’s next contention that there was insufficient evidence to support the true findings on the gang allegations.
Section 186.22, subdivision (b)(1), provides for a sentence enhancement when a defendant is convicted of enumerated felonies “ ‘ “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.” ’ ” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047; see also People v. Gardeley (1996) 14 Cal.4th 605, 617.) The substantial evidence test we articulated above applies to our determination whether there is sufficient evidence to support the jury’s true findings on the gang enhancement. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) We add, it “is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930; see also People v. Romero (2006) 140 Cal.App.4th 15, 18-19.)
According to Officer Menchaca, defendant was an admitted member of the San Fer gang. Defendant had San Fer tattoos and hung out with San Fer gang members, sometimes at the storm drain near the Kusters’s home. When John Kusters came out of his house on the night of September 14, defendant accused him of “spying on us” and pointed a gun at John’s head. Defendant then followed John to his door and told Maria “not to call the police.” He also identified himself as a gang member who could protect her and the neighborhood. A reasonable, nonspeculative view of this evidence is that defendant believed that John was spying on him, perhaps seeing illicit, gang behavior. He therefore threatened John by pointing a gun at his head. Defendant then continued his threat by telling John and Maria that he was a gang member who could take care of their problems and not to call the police. Officer Menchaca testified that such behavior benefitted the gang by creating fear and intimidation in the neighborhood. That is certainly true in this case, for the Kusters immediately moved from a home their family had long occupied.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.
The jury was also instructed with CALCRIM No. 2623: “If you find the defendant guilty of intimidating a witness, you must then decide whether the People have proved the additional allegation that the defendant acted maliciously and used or threatened to use force. [¶] To prove this allegation, the People must prove that: [¶] One, the defendant acted maliciously; [¶] And, two, the defendant used force or threatened, either directly or indirectly, to use force or violence on the person or property of a witness or victim or any other person. [¶] A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way or intends to interfere in any way with the orderly administration of justice. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. [¶] If the People have not met this burden for an allegation, you must find that the allegation has not been proved.”