Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura Super. Ct. No. 2007010432 James P. Cloninger, Judge
Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Robert Sanchez appeals a judgment following conviction of battery with serious bodily injury, and threatening a witness, with findings that he committed the offenses to benefit a criminal street gang, and that he suffered a prior serious felony conviction. (Pen. Code, §§ 243, subd. (d), 140, subd. (a), 186.22, subd. (b)(1), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) We affirm.
All further statutory references are to the Penal Code unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
R.R. lived in Thousand Oaks and was an associate of the criminal street gang, TOCAS. In December 2005, he observed a gang fight during which F.G., a TOCAS gang member, stabbed another man. R.R. cooperated with the police investigation of the gang fight, and later testified in juvenile court against F.G.
On March 3, 2006, R.R. was riding his bicycle in the early evening when an automobile stopped near him. Three men wearing bandannas partially covering their faces left the automobile and confronted him. Lighting from a nearby elementary school building provided some illumination. R.R. recognized the men as Sanchez, "Bryon," and "Luis," in part by their eyes and voices. R.R. had seen Sanchez 10 to 20 times before and had "hung out" with him three or four times. He testified at trial that he knew Sanchez "for a while . . . knew who he was and how he looks; like, how he talks."
R.R. sensed that "something bad was going to happen." The men spoke briefly with him and then one man struck him in the face. R.R. ran but soon tired and stopped. The three men then hit and kicked him before and after he fell to the ground. One of the men stated: "That's for ratting" and “for not kickin' it with us." The men left and R.R. arose. One of the men returned, however, and struck R.R. in the head, causing him to fall unconscious. When he regained consciousness, he telephoned his sister for assistance.
After his arrest, sheriff's deputies interviewed Sanchez. He stated that he was with his girlfriend at the time of the assault upon R.R. A later search of Sanchez's bedroom revealed three bandannas and gang writings.
During his confinement in county jail, Sanchez placed telephone calls to friends and relatives. The jailers recorded the telephone calls. During one conversation, Sanchez stated that he was arrested because "someone saying something about something. Something. I had to handle something." During a telephone conversation with his girlfriend, Sanchez stated that he informed sheriff's deputies that he was with her at the time of the assault. She responded: "[Y]ou want me to just say that – what else?" In a later conversation, Sanchez suggested that they "say that we were planning" a family birthday party.
During conversations with his brother, Sanchez asked him to speak to R.R. Sanchez suggested that his brother urge R.R. "to say . . . it wasn't [Sanchez]."
At trial, the prosecutor played the recordings of the telephone conversations.
Ventura County Sheriff's Deputy Daniel Hawes accessed the "MySpace" Internet website and found photographs of Sanchez, Bryon, and Luis making gang hand signs.
Ventura County Sheriff's Deputy Gustavo Macias testified as an expert witness regarding criminal street gangs in Thousand Oaks. He opined that TOCAS is involved in assaults, robberies, auto thefts, burglaries, and other crimes. Macias also opined that Sanchez is a member of TOCAS, based upon his association with other TOCAS members, his gang-attire clothing, and his registration with the sheriff's department as a gang member. Macias stated that gang members often turn upon others who cooperate with the police. He also opined that a gang would benefit if a member assaulted another member who had cooperated with law enforcement.
The jury convicted Sanchez of battery with serious bodily injury (count 1), and threatening a witness (count 2). (§§ 243, subd. (d), 140, subd. (a).) It also found that he committed the offenses to benefit a criminal street gang. (§ 186.22, subd. (b).) Prior to trial, Sanchez admitted suffering a prior serious felony strike conviction, alleged for sentence enhancement and recidivist sentencing. (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced Sanchez to an aggregate term of 18 years' imprisonment, consisting of an upper four-year term for count 1, which it then doubled. The court added five years for the prior serious felony conviction enhancement, and five years for the criminal street gang enhancement. It stayed sentence on count 2 pursuant to section 654.
Sanchez appeals and contends that: 1) insufficient evidence exists that he was an assailant; 2) the trial court erred by imposing the upper-term sentence based upon facts not found by the jury; and 3) the trial court erred by admitting evidence of the recorded telephone conversations.
DISCUSSION
I.
Sanchez argues there is insufficient evidence, pursuant to the federal and state constitutional standards, that he was one of the three assailants. (People v. Staten (2000) 24 Cal.4th 434, 460 [standard of review of sufficient evidence].) He points out that the assault occurred at night, bandannas partially covered the assailants' faces, and R.R. did not describe any unusual identifying characteristics such as a brogue, gait, or distinctive clothing.
