From Casetext: Smarter Legal Research

People v. Flores

California Court of Appeals, Second District, Sixth Division
Apr 29, 2009
2d Crim. B207100 (Cal. Ct. App. Apr. 29, 2009)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Los Angeles, Ct. No. TA 092367, Gary E. Daigh, Judge

Michael Norris, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


COFFEE, J.

Rafael Flores appeals from judgment after conviction by jury of three counts of second degree robbery (Pen. Code, § 211) and one count of assault with a deadly weapon (§ 245, subd. (a)(1).) The jury found true allegations that appellant committed each crime on behalf of, or in association with, a street gang. (§ 186.22, subd. (b)(1)(B) & (C).) Appellant admitted that he suffered a prior felony conviction for witness intimidation. (§§ 136.1, subd. (a)(1); 1170.12, subd. (a)-(d); 667, subd. (a)(1); 186.22, subd. (b)(1)(C).) The trial court sentenced appellant to 34 years and 4 months in state prison. We affirm.

All statutory references are to the Penal Code.

We appointed counsel to represent appellant on appeal. After examining the record, counsel filed an opening brief in this court raising no issues and requested that we independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant filed a supplemental letter brief. He contends that he should not be held criminally liable for the actions of his co-defendant, that he did not act for the benefit of a street gang with respect to one robbery count, and that two eyewitnesses were not credible. We affirm.

Appellant and his co-defendant, Joel Gallegos, are members of the Dominguez Varrio Trece street gang. (“DV13”.) On the evening of June 20, 2007, between about 9:00 p.m. and 10:00 p.m., Gallegos took two phones from two teenage boys on the street and took money from a nearby bar. During the bar robbery, Gallegos broke a bottle over the head of an employee. Appellant accompanied Gallegos and assisted him during each robbery. Each crime was committed within the territory of the DV13 gang. At the time of the crimes, appellant was on formal probation for witness intimidation.

The two phone robberies were committed at about 9:00 p.m. on Bataan Avenue. Appellant or Gallegos asked the boys for three dollars. The boys, V.R. and A.M., responded that they had no money. V.R. let appellant use his phone, and appellant returned it to V.R. when he was through. Gallegos grabbed A.M.'s phone and put it in his pocket, refusing to return it when A.M. asked for it back. Gallegos then asked to see V.R.'s phone, took it and put it in his pocket.

When V.R. tried to get his phone back, Gallegos gestured as if he were taking a gun out of his back pocket, and said, “You better shake it before I blast you.” Appellant circled around V.R. as if to surround him, and made a side to side gesture in his front pocket as if he were waiving a gun. Both boys were now afraid. V.R. believed that appellant had a gun. A.M. believed that if they did not leave, they would be shot. The boys left. As they did, they heard appellant or Gallegos say, “Dominguez” or “Dominguez Varrio Trece” and “Fuck Changos.” Appellant was wearing a hat with a “D” on it and the boys knew that they were in DV13 territory.

The bar robbery was committed at about 10:00 p.m. Gallegos and appellant jumped over the bar counter, took bottles of beer and demanded money. Two women were working behind the bar: Martha Villegas and cashier Karla Briones. Only one customer was present, Alma Ramirez.

Appellant pushed Villegas. Gallegos demanded money from Villegas, broke a beer bottle over her head and took money from the cash register. Appellant pushed Briones toward the office and made a pointing gesture in his pocket as if he had a gun, saying “Shut up, shut up.” Villegas believed that appellant was going to pull a gun out and harm Briones.

Villegas recognized appellant and Gallegos from the neighborhood. She identified them in a photographic lineup and at trial. Briones did not testify at trial. Alma Ramirez was unable to identify appellant or Gallegos in a photographic line up, but identified them in the courtroom. Ramirez testified that a third man was present during the crimes. She also gave conflicting testimony regarding the amount of alcohol she had consumed.

Officer Eric Arias testified that appellant and Gallegos were each admitted members of the DV13 gang and had DV13 tattoos. In response to a hypothetical question based on the facts of this case, Arias offered the opinion that each crime was committed in order to benefit the gang by instilling fear in the residents of its territory and raising the personal status of appellant and Gallegos within the gang, among other things. Arias testified that calling out, “Dominguez” after taking property warns a victim that there will be retaliation by the gang if the crime is reported. Arias testified that a gang member is expected to back up another during a crime, and that appellant’s “gun” gestures showed that he was backing up Gallegos, and that if appellant had not backed up Gallegos there would have been serious repercussions. The parties stipulated to predicate crimes committed by members of the DV13 gang.

Criminal Liability for Actions of Co-Defendant

Substantial evidence supported the jury's conclusion that appellant aided and abetted Gallegos in the commission of the crimes. Appellant's liability for the crimes required proof that he acted with knowledge of the criminal purpose of Gallegos and with an intent or purpose either of committing, or of encouraging or facilitating commission of the robberies. (People v. Beeman (1984) 35 Cal.3d 547, 560.) Appellant's liability as aider and abettor extends "to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages." (Ibid.) His mere presence at the scene, or knowledge of the crimes and failure to prevent them, would be insufficient to establish his liability as an aider and abettor. (In re Michael T. (1978) 84 Cal.App.3d 907, 911.)

Appellant was not merely present at the scene of the crimes. When Gallegos took the boys' telephones, appellant circled around V.R. and gestured as if he had a gun, scaring the boys and helping Gallegos to complete the robberies. The boys left without their telephones because they were afraid of being shot. When Gallegos took money from the bar's cash register, appellant was assisting by pushing Briones away, by gesturing as if he had a gun and by telling the witnesses to "Shut up." Evidence was presented that, during the course of the bar robbery, both appellant and Gallegos jumped over the bar counter and took bottles of beer and demanded money. Gallegos' assault on Villegas with a bottle was a natural and probable consequence of the robbery of the bar.

Witness Credibility

Witness credibility is the exclusive province of the trier of fact. We will not substitute our evaluation of credibility for that of the jury if the verdict is supported by substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Appellant points to inconsistencies in the testimony of witnesses against him concerning the number of men involved in the bar robbery and the level of Villegas' intoxication. A reasonable jury could have concluded that these inconsistencies were unimportant.

Gang Enhancement

Appellant challenges the gang enhancement for the robbery of V.R.'s telephone. Substantial evidence supports the jury's conclusion that when appellant helped Gallegos take V.R.'s phone, appellant did so in association with a criminal street gang and with the intent to assist a gang member to commit a crime. (§ 186.22, subd. (b)(1).) Appellant is an admitted member of DV13. Arias' testimony supported a finding that appellant acted in DV13 territory in association with another DV13 member, Gallegos, instilling fear in a manner that would increase the status of DV13 and appellant's status within it. Appellant acted for the benefit of the gang when he used a gun gesture to "back up" Gallegos during each crime.

We have examined the entire record. We are satisfied that appellant's counsel has fully complied with his responsibilities and that no other arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)

The judgment is affirmed.

We concur: GILBERT, P.J., YEGAN, J.


Summaries of

People v. Flores

California Court of Appeals, Second District, Sixth Division
Apr 29, 2009
2d Crim. B207100 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. Flores

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAFAEL FLORES, Defendant and…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Apr 29, 2009

Citations

2d Crim. B207100 (Cal. Ct. App. Apr. 29, 2009)