Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF117635, Jeffrey J. Prevost, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr. and Lilia E. Garcia, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Mario Fernandez appeals from judgment entered following jury convictions for simple assault (Pen. Code, § 240), a lesser included offense of assault with a deadly weapon (§ 245, subd. (a); count 1); and for five counts of assault by force likely to produce great bodily injury (§ 245, subd. (a); counts 2 through 6). The jury found defendant not guilty of actively participating in a criminal street gang (§ 186.22, subd. (a); count 7), and rejected gang enhancements as to each count (§ 186.22, subd. (b)).
Unless otherwise noted, all statutory references are to the Penal Code.
The trial court sentenced defendant to the upper term on counts 2 through 6, with count 2 serving as the principal term and the sentences on counts 3 through 6 imposed concurrently. A 180-day concurrent term was also ordered for the misdemeanor conviction in count 1.
Defendant contends there was insufficient evidence to support his convictions for counts 1 through 4, which were premised on the theory of aiding and abetting. Defendant also challenges his upper term sentences on counts 2 through 6 based on Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856 (Cunningham). We reject defendant’s challenges and affirm the judgment.
1. Factual Background
On March 16, 2002, defendant and other members of the Mongols Motorcycle Club (Mongols) attended the Ultimate Fighting Championships, a boxing-type event held at the Morongo Indian Reservation. The event was held in a large tent, with approximately 2,200 people attending. The Mongols consisted of a large group of bikers wearing motorcycle black jackets and black shirts, bandannas, and patches displaying their group insignia. About 50 to 75 Mongols sat together in a section that also included other spectators.
During one of the scheduled bouts, the referee called a foul because one of the Ultimate Fighters struck the other fighter in the groin. When the referee paused the fight, several Mongols stood up and threw plastic cups of beer toward the boxing ring. Spectators sitting between the Mongols and the ring stood up and looked at the Mongols.
One such spectator, Alex Ledesma, was hit by flying beer. He stood up and threw his beer back into the group of Mongols. A Mongol named Lucifer pointed his finger at Alex, approached him, and said, “You.” Alex said, “Forget about it,” grinned, and exchanged words with Mongols, Marco Antonio Reyes and another man, presumably defendant. Alex’s brother, Mario Ledesma, who was with Alex, told the two men he did not want any trouble.
Defendant hit Alex behind the head. While on the floor, someone hit him with a chair and stomped on his face with a biker’s boot. Mario was also hit numerous times but could not see who was attacking him because he was on the floor trying to cover up.
This led to other fights breaking out and chaos, resulting in a melee and riot situation, with over 100 officers responding to the scene. A group of Mongols rushed toward the ring. Mongols fought with other spectators and threw chairs.
James Dixon, who was sitting near the boxing ring, testified he saw five or six Mongols approach the Ledesmas. The Ledesmas put their hands up, indicating they did not want any trouble. One of the Mongols started swinging at one of the Ledesma brothers. As the group of Mongols moved toward the ring from the back seats, Dixon tried to run for the door. A Mongol swung at Dixon. Two other Mongols joined in. A fourth Mongol ran toward Dixon and stabbed Dixon in the abdomen.
Joseph Greene was working security detail at the event. He was standing near the area where the Mongol group was seated when the riot started. A group of Mongols hit him with chairs, kicked him, and beat him.
Patrick Smith and his friend, Wesley Combs, were sitting ringside when they were attacked by Mongols. Smith did not remember much because he was drunk but remembered that the people who attacked him had Mongol patches on their jackets. He was punched and fell to the ground, although he did not know why he fell. Afterwards, he discovered his jacket was ripped and cut, and had blood on it. Combs was sober at the time. He testified he may have yelled at someone or challenged them to a fight. He swung at someone and was hit. Reyes punched him.
Sheriff deputies viewed videotapes and still photographs of the melee. Mongols were shown on the tape attacking Combs, Smith, Greene, and Alex. The video showed three individuals, none of whom were defendant, attacking Smith; three others, not including defendant, attacking Combs; three more, not including defendant, attacking Greene; Reyes, defendant, and another Mongol attacking Alex; and defendant attacking Mario.
