Filed 1/17/18 P. v. Guardado CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from judgments of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed as modified.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant Aaron Guardado.

Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant Mauricio Gonzalez.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendants Aaron Guardado and Mauricio Gonzalez attacked two people with a screwdriver while stating the name of their gang. A jury convicted defendants of two counts of assault with a deadly weapon (with associated gang allegations), a substantive gang offense, and gang-related simple assault and battery charges.

Defendants appeal on several grounds. Both defendants argue that the evidence was insufficient to sustain their convictions. Gonzalez argues that the trial court abused its discretion by failing to bifurcate the gang evidence. Guardado also argues that the court abused its discretion by not dismissing his prior strike conviction. We disagree.

Finally, both defendants argue that their gang-related simple assault and battery charges should be stayed under Penal Code section 654.[1] The Attorney General concedes the argument. We agree and will order the trial court to modify the defendants’ sentences accordingly. In all other respects, the judgments are affirmed.

I

FACTUAL AND PROCEDURAL BACKGROUND

On April 12, 2015, at about 3:30 a.m., Jimmie C. was riding his bicycle on Beach Boulevard. Jimmie stopped on the sidewalk and straddled his bike, while talking to his friend, Raymond R. As Jimmie and Raymond spoke to each other, they were approached by defendants Guardado and Gonzalez, who had come out of an adjacent apartment complex.

Gonzalez said, “Hey, get the f*** out of here. This is Brown Demons gang Anaheim.” Jimmie had never seen either Gonzalez or Guardado before. Jimmie told Gonzalez “to go mind his own business.” Gonzalez or Guardado called Jimmie the “N” word. Guardado took out what appeared to be a knife and swung it at Jimmie. Jimmie held on to the handlebars of the bike, raised it up on its back wheel, and used the bike to keep some distance between himself and Guardado. Jimmie eventually let go of the bike and hit Guardado in the face with a closed fist as he tried to get the weapon out of Guardado’s hand. Jimmie repeatedly hit Guardado in his face and body, but Guardado “wouldn’t stop.”

While this was going on, Gonzalez was fighting with Raymond, who was trying to hold off Gonzalez with a metal pipe that was about a foot long. Jimmie said that Raymond “was holding it so [Gonzalez] wouldn’t come around and get me.” Jimmie eventually wrestled Guardado to the ground. Jimmie told Guardado “to calm down and he wouldn’t calm down, he kept hitting me so I hit him back, and I turned him on his stomach and I sat on him until the cops came.” After the police arrived during the melee, Jimmie discovered that the weapon that Guardado had been using was a screwdriver, not a knife. Jimmie also realized that he had sustained a cut in between his fingers.

At a jury trial, Anaheim Police Officer Bryan Devore testified as the prosecution’s gang expert. Devore said that he was familiar with the South Side Brown Demons criminal street gang and testified to its common signs, symbols, and pattern of criminal activity. Several other police officers testified to prior contacts with Guardado and Gonzalez in which they admitted their gang membership. Devore opined that Guardado and Gonzalez were both active gang members on the date of the alleged offenses and the crimes were committed for the benefit of, in association with, and at the direction of their gang.

The jury convicted Guardado and Gonzalez of two counts of aggravated assault with a deadly weapon (with gang enhancements), and one count of active participation in a criminal street gang. (§§ 245, subd. (a)(1), 186.22, subds. (a) & (b).) The jury found Guardado guilty of a gang-related simple battery charge and Gonzalez guilty of a gang-related simple assault charge. (§§ 186.22, subd. (d), 240, 242.) Guardado admitted a prior serious felony conviction, a prior strike conviction, and two prison priors. (§§ 1170.12, subds. (b) & (c)(1), 667, subd. (a)(1), 667.5, subd. (b).)

The trial court denied Guardado’s motion to strike his prior strike conviction and sentenced him to 16 years in state prison. The court sentenced Gonzalez to nine years in state prison.

II

DISCUSSION

A. Sufficiency of Evidence

Defendants argue that the evidence was insufficient to sustain the jury’s convictions on the assault charges because the prosecution failed to prove that they did not act in lawful self-defense. We disagree.

Our standard of review is well established: “we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that 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. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence, and questions of credibility in favor of the verdict; we indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal is not permitted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, at p. 331.)

