P. v. Cruz
Filed 3/15/06 P. v. Cruz CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
| THE PEOPLE, Plaintiff and Respondent, v. OSCAR CRUZ, Defendant and Appellant. | B180430 (Los Angeles County Super. Ct. No. BA261445) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Craig E. Veals, Judge. Modified and affirmed.
Sylvia Koryn, 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, Assistant Attorney General, Jaime L. Fuster and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Oscar Cruz appeals from the judgment entered following a jury trial that resulted in his conviction of multiple counts of robbery and attempted robbery. He contends: (1) he was denied due process as a result of the trial court's refusal to bifurcate a criminal gang activity enhancement allegation (Pen. Code, § 186.22, subd. (b));[1] (2) the evidence was insufficient to support the gang enhancement; (3) the evidence was insufficient to support the conviction for attempted robbery; and (4) it was error to instruct on flight. We order the abstract of judgment modified and otherwise affirm.[2]
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence adduced at trial established that in September 2003, the criminal street gang known as New Lott claimed the territory between Atlantic Boulevard on the west, Beverly Boulevard to the south, Garfield Avenue to the east and the 60 Freeway to the north. Defendant and Jonathan Moreno were both members of the New Lott in September 2003. At the time, defendant lived in the 2300 block of Via Corona, about a half-mile east of the territory claimed by New Lott. Monterey Park is just north of the territory claimed by New Lott.
At about 8:30 p.m. on September 9, 2003, Wallace Ho withdrew $100 from an ATM machine at the corner of Avondale Avenue and Garfield Avenue in Monterey Park. In response to a tap on the shoulder, Ho turned around and saw a man who demanded that Ho give him the $100. Defendant, who was standing six or seven feet away with his hands tucked into the pockets of a hooded sweatshirt, pulled out what looked to Ho like a black .45-semiautomatic pistol and yelled: â€