At trial defendant conceded he was guilty of battery against the Ledesma brothers but claimed he did not do anything to the other victims named in counts 1 through 4 (Dixon, Greene, Smith, and Combs).
2. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support his convictions for aiding and abetting the assaults charged in counts 1 through 4. Defendant admitted assaulting Alex and Mario Ledesma but claims he had nothing to do with the alleged assaults of the other victims.
Our review of any claim of insufficiency of the evidence is limited. If the evidence presented below is subject to differing inferences, the reviewing court must assume that the trier of fact resolved all conflicting inferences in favor of the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 326.) A reviewing court is precluded from making its own subjective determination of guilt. (Id. at p. 319, fn. 13.) “In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted 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. Hill (1998) 17 Cal.4th 800, 848-849.) Here, the record discloses ample evidence to support the jury’s assault verdicts.
Assault with a deadly weapon or by means of force likely to produce great bodily injury is proscribed in section 245, subdivision (a)(1) as follows: “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison . . . .”
Under the theory of aiding and abetting, “‘All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.’ [Citation.] Accordingly, an aider and abettor ‘shares the guilt of the actual perpetrator.’ [Citation.] The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged, . . . An aider and abettor, on the other hand, 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.’ [Citation.] The jury must find ‘the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .’ [Citations.] Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]” (People v. Mendoza (1998) 18 Cal.4th 1114, 1122, citing § 31, People v. Prettyman (1996) 14 Cal.4th 248, 259-262, People v. Beeman (1984) 35 Cal.3d 547, 560, and People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)
“[P]resence at the scene of the crime, while insufficient of itself to make one an aider and abettor, is one factor which tends to show intent. Other factors which may be considered include the defendant’s failure to take steps to prevent the commission of the crime, companionship, and conduct before and after the crime. [Citation.]” (People v. Pitts (1990) 223 Cal.App.3d 606, 893; see also In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
Defendant argues that under Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 289 (Pinell), he should not be found guilty based on aiding and abetting because he was not involved in the assaults involving Dixon, Greene, Smith, and Combs. Pinell, supra, is distinguishable in that the defendant in Pinell did nothing to encourage or assist others in the crimes. He was not present during the codefendants’ acts of rape, copulation and sodomy, and when the codefendants brought the victim to the defendant and urged him to rape the victim, the defendant refused. (Pinell, supra, at p. 286.)
In the instant case, on the other hand, defendant instigated the Mongols’ violent rampage by joining with other Mongols and attacking the Ledesma brothers. This led to Mongols charging towards the ring, beating up spectators, and throwing chairs. There was ample evidence that defendant, not only beat up the Ledesma brothers, but was instrumental in encouraging, initiating, and actively participating in the Mongols’ riotous conduct, which resulted in fellow Mongols injuring spectators, including Dixon, Greene, Smith, and Combs.
Defendant argues he did not instigate the fight with the Ledesma brothers. Rather, defendant blames the brothers for starting the fight. Defendant argues in his reply brief that “If Alex had not thrown his beer in the direction of the bikers, the ensuing fights with the Ledesma brothers and the other victims would not have occurred. It was Alex’s beer throwing that led to a group of bikers rushing toward the ring and the ensuing chaos.”
But the evidence shows that, although Alex threw his beer at a group of Mongols who had thrown their beer in Alex’s direction, defendant’s response of joining other Mongols in attacking Alex and Mario was unjustified. It led to escalation of the Mongols’ raucous, boisterous conduct into a brawl.
While defendant refuses to acknowledge his role in the melee, he does admit in his reply brief that his beating up the Ledesma brothers “led to the other bikers rushing toward the ring and starting the altercations with the other victims.” Defendant’s joining in and escalating the level of the Mongols’ beer-throwing misconduct, as a group, to physical violence directed towards spectators was sufficient to support defendant’s assault convictions based on aiding and abetting.
3. Upper Term Sentencing Error
Defendant challenges his upper term sentences on his assault convictions in counts 2 through 6. He claims they were improper because the trial court imposed upper term sentences based on facts not found by the jury in violation of Blakely v. Washington (2004) 542 U.S. 296, 303-304 (Blakely).
