P. v.
Filed 11/15/13 P. v. Modesto CA4/3
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL ANGEL MODESTO,
Defendant and Appellant.
G047392
(Super. Ct. No. 12HF1105)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Carla Singer, Judge.
Affirmed as modified.
Roland G. Rubalcava for
Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Peter Quon, Jr., Theodore M. Cropley and
Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Miguel
Angel Modesto was convicted of one count of
(Pen. Code, § 211
name="_ftnref1" title="">[1]), and
one count of promoting felonious conduct by members of a street gang, a crime sometimes
called street terrorism. (§ 186.22,
subd. (a).)
title="">[2]
In this case, the street terrorism count
was based on the theory he took the bicycle for the benefit of his gang, the “Family
Mob.†However, in supplemental briefing
the Attorney General’s office has recognized that in light of
1125, 1139, and the absence of any evidence Modesto
acted collectively with other gang members, the street terrorism count cannot
stand – the crime only applies to actions done collectively with other gang
members. (Ibid.)
That leaves remaining
the two arguments Modesto
originally raised in his opening brief as the subject of this appeal: (1) Whether there was substantial evidence Modesto
used force to take the bicycle and (2) whether the trial judge’s comments
during the trial evidenced judicial bias.
As to the first issue, there
was indeed substantial evidence of the
use of force, supplied by two witnesses.
The first witness was a sheriff’s deputy who actually saw the crime. The deputy testified he saw the owner of the
bike straddling it as he talked to Modesto, and then saw Modesto use his left
shoulder to bump the owner, causing him to (as the deputy put it) “go off the
bike and off balance.†The deputy further
saw Modesto “grab[] the bike by its
handlebars†and then Modesto “took
off†with it. The other witness was the
victim himself. He testified Modesto
“just grabbed hold†of the bike by the handlebars and “took it†after he had
told Modesto he needed the bicycle
for work.
Modesto’s
argument for the lack of substantial evidence is largely based on discrepancies
confined to the victim’s statements. At
trial the victim said Modesto made
no physical contact with him in the course of grabbing the bike, while another
deputy testified the victim told him, after the incident, that Modesto
had bumped his shoulder in the
process of grabbing the bicycle away. As
Modesto frames the issue in this
appeal, the victim had to be lying at some point, ergo there was no substantial
evidence of the force or fear necessary to commit robbery. (See § 211 [defining robbery as a taking
against an owner’s will by “force or fearâ€].)
The argument is a non
sequitur. A trier of fact is free to
believe all or part of a witness’s testimony.
(E.g., People v. Maxwell
(1979) 94 Cal.App.3d 562, 576 [“‘The jury might have rejected all her testimony
had they seen fit, in view of her admitted contradictions, but they were not
which they must receive and weigh. While
they may reject it, they may, as they determine, accept as true one of the
contradictory asseverations.â€â€™â€]; Pierson
v. Superior Court (1970) 8 Cal.App.3d 510, 517-519 [rejecting argument that
sole prosecution witness at preliminary hearing was so impeached by his
testimony at two previous preliminary hearings that the trial court could not “relyâ€
on the witness’s “present testimonyâ€]; People
v. Ross (1941) 46 Cal.App.2d 385, 396-397 [in case of prosecution of two
brothers, observing that jury knew witness “had been impeached†and knew “they had
a right to reject his testimony entirely,†but even so the question of the
witness’s “credibility and of the weight to be given to his testimony were to
be determined solely by the juryâ€]; People
v. Holman (1945) 72 Cal.App.2d 75, 89-90 [holding jury could still rely on
parts of testimony of witness which was otherwise “self-contradictoryâ€].)
In this case, any
discrepancy in the victim’s statements is readily explainable by Modesto’s
gang connection. This victim was clearly
reluctant to testify against a gang member.
At the sentencing hearing the
trial judge specifically remarked the witness “was terrified†of Modesto
because “he knew you were a gang member.†And so it is quite understandable that the victim
was reluctant in open court to give voice to the bumping which the deputy saw. But that reluctance hardly
testimony of the deputy, much less the victim’s own previous statement to
another deputy.
The
second argument is entirely based on fragments of the trial court’s remarks
taken out of context. Modesto’s opening
brief first quotes the judge telling Modesto’s defense attorney that she was “repeating
herself†in her closing argument, as if the judge were being peevish and
gratuitously cutting counsel off from the full development of her
argument. The opening brief omits what
immediately preceded the “repeating yourself†comment – namely defense counsel’s
own question to the judge as the noon recess was approaching: “Do you want me to keep going?†The judge answered: “Well, how much more time
do you need? You’re repeating yourself
at this point.†In context, the judge
was simply responding to defense counsel’s question.
Modesto’s
other claims of prejudice by the trial judge all come from the sentencing hearing. The essential thrust of these was that Modesto
had not acted wisely in rejecting what had apparently been a very favorable
plea deal.
“repeating yourself†comment just discussed, were made in response to arguments
being presented at the hearing to the effect the court should go easy on Modesto
because he was 19 years old. The overall
point the judge was making was that Modesto
was an experienced gang member, that his crimes were becoming progressively
worse, and he thus posed a danger to the community. Even the judge’s “Congratulations†sarcasm
was made in the context of explaining to an errant young man that he faced much
worse by way of punishment in the future if he didn’t mend his ways.
love†approach is especially effective, but neither can a tough sentencing speech
support reversal.
Rather than burden the
trial court with the task of striking the street terrorism count under
modify the judgment to strike the section 186.22, subdivision (a) street
terrorism count, and direct the clerk of the trial court to prepare an amended
abstract of judgment reflecting this modification and send a certified copy to
the Department of Corrections and
Rehabilitation. In all other
respects, the judgment is affirmed.
BEDSWORTH,
J.
WE CONCUR:
O’LEARY, P. J.
ARONSON, J.
name="_ftn1" title=""> [1] Penal Code section 211
provides: “Robbery is the felonious
taking of personal property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means of force or fear.â€
All further statutory references are
to the Penal Code.
name="_ftn2" title=""> [2] Section 186.22, subdivision (a)
provides: “Any person who actively
participates in any criminal street gang with knowledge that its members engage
in or have engaged in a pattern of criminal gang activity, and who willfully
promotes, furthers, or assists in any felonious criminal conduct by members of
that gang, shall be punished by imprisonment in a county jail for a period not
to exceed one year, or by imprisonment in the state prison for 16 months, or
two or three years.â€
Modesto received a 12-year sentence
for the robbery count, with the street terrorism count stayed under
