Filed 7/30/14 P. v. Garcia 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               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B250216
                                                                           (Super. Ct. No. VA128816)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

LARRY STEVE GARCIA,

     Defendant and Appellant.




                   A jury found Larry Steve Garcia guilty of attempted robbery. (Pen.
Code, §§ 211, 664.)1 The jury also found a gang allegation to be true (§ 186.22,
subd. (b)(1)(B)) and that the victim was a paraplegic (§ 667.9, subd. (a)). Garcia
admitted that he suffered a prior prison term. (§ 667.5, subd (b).) He received an
aggregate sentence of nine years in prison.
                   On appeal, Garcia contends the gang allegation is not supported by
substantial evidence, attempted robbery is not a predicate offense to a section 667.9
enhancement, and the trial court erred in denying his Faretta motions.
                   We strike the section 667.9 sentence enhancement. In all other
respects we affirm.

1
    All statutory references are to the Penal Code.
                                        FACTS
               On October 29, 2012, at approximately 5:40 p.m., Diego Ramirez was
crossing the street in his wheelchair. A white Cadillac abruptly stopped in the
middle of the road, blocking Ramirez's path. Garcia got out of the car and asked
Ramirez what he had on him. Ramirez replied, "Nothing." Garcia attempted to
grab Ramirez's cellphone and Bluetooth earpiece from him. A struggle ensued.
Ramirez pushed Garcia away with his hands. Garcia hit Ramirez in the head with a
blunt object. Ramirez began to bleed from the wound. Garcia got back in his car
and left. It took four staples to close Ramirez's head wound.
               Ramirez had known Garcia for over five years and identified him as
his assailant. He told the police his assailant was Larry Garcia, known as "Sneaks,"
from the Jardin 13 gang.
                                    Gang Evidence
               Los Angeles County Deputy Sheriff Steven Lopez testified as a gang
expert. Lopez testified that Garcia is an admitted member of the Jardin 13 gang.
The primary activities of the gang include assault, assault with a deadly weapon,
possession of narcotics for personal use and sale, vandalism, murder, burglaries and
other thefts. Garcia committed the crimes against Ramirez in Jardin 13 territory.
               Lopez testified the attempted robbery was committed for the benefit
of, at the direction of, and in association with, a criminal street gang. When asked
for the basis of his opinion, Lopez testified:
               "The act was a violent act, it was committed in a public area; it was a
residential street, in plain view; daylight hours. The victim knew the defendant
from prior contacts based on his own statements to me; recognized him, named him,
knew his moniker, knew what gang he was from. The crime was committed in
Jardin 13 territory, which is a safe zone for the defendant. He knows that he has the
protection, the backing of the gang. He's asserting control of his turf by committing
the crime in his territory.

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              "Also, the fact that the victim was a paraplegic in a wheelchair, and
by his own admission was defenseless, it shows that nobody in the community is
safe, so by committing that -- the violent act of attempt robbery, which included an
assault, it shows the propensity of the gang for violence, and it instills fear in the
community. It can also instill fear in other gang members that this suspect is a
violent person.
              "But . . . also, any monetary gain from committing a crime by a gang
member -- he has to contribute to his gang, so he has to pay dues to his gang. His
gang also has to pay dues to the Mexican mafia. Money that the gang collects, they
use to buy firearms, to commit assault, robberies, murder of other gang members,
also to expand their territory.
              "They also use the money they receive from pawning off stolen
property, selling stolen property to buy narcotics, which they in turn sell to increase
income."
                                     DISCUSSION
                                            I.
              Garcia contends the gang enhancement is not supported by substantial
evidence.
              Section 186.22, subdivision (b)(1) provides for a sentence
enhancement of five years for "any person who is convicted of a felony committed
for the benefit of, at the direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any criminal conduct by
gang members . . . ."
              In reviewing the sufficiency of the evidence we view the evidence in a
light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557,
578.) We discard evidence that does not support the judgment as having been
rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76
Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or

