Opinion
B226254
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. JAVIER SANTAMARIA, Defendant and Appellant.
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA 367520)
APPEAL from a judgment of the Superior Court of Los Angeles County, George Gonzalez Lomeli, Judge. Affirmed.
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Javier Santamaria appeals from a judgment of conviction for attempted second degree robbery and assault with a deadly weapon, with gang and deadly weapon allegations. We find no error and affirm.
STATEMENT OF FACTS
On September 19, 2009, between 6:00 p.m. and 6:30 p.m., Jesus Estrada, Jose Garate, Sergio Gomez, Sergio's little brother, and "Noe" were in the driveway of Estrada's house on the 1100 block of 45th Street in Los Angeles. Estrada and Garate were standing side-by-side next to a car in the driveway while Noe was hooking up a car stereo in a second car in the driveway. Gomez and his little brother were in the car with Noe.
Appellant approached Estrada and Garate, and when he was approximately two to three feet away, he asked Estrada, "Where you from?" Estrada responded that he doesn't "gangbang." Appellant said "This is 38" or "I'm from 38th Street," which Estrada understood as "claim[ing] his 'hood." Appellant then pulled up the sleeve of his long-sleeved shirt and exposed a knife that he was holding against the inside of his arm with the blade facing toward himself. The knife was approximately eight to nine inches long. Estrada was afraid appellant was going to stab him. He began backing up the driveway away from appellant. Appellant also approached Garate and asked, "Where you from?" and exposed the knife to him. Garate responded, and appellant said to Garate, "This is 38th Street gang." When appellant exposed the knife, he "shoved it and flicked it out," so that the palm with which he held the knife was facing downward and the blade end was sticking out of his fisted palm.
Garate backed around a car in the driveway and appellant followed him at a rapid pace. Appellant got to within three or four feet of Garate, but Garate was able to run to his nearby car and get in. Appellant knocked on the driver's side window of Garate's car and told him "everything is okay, it was just a joke." Garate drove away.
Appellant then turned to Estrada, from whom he was separated by a car, and said, "Let me get your chain." Appellant was still holding the exposed knife in the same hand. Estrada was wearing the gold chain around his neck. Estrada refused to hand over his chain, and appellant walked away. Estrada went to his house and called the police, who arrived within approximately two minutes.
When appellant chased after Garate, Gomez had grabbed his little brother and ran into the house. Gomez did not think appellant's speech sounded slurred, but appellant's eyes were red and droopy. Appellant was apprehended in an alley nearby Estrada's house.
The prosecution's gang expert was Officer Manuel Gomez. The gang expert testified that when a gang member approaches someone and asks "Where are you from?," that person is asking whether the other is from a gang. Nongang members typically would not ask this sort of question. The question is seen as a challenge and is asked for purposes of intimidation. The gang expert was familiar with the 38th Street gang and had personally spoken to approximately 10 to 15 members and had investigated crimes the members had committed. He explained that gang members commit crimes in order to instill fear in the community, thereby enhancing the respect and reputation of the gang. The 38th Street gang's activities include possession of firearms, possession of narcotics, murders, attempted murders, felony vandalism, robberies, and shootings. The gang's symbols are "38," "thirty-eight" in Spanish, and "TEST" ("T" for thirty, "E" for eighth, and "ST" for street).
It was the gang expert's opinion that appellant is a member of the 38th Street gang whose moniker is "Stranger" or "Sepo," based on appellant's having admitted membership to other officers in the gang unit. His opinion was also based on four of appellant's tattoos. Appellant has a tattoo that says "38 ST," one that says "TEST," one that says "SC LA" (standing for South Central Los Angeles, the area in which the gang's territory falls), and one that depicts a male with a shaved head and glasses holding a firearm, with a "38 ST" above his right eyebrow. The prosecutor posed a hypothetical to the gang expert using facts identical to those in the case and asked the expert's opinion regarding whether the hypothetical crime was committed for the benefit of the gang. The expert opined that the crime was committed for the benefit and in furtherance of the gang.
Appellant's mother, Rita Reynoso, testified in appellant's case-in-chief. On the date of the incident, she received a phone call from him at approximately 5:30 p.m. Appellant asked that she take him to his girlfriend's house. Reynoso picked up appellant at home approximately 10 to 15 minutes after receiving the call. Appellant came out of the house staggering and walking like he was going to fall. He smelled like "he was very drunk," his eyes were bloodshot, and his speech was slurred. Reynoso drove approximately 15 minutes, and at the intersection of 45th Street and Central Avenue, she stopped with traffic. Appellant opened the car door and exited the car. Reynoso yelled for appellant to "come back," but he ignored her and walked away. Reynoso drove off because traffic started to move.
Officer Robert Deamer also testified in appellant's case. Officer Deamer interviewed appellant at 7:30 p.m. on September 19, 2009. He spoke to appellant for 10 to 15 minutes. He thought appellant smelled slightly of alcohol and he appeared very emotional and upset. Appellant was crying and kept repeating that he wanted to go home.
PROCEDURAL HISTORY
Appellant was charged with one count of attempted second degree robbery as to Estrada and one count of assault with a deadly weapon as to Garate. The information specially alleged that appellant committed both for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)(C)). The information further alleged that appellant personally used a deadly and dangerous weapon, that he had suffered one prior serious felony conviction, and that he had served three prior prison terms. The jury found appellant guilty as charged, and it found the gang allegations and the deadly weapon allegations to be true. In a bifurcated court trial, the court found true all prior conviction and prior prison term allegations. The court sentenced appellant to a total of 16 years in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
STANDARD OF REVIEW
"Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
From that presumption, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." (People v. Jones (1990) 51 Cal.3d 294, 314.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) "[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones, supra, at p. 314.)
