Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF194024. James W. Hollman, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Vartabedian, J. and Levy, J.
INTRODUCTION
George Robert Castaneda appeals from a judgment of life with the possibility of parole, plus a determinate term of 18 years. He contends that there was insufficient evidence to support the jury verdict that he was guilty of attempted premeditated murder. He also contends that a 15-year gang enhancement was erroneously imposed. For the following reasons, we remand for the superior court to amend the abstract of judgment, and, as amended, we affirm.
STATEMENT OF THE CASE
On February 21, 2008, the Tulare County District Attorney filed an information in Tulare County Superior Court charging appellant, in count 1, with attempted premeditated murder (Pen. Code, § 664/187, subd. (a)) and, in count 2, assault with a deadly weapon (§ 245, subd. (a)(1)). The information also alleged that appellant committed the crimes for the benefit of a street gang (§ 186.22, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)), which made the offenses serious felonies (§ 1192.7, subd. (c)(8)).
All further section citations are to the Penal Code, unless otherwise stated.
Appellant pled not guilty and denied the special allegations.
On May 1, 2008, a jury convicted appellant of both counts and found true the special allegations. On June 25, 2008, appellant was sentenced to prison for life with possibility of parole on count 1, plus three years for the great bodily injury enhancement, and 15 years for the gang enhancement. Appellant was given 261 days of presentence custody credit.
On August 5, 2008, appellant filed a timely notice of appeal.
FACTS
Around 8:30 p.m. on November 11, 2007, a car belonging to Carmen Contreras, parked outside the family home in Woodlake, California, was vandalized, with a car window broken and tire slashed. Jose Contreras was at home with his wife Carmen, son Rafael and daughter Carin. Jaime Ortiz Perez, who was living with the Contreras family while looking for a place to live, also was at the Contreras home that evening. Jose Contreras testified that he heard a “thump,” went outside, and saw the damage to the car and three young men running off.
Rafael testified that he had just arrived home and had seen four people walking down the street. After he went inside the house, he heard a window break; he went back outside and saw a window of his mom’s car was broken and a tire sliced. He also saw people running and heard someone yell “Norte” and “fucking scraps,” which he believed was an insult to a southern gang member. Carmen told Rafael not to follow the men, and to just call the police. Rafael told his mother that by the time the police arrived, the vandals would already be gone and they did not know who the vandals were. Then, he picked up a golf putter from the front yard and gave chase.
The vandals ran to a house two blocks away. Jose got into his pickup and followed them to the yard of the house. “[W]hat I wanted was for them to be responsible for the damages that they caused. We’ve never done anything to them,” Jose testified. “My intentions were to go speak with the parents at the house.” Rafael and Perez followed on foot.
As Jose, Rafael and Perez arrived at the house, five more men came out of the house to join the men that were already outside. Jose testified that he noticed appellant with a knife. “[W]hen I saw the knife and I saw they were all trying to come towards me and I said, ‘I don’t want to fight, we don’t want to fight.’”
Rafael testified that, after he, his father, and Perez pursued the vandals to the house two blocks away, his father asked two individuals in the yard why they had vandalized the car. One of those two individuals was appellant. Some seven more individuals exited the house and Perez began arguing with those gathered about the vandalism. Rafael said his dad told them that they should leave. Rafael saw that the other people were becoming mad, so he told Perez to stop and “let’s go.” Then, he saw that appellant had a knife. Rafael dropped the golf club, and Rafael and Perez began to run toward Jose’s pickup truck. Rafael testified that “I think Jaime [Perez] was kind of moving to the truck ‘cause he was going to jump in, but I guess they got him before he got in the truck.”
Jose said that he grabbed his son Rafael and pushed him into the truck, and “then they just all jumped on Jaime [Perez].… They started beating him.” He estimated that eight people jumped on Perez; he saw appellant with a knife in his right hand. He testified: “I got on the truck, I turned the truck around, I threw the high beams on just to see them. But when I threw the high beams on, they ran, and that’s when I saw the knife or the blade there on -- in the right hand -- in his right hand.”
Rafael saw appellant stab Perez about nine times while Perez was “laying on his back, and he was kicking and trying to hit him away from him, and [appellant] was stabbing him.” Others in the group kicked and hit Perez, but Rafael did not see anyone else in the group stab Perez.
One person in the group of attackers yelled, “If somebody calls the police, we’re going to find your family.” The attackers ran off, and Rafael got out of the truck, grabbed Perez and “picked him up, and that’s when a lot of blood got on [his] shirt.”
As the group drove off in the pickup truck towards the police department, they encountered a sheriff patrol car and an ambulance was called.
During the police investigation that immediately followed, the police found two separate areas of blood, a broken knife blade, and the head of a broken putter in the street. Inside the house, police found a bloody plaid shirt, broken knife handle, and broken golf club handle. Police officers did not notice injuries to any of the other participants in the assault on Perez.
Perez suffered “several lacerations on his left shoulder, one on the back of his neck, his torso, and … the middle finger on each of his hands were also cut.” He also sustained an abrasion to his hip. Some of the wounds were stapled shut. An officer attempted to interview Perez, but he was not cooperative. Perez did not testify at the trial.
When appellant was interviewed by police afterward, appellant repeatedly said that attempted murder “charges were too much and that he was gonna lose everything.”
