Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD210173, Richard S. Whitney, Judge.
HUFFMAN, Acting P. J.
A jury convicted Pedro Navarro of two counts of assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); counts 1 & 2), throwing a substance at a vehicle (Veh. Code, § 23110, subd. (b); count 3), and vandalism under $400 (§ 594, subds. (a), (b)(2)(A); count 4). With respect to all counts, the jury also found true criminal street gang and personal deadly weapon use (a concrete water meter cover) enhancements (§§ 186.22, subd. (b)(1); 12022, subd. (b)(1)). Regarding count 4, the jury further found true an allegation that the vandalism was committed to benefit a criminal street gang within the meaning of section 186.22, subdivision (d) which elevated it from a misdemeanor to a felony. The trial court sentenced Navarro to a total prison term of seven years.
All statutory references are to the Penal Code unless otherwise specified.
Navarro appeals, contending the evidence was insufficient to support the true findings on the criminal street gang enhancements and the trial court prejudicially erred in refusing to instruct the jury on self-defense. We affirm.
FACTUAL BACKGROUND
At around 6:30 p.m. on November 7, 2007, some friends of Victor Rodriguez went to his home near J and 27th Streets in the Sherman Heights area of San Diego and told his aunt, Diana Zamudio, who was visiting there, that Rodriguez was being "jumped." Zamudio immediately went outside and saw in the distance that Rodriguez was running away from a group of four males and one female, with one person waving a glass bottle and another a wooden cane. Zamudio's mother then telephoned Rodriguez's mother, Nancy Lopez, who was driving toward Tijuana, Mexico, and told her that "some gang members had hit [her] son."
Angry, Lopez returned home, picked up her sister Zamudio, and drove around the neighborhood looking for the people who had attacked her son. Near J and 24th Streets, the sisters spotted a group of people, which included Navarro, sitting on the steps in front of an apartment building. Lopez, who recognized several of the people as local Sherman gang members, got out of her van and approached the group, asking them if they had attacked her son. They denied any wrongdoing, generally mocking her and laughing. When Lopez returned to her van, Zamudio told her that she recognized the people on the steps as the ones who had attacked Rodriguez.
Lopez then looked for her son. After about 30 minutes she received a phone call from him telling her he was okay and to pick him up near the intersection of 28th and Imperial. After picking Rodriguez up, Lopez drove home where Zamudio's boyfriend, Jose Magarro, joined them in the van and they drove back toward where the group had been sitting in front of the apartments. At that time Lopez was driving, Rodriguez was in the passenger seat and Zamudio and Magarro were in the second of three rows of seats in the back of the van. When they got near the area they saw Navarro and two or three other people standing on a corner. Lopez drove past them, made a U-turn and came back, stopping the van near the middle of the street where the group surrounded the van. Navarro, who was standing about 10 feet from the side of the van, made a motion as if to pull out a weapon, but then picked up a concrete brick, a water meter cover, from the street and threw it at the rear passenger-side window of the van, causing the window to break. As he did so, Navarro shouted, "Sherman gang. Sherman gang. Giant." At some point Magarro got out of the van, Navarro tossed the water meter cover a second time, striking Zamudio on the arm, Lopez began driving away and calling police, and Magarro ran in the opposite direction chased by several of the group members.
A police officer in the area responded to the scene and contacted Lopez, Zamudio and Rodriguez. Frightened and upset, they told the officer they had been "assaulted by a person who they [knew] as a gang member in the Sherman area." Zamudio was in obvious pain and stated she had been hit on the arm by an object. Lopez related to the officer that she had been driving down J Street when she saw "a person who she knows as Giant, confronted him about an incident that occurred earlier in the evening with her son" and that she at first thought he was pulling out a weapon from his waistband, but then he pulled out something and threw it at the van. The officer saw glass scattered across the front passenger area of the van, a busted window, and glass littered on the street. The officer also saw a cement brick, which he recognized as a cover to a water meter on the sidewalk nearby. The officer radioed for additional officers and called in the gang suppression team to investigate the matter and to assist by searching the neighboring streets and alleys for possible suspects.
Subsequently, there was a curbside lineup held, which included two suspects that had been found a half a block away who matched the description given by Lopez for the person named Giant. Zamudio was interviewed at a hospital where she was briefly treated for severe bruises extending from her forearm to shoulder, and several days later she identified a photograph of the person she knew as Giant in a lineup she was shown during a subsequent interview.
The above evidence was presented at trial in the prosecution case against Navarro. In addition, Rodriguez testified about the incident, noting he was uncertain whether the van's window was broken the first or second time the concrete cover was thrown at the vehicle and whether Magarro was outside of the van before it was thrown or just when he got out and ran home "scared." Rodriguez, who did not identify Navarro at trial, said he was afraid of the future, denied several times that he ever got out of the van, and conceded he had associated with Logan gang members at school, which was a rival gang of Sherman.
