Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCN231005, Joan P. Weber, Judge.
McCONNELL, P. J.
A jury convicted Jose Daniel Lopez of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), robbery (§ 211), and assault with a deadly weapon and force likely to produce great bodily injury (§ 245, subd. (a)(1)). As to the attempted murder and assault with a deadly weapon offenses, the jury also found true allegations Lopez personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a knife (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). In addition, as to all three offenses, the jury found true allegations Lopez committed the offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist criminal conduct by the gang members. (§ 186.22, subd. (b)(1).) The trial court sentenced Lopez to 21 years in prison.
Further statutory references are to the Penal Code unless otherwise specified.
Lopez appeals, arguing there is insufficient evidence to support the attempted murder conviction. In addition, he argues there is insufficient evidence to support the jury's true findings on the criminal street gang enhancement allegations and the enhancement, as applied, violates his first amendment right to free association. He also contends the trial court's denial of his request to continue the sentencing hearing deprived him of effective assistance of counsel and due process of law. We affirm the judgment.
I
Michele S. was working alone behind the counter of a convenience store in Carlsbad when two juvenile Hispanic males came into the store. The juveniles were wearing mechanic's gloves and hooded sweatshirts with the hoods up. They went directly to the beer cooler and starting grabbing beer. Michele told the juveniles, "Get away from there. You're not old enough." One of them responded that he had identification.
For security reasons, the trial court did not reference this victim's surname during trial. The parties also did not reference it in their appellate briefs, nor do we.
Michele thought the juveniles would go away. However, the juveniles each took two packs of beer and walked toward the front door. Michele moved over to the front door by her friend, Dave Steinmetz, who had stopped by the store to buy cigarettes. Steinmetz stood close by her to protect her and told her he would play bodyguard for a moment.
Around this time, a man, later determined to be Lopez, entered the store. He was wearing military-style dog tags, bright studded-style earrings, a shiny wristwatch, sunglasses, a white T-shirt, and a checkered button-up shirt. He used his bottom to push Michele out of store and then trapped her between the front door and a trash can while he held the door open for the juveniles.
Steinmetz came to Michele's aid. He pulled her out from behind the door and grabbed both the juveniles by the elbows of their sweatshirts. Lopez hit Steinmetz from the side and stabbed Steinmetz three times: once in his right chest/armpit area, once in his right flank, and once in his right mid-abdomen. Steinmetz let go of the juvenile he held with his right hand. That juvenile and Lopez ran away. The juvenile Steinmetz held with his left hand kept trying to get away. The juvenile turned around and pushed Steinmetz into a car. Steinmetz lost his balance and the juvenile escaped.
Michele went back into the store and called 911. Steinmetz walked back into the store, noticed he was bleeding, and realized he had been stabbed. He showed Michele, who asked the 911 operator to send an ambulance. He then went back out of the store, slid down in front of an ice machine, and passed out. A large amount of blood pooled underneath his right armpit and rib area.
All of Steinmetz's stab wounds were near major organs. One of the strikes punctured his lung, causing part of it to collapse. Another strike hit his kidney, cutting it 2.5 centimeters. The third strike went over, but missed his liver and spleen. Steinmetz was hospitalized for four days and did not regain his strength for four to six weeks. At the time of trial, he still had nerve damage from one of the wounds.
Carlsbad Police Detectives Mark Reyes and Bryan Hargett investigated the incident. During their initial survey of the crime scene, Reyes found a silver wristwatch with a broken clasp on the ground along the route Lopez and the juveniles fled. A San Diego County Sheriff's Department criminalist found Lopez's DNA on the watch. In addition, Oceanside Police Gang Detective John McKean viewed the store's security video and identified Lopez as the stabber based on Lopez's "unique nose" and the earrings he was wearing.
Reyes, Hargett and other members of the Carlsbad Police Department subsequently executed a search warrant at Lopez's home. They found bright white stone studded-style earrings, a multipurpose tool with a blade and other implements, two metallic men's watches, and three button-up shirts similar to the one Lopez wore on the night of the incident. They also found items with writing associated with Oceanside's Varrio Mesa Locos street gang. They subsequently learned the two juveniles with Lopez on the night of the incident were members of Varrio Mesa Locos. Lopez had previously been contacted by police while in the company of the brother of one of the juveniles and had previously been stopped in a vehicle registered to the mother of the other juvenile.
Hargett, the Carlsbad Police Department's gang detective, testified the convenience store is located within the turf of Varrio Carlsbad Locos, a Hispanic street gang. Hargett also testified Hispanic street gangs value "respect," which they obtain by fear and intimidation tactics. Varrio Carlsbad Locos gang members tolerate the presence of Varrio Mesa Locos gang members within their turf because a member of Varrio Mesa Locos is dating the sister of an associate of Varrio Carlsbad Locos. In addition, by aligning with one another, the two gangs engender more fear and, therefore, more "respect."
