Opinion
B160899.
7-2-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID JAY MIRABAL, Defendant and Appellant.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant David Jay Mirabal appeals from the judgment entered following a jury trial that resulted in his conviction for mayhem. Mirabal was sentenced to a term of 14 years in prison.
Mirabal contends: (1) the evidence was insufficient to support the verdict; and (2) the abstract of judgment must be corrected to reflect two additional days of actual custody credit. We order the abstract of judgment modified to reflect the additional custody credit as requested. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. Peoples case.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 971 P.2d 618), the evidence established the following relevant facts. Jose Sarabia had belonged to the Burbank Trece Rifa ("B.T.R.") gang until B.T.R. ceased to exist in approximately 1999. On the evening of November 20, 2001, Sarabia was walking in Burbank with Michael Ferialdi and two other friends towards Ferialdis home. Sarabias friends were not involved with gangs.
Mirabal, Victor Cuellar, and Jose Alfaro were members of the active Elmwood gang, which had been a rival of the B.T.R. gang. Mirabal, Cuellar, Alfaro, and Carlos Chavez were traveling in Mirabals white Ford in an area outside of the territory claimed by the Elmwood gang. Mirabal was driving. Cuellar noticed Sarabias group and said, "I know the guy, hes from Burbank" and "Stop the car." All four men in the Ford yelled "Elmwood" or "trash rat" — a derogatory term for members of the B.T.R. gang — at Sarabias group.
Mirabal abruptly stopped the car and backed up to Sarabias group. Mirabal and his three companions exited the Ford. Sarabia and Cuellar approached each other. Cuellar asked "Where you from?" Sarabia responded, "What does it matter?" or similar words. Sarabia turned and began walking away. Cuellar said, "Yeah, it does matter" and "Elmwood." Cuellar punched Sarabia in the face, hitting his temple and cheekbone. Sarabia believed that Cuellar hit him with an object, as well as his fist, because of the weight of the punch. Sarabia continued walking away from Cuellar and the others, bleeding heavily. He fell to his knees and was assisted by Ferialdi.
Mirabals group reentered their vehicle and drove off. Mirabal drove the car back to Sarabias group two or three minutes later. Cuellar yelled, "Trash rats." Mirabal, Alfaro, and Cuellar were laughing and pointing at Sarabia and saying, "Did it hurt? Did it hurt?" Mirabal made a U-turn and drove past Sarabia again. Mirabal then drove to a high school, where the group played basketball.
Alfaro, who testified for the prosecution under a grant of immunity, testified that the "plan" was to fight Sarabias group; "it was going to be four on four." He explained, "When we got out and approached [Sarabias group], and asked where theyre from, we were going to fight em." According to Sarabia, when a gang member asks a rival gang member "where theyre from," it means "you want to fight them"; if a gang member calls out the name of his gang to a rival gang member, it means "[a] fights about to happen." On cross-examination, Alfaro testified that the fight "just happened" and was not preplanned. Alfaro did not know Cuellar was going to hit Sarabia, and was "shocked" when he did. None of the group in Mirabals car had suggested that they should fight Sarabias group before Mirabal stopped the car.
Cuellars punch caused the bones around Sarabias eye to fracture into pieces, causing a depression in his face. After the attack, Sarabia suffered blurred and foggy double vision. He underwent reconstructive surgery, during which three plates and 16 screws were inserted into the bones around his eye area. At the time of trial, Sarabia was still suffering from some blurred peripheral vision.
Burbank Police Detective Christopher Racina testified as a gang expert. In the 1990s, the B.T.R. and Elmwood gangs engaged in violent assaults, shootings, stabbings, and fights against each other. The question, "Where you from?" from one gang member to a rival is a challenge to fight and a prelude to a gang assault. Calling a gang member by a disrespectful name could "lead to a murder or a shooting, a fight, anything like that." A gang member who leaves the gang would still be viewed as a rival by a rival gang. When given a hypothetical based upon the facts of the case, Racina opined that the offense was perpetrated for the benefit of the Elmwood gang. Racina testified to other facts in support of the gang enhancement as well.
b. Defense evidence.
Mirabal did not testify.