Magarro testified at trial that he opened the van's passenger's side sliding door to see who had thrown the rock that shattered the window and hit his girlfriend. When he saw three to four "guys" outside near the van, he ran, eventually going back to Zamudio's mother's house before returning to the crime scene where he talked to a detective.
Zamudio identified Navarro in court as the person she saw with the group that attacked her nephew earlier on the evening of the van incident. Zamudio, who was familiar with Navarro's family from living in the Sherman area a long time, also noted that Navarro, whom she knew as Giant, was with the others on the steps when she and her sister got out of the van to talk with the group about attacking her nephew. Zamudio was positive it was Giant who had tossed the brick rock while other men surrounded the van. She was not certain whether Magarro got out of the van before or after the window was broken. She heard Navarro scream out his nickname Giant and Sherman gang several times as the cement rock was thrown at the van.
Zamudio said she was not afraid in court, but feared for her safety when she leaves to go home. She explained that this was so because after the preliminary hearing in this case, she was approached by some people at a party at a park and threatened about testifying at trial. Lopez also testified about the threats, which she conceded were not made by Navarro. Lopez additionally testified that during the van encounter, Navarro not only threw the concrete block at the van two times, he also tried to open the side door of the van from the outside.
In response to questions on cross-examination, the first responding police officer agreed that Lopez had told him that Magarro had opened the van's side door at the same time the water meter cover was thrown the second time and that it came through the door and hit her sister. Lopez had not told the officer that Navarro had tried to open the van's door. The officer explained that during his initial investigation, all of the witnesses were "pretty upset, heated[, a]nd a lot of times a lot of words are not really phrased right."
The police detective who talked with Magarro at the scene about the van incident testified that Magarro appeared fearful at the time of the interview, was excited and had difficultly giving a statement. Magarro generally described three or four Hispanic males around the van, with the tall one throwing a brick at the van's window causing it to break. The tall man then picked up the brick and tossed it again through the broken window, hitting Magarro's girlfriend. Magarro told the detective he had gotten out of the van because he was afraid Rodriguez would get out of the van and get beaten up because he was yelling at the men who were outside the van. The detective believed Magarro had indicated that the concrete brick was thrown after he had gotten out of the van. Although Rodriguez did not get out of the van, Magarro was unable to get back into the vehicle because Lopez started to drive away. Frightened, Magarro ran the opposite direction from the van, chased by three or four of the men for several blocks.
San Diego Police Detective John Bailey testified at trial as an expert on criminal street gangs. He noted that the Sherman gang is a criminal street gang, that Navarro, whom he was familiar with through other contacts, is a documented member of the Sherman gang with the moniker "Giant," and that the concrete cover found in this case was tagged with graffiti linking it to the Sherman gang. Bailey explained in general what a criminal street gang is, noted the predicate crimes that qualified Sherman as such a gang, and discussed how a criminal street gang establishes a reputation for violence to elevate its status relative to rival gangs and aggressively defends its turf. He also explained that intimidating witnesses benefits a gang by preventing them from testifying and keeping its members on the street.
In Bailey's opinion, the assault on the van was gang-related because Rodriguez's record indicates ties to gang members from Logan, a rival neighborhood and the brick thrown had graffiti related to the Sherman gang on it. Bailey thought that Navarro's act of throwing the "Sherman" brick at Lopez's van while yelling the gang's name furthered criminal conduct by the gang because assaulting someone from a rival neighborhood puts fear into that neighborhood and keeps them out of Sherman gang territory.
Navarro did not testify or present any defense evidence.
DISCUSSION
I
SUFFICIENT EVIDENCE OF GANG ENHANCEMENTS
Navarro contends the evidence is insufficient to support the jury's finding that he committed the crimes in counts 1 through 4 "for the benefit of, at the direction of, or in association with any criminal street gang," and "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Relying on a Ninth Circuit Court of Appeals decision, Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia)), Navarro specifically argues that there was no competent evidence, other than the pure speculation of the expert witness, given without underlying facts or reasoning, to support a finding that his assault on the van indicated it was furthering some other crime for the benefit of the Sherman gang. His argument has no merit.