                                            3
judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785,
790.) We must affirm if we determine that any rational trier of fact could find the
elements of the crime or enhancement beyond a reasonable doubt. (People v.
Johnson, supra, at p. 578.)
              Garcia argues there is no evidence he committed the attempted
robbery for the benefit of, at the direction of, or in association with any criminal
street gang. He points out that he acted alone; no other gang members were nearby;
he did not flash gang signs or shout gang names; he never said this is my territory;
and he never indicated in any manner that the attempted robbery was for the benefit
of a gang.
              But the attempted robbery took place in the middle of a public street;
it occurred in Jardin 13 territory; Garcia made no attempt to hide his identity; and
Ramirez knew Garcia well from previous encounters. Garcia was using his
association with his gang and its reputation for violence to protect him from
prosecution for his crime. Thus the jury could reasonably conclude the crime was
committed in association with a criminal street gang. There is no requirement that
other gang members be nearby at the time the crime is committed.
              In addition, the jury could conclude from the brazen manner in which
the crime took place that it was committed for the benefit of the gang. It increased
the gang's reputation for violence and thus its control over its territory.
              The jury could also conclude Garcia had the specific intent to
promote, further, or assist criminal conduct by gang members. As a gang member,
Garcia would know that openly committing the crime would increase the gang's
reputation for violence. The reputation would intimidate people living in its
territory, making it easier to commit other crimes.
              Garcia points out that the prosecutor did not ask Lopez hypothetical
questions. Instead, the prosecutor asked Lopez directly whether the crime was
committed for the benefit of a street gang and whether Garcia had the specific intent

                                            4
to benefit the gang. Garcia cites People v. Vang (2011) 52 Cal.4th 1038, 1048, for
the proposition that it is impermissible for an expert to testify that a specific person
had a specific intent.
              In Vang, our Supreme Court held that an expert could not testify
directly whether a specific defendant acted for a gang purpose. (People v. Vang,
supra, 52 Cal.4th at p. 1048.) That is because the expert has no personal knowledge
whether the defendant committed the crime, and if so, why. (Ibid.) An expert may,
however, answer a hypothetical question, based on the prosecution's evidence,
whether if such a crime had occurred it would have been for gang purposes. (Ibid.)
That the expert's opinion embraces an ultimate question to be decided by the trier of
fact does not make it objectionable. (Ibid.)
              It is true that the prosecution should have asked questions calling for
an expert opinion in the form of hypotheticals. But there is nothing in the record to
suggest that the form of the question would have made any difference in the
outcome of the trial. Any error was harmless. (People v. Watson (1956) 46 Cal.2d
818, 837.) If Garcia is suggesting that Lopez's testimony cannot constitute
substantial evidence because the prosecutor did not state the question in a
hypothetical form, he cites no such authority.
              Garcia's reliance on People v. Ramon (2009) 175 Cal.App.4th 843, is
misplaced. There gang member defendants were in possession of an unregistered
firearm in a stolen truck. A gang expert testified the crimes were for the benefit of a
gang because gang members could use a stolen truck and an unregistered firearm to
commit other crimes. The Court of Appeal reversed a true finding on a gang
enhancement. The court held there were no facts from which an expert could
discern whether the defendants were acting on their own or on behalf of their gang.
The expert's testimony amounted to nothing more than speculation. (Id., at p. 851.)
              But in Ramon, the defendants did not commit the underling crimes in
an open brazen manner. They did not take the truck from its owner in the middle of

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the street, striking her on the head in front of anyone who would care to see. There
was not the open and notorious violence or intimidation that would indicate gang
involvement. Here Lopez's testimony was based on the manner in which the crime
was committed. It was not based on speculation.
                                           II.
              Garcia contends the trial court erred in imposing a sentence
enhancement under section 667.9, subdivision (a).
              Section 667.9, subdivision (a) provides a one-year sentence
enhancement for crimes specified in subdivision (c) against a person who is a
paraplegic. The People concede that attempted robbery is not a crime specified in
subdivision (c). The enhancement must be stricken and the sentence modified.
                                          III.
              Garcia contends the trial court erred in denying his motions to
represent himself.
              A defendant in a criminal case has the right to represent himself at
trial. (Faretta v. California (1975) 422 U.S. 806.) Faretta motions must be timely
and unequivocal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002.) A
motion is equivocal where the defendant tries to manipulate the proceedings by
switching between requests for counsel and self-representation, or where such
actions are the result of whim and frustration. (Ibid.) Motions made on the eve of
trial are untimely, and should rarely be granted. (People v. Lynch (2010) 50 Cal.4th
693, 722.)
              Where a Faretta motion is untimely, self-representation is no longer a
right, but is subject to the trial court's discretion. (People v. Bradford (1997) 15
Cal.4th 1229, 1365) The trial court must consider the totality of the circumstances
including the quality of counsel's representation, the defendant's prior proclivity to
substitute counsel, the reasons for the request, the length and stage of the


