Filed 11/15/13 P. v. Modesto CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047392

                   v.                                                  (Super. Ct. No. 12HF1105)

MIGUEL ANGEL MODESTO,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange 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 robbery for taking a
bicycle with force (Pen. Code, § 2111), and one count of promoting felonious conduct by
members of a street gang, a crime sometimes called street terrorism. (§ 186.22, subd.
(a).)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 People v. Rodriguez (2012) 55
Cal.4th 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


         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.”
                  All further statutory references are to the Penal Code.
          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.”
                  Modesto received a 12-year sentence for the robbery count, with the street terrorism count stayed
under People v. Mesa (2012) 54 Cal.4th 191.

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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 fear”].)
              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 bound to do so. Such “testimony is still evidence in the
case which they must receive and weigh. While they may reject it, they may, as they
determine, accept as true one of the contradictory asseverations.”’”]; 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 “rely” on the witness’s “present
testimony”]; 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 jury”]; 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-contradictory”].)
              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
                                              3
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 required the jury to
disbelieve the 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.3 In context, all these
comments, like the “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”


         3
                    The four excerpts are: (1) a characterization of Modesto’s defense as “cockamamy”; (2) a
statement to Modesto that he was “not a child”; (3) noting the jury took less time to deliberate than Modesto’s
counsel had spent in closing argument; (4) telling Modesto “no one is ever going to credit you with intelligence and
sound judgment,” because you rejected a prior offer before going to trial; and (5) a comment, unquestionably
partially sarcastic, that “if you come to court again, you’re looking at 25 years to life. Congratulations.”

                                                         4
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.4 We have
not seen much evidence this “tough 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 Rodriguez, we do so ourselves and hereby 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.




         4
                  When read as a whole, the judge’s statements show far more concern and solicitude than derision.
The “Congratulations” comment was in the midst of trying to get the point across that if Modesto commits any more
crimes he is looking at his third strike: “And your crimes are getting worse and worse and they’re going to effect
you more and more negatively. Because now you’ve got enough strikes so that if you come to court again, you’re
looking at 25 years to life. Congratulations. Or more. And a judge is going to be hard-pressed to find a reason not
to give you a maximum sentence, particularly if you continue with this gang thing.”

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