McKean confirmed an alliance exists between the Varrio Carlsbad Locos and Varrio Mesa Locos gangs. He testified Varrio Mesa Locos is a multi-generational Hispanic street gang whose turf is located in the Mesa Margarita area of Oceanside near the back gate of Camp Pendleton. He testified that younger gang members are required to "put in work" for the gang by doing such things as tagging, fighting other gang members, committing robberies, selling drugs, or carrying drugs from one place to another. The "work" is often verified by older gang members who monitor the younger gang members' activities. As the seriousness and violence of the younger gang members' crimes increase, the more respect they garner inside and outside of the gang.
McKean further testified that a "beer run," where a minor walks into a store, grabs beer, and runs out of the store, is not a crime exclusive to gang members. However, it, along with other types of lower level thefts, is considered a starter crime for younger gang members. Like other "work" done by younger gang members, older gang members will supervise beer runs. If something goes wrong with a beer run, an older gang member supervising the beer run would be expected to assist or risk retaliation from the gang.
In addition, McKean testified that, while Varrio Mesa Locos gang members engage in social activities, this is not the gang's primary function. Rather, the gang's primary function is to commit crimes such as murders, robberies, carjacking, assaults, auto theft, and identify theft. He also testified about predicate offenses committed by Varrio Mesa Locos gang members, including murder, attempted murder, and shooting at an occupied vehicle.
McKean opined that Lopez is a member of Varrio Mesa Locos because he met several Department of Justice criteria for documenting gang membership, including admitting that he belonged to the gang. After being asked to assume the key facts, McKean also opined the crimes in this case were committed for the benefit of, at the direction of, or in association with the Varrio Mesa Locos gang. He explained that having two younger gang members shoplift beer while a more senior gang member supervises or assists is consistent with the requirement for younger gang members to "put in work" to benefit the gang. He also explained the crime increased the status of the gang and each of the participants. Specifically, engaging in criminal activity in another gang's territory increased the status of the gang, stealing the beer increased the status of the younger gang members, and the violent attack increased the status of the senior gang member.
II
A
Lopez contends there is insufficient evidence to support the attempted murder conviction because there is insufficient evidence he intended to kill Steinmetz. "In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)
" '[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citations.] Hence, in order for defendant to be convicted of the attempted murder of [a victim], the prosecution [must] prove he acted with specific intent to kill that victim. [Citation.]" (Smith, supra, 37 Cal.4th at p. 739.)
"Intent to unlawfully kill and express malice are, in essence, 'one and the same.' [Citation.] To be guilty of attempted murder of [a victim], defendant [must] harbor express malice toward that victim. [Citation.] Express malice requires a showing that the assailant ' " 'either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.' [Citation.]" ' [Citations.]" (Smith, supra, 37 Cal.4th at p. 739.) Because there is rarely direct evidence of a defendant's intent, intent to kill or express malice may be inferred from the defendant's acts and the circumstances of the crime. (Smith, supra, 37 Cal.4th at p. 741.)
In this case, Lopez stabbed Steinmetz three times: once in the chest, injuring Steinmetz's lung; once in the right flank, injuring his kidney; and once in the abdomen near his liver and spleen. Lopez did not waive his weapon and tell Steinmetz to back off, he did not slash or merely poke Steinmetz with his weapon, and he did not stab Steinmetz in the arm, leg, or shoulder. Instead, each wound Lopez inflicted was near a vital area of Steinmetz's body and any one of them could have been lethal. A jury may infer a defendant's intent to kill from the defendant's purposeful use of a lethal weapon in a manner that could inflict a mortal wound had the weapon been on target. (Smith, supra, 37 Cal.4th at p. 741.)
Relying on People v. Miller (1935) 2 Cal.2d 527 (Miller), Lopez contends the evidence of his intent is too ambiguous to support a conviction for attempted murder. More particularly, he contends the evidence suggests he may have only intended to use force to aid the juveniles' escape, rather than to kill Steinmetz. In Miller, the defendant threatened to kill the victim. Later in the day, the defendant went to a hops field where the victim was working. The defendant entered the field carrying a rifle and started walking in the direction of the victim. After walking about 100 yards, the defendant stopped and appeared to load the rifle, but did not take aim at the victim. The victim saw the defendant and fled. The defendant walked over to the field's owner and relinquished the weapon without resistance. (Id. at p. 529.) On appeal, the California Supreme Court reversed the defendant's attempted murder conviction because the defendant's acts were too equivocal to fulfill the requirement that there be an overt act in furtherance of the intended crime. (Id. at p. 532.)
