Opinion
C077462
01-10-2017
THE PEOPLE, Plaintiff and Respondent, v. OSVALDO JAVIER VALLE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62122251A)
Defendant Osvaldo Javier Valle pleaded guilty to participating in a criminal street gang and felony disturbing the peace. A jury then found him guilty of assault with a deadly weapon and found he committed the assault for the benefit of a criminal street gang. Sentenced to nine years eight months in state prison, defendant appeals from his conviction.
On appeal, defendant contends the evidence at trial was insufficient to support imposition of the gang enhancement, the trial court erred in denying his motion for acquittal, and the court committed reversible instructional error. We affirm the judgment.
I. BACKGROUND
Additional background facts are included in the discussion where they are relevant.
A. Charges, Plea, and PreTrial Ruling
On December 4, 2013, the People charged defendant with participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)—count 1), assault with a deadly weapon (§ 245, subd. (a)(1)—count 2) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and disturbing the peace by fighting (§ 415(1)—count 3), a felony because the fight was gang related (§ 186.22, subd. (d)). Defendant pleaded guilty to counts one and three.
Undesignated statutory references are to the Penal Code.
Prior to trial on the charge of assault with a deadly weapon, defendant offered to enter a "provisional admission" to the allegation that he committed the assault crime for the benefit of a criminal street gang. In other words, "if found guilty on [the assault charge], then the gang enhancement would be true. But if found not guilty, it's irrelevant." The court refused the offer. Accordingly, the prosecutor noted the People would be required to prove the gang enhancement allegation and to "present the gang evidence including an expert and including predicate offenses in order to meet the elements of that allegation." B. Trial
On April 15, 2013, three teenagers, Alfredo Martinez and brothers Joseph and D.A., were walking on Sierra Boulevard in Roseville near the "crooked bridge." The teenagers were wearing red clothing.
A witness recorded the fight on his cell phone. That video was admitted at trial as Exhibit 1A. It is included in the record on appeal. --------
A black car with three males and a female drove past the three teenagers. The female, who was driving, yelled out from the car, "Do you bang?" She made a U-turn and defendant, along with another man, got out of the car and walked toward the teenagers. D.A. took off his jacket and jewelry and set them down along with his cell phone. Defendant took a swing at D.A. The two fought for about one minute. No one else participated in the fight.
While they were fighting, the third male in the car, who appeared to be a juvenile, got out of the car, took D.A.'s belongings, then ran back to the car. Immediately after the fight ended, a second black car "with shiny rims" drove up and D.A. briefly leaned in through the front passenger side window. That car drove away and D.A., now holding a knife, followed defendant as he walked back to the car in which he arrived. Defendant got to his car, moved the female driver to the back seat, and took over driving. Defendant turned the car around to face D.A., peeled out, and drove toward D.A. but did not hit him. As defendant drove by D.A., D.A. hit the car with his knife.
After passing D.A., defendant made an immediate left turn at an intersecting street and nearly hit an oncoming car. Defendant slammed on his brakes, put the car in reverse, and turned the car back toward D.A. Defendant swerved the car into the oncoming traffic lane, striking D.A. D.A. rolled over the windshield and hood of the car, his knife hit the ground. Defendant returned the car to the correct lane of traffic and left over the crooked bridge.
After the People completed submission of their witness testimony, the prosecutor read, and the court accepted, the following stipulation to the jury:
" 'No.1, Defendant Valle has voluntarily entered a guilty plea to felony . . . [section] []186.22[, subdivision ](a) as charged in Count No. One.
" 'No. 2, Defendant Valle has voluntarily entered a guilty plea to felony . . . [sections] 415(1), slash, 186.22[, subdivision ](d), as charged in Count No. Three.[]
"[¶]
" 'No. 3, the parties stipulate that the Defendant's act of fighting victim D.A. with the specific intent to promote further or assist a criminal street gang is felonious conduct that serves as a factual basis for the elements of . . . [section] []186.22[, subdivision ](a).
" 'No. 4, the Defendant voluntarily waives his right to appeal his guilty plea and conviction as to Counts One and Three.' "
The People then rested their case-in-chief. Defendant immediately moved for acquittal. Defendant argued the People failed to prove beyond a reasonable doubt, that defendant striking D.A. with the car was not self-defense. "There is evidence that if juror—from which the jurors could find guilty of an assault, but there is also evidence from which the jurors could find not guilty by reason of self-defense." The People opposed the motion and the court denied the motion ruling, "I find there's evidence before the court sufficient to sustain a conviction on appeal in this matter."
Defendant presented no witnesses or evidence of his own but rested on the "state of the evidence" following the prosecution's case.