According to Woodlake police officer Juan Garcia, the department’s gang officer, appellant is a Norteno gang member while Perez is a Sureno gang member, and Rafael is a Sureno gang member associate. The officer testified that the entire incident, from the vandalism to the stabbing, was gang related. He also outlined the Norteno-Sureno gang dispute, and described appellant’s prior encounters with police officers where appellant either admitted to being a gang member, was involved in altercations that were gang related, or had tattoos and clothing consistent with gang membership.
Reyna Mejia testified that, in July 2003, Manuel Contreras, Rafael’s brother, got in a dispute with appellant, who accused Manuel of disrespecting his house. Appellant, armed with a knife, tried to force open a door, broke a window and threatened to beat up Manuel, calling him a scrap. Appellant was arrested for vandalism based on the broken window, and police found a pocket knife and red bandana on him.
DEFENSE
Appellant did not testify. He called one witness, a police officer who interviewed Jose Contreras after the stabbing. The officer testified that Jose did not mention that Rafael had armed himself with a golf club when they chased the vandals. He also did not tell the officer that he saw a person with a knife while the argument occurred in the front yard. The officer said Jose told him that he “saw a young Mexican male adult with short hair who was thin in build wearing a white and gray shirt, saw this subject with the knife and described the blade as being approximately four inches long and saw him making poking motions toward Jaime [Perez].”
DISCUSSION
I.
Sufficiency of the Evidence
On appeal, Castaneda contends that there was a lack of substantial evidence to establish that he possessed the requisite intent to kill. Specifically, appellant cites the lack of threats to kill and lack of life-threatening injuries.
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.)
“‘[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may... be inferred from the defendant’s acts and the circumstances of the crime.’ [Citation.]” (People v. Avila, supra, 46 Cal.4th at p. 701.)
The California Supreme Court has held that, evidence that a “defendant repeatedly attempted to stab … an unarmed and trapped victim, and succeeded in stabbing him in the arm and leg … alone is substantial evidence of defendant’s intent to kill.” (People v. Avila, supra, 46 Cal.4th at pp. 701-702 [internal citation omitted] (Avila).) The California Supreme Court also has held that, absent certain exceptions, “‘the testimony of a single witness is sufficient for the proof of any fact,’” including proof of the fact that defendant stabbed the victim. (Id. at p. 703.)
Finally, the California Supreme Court has held that “the degree of the resulting injury is not dispositive of defendant’s intent. Indeed, a defendant may properly be convicted of attempted murder when no injury results.” (Avila, supra, 46 Cal.4th at p. 702 [internal citation omitted].) According to the Court, “[t]he jury reasonably could infer that [the victim] avoided further injury solely because he assumed a position from which he could kick at defendant and thus protect his vital organs from immediate injury.” (Ibid.)
Here, there is substantial evidence in support of the attempted premeditated murder conviction. First, the requisite intent to kill can be inferred from Rafael’s testimony that appellant stabbed Perez about nine times. This testimony is further bolstered by the fact that Perez suffered numerous abrasions that were the result of the stabbing, including abrasions to the back of his neck, his torso, and his hip. The evidence that appellant repeatedly attempted to stab Perez, an unarmed victim who was being trapped by other persons who had jumped him, and succeeded in doing so, is sufficient evidence of Castaneda’s intent to kill. (See Avila, supra, 46 Cal.4th at p. 702.) Moreover, the fact that the injuries were not life-threatening does not negate a finding of intent to kill because, here, the jury could infer that Perez avoided life-threatening injuries because he assumed a position from which he could kick at appellant, and thus protect his vital organs from immediate injury. (Ibid.) Accordingly, we reject appellant’s claim that there was a lack of substantial evidence to show that he possessed the requisite intent to kill.
II.
Gang Enhancement
Castaneda also contends that the trial court inappropriately imposed a 15-year determinate term for the gang enhancement on count 1 (§ 186.22, subds. (b)(1)(C) & (b)(4).) The People concede the error, and contend that the abstract of judgment should be amended to reflect that appellant is ineligible for parole until the minimum 15-year term is served.
Section 186.22, subdivisions (b)(1) provides for an enhancement if a defendant is convicted of a felony 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 criminal conduct by gang members). However, if the defendant is convicted of a felony punishable by life imprisonment, the enhancement provides that he shall not be paroled until a minimum of 15 years have been served. (§ 186.22, subd. (b)(5).)
In this case, the jury found that the attempted murder was committed for the benefit of a street gang pursuant to sections 186.22, subdivisions (b)(1)(C) and (b)(4). However, since attempted murder is punishable by a life term in state prison, appellant “shall not be paroled [on his life sentence] until a minimum of 15 calendar years have been served.” (§ 186.22, subds. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1005-1006.)
DISPOSITION
Accordingly, the abstract of judgment must modified to reflect that the 15-year term pursuant to section 186.22, subdivision (b)(4) represents that appellant is ineligible for parole until he has served 15 years.
The case is remanded to the Superior Court to amend the abstract of judgment to reflect that the 15 year term imposed pursuant to section 186.22, subdivision (b)(4) represents that appellant is ineligible for parole until he serves a minimum of 15 years. The Superior Court shall forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.