Cuellar testified in his own behalf. He admitted that he, Alfaro, Chavez, and Mirabal had been traveling in Mirabals car. Chavez saw Sarabias group and stated, "Isnt he from Burbank?" The group exited Mirabals car. Alfaro, Chavez, and Cuellar approached Sarabia; Mirabal stayed near the car. Alfaro asked Sarabia, "where you from?" When Sarabia replied "I dont bang," Alfaro stated, "Well, Im from Elmwood and this is my neighborhood." Sarabia purportedly replied, "Fuck Smellwood [a derogatory term for the Elmwood gang]." Chavez then struck Sarabia once. Mirabal said, "Lets leave already." Cuellar, Mirabal, Alfaro, and Chavez reentered the car and drove off.
Chavez was deceased at the time of trial.
2. Procedure.
Mirabal and Cuellar were tried together, by separate juries. Mirabal was convicted of mayhem (Pen. Code, § 203) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury also found true allegations that the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) In a bifurcated proceeding, the trial court found true the allegation that Mirabal had served a prior prison term within the meaning of section 667.5, subdivision (b). At the parties request, the assault with a deadly weapon conviction was dismissed. The trial court denied Mirabals motion to strike the gang enhancement. It sentenced Mirabal to a total term of 14 years in prison, and imposed restitution and parole revocation fines.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The evidence was sufficient to support the mayhem verdict.
Mirabal urges that the evidence was insufficient to sustain his conviction for aiding and abetting mayhem on a natural and probable consequences theory. We are unpersuaded.
When determining whether the evidence was sufficient to sustain a conviction, "our role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.) "The test of whether evidence is sufficient to support a conviction is 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. [Citations.]" (People v. Holt (1997) 15 Cal.4th 619, 667, 937 P.2d 213.) "We draw all reasonable inferences in support of the judgment." (People v. Wader (1993) 5 Cal.4th 610, 640, 854 P.2d 80.) Reversal is not warranted unless it appears " that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. " (People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374.)
The Peoples theory was that Cuellar inflicted the injury upon Sarabia, and Mirabal aided and abetted him. "Under California law, a person who aids and abets the commission of a crime is a principal in the crime, and thus shares the guilt of the actual perpetrator." (People v. Prettyman (1996) 14 Cal.4th 248, 259, 926 P.2d 1013; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117; § 31.) " A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 851, 952 P.2d 673.) Mere presence at the scene of a crime, knowledge of the perpetrators criminal purpose, or the failure to prevent the crime do not amount to aiding and abetting, although these factors may be taken into account in determining a defendants criminal responsibility. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.)
"A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." (People v. Mendoza (1998) 18 Cal.4th 1114, 1133, 959 P.2d 735; People v. McCoy, supra, 25 Cal.4th at pp. 1116-1117; People v. Gonzales (2001) 87 Cal.App.4th 1, 8; People v. Nguyen, supra, 21 Cal.App.4th at pp. 530-531.) In other words, whether a crime was a natural and probable consequence "does not turn on the defendants subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendants position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.]" (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.)
Therefore, to apply the natural and probable consequences doctrine, the jury must decide whether the defendant: "(1) with knowledge of the confederates unlawful purpose, and (2) the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendants confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated." (People v. Prettyman, supra, 14 Cal.4th at p. 267.)
There was ample evidence from which the jury could have concluded that mayhem was a natural and probable consequence of the target crimes of assault and unlawfully fighting or challenging another to fight in a public place (§ 415, subd. (1)). It is axiomatic that mayhem is a natural and foreseeable consequence of a gang fight, and Mirabal does not argue to the contrary. A gang fight or assault is a natural and probable consequence when gang members confront a perceived rival in the manner that occurred here. "When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire." (People v. Montes (1999) 74 Cal.App.4th 1050, 1056.) Mirabal, an Elmwood gang member, was driving a car filled with other Elmwood gang members. Upon seeing a person who was believed to be a member of the rival B.T.R. gang, Mirabal brought the car to a sudden stop and all four Elmwood gang members yelled "Elmwood" or "Trash rat." According to Alfaro, when a gang member calls out his gangs name to a rival, it means "[a] fights about to happen." There was a history of serious violence between the two gangs. Once the car stopped, Cuellar asked Sarabia where he was from. According to the gang expert and Alfaro, those words were a challenge to fight or a prelude to a gang assault. Alfaro also testified that the groups implicitly understood plan was to fight Sarabias group. This evidence overwhelmingly proved that Mirabal knew the groups unlawful purpose was to fight with or assault Sarabia, that he shared that purpose and intended to encourage and facilitate those crimes, and actually aided the crimes by stopping and exiting the vehicle. (See, e.g., People v. Gonzalez, supra, 87 Cal.App.4th at p. 10; People v. Montes, supra, 74 Cal.App.4th at p. 1056.) Indeed, based upon the evidence, we can conceive of no explanation for the Elmwood groups behavior other than to challenge and assault Sarabia, and believe serious injury was a far more probable consequence than a peaceful resolution to the confrontation.