In reviewing the sufficiency of evidence to support a conviction, we must review the entire record and determine whether reasonable and credible evidence, and all reasonable inferences therefrom, support the decision of the trier of fact. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) Eyewitness identification may be sufficient to establish the defendant's identity as the criminal offender. (People v. Boyer (2006) 38 Cal.4th 412, 480.) "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
Sufficient evidence supports the identification here. R.R. testified that he knew Sanchez, had "hung out" with him at parties, and had seen him about 10 to 20 times. Although it was dark at the time of the assault, there was illumination from a nearby elementary school. R.R. was "pretty sure" of his identification because he knew Sanchez "pretty good." The bandannas partially covered the assailants' faces, and R.R. recognized their eyes and voices. He also identified the assailants by name after the incident and identified Sanchez in a photographic lineup. It is the province of the trier of fact to consider and weigh the circumstances of eyewitness identification. (In re Gustavo M., supra, 214 Cal.App.3d 1485, 1497.)
II.
Sanchez contends that the trial court erred by imposing an upper-term sentence based upon facts neither admitted nor found true by the jury. (Cunningham v. California (2007) 549 U.S. 270, __ [166 L.Ed.2d 856, 870] [California's determinate sentencing law violates the Sixth Amendment because it "allocates to judges sole authority to find facts permitting the imposition of an upper term sentence"].)
In sentencing Sanchez to an upper-term of imprisonment, the trial court stated that the "victim was particularly vulnerable," the circumstances of the crime "indicate planning and sophistication," Sanchez may have been on probation at the time of the crime unless it had been revoked, and performance on probation "has been unsatisfactory in the past."
In People v. Sandoval (2007) 41 Cal.4th 825, our Supreme Court considered Cunningham v. California, supra, 549 U.S. 270, and held that the denial of the right to a jury trial regarding aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18. "[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Sandoval, at p. 839.)
Here the jury would have found beyond a reasonable doubt that Sanchez planned the assault upon R.R. and as stated by the trial court, "set upon [him] when he was alone." Moreover, the probation report indicates that the court revoked Sanchez's probation in 2006 after he twice violated his terms and conditions. Indeed, defense counsel admitted at sentencing that Sanchez had violated probation. Under the circumstances, the trial court's reliance on these factors is harmless beyond a reasonable doubt.
III.
Sanchez argues that the trial court abused its discretion by admitting evidence of the recorded telephone conversations from jail. He claims the conversations are ambiguous, irrelevant, and unduly prejudicial due to profanities expressed therein. (Evid. Code, § 352.)
The test of relevant evidence is whether the evidence tends "'logically, naturally, and by reasonable inference'" to establish a material fact, such as identity, motive, or intent. (People v. Garceau (1993) 6 Cal.4th 140, 177, overruled on other grounds by People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
We review the admission of evidence pursuant to an abuse-of-discretion standard, and will uphold the trial court’s ruling unless it is arbitrary and unreasonable. (People v. Brown (2003) 31 Cal.4th 518, 547; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The trial court did not abuse its discretion. Evidence of the telephone conversations tended to prove that Sanchez was one of the assailants, a disputed fact at trial. (Evid. Code, § 210; People v. Hill (1992) 3 Cal.App.4th 16, 29, overruled on other grounds by People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5 [relevant evidence is that evidence tending to prove or disprove a disputed fact of consequence to determination of the action].) The conversations permit the reasonable inferences that Sanchez and his girlfriend were fabricating an alibi, and that Sanchez urged his brother to contact R.R. and discourage his identification testimony. The inferences in turn permit the reasonable inference that Sanchez was one of the assailants. The trier of fact was entitled to weigh the evidence of the conversations and draw any reasonable inference therefrom.
Evidence of the telephone conversations also was not unduly prejudicial. (Evid. Code, § 352; People v. Zambrano (2007) 41 Cal.4th 1082, 1138 ["'prejudicial' means uniquely inflammatory without regard to relevance"]. Sanchez's profanities expressed in the conversations were not such as to create an emotional bias against him. (People v. Hines (1997) 15 Cal.4th 997, 1044 [defendant's "constant use of obscenities" in tape-recorded conversations not unduly prejudicial].)
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.