An appellant "does not show the evidence is insufficient by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself." (People v. Sanghera, supra, 139 Cal.App.4th at p. 1573.)
DISCUSSION
1. Sufficient Evidence Supported Appellant's Conviction for Assault with a Deadly Weapon
Appellant contends that his conviction for assault with a deadly weapon must be reversed because exposing the knife without wielding it was insufficient evidence of the crime. We disagree.
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Assault with a deadly weapon requires use of a deadly weapon or force likely to produce great bodily injury. (§ 245, subd. (a)(1).)
The present ability element of assault "is satisfied when 'a defendant has attained the means and location to strike immediately.' [Citations.] In this context, however, 'immediately' does not mean 'instantaneously.' It simply means that the defendant must have the ability to inflict injury on the present occasion. Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate,' in the strictest sense of that term." (People v. Chance (2008) 44 Cal.4th 1164, 1168, fn. omitted.) Thus, "when a defendant equips and positions himself to carry out a battery, he has the 'present ability' required by section 240 if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury." (Id. at p. 1172.)
Assault is a general intent crime. (People v. Chance, supra, 44 Cal.4th at p. 1167.) It "does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.)
Acts such as "'[h]olding up a fist in a menacing manner, drawing a sword[] or bayonet, [and] presenting a gun at a person who is within its range, have been held to constitute an assault.'" (People v. Raviart (2001) 93 Cal.App.4th 258, 263, quoting People v. McMakin (1857) 8 Cal. 547, 548-549.)
Here, substantial evidence supported appellant's conviction for assault with a deadly weapon. Appellant contends that he did not attempt a battery, and merely revealing the knife without wielding it was not an act that by its nature would probably and directly result in the application of physical force. The evidence shows otherwise. Appellant came to within a few feet of Estrada and Garate where he spoke threateningly ("Where you from?" and "This is 38") and exposed the knife but also, according to Gomez's eyewitness testimony, "flicked" the blade outward and held the knife with his palm facing downward. At that distance, and wielding the knife in such a manner, appellant had the present ability to inflict violent injury on Garate. Appellant then proceeded to chase Garate around the driveway and follow him to his car, during which time he came, again, within a few feet of Garate. There was no evidence that appellant disposed of the knife during the chase, and in fact, the evidence suggests that he had the knife while he chased Garate, because he still held it after Garate fled and he demanded Estrada's gold chain. There is no dispute that appellant intentionally wielded the knife and then intentionally chased Garate. There is also no dispute that a knife is a deadly weapon capable of inflicting violent injury. Based on this evidence, the jury had a sufficient basis to convict appellant of assault with a deadly weapon.
2. The Gang Findings Need Not Be Reversed
Appellant next contends that we must reverse the jury's gang findings because the gang expert improperly opined that appellant, rather than a hypothetical person, acted for the benefit of a gang. Again, we disagree.
The gang enhancement, section 186.22, subdivision (b)(1), requires that appellant have committed a felony "for the benefit of, at the direction of, or in association with any criminal street gang," and that he did so with "the specific intent to promote, further, or assist in any criminal conduct by gang members."
First, the record does not disclose that the gang expert was allowed to testify improperly. "A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a 'classic' example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence." (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4; see also People v. Gonzalez (2006) 38 Cal.4th 932, 946 ["'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth"'"].)
Here, the prosecutor started to pose a "hypothetical" question to the gang expert that very closely tracked the details of the actual incident, but before she could finish her hypothetical question, the court advised her at sidebar "to be generic" and reminded her that she should not ask "whether or not the defendant had the specific intent." The prosecutor then completed her hypothetical and asked the expert to opine on whether the individual in the hypothetical had committed acts for the benefit of a criminal street gang. After the expert opined that the acts were committed for the benefit of a gang, the prosecutor asked: "And so then what is your opinion as to whether the individual in the hypothetical acted with the specific intent to promote or further or assist in any criminal conduct by members of that gang?" Before the expert answered, the defense objected, and the court again held proceedings at sidebar and admonished the prosecutor to "stay away from the wording 'specific intent.'" The prosecutor did not thereafter ask about "specific intent." The expert did not testify about the "specific intent" of the hypothetical individual or appellant.
Second, it is not reasonably probable that the jury would have rejected the gang allegations in the absence of the challenged expert testimony. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Other evidence demonstrated that gang members commit crimes to enhance the reputation of their gang and inspire fear of and respect for the gang. Appellant had at least four 38th Street gang tattoos and a gang moniker, and he had admitted to being a 38th Street gang member. He claimed the gang during commission of the crimes. This evidence alone substantially supported the jury's findings on the gang enhancement.
Appellant asserts that the expert testimony was prejudicial because there was evidence from which the jury could have found that appellant was too intoxicated to form the specific intent required for the gang enhancement. The record reveals, however, that during commission of the crimes, appellant was capable of speaking clearly to his victims, did not slur his words, and was able to walk and chase the victims. Any suggestion of intoxication does not change our conclusion that the substantial evidence supported the gang enhancements.
DISPOSITION
The judgment is affirmed.
FLIER, J. WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.