                                           6
proceedings, and the disruption or delay that might reasonably be expected from the
granting of such a motion. (People v. Windham (1977) 19 Cal.3d 121, 128.)
              (a) Pretrial Faretta Motion
              At a pretrial conference Garcia declared he was having a "conflict of
interest" with his counsel. He asked that his counsel be relieved. Garcia said he
would like to make a bail reduction motion because his counsel was not doing it.
The court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. The
trial court denied Garcia's Marsden motion. Garcia told the court he would like to
make a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Garcia's counsel expressed doubt about his ability to complete the Pitchess motion
prior to trial. Garcia refused to waive time. Nevertheless, counsel agreed to try to
complete the Pitchess motion. Garcia's counsel renewed the motion for bail
reduction. The trial court denied the motion.
              At a trial readiness conference the court set trial for the next day.
Defense counsel told the court that he believed a Pitchess motion was
unwarranted. He also said that because Garcia disagreed with him on the Pitchess
motion, Garcia wants to represent himself at trial. The court agreed with counsel
that there was no basis for a Pitchess motion. The court asked Garcia if he would
be ready for trial the next day. Garcia initially stated, "I have no idea." After
consulting with his counsel off the record Garcia stated, "I don't believe I'll be ready
tomorrow." The court denied the Faretta motion stating, "I believe [the motion is]
a response to the fact that your motion was denied and you did not have a Pitchess
motion granted . . . ."
              (b) Post-trial Faretta Motions
              After the jury verdict, the trial court was taking Garcia's admission
to a prior conviction. Garcia told the court that he wanted to represent himself in
a motion for a new trial. Eventually, he acquiesced in having counsel file the
motion.

                                           7
                  Finally, during sentencing Garcia stated, "I want to go pro per as of
this moment." Garcia said that his counsel refused to call a witness who would
have testified he was at work at the time of the attempted robbery and that his
counsel "smells like alcohol." The trial court denied the motion.
                  Here each of Garcia's Faretta motions was untimely. The first motion
was the day before trial, the second motion was while admitting to a prior
conviction and the third motion was during sentencing. Thus the trial court had the
discretion to deny the motions.
                  Garcia made the first motion because his counsel determined that
there was no basis for a Pitchess motion. The trial court agreed with counsel
and Garcia does not dispute that determination on appeal. Thus there was no
basis for Garcia's Faretta motion. The trial court found that Garcia made the
motion out of frustration. The trial court did not abuse its discretion in denying the
motion.
                  Garcia's second Faretta motion was abandoned when he acquiesced
to his counsel filing a motion for a new trial.
                  Garcia made his third Faretta motion during sentencing. He
complained that his counsel refused to call an alibi witness and smelled of alcohol.
There are many legitimate reasons why counsel might not call a witness. The trial
court was able to observe counsel's performance before, during and after trial. It did
not find counsel's representation was inadequate or that counsel was in any way
impaired. There was simply no basis for the motion. The trial court did not abuse
its discretion.
                                       DISPOSITION
                  The one-year sentence enhancement imposed pursuant to section
667.9 is stricken. We direct the superior court to amend the abstract of judgment to
reflect this modification and to forward a copy of the amended abstract of judgment


                                              8
to the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
              NOT TO BE PUBLISHED.




                                          GILBERT, P. J.


We concur:



              YEGAN, J.



              PERREN, J.




                                          9
                                 Robert J. Higa, Judge

                         Superior Court County of Los Angeles
                         ______________________________


             Stanley Dale Radtke, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II, Supervising Deputy Attorney General, for Plaintiff and Respondent.