Self-defense is a legal justification for a person’s otherwise unlawful acts, including assaults. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) Generally, a defendant is legally justified in committing an assault if he is defending himself against an opponent who provoked or started a fight (an initial aggressor). (§ 693.) But a defendant does not have a right to self-defense if the defendant himself provoked the fight. (People v. Ramirez (2015) 233 Cal.App.4th 940, 947.) However, there is an exception if the defendant, as the initial aggressor, “used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force . . . .” (CALCRIM No. 3471.) When the issue of self-defense is presented to a jury, it “is the prosecution’s burden to prove the absence of justification beyond a reasonable doubt.” (People v. Lloyd (2015) 236 Cal.App.4th 49, 63.)

Here, Guardado and Gonzalez approached Jimmie and Raymond together late at night on a public street and Gonzalez told them to get out of their gang’s territory. When Jimmie told Gonzalez to mind his own business, Guardado attacked Jimmie with a screwdriver. According to the testimony of a percipient witness, it appeared to her as though Guardado and Gonzalez were trying to rob Jimmie. Thus, there was evidence for the jury to reject the defense of self-defense because they could have determined that Guardado was the initial aggressor in the assault with a deadly weapon and Gonzalez acted as his aider and abettor in the assault.

Nevertheless, defendants argue that even if they were the initial aggressors, Jimmie and Raymond responded with such deadly force that they could not withdraw from the fight and were entitled to defend themselves. According to Jimmie’s testimony, he first tried to repel Guardado’s attack with his bicycle. When that was unsuccessful, Jimmie said that he repeatedly hit Guardado in his face and body, but Guardado “wouldn’t stop.” Therefore, there was evidence that Jimmie’s defensive response with his bicycle did not constitute deadly force and that Guardado was, in fact, able to withdraw. Jimmie also testified that Raymond used a relatively short metal pipe to ward off Gonzalez’s attack. Jimmie said that Raymond appeared to be doing this in order to prevent Gonzalez from getting to Jimmie. Thus, there was also evidence that Raymond’s use of the pipe did not constitute deadly force and there was also nothing preventing Gonzalez from withdrawing if he had chosen to do so.

Finally, defendants argue that Jimmie’s testimony was not credible because he was on parole, had a prior conviction for a crime of violence, and his testimony was inconsistent with a percipient witness’ testimony. According to the witness, at some point Jimmie said to Gonzalez, “If you don’t get back, I’m going to stab your friend.” Jimmie denied making the threat. But our role as an appellate court is quite distinct from the role of the jury. “We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (People v. Pre (2004) 117 Cal.App.4th 413, 421.) As such, we resolve any conflicts in the testimony of Jimmie and other witnesses in favor of the jury’s guilty verdict.

In sum, there is sufficient evidence in the record to support the jury’s implicit determination that the prosecution proved beyond a reasonable doubt that Guardado and Gonzalez did not act in lawful self-defense.

B. Motion to Bifurcate

Gonzalez argues that the trial court abused its discretion by denying his motion to bifurcate the gang evidence from the remainder of the trial. We disagree.

“In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez).) “But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Ibid.) In moving for bifurcation, a defendant must “‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’” (Id. at p. 1051.) Bifurcation may be necessary where the predicate offenses offered to establish the pattern of criminal activity are “unduly prejudicial,” or where some of the other gang evidence may be “so extraordinarily prejudicial, and of so little relevance to guilt” that it may influence “the jury to convict regardless of the defendant’s guilt.” (Id. at p. 1049.)

We review a denial of a motion to bifurcate a trial for an abuse of discretion, based on the record before the court when it ruled on the motion. (Hernandez, supra, 33 Cal.4th at p. 1051.) A court’s ruling will not be disturbed on appeal unless there is a showing that it acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice. (People v. Jones (2017) 3 Cal.5th 583, 609.)

In this case, Guardado filed a pretrial motion in limine “to bifurcate the trial of the underlying offenses from proceedings regarding the alleged gang charge and gang enhancement.” Guardado argued that, “The only issue in Mr. Guardado’s case is whether he allegedly committed the aggravated assault. Allowing the government to argue that Mr. Guardado is an active gang participant in a gang and that he committed the underlying offenses to somehow benefit the gang will do nothing but consume valuable court time, inflame the jury and prejudice the defendant’s ability to receive a fair trial on this simple issue.”