The jury subsequently found defendant guilty of assault with a deadly weapon and found true the allegation that defendant committed the crime for the benefit of a criminal street gang. The trial court subsequently sentenced defendant to nine years eight months in state prison.
II. DISCUSSION
A. Gang Enhancement
Defendant contends insufficient evidence was presented to support imposition of the gang enhancement under section 186.22, subdivision (b)(1) on his conviction for assault with a deadly weapon. The People contend the evidence is sufficient because "the parties stipulated that [defendant] fought to benefit a criminal street gang." On this record, the People have the better argument.
" 'In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask 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." ' [Citation.] We apply an identical standard under the California Constitution. [Citation.] 'In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1175, italics omitted.) We will reverse for insufficient evidence only if " ' " 'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" ' " (People v. Manriquez (2005) 37 Cal.4th 547, 577.)
Here, after the People completed presenting their witness testimony, the jury heard the following stipulation: "the parties stipulate that the Defendant's act of fighting [D.A.] with the specific intent to promote further or assist a criminal street gang is felonious conduct that serves as a factual basis for the elements of [section] 186.22[, subdivision] (a)." (Italics added.) Defendant now contends this stipulation was limited to his convictions on counts one and three, participation in a criminal street gang and disturbing the peace. The People argue the stipulation was not so limited.
Parties can stipulate to the existence of a fact, and such stipulations are evidence. (People v. Palmer (2013) 58 Cal.4th 110, 118 ["Stipulations obviate the need for proof and are independently sufficient to resolve the matter at issue in the stipulation"].) Stipulations are, therefore, viewed in a light most favorable to the respondent and presumed to support the judgment. (See People v. Young, supra, 34 Cal.4th at p. 1175.) Viewing the parties' stipulation here in the light most favorable to respondent, a reasonable jury could have found the parties agreed that defendant's entire fight with D.A., including assaulting him with a car, was done for the benefit of a criminal street gang. Such an interpretation is reasonable because it is supported not only by the language of the stipulation itself, but also by the argument of counsel and the order of trial.
First, the stipulation is not expressly limited to defendant's conviction for disturbing the peace in count three but refers only to "[d]efendant's act of fighting with [D.A.]." Second, the jury heard the parties' stipulation after the People presented their evidence related to gangs. So it would be reasonable for the jury to infer the issue was resolved between the parties following the admission of the evidence.
Then, in closing, the People argued the gang enhancement "is really not at issue either. . . . The defendant, we heard his stipulation . . . . He admitted that the whole fight was in association for or to benefit the Sureno criminal street gang." "[T]here's no issue that this is a gang fight," they argued, "it's all about gangs and promoting the Sureno criminal street gang. So I would submit to you that this allegation is not even at issue in this case." Defendant raised no objection to the prosecutor's argument.
Finally, defendant's counsel argued the gang evidence was a "smokescreen" and that the only issue for the jury to decide was "whether this was self-defense." In sum, a reasonable jury could have found that defendant stipulated he assaulted D.A. with a deadly weapon for the benefit of a criminal street gang.
Accordingly, we conclude sufficient evidence was presented to support imposition of the gang enhancement. B. Motion for Acquittal
Defendant also asserts the trial court should have granted his motion for acquittal after the prosecution rested its case-in-chief. Specifically, defendant argues the prosecution's evidence failed to show he did not act in self-defense when he struck D.A. with a car. We are not persuaded.
1. Defendant's Motion
After the prosecution completed its case-in-chief and rested its case, defendant's trial attorney moved for acquittal under section 1118.1. Defense counsel argued the prosecution failed to prove beyond a reasonable doubt that defendant did not act in self-defense.
The court ruled as follows: "Based on the evidence and the testimony presented during these proceedings, the [section] 1118.1 motion is denied. I find there's evidence before the court sufficient to sustain a conviction on appeal in this matter."
2. Standard of Review for Denial of Motion for Acquittal
As the California Supreme Court has explained, "In ruling on a section 1118.1 motion, the trial court applies the same standard used by the appellate court ' " 'in reviewing the sufficiency of the evidence to support a conviction, that is, "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' [Citation.] 'The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.' [Citations.] The question 'is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review." (People v. Stevens [(2007)] 41 Cal.4th 182, 200[].)' (People v. Lynch (2010) 50 Cal.4th 693, 759.)" (People v. Mendoza (2011) 52 Cal.4th 1056, 1079.)
Under section 1118.1, the "defendant need not articulate the grounds for his [or her] motion for acquittal nor is there 'any requirement that the motion be made in a particular form.' (People v. Belton (1979) 23 Cal.3d 516, 521 [counsel's statement 'that he did not "think that we have sufficient evidence here to convict [the defendant] of any crime . . ." ' constituted proper form for a section 1118 motion (ibid., fn. 6)].)" (People v. Ceja (1988) 205 Cal.App.3d 1296, 1301.)