In reviewing a challenge to the sufficiency of evidence, we " 'consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment [or finding]. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.' [Citation.] We consider whether a rational trier of fact could have found the essential elements of the crime [or allegation] beyond a reasonable doubt. [Citations.]" (People v. Romero (2006) 140 Cal.App.4th 15, 18 (Romero).) This same standard applies when a conviction or finding rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
To establish a criminal street gang enhancement, the prosecution must prove the underlying crimes were "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...." (§ 186.22, subd. (b)(1).) A finding of specific intent requires a subjective desire to benefit the gang in committing the offense. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 5, p. 204.) It is not enough that the crime is based on personal reasons; it must be "gang related." (People v. Gardeley (1996) 14 Cal.4th 605, 622 (Gardeley).) "Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th 413, 420.) The gang enhancement elements may be established through expert testimony about criminal street gangs. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) "[E]xpert testimony about gang culture and habits is the type of [circumstantial] evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. [Citation.]" (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez).)
Here, the gang allegation to each count is supported by substantial evidence. Navarro does not dispute that he is a member of the Sherman gang or that the Sherman gang is a criminal street gang engaging in a " 'pattern of criminal gang activity' " within the meaning of the gang allegation statute. (§ 186.22, subd. (e).) Detective Bailey had opined the crimes were gang related not only because there had been an earlier assault on Rodriguez, who had ties to the rival gang Logan, by the Sherman group of gang members which included Navarro, but also because during the second encounter with Rodriguez and the people in the van, Navarro threw the cement cover bearing Sherman gang's logo through the van's window while shouting his gang moniker and the gang's name. Bailey had explained that Navarro's conduct was consistent with the Sherman gang's general purpose of "soldiering their community" by instilling fear in others who they think are members of other gangs from coming into their community and also elevates Navarro's status in the Sherman gang by not appearing weak and making the people in the van think twice about coming into the neighborhood. Baily also explained that intimidating witnesses benefits a gang by possibly preventing criminal charges from being filed and by keeping its members free from custody.
Based on the expert's opinion and other evidence, the jury was entitled to conclude Navarro threw the concrete water meter cover at the van with the intent to support criminal activity of the Sherman gang and the aggravated assault was intended to benefit the gang. (Ferraez, supra, 112 Cal.App.4th at p. 930.) We reject Navarro's argument that there is no evidence to support the expert's opinion other than speculation because no records were presented to show Rodriguez had ties with Logan and no testimony to identify any of the members of Navarro's group that surrounded the van as Sherman gang members. The record reflects that Rodriguez conceded in his testimony that he was associated with Logan gang members and feared the Sherman gang, and that Lopez had testified she recognized Navarro along with several other Sherman gang members first on the steps when she approached them and then when she encountered the same group on the street corner where the van assault occurred.
Moreover, Navarro's reliance on Garcia, supra, 395 F.3d 1099, to challenge the element that the crimes were committed with the specific intent of furthering some other criminal activity by gang members is misplaced. As the courts in Romero, supra, 140 Cal.App.4th 15 and People v. Hill (2006) 142 Cal.App.4th 770 (Hill) concluded, Garcia misinterprets California law. (Romero, supra, 140 Cal.App.4th at pp. 19-20; Hill, supra, 142 Cal.App.4th at pp. 773-774.) " 'In Garcia, the Ninth Circuit found insufficient evidence of specific intent to promote, further, or assist in other criminal conduct by the defendant's gang.... [However, b]y its plain language, the statute requires a showing of specific intent to promote, further, or assist in "any criminal conduct by gang members," rather than other criminal conduct. [Citation.]' [Citation.]" (Hill, supra, 142 Cal.App.4th at p. 774, italics in original.) We agree with Romero and Hill. Thus, we conclude there was ample evidence Navarro's crimes qualified as gang-related criminal activity and he intended to commit those crimes to assist his fellow Sherman gang members to benefit the gang. Substantial evidence supports the jury's gang enhancement findings.
II
SELF-DEFENSE INSTRUCTIONS
During jury instruction discussions, the prosecutor objected to the giving of CALCRIM No. 3470 on the right to self-defense or defense of another on grounds there was no evidence to support it other than pure speculation or conjecture regarding Navarro's state of mind or any immediate danger. Navarro's counsel argued the instruction should be given because there was evidence of "a potential of imminent danger" based on reasonable inferences that could be made from what Magarro told the detective about Rodriguez yelling out the van window as he tried to get out and Magarro getting out of the van at the same time or before the water meter cover was thrown. Counsel also argued that from the facts the people in the van sought out Navarro again after earlier confronting him and drove by his group twice before stopping and two people getting out of the van near him before the cement was thrown, Navarro could reasonably believe he was in danger and should protect himself.