The motion in limine primarily relied on the case of People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran). In Albarran, the prosecution alleged that defendant and an unknown man fired guns at a house. (Id. at pp. 217-219.) Prior to trial, the court ruled that the proffered gang evidence was relevant not only to the gang enhancement, but also to the issues of motive and intent for the shooting. (Id. at p. 220.) The appellate court found that even if some of the gang evidence was relevant, other “extremely inflammatory gang evidence was admitted,” which was irrelevant. (Id. at pp. 227-228.) The inflammatory evidence included the gang’s threats to kill police officers and defendant’s Mexican Mafia tattoos. (Id. at pp. 220-221.) The court found that this evidence posed the danger “that the jury would improperly infer . . . [defendant] had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished.” (Id. at p. 230.) The Albarran court held that: “This case presents one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant’s trial fundamentally unfair.” (Id. at p. 232.)

Here, at the hearing on the motion to bifurcate, the trial court noted that it had read the Albarran case. The prosecutor argued that unlike Albarran, in this case there was a substantive gang charge in addition to the gang enhancement, “and the gang evidence that the People are seeking to introduce is relevant to prove that.” The prosecutor also argued that the “gang evidence is helpful to the jury to understand the motivations behind why the assault took place and why the defendants behaved the way that they did. And because of the fact that the gang charges are, in fact, charged, the prejudicial [effect] is not outweighed by the probative value of that evidence.”

The trial court asked the prosecutor if “we’re going to be getting into, a certain sense of overkill of mention of the Mexican Mafia or things that are clearly beyond the bounds of what might be expected to prove the gang allegations in this case? In other words, are you going to go nuts like in Albarran?” The prosecutor indicated that he did not anticipate introducing the type of evidence found objectionable in Albarran. The prosecutor also argued that if the court denied the motion to bifurcate “the court still has its authority under [Evidence Code section] 352 to decide what evidence to admit and what evidence goes too far and would be prejudicial.”

After Guardado submitted on his moving papers, the trial court found that the gang evidence “is logically relevant to materials in this case, including but not limited to, motive and intent.” The court further found that the gang evidence was not “being used for the inadmissible purpose of showing the defendant’s criminal disposition or bad character as a means of creating an inference that the defendant’s committed the charged offenses.” The court stated that it “exercises its discretion and, therefore, denies the bifurcation motion.”

Here, it is readily apparent that the trial court did not make its ruling in an arbitrary or capricious manner. Quite the opposite. The court had familiarized itself with the Albarran case cited by Guardado in his motion. And at the hearing on the motion to bifurcate, the court then ensured through its colloquy with the prosecutor that the type of inflammatory gang evidence introduced in Albarran was not anticipated in this case. The court concluded that the gang evidence discussed by the prosecutor was relevant to the issues of defendants’ motive and intent based on the facts that the court was made aware of at the time of its ruling. We agree with the trial court that the proffered evidence was distinguishable from Albarran. Moreover, we note from a practical standpoint that it would have been onerous to bifurcate “gang evidence” from a trial in which a substantive gang allegation was one of the charged offenses. (§186.22, subd. (a).)

In short, we find that the trial court properly exercised its discretion when it denied Guardado’s motion to bifurcate the trial.

C. Prior Strike Conviction

Guardado argues that the trial court abused its discretion by refusing to strike his prior felony “strike” conviction. We disagree.

Under the “Three Strikes” law, when a defendant is convicted of a felony, and he or she has previously been convicted of a serious or violent felony, a trial court must ordinarily double the defendant’s sentence. (§ 667, subd. (e)(1).) However, a court maintains the authority to dismiss a prior strike conviction in the furtherance of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).)

“The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (§1385, subd. (a).) The court’s authority “‘“requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]” [Citations.] At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.” [Citations.]’ [Citation.] ‘Courts have recognized that society, represented by the People, has a legitimate interest in “the fair prosecution of crimes properly alleged.” [Citation.] “‘[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.’ [Citations.]”’ [Citation.]” (Romero, supra, 13 Cal.4th at pp. 530-531.)