3. Self-Defense
Defendant argues the prosecution's case-in-chief lacked sufficient evidence to prove he did not act in self-defense when he drove a car into D.A. The People were required to prove beyond a reasonable doubt that defendant did not act in self-defense. " 'To justify an act of self-defense for [an assault charge . . .], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him [or her]. [Citation.]' [Citation.] The threat . . . must be imminent . . . 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, italics omitted.)
4. Sufficiency of the Evidence for Self-Defense
We conclude the prosecution presented sufficient evidence to allow the jury to conclude defendant did not act in self-defense when he struck D.A. with a car. Defendant argues the evidence presented in the People's case-in-chief "conclusively" established that he acted in self-defense. Specifically, he argues the evidence shows D.A., armed with a knife, "made an aggressive approach" to his car, which forced defendant to drive into D.A. "to secure himself safe passage over the crooked bridge." We disagree.
Our review of the record does yield evidence that defendant was not acting in self-defense when he struck D.A. with a car. As D.A. approached defendant, armed with a knife, defendant turned the car around and drove in D.A.'s direction but did not hit him. Defendant passed D.A., stopped, backed up, turned around and drove toward D.A. again. As defendant approached D.A. the second time, he swerved the car into the lane of oncoming traffic, striking D.A. before driving away over the crooked bridge.
Defendant argues the crooked bridge was his only safe route of escape from D.A., who was coming at him with a knife. The video of the altercation, however, shows there were alternate routes defendant could have taken away from the scene. He could have continued on the street where he made his left turn after first passing D.A. He also could have driven opposite the crooked bridge, away from D.A. Either of those routes would have kept defendant out of reach of D.A.'s knife. Defendant, however, chose to turn his car around twice and drive directly at D.A.
In short, the prosecution's case-in-chief supplied sufficient evidence for a reasonable trier of fact to conclude defendant did not act in self-defense. C. Contrived Self-Defense
Defendant contends the trial court's instruction related to contrived self-defense "negated the jury's ability to find that [he] had a right of self-defense generally or under CALCRIM 3471 . . . ." Defendant relies on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), which held that although "CALCRIM No. 3472 states a correct rule of law in appropriate circumstances," (id. at p. 947) "under the facts before the jury" in that case it "did not accurately state governing law." (Ibid.)
In Ramirez, "the instructions [which included both CALCRIM No. 3472 and CALCRIM No. 3471 (Ramirez, supra, 233 Cal.App.4th at p. 946)] and the prosecutor's argument erroneously required the jury to conclude that in contriving to use force, even to provoke only a fistfight, defendants entirely forfeited any right to self-defense." (Id. at p. 953.) The court stated, "A person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby 'forfeit[] . . . his right to live.' [Citation.] Instead, he may defend himself 'even when the defendant set in motion the chain of events that led the victim to attack the defendant.' [Citation.]" (Id. at p. 943.) In other words, the fact that defendant intends to provoke a fistfight does not mean the other person is entitled to use deadly force or a deadly weapon in response to the provocation.
Defendant reasons that CALCRIM No. 3472 was not applicable here because it is only applicable when a defendant provokes a fight or quarrel and it is defendant's position that he did not provoke the fight that resulted in him striking D.A. with a car. The only fight he provoked, defendant argues, is the fistfight to which he pleaded guilty. That fight, he argues, "had nothing to do with" him striking D.A. with a car, which was solely the result of D.A. pulling a knife on him. To suggest that the fistfight defendant initiated "had nothing to do with" D.A. pulling a knife on him, which then led to defendant striking D.A. with a car, is absurd.
In any event, we need not decide whether CALCRIM No. 3472 accurately states the law under the facts of this case as any error in the instruction was harmless. " ' "[M]isdirection of the jury, including incorrect . . . instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in [People v.] Watson [(1956) 46 Cal.2d 818]' " under which " 'a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.' [Citation.]" (People v. Beltran (2013) 56 Cal.4th 935, 955.)
The evidence that defendant acted in self-defense when he tried to hit D.A. with a car was weak. The jury watched defendant drive a car at D.A. not once, but twice. They saw defendant swerve the car in order to strike D.A. And they saw that if self-preservation was in fact defendant's aim, he had multiple safe means of egress that would not have resulted in defendant striking D.A. with the car. Accordingly, it is not reasonably probable the jury would have concluded defendant acted in self-defense had CALCRIM 3472 been modified or omitted.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
HOCH, J.