Miller is factually distinguishable because the defendant in Miller never used his weapon against or aimed his weapon at the victim, raising a question as to whether he ever intended to do so. (Miller, supra, 2 Cal.2d at p. 532.) Here, Lopez actually used his weapon against Steinmetz and did so in a potentially deadly manner. Moreover, the fact that Lopez may have initiated the attack against Steinmetz to facilitate the juveniles' escape does not preclude the existence of intent to kill. A jury may infer a defendant's intent to kill from the defendant's purposeful use of a lethal weapon with lethal force even if the defendant used the lethal weapon without advance consideration and only to eliminate a momentary obstacle or annoyance. (Smith, supra, 37 Cal.4th at pp. 741-742; People v. Arias (1996) 13 Cal.4th 92, 162.) Accordingly, we conclude the evidence is sufficient to support Lopez's conviction for attempted murder.
B
Lopez also contends there is insufficient evidence to support the jury's true findings on the criminal street gang enhancement allegations. We apply the previously described substantial evidence test to this contention. (People v. Leon (2008) 161 Cal.App.4th 149, 161 (Leon); People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
To establish the truth of a criminal street gang enhancement allegation, "the prosecution must prove that the crime for which the defendant was convicted had been '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.' [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 616-617; accord People v. Williams (2009) 170 Cal.App.4th 587, 625.) The prosecution may meet this burden by presenting testimony from a gang expert. (Gardeley, at pp. 617-620; People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.)
Here, the evidence showed that Lopez is a Varrio Mesa Locos gang member and committed the charged crimes with two juvenile Varrio Mesa Locos gang members. In addition, the evidence showed a beer run is one of the crimes a younger gang member will commit under the supervision of an older gang member to "put in work" for the gang. The evidence also showed the charged crimes were among those for which Varrio Mesa Locos existed to commit and were committed in a manner that would earn "respect" for the gang as well as the participating gang members. The jury could have reasonably inferred from this evidence that Lopez committed the crimes in association with the Varrio Mesa Locos gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1197-1198 (Morales); Leon, supra, 161 Cal.App.4th at p. 163.) Similarly, the evidence shows Lopez actively helped the two juvenile Varrio Mesa Locos gang members steal some beer by holding the store door open for them, pushing Michele out of the way so she could not intercept them, and stabbing Steinmetz so he would release his hold on them. The jury could have reasonably inferred from this evidence Lopez had the specific intent to assist in criminal conduct by Varrio Mesa Locos gang members. (Morales, at pp. 1198-1199; Leon, at p. 163.) Therefore, we conclude there is sufficient evidence to support the jury's true findings on the criminal street gang enhancement allegations.
Contrary to Lopez's assertion, this conclusion does not deprive Lopez of his first amendment right to free association because it does not rest solely on the fact Lopez was accompanying other gang members when he committed the charged crimes. Moreover, the criminal street gang enhancement statute punishes conduct, not group membership. (People v. Loeun (1997) 17 Cal.4th 1, 11.)
C
Finally, at the sentencing hearing, defense counsel requested a 30-day continuance because counsel had learned the night before that Lopez had been seeing a "psych tech" and counsel had not had an opportunity to follow up on this information. The prosecution opposed the request, arguing there had been no notice of it, there had been no prior indication Lopez suffered from mental health problems, and the case did not involve mental health problems. The trial court denied the motion because of the lack of notice and because Steinmetz had appeared for the sentencing hearing. In addition, the court could not conceive of how evidence of mental health problems would assist the court with sentencing in this particular case. Lopez contends the trial court's denial of his request to continue the sentencing hearing deprived him of his constitutional rights to effective assistance of counsel and due process of law. We disagree.
"[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked." (People v. Beames (2007) 40 Cal.4th 907, 920.) Lopez has not met his burden in this case because Lopez has not established the continuance would have been useful. (People v. Beeler (1995) 9 Cal.4th 953, 1003-1004.)
To establish the usefulness of the continuance, Lopez must demonstrate that the mental health problems defense counsel wanted to investigate were material and that defense counsel could complete his investigation within a reasonable time. (People v. Beeler, supra, 9 Cal.4th at pp. 1003-1004.) The record contains no showing on either point. At most, the record suggests that because Lopez had been seeing a "psych tech" for unspecified reasons, there was a possibility he might have mental health problems. Such speculation is insufficient to establish a continuance would have been useful. (Ibid.) Accordingly, we conclude the trial court did not abuse its discretion in this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., AARON, J.