In deciding whether to strike a prior felony conviction, the Supreme Court has stated that trial courts should “consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)

We review a trial court’s decision denying Romero relief for an abuse of discretion. (People v. Clancey (2013) 56 Cal.4th 562, 581.) It is the defendant’s burden to demonstrate the sentencing decision was irrational or arbitrary. (People v. Philpot (2004) 122 Cal.App.4th 893, 904.)

Here, Guardado admitted that he had sustained a prior strike conviction for a robbery that occurred on March 20, 2010. (§ 211.) Prior to sentencing, Guardado invited the court to dismiss the prior conviction. Guardado stated that the robbery arose from the theft of a wallet, and the amount of the victim’s loss was only $100. Guardado argued that the robbery “occurred when [he] was only 18 years old, approximately 6 years ago.” Guardado argued that he “did openly and remorsefully discuss his prior conviction with counsel. Upon reflection, Mr. Guardado indicated that he is now a different person than at the time of the felony prior conviction.”

The prosecution filed a sentencing brief arguing that: “the defendant’s prior convictions as an adult or sustained juvenile petition are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on probation or parole when the crime was committed; and the defendant’s prior performance on probation or parole has been poor.” The prosecution noted the details of Guardado’s approximately 14 contacts with the police starting in 2004: “The defendant’s criminal conduct has become increasingly serious; this is particularly troubling because the defendant often has a weapon when he is arrested.”

The court said that, “the prior strike offense . . . is relatively recent, six years old. [¶] When you look at the facts behind that case, they almost lend themselves to be – to being very similar to the facts of this case. [¶] There’s nothing in the defendant’s past, when you look at his history, starting when he was age 13, back in September of ‘04, and the numerous interactions and convictions with law enforcement over the course of his lifetime, that he does not fall outside the spirit of the statutory scheme. [¶] The court has applied many factors to consider your request, sir, including, but not limited to, again, your prior convictions, your background, your character, the prospects of you doing better . . . . [¶] The court is also mindful, based on the [probation] report, they found no apparent mitigating factors whatsoever in order to somehow change the balance or the scales . . . . [¶] Therefore, the court . . . finds no grounds to strike the strike for purposes of sentencing.”

It is not our role to either agree or disagree with the trial court’s decision. Our task in this appeal is to review the lower court’s record to determine if it supports a conclusion that the court somehow arrived at its decision in an arbitrary or capricious fashion. There is no such evidence in this record. Rather, it is apparent that the court thoroughly reviewed the uncontested evidence regarding Guardado’s criminal background, as well as the other well established Romero and Williams factors in a thorough, thoughtful, and deliberative manner.

In sum, we find that the trial court did not abuse its discretion when it declined Guardado’s invitation to dismiss his prior strike conviction.

D. Section 654

Defendants argue for the first time on appeal that the trial court should have stayed their respective sentences for the offenses of gang-related simple assault and battery. The Attorney General concedes the point. We agree.

“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) “Section 654 precludes multiple punishments for a single act or indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.) A section 654 argument is not forfeited on appeal by failing to raise the issue in the trial court. (People v. Pinon (2016) 6 Cal.App.5th 956, 967.)

Here, the jury convicted defendants of two counts of assault with a deadly weapon and the trial court imposed appropriate sentences on those counts. (§ 245, subd. (a)(1).) The jury also convicted defendants of gang-related simple battery (Guardado) and gang-related simple assault (Gonzalez), and the court imposed concurrent sentences. (§§ 242, 240.) It is apparent that all of the assaultive crimes arose from the same course of conduct. Thus, the sentences for the gang-related assault and battery charges must be stayed because a sentence on an assault with a deadly weapon charge “provides for the longest potential term of imprisonment.” (§ 654, subd. (a).)

III

DISPOSITION

As to Guardado, the trial court is directed to forward to the Department of Corrections and Rehabilitation a certified copy of the amended abstract of judgment reflecting a modification of the stayed (rather than concurrent) sentence on count four (simple battery).

As to Gonzalez, the trial court is directed to forward to the Department of Corrections and Rehabilitation a certified copy of the amended abstract of judgment reflecting a modification of the stayed (rather than concurrent) sentence on count four (simple assault).

In all other respects, the judgments are affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.