In re Felix G.

Filed 8/23/07 In re Felix G. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Felix G. appeals from the order sustaining the petition which alleged that he

dissuaded a witness from reporting a crime and committed an assault with a deadly weapon (Pen. Code,  136.1, subd. (b)(1), 245, subd. (a)(1))[1]; committed both crimes for the benefit of a criminal street gang ( 186.22, subd. (b)(1)); and personally inflicted great bodily injury on the assault victim ( 12022.7; Welf. & Inst. Code,  602). The court committed appellant to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, with a maximum confinement term of 17 years 8 months. Appellant contends the court erred by admitting gang affiliation evidence, sustaining the petition without sufficient evidence, and setting the maximum commitment term. We affirm.

Gang Affiliation Evidence

In December 2005, the largest gang in Thousand Oaks, the Thousand Oaks California Surenos (Tocas or TCS), had approximately 90 members. Tocas's largest rival gang, the Conejo Valley Locals (CVLS), then had approximately 30 members. Tocas's criminal activities included applying graffiti, fighting and jumping or "hitting people up." Vicente V., German G., Ramses R., Cesar D. and appellant were Tocas members. Appellant had tattoos associated with Tocas on his shins, wore gang attire, associated with Tocas members, and had been arrested for gang-related witness intimidation.

Witness Intimidation

On September 21, 2005, Kyle I. and a friend were riding in the back of a bus in Thousand Oaks. German, Vicente and a companion identified only as Christian were in the back of the same bus. When the bus stopped near a shopping mall, Vicente looked at Kyle and said, "This is for disrespecting TCS." Before leaving the bus together, Vicente and Christian each hit Kyle.

The next morning, Kyle rode the bus to school. Appellant boarded the bus and sat in the back, near Kyle and his friend. Vicente and Christian boarded the bus after appellant. At some point, Cesar and two other Tocas members also boarded the bus. Appellant smirked at Kyle. The six Tocas members, including appellant, surrounded Kyle, and laughed and stared at him. Addressing Kyle, Vicente stated, "Are you okay? Don't let it happen again," and told Kyle that the pain would only be worse the next time if he told anyone. Cesar and Christian "flip[ped] off" Kyle when they left the bus. Appellant looked at Kyle and silently "mouthed" the words, "Don't fuck with TCS" as he left the bus.

Assault with a Deadly Weapon

Erik L. and German attended the same continuation school in December 2005. On December 21, they agreed to meet in the evening, near their homes, and fight each other "one-on-one." Erik brought his brother, Marco L., with him "[j]ust in case somebody else got in." Ramses arrived at the scene before the fight began. German handed Ramses a stick. While speaking on his cell phone, Ramses told appellant that German was going to fight someone from CVLS.[2]

Marco stood nearby as Erik and German started fighting. Appellant and Cesar approached the fight scene. Ramses saw a bottle thrown by someone; he thought that appellant threw it. Cesar and Ramses chased Marco from the scene. Marco saw someone chasing him with a "stabbing weapon." Erik tried to get away when he saw Marco run. Erik fell to the ground when German stopped him, and two guys surrounded him. Erik said that one guy stabbed him twice. After chasing Marco, Ramses and Cesar returned to the fight scene, where appellant and German had remained. Ramses saw appellant throw a knife in the bushes shortly after the fight. During the fight, Erik heard "gang statements." He could not recall the precise words of those statements, but he knew the fight participants were Tocas members.

Erik testified that German was not the person who stabbed him. Before the adjudication, Erik selected photos of appellant and two individuals who had not been at the fight scene and said that their eyes, facial structure, haircut, and facial hair resembled those of the person who stabbed him. At the adjudication, Erik could not identify appellant as his assailant.

Erik had two puncture wounds, each approximately one and one-half inches wide, on the side of his rib cage. He needed a chest tube during his five-day hospital stay.

DISCUSSION

Appellant contends the evidence is insufficient to support the juvenile court's findings that he violated section 136.1, subdivision (b)(1) and section 245, subdivision (a)(1). In reviewing such a claim, we presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Moon (2005) 37 Cal.4th 1, 22; People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witness's credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) The same standard of review applies in cases in which the prosecution relies on circumstantial evidence to connect the defendant to the crimes. (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) Under this standard, we conclude there is substantial evidence to sustain the juvenile court's findings.

In claiming there was insufficient evidence to support the witness dissuasion offense, appellant asserts that "[t]he most important factor here is that Kyle unequivocally state[d] that he was not afraid of [appellant]." We disagree. Section 136.1, subdivision (b)(1) provides in relevant part, "[E]very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is a witness to a crime from doing any of the following is guilty of a public offense . . . : [] (1) Making any report of that victimization to any peace officer or . . . law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge."

Appellant was present on the bus with five fellow Tocas members, including Vicente. Vicente then told Kyle that if he "would tell, the pain would only be worse next time," and also told Kyle not to talk about it. During the incident, appellant smirked at Kyle, and sat with Cesar, another Tocas member, who "flip[ped] off" Kyle. As he left the bus, appellant looked at Kyle and mouthed the words, "Don't fuck with TCS." There is no evidence that appellant witnessed Vicente assault Kyle on September 21. Nonetheless, anyone who heard Vicente threaten Kyle the next day would recognize that Vicente had assaulted Kyle before then. There is sufficient evidence to support the finding that appellant attempted to prevent or dissuade Kyle from reporting a crime and that he did so for the benefit of his gang.

We also reject the claim that there is not sufficient evidence that appellant assaulted Erik with a deadly weapon. Erik was stabbed while he struggled with appellant and German. German did not stab Erik. Shortly after the fight, appellant threw a knife into nearby bushes. There is sufficient evidence to support the finding that appellant assaulted Erik with a deadly weapon and that he did so for the benefit of his gang.

Appellant also argues that the juvenile court erroneously admitted gang membership evidence that was "not conducive to determining guilt or innocence." He relies on inapposite cases such as People v. Cox (1991) 53 Cal.3d 618, 660, where the prosecution did not allege that the crime was committed to support gang activities. Here, in contrast, the prosecution filed section 186.22, subdivision (b)(1) criminal street gang allegations. The gang evidence, including expert testimony, was relevant and admissible. (See Evid. Code,  210; People v. Sengpadychith (2001) 26 Cal.4th 316, 322-324; People v. Gardeley (1996) 14 Cal.4th 605, 616-618, 620.)

Finally, appellant argues that the juvenile court failed to exercise, or abused, its discretion in setting his maximum confinement term, because there was not sufficient evidence to support the court's findings, and "[t]he record in this case does not indicate that the court was aware that it could have imposed a lesser sentence and refused to do so." We disagree and will not further discuss the sufficiency of the evidence. The record leaves no question that the court recognized its discretion to impose a shorter confinement term. For example, it stated, "The minor is committed to the California Department of Corrections and Rehabilitation, Division [of] Juvenile Justice on Count 2, violation of . . . section 245(a)(1) . . . and the principal upper term . . . is appropriate. [] The Court has taken into consideration any factors in mitigation . . . relating to the crime . . . ." The court also noted that the crime involved great violence, a high degree of cruelty, viciousness and callousness, and appellant "just went out there and stabbed this person without any provocation whatsoever." The court recognized and exercised its discretion in selecting a maximum commitment term.

The judgment (order) is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Manuel J. Covarrubias, Judge

Superior Court County of Ventura

______________________________

Betty Alice Bridgers, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2] Ventura County Sheriff's Department Deputy Gustavo Macias, a member of the department's special enforcement gang unit, believed that Erik was a CVLS member. Erik testified that he knew some CVLS members but did not "hang out" with them.