The trial court selected count 2 as the principal count and ordered the sentences on counts 3 through 6 to run concurrent to the sentence on count 2. The court relied on two aggravating factors in imposing upper terms on counts 2 through 6, explaining: “With respect to the period of incarceration, I do find that with respect to Count 2, aggravating circumstances do outweigh mitigating circumstances.
“First, with respect to Mr. Fernandez, based upon the trial evidence, Mr. Fernandez was what I would deem to be a primary instigator of this particular occurrence, a moving factor and prime motivator with respect to the chaos that ensued afterwards.
“Mr. Fernandez also has a length- -- I don’t want to call it lengthy. A continuing criminal history, including having suffered a previous conviction for 245 (a) in 1995 in Los Angeles Superior Court, and more recently having served a term in State prison for a violation of 12031, Subdivision (a) [carrying a loaded firearm in public], and demonstrates a rising or increasing criminality with respect to this particular occurrence.
“And for those reasons, I do find that Mr. Fernandez should be sentenced as to Count 2 to the upper term of 4 years in State prison. . . . [¶] With respect to the remaining counts, Counts 3, 4, 5, . . . and 6, . . . Mr. Fernandez [will] be sentenced to State prison . . . concurrently with the term set forth as to Count 2.”
When defendant was sentenced, California’s Determinative Sentencing Law (DSL) specified three terms of imprisonment for most offenses and that “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Former § 1170, subd. (b).) The aggravating or mitigating circumstances were determined by a judge using a preponderance of the evidence standard. (Former § 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).)
Upon reviewing the State of Washington’s determinate sentencing scheme, the United Stated Supreme Court in Blakely, supra, 542 U.S. 296, held a sentence could not be imposed by a court beyond “the statutory maximum” based on facts neither admitted by the defendant nor found true by a jury using a reasonable doubt standard except for the fact of a prior conviction. (Id. at pp. 301, 303; see also Cunningham, supra, 127 S.Ct. at pp. 864, 868.)
The California Supreme Court thereafter held in People v. Black (2005) 35 Cal.4th 1238, 1253 (Black I) that California’s DSL comported with Blakely, in part, on the basis that the DSL’s upper term represented the “maximum term” that could be imposed. The United States Supreme Court disagreed in Cunningham, supra, 127 S.Ct. 856, holding that the “statutory maximum” in California’s DSL was the middle term. The court in Cunningham therefore concluded the DSL violated the Sixth and Fourteenth Amendments, and aggravating factors supporting an upper must be found true by the jury using a reasonable doubt standard, admitted by the defendant or involve the fact of a prior conviction. (Cunningham, supra, at p. 868.)
As a consequence of Cunningham, the California Legislature amended California’s sentencing law by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2.) Unless otherwise specified, our references to section 1170 are to the statute as it read prior to those amendments.
After Cunningham was decided, the California Supreme Court concluded in People v. Black (2007) 41 Cal.4th 799 (Black II), that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) Thus, under Black II, a single aggravating factor is sufficient to find the defendant eligible for the upper term: “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Ibid.)
Here, the trial court relied on defendant’s criminal history and increasing seriousness of his crimes as an aggravating factor. Under Black II, defendant’s criminal history is a constitutionally valid aggravating factor upon which the trial court may impose the upper term. In Black II, the court specifically found that the fact that defendant’s prior convictions were “‘numerous or of increasing seriousness’” fell within the prior conviction exception and provided eligibility for an upper term sentence. (Black II, supra, 41 Cal.4th at pp. 819-820.) The federal Constitution does not require such factor to be found by the jury or admitted by the defendant. The court in Black II stated that the recidivism exception should not be read narrowly and encompasses “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.)
We conclude, under Black II, there was no Blakely/Cunningham violation in imposing upper terms on counts 2 through 6 since the trial court relied on a recidivism aggravating factor.
4. Disposition
The judgment is affirmed.
We concur: Hollenhorst, Acting P. J. McKinster, J.