The trial judge disagreed, stating, "I don't see that there is substantial evidence or really any evidence to support the defense as required by the [Breverman (1998) 19 Cal.4th 142 (Breverman)] case. I'm generally quite liberal allowing self-defense if I find some scintilla of evidence to support it. I just don't see any. I'm not going to allow the self-defense instruction." Defense counsel strongly objected, essentially asking the court to reconsider the fact the detective who had interviewed Magarro had testified earlier that both Rodriguez and Magarro were out of the van before the concrete block was thrown.
The court then went off the record and, with all parties, listened to the detective's testimony. Afterwards, the prosecutor reiterated his argument that the evidence did not support the giving of the instruction because even if one person had gotten out of the van, it was not to attack or to confront Navarro or the men outside the van, but only to prevent Rodriguez from getting out of the van. The court noted it still saw the matter as speculative and that the evidence did not support the giving of the instruction, but would allow further argument. In response, defense counsel renewed her request that the court give the instruction based on her belief that both Magarro and Rodriguez had exited the van before the cement brick had been thrown to confront Navarro a second time. The court denied the request, stating it was not going to give CALCRIM No. 3470.
On appeal, Navarro contends the trial court prejudicially erred and violated his right to due process by failing to instruct the jury on self-defense. We disagree.
Generally, "[a] trial court must instruct on its own initiative only on those principles of law 'commonly or closely and openly' connected with the facts of the case." (People v. Davis (2005) 36 Cal.4th 510, 570, italics omitted.) Such obligation also includes the sua sponte duty to instruct on a defense theory when the defendant is relying on that theory or when there is substantial evidence to support the theory and it is not inconsistent with the defense theory. (People v. Abilez (2007) 41 Cal.4th 472, 517.) However, the court need not instruct the jury on a theory, which the jury could not reasonably find to exist. (People v. Strozier (1993) 20 Cal.App.4th 55, 63.) In other words, the court has no duty to instruct on a defense even if requested unless it is supported by substantial evidence. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) Evidence is substantial if a reasonable jury could find it persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) In deciding whether there is substantial evidence, the court does not determine credibility of the evidence. (People v. Salas (2006) 37 Cal.4th 967, 982.) A trial court's refusal to instruct on self-defense will be upheld on appeal where the record contains no substantial evidence to support the instructions. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270.)
In order for an act to be in self-defense, the defendant must actually and reasonably believe he is facing an imminent and unlawful threat of death or great bodily injury and must have an actual and reasonable belief in the need to defend himself or others. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) "The threat of bodily injury must be imminent [citation], and '... any right of self-defense is limited to the use of such force as is reasonable under the circumstances.' " (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) " ' "[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." ' " (In re Christian S. (1994) 7 Cal.4th 768, 783.) The right of self-defense only exists during "the time of real or apparent danger...." (People v. Pinholster (1992) 1 Cal.4th 865, 966.)
Here, the trial court properly refused to instruct on self-defense because there was no substantial evidence to support the instructions. Navarro did not testify as to any fear of danger or imminent peril he may have felt. Although the substantial evidence of a defendant's state of mind may be provided by the testimony of witnesses other that the defendant (People v. De Leon (1992) 10 Cal.App.4th 815, 824), no other witness testified that Navarro threw the concrete cover at the van out of reasonable fear. Nor did the circumstances provide a factual basis from which a reasonable inference could be made that Navarro acted out of such apprehension.
Contrary to Navarro's reliance on the testimony of the detective and Zamudio regarding Magarro getting out of the van to prevent Rodriguez from doing so, the described conduct does not support an inference that Navarro was being confronted with immediate harm by two men so as to invoke the need to respond with deadly force. Even assuming Rodriguez was yelling at Navarro and Magarro was outside the van preventing Rodriguez from getting out of the vehicle, these facts provide no evidence that would lead a reasonable person in Navarro's position to believe he was facing an imminent threat of bodily injury to justify his assault on other persons in the van with the cement water meter cover. Nor does the fact this was the second confrontation with Lopez and Zamudio support an inference that Navarro felt an immediate threat to his safety that would require the need to defend himself. Rather the evidence showed Navarro had not taken the first confrontation with the women on the steps seriously, merely mocking them and denying any wrongdoing in the earlier assault on Lopez's son. Navarro also had been told by Lopez at that first confrontation that she would bring her son back to see if Rodriguez could identify Navarro's group as the ones who had attacked him. Navarro, who was in the company of his group, which included other Sherman gang members, surrounded the van driven by Lopez when it stopped the second time near Navarro to determine whether Rodriguez recognized anyone in Navarro's group. The group's aggressive behavior before anyone in the van got out of or attempted to get out of the vehicle does not provide substantial evidence of any fear of imminent harm on Navarro's part. Under the circumstances presented, the trial court properly determined it had no duty to instruct the jury on self-defense.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., AARON, J.