Mirabal contends that after Sarabia refused to fight, the original plan to fight was "abandoned, terminated and was not going to happen," and Cuellar was acting on his own. In support of this argument, Mirabal points to testimony that Sarabia and Alfaro were surprised by Cuellars actions. However, as we have explained, the question is not whether the aider and abettor actually foresaw the additional crime, but whether it was reasonably foreseeable when judged objectively. (People v. Mendoza, supra, 18 Cal.4th at p. 1133; People v. Gonzalez, supra, 87 Cal.App.4th at p. 9; People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) "It is not necessary that the collateral act be specifically planned or agreed upon, nor even that it be substantially certain to result from the commission of the planned act." (People v. Nguyen, supra, 21 Cal.App.4th at p. 530.) Here the victims refusal to fight did not negate the Elmwood groups challenge or its intent to assault him, nor do we agree with Mirabals assertion that "the target offense . . . had clearly terminated" when Cuellar threw the punch. To the contrary, Mirabal drove the group past to taunt Sarabia even after the assault. The jury was free to infer that the attack was a natural and probable consequence of the Elmwood groups behavior regardless of whether the victim attempted to avoid the confrontation.
Mirabal further argues that he had withdrawn from the aiding and abetting at the time of the offense. This argument fails because no evidence suggested withdrawal. As our supreme court has explained, "in order to withdraw as an aider and abettor, [the defendant] would have had to have done more than is required in a withdrawal from a conspiracy." (People v. Jackson (1996) 13 Cal.4th 1164, 1221, 920 P.2d 1254.) Instead, he would be required to notify his accomplices and do " everything in his power to prevent commission of the crime. [Citation.]" (Ibid.; People v. Belmontes (1988) 45 Cal.3d. 744, 793, 248 Cal. Rptr. 126, 755 P.2d 310.) The only evidence Mirabal cites in support of his withdrawal theory is that he purportedly had reentered the car when Cuellar threw the punch. However, the evidence was contradictory on this point, and there was sufficient evidence from which the jury could have concluded that Mirabal did not reenter the car until after the attack. In any event, reentry into the car, by itself, would have been woefully inadequate to establish withdrawal. There was no evidence Mirabal ever notified his companions that he wished to end his participation in their activities. He did absolutely nothing to prevent the crime. Indeed, to the contrary, he drove the group past the injured victim after the attack so that they could taunt and ridicule him.
Ferialdi testified that the Elmwood group reentered the car after Cuellar struck Sarabia. Alfaro testified at trial that "after the guy got hit, we got back in the car." In Alfaros taped statement to police, he stated that he, Mirabal, and Chavez were "getting in the car" when they heard the punch. Cuellar testified that after Chavez hit Sarabia, Mirabal said, " Well, lets leave already, " and "we got in the car." Contrary to Mirabals characterization of the evidence, Sarabia did not testify that Mirabal was in the car at the time he was struck. The cited testimony reads as follows: "[Defense counsel]: When Mr. Cuellar struck you, the other people were over by the car? [Sarabia]: They got back in the car." This testimony is somewhat ambiguous, but suggests that Mirabal reentered the car after Cuellar hit Sarabia.
2. Mirabal is entitled to two additional days of presentence custody credits.
Mirabal argues, and the People concede, that he is entitled to two additional days of actual custody credits. ( § 2900.5.) We agree that Mirabals custody credits were miscalculated and order the abstract of judgment amended. (People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Acosta (1996) 48 Cal.App.4th 411, 427-428; People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is modified to reflect two additional days of actual custody credit, for a total of 305 days of presentence custody credits. The clerk of the superior court is directed to prepare a corrected abstract of judgment and to forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: KLEIN, P.J., and CROSKEY, J.