Filed 9/9/14 P. v. Aboytes CA1/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                 A139415
v.
GERARDO ABOYTES,                                                 (San Mateo County Super. Ct.
                                                                  No. SC075663A)
         Defendant and Appellant.

         Defendant Gerardo Aboytes’s appellate counsel raises no issues and asks this
court for an independent review of the record as required by People v. Wende (1979) 25
Cal.3d 436 (Wende). In accordance with Wende and Anders v. California (1967) 386
U.S. 738 (Anders), defendant was informed of his right to file a supplemental brief,
which he has not done. Our independent review having revealed no arguable issues that
require further briefing, the judgment is affirmed.

                                                 BACKGROUND
         In May 2012, the San Mateo County District Attorney presented evidence to a
grand jury regarding the fatal shooting of Julio Caesar Pantoja Cuevas on November 28,
2010. This evidence included testimony from the victim’s friend, Luis Ramirez, and
three young women who said they were present at the shooting, and from Mario Cazarez
and Alexander Guevara, who said they also were present and had participated in the
events that led up to the shooting. The evidence indicated that defendant had participated
in the events leading up to the shooting as well. The grand jury was also read testimony



                                                             1
by defendant before a grand jury in August 2011, in which he denied the allegations
against him.
       Specifically, evidence was presented that defendant, 19 years old when he testified

in August 2011, was a member of the Norte os gang since 2007. His group of Norte os
centered its activities around Vera Avenue in Redwood City, California, and often
gathered at the Vera Cash Market. Defendant was a senior member of the group and
would give orders to the younger gang members.

       According to Cazarez, Norte os gang members were required to be involved in

crimes and other activities. Also, if a Norte os gang member did not complete an
assignment to attack someone, the member would lose face in the gang and could be

beaten up by other gang members. The Norte os’s enemy was the Sure os; the former
claimed the color red and the latter claimed the color blue.
       At about 7 p.m. on the evening of November 28, 2010, Cuevas and Ramirez drove
to an apartment on Madison Avenue in Redwood City to visit Ramirez’s former
girlfriend, with whom Ramirez had a child. She lived in an apartment with two other
young women. The three came outside to talk to Cuevas and Ramirez. Ramirez testified
that he knew Cuevas for about two years, saw him almost every day, and that neither of
them had anything to do with gangs.
       Defendant lived in a nearby house. That evening, he called Guevara’s cell phone.
Guevara testified that, at defendant’s request, he gave the phone to Jaime Rodriguez.
Cazarez was also with Guevara and Jaime Rodriguez when defendant called. Defendant,
Jaime Rodriguez, Michael Rodriguez, and another gang member had “jumped” Cazarez

into the gang. Guevara had become a Norte os gang member two weeks earlier.
       After appearing to talk to defendant, Jaime said there were some “scraps,” a

Norte os term for Sure os, on Madison. By defendant’s phone call, Cazarez and




                                             2
Guevara understood they were to go to Madison and attack the presumed Sure os who
were there. Cazarez bicycled to defendant’s house.
       When Cazarez arrived there, he noticed two “guys” and three “girls” about two

houses away. Cazarez, who thought one of the girls had associated with Sure os in the

past, assumed the guys were Sure os because one of them was wearing a blue “LA”
jacket. Each of the girls testified that they recognized Cazarez because he had previously

identified himself to her as a Norte o and indicated that he protected the area for the
gang. This time, Cazarez observed all of them, appeared upset, talked on a cell phone,
and left, only to return shortly thereafter. Around the same time, others arrived, including
Guevara, Jaime Rodriguez, and Michael Rodriguez.
       The three girls and two guys found themselves surrounded by a group that

identified themselves as Norte os, said this was their area, and wanted to know if Cuevas
and Ramirez “banged,” meaning were they gang members. They called Cuevas and

Ramirez “scraps.” One of the girls testified that what was said “was all about Norte os
and that they were going to make the scraps that were there disappear.”
       Cuevas was wearing the blue LA jacket, but he and the girls denied that he had

anything to do with a gang. According to Cazarez, this did not matter because Sure os
sometimes said this and the guys were wrong to hang out with the girls regardless.
       Jaime Rodriguez went up to Cuevas and punched him multiple times. Cuevas
covered himself up. Ramirez testified that Cuevas grabbed a crucifix that was around his
neck and held it in his hand. Jaime said something and Michael Rodriguez pulled out a
gun and shot Cuevas four times. Ramirez saw two or three shots being fired and ran to
the middle of the apartments. Cuevas died of multiple gunshot wounds, including one
indicating that he was shot in the back.




                                             3
       The day after the shooting, Michael Rodriguez was arrested while he was a
passenger in a car. A gun was found in the trunk of the car. It was later determined that
the gun fired the bullets and a bullet fragment that were retrieved from the shooting.
       Detective Richard Santiago of the Redwood City Police Department also testified.
He was a seven-year police officer who for the past three years had specialized in the
investigation of gang-related crimes. After testifying about his training regarding gangs,
he opined that Cuevas’s killing was an act related to criminal street gang activity. This
was because a senior member of the gang, defendant, observed what he perceived to be
rival gang members in his neighborhood and, deciding he was “going to clean house,”
called five others and told them about it. “Once he told them of this the expectation was
for them to collectively as a group go over and check these individuals who were in their
neighborhood,” Santiago said. This would bolster the gang’s reputation, as well as instill
intimidation and fear in the community and rival gang members. It did not matter if the

person that they killed was not a Sure o because the Norte os would set an example by
killing him anyway. It was not unusual that an assault escalated to a homicide, whether
planned or spontaneous. The desire of gang members to increase their status creates an
impetus to extreme violence.
       Eric Acha, an inspector with the San Mateo County District Attorney’s Office
responsible for the protection and relocation of witnesses, also testified. He said the three
girls who testified were not legal United States citizens and were now “documented” with
the immigration authorities. After the shooting, they were relocated and given monthly
“benefits” for food, rent, and incidentals. Acha was able to arrange authorization so that
one of the girls could work legally in this country, but this did not affect her overall legal
status. He had made it clear to all three girls that they were on their own regarding their
legal status in the United States after the case was over.
       Guevara testified that he had lied to the first grand jury because he was scared.
His family had since relocated on their own. Cazarez testified that he had agreed to tell
the truth in his testimony in exchange for a 14-year prison sentence for mayhem and a



                                              4
gang enhancement allegation, 85 percent of which he would be required to serve
regardless of his good behavior.
       The grand jury issued a three-count indictment against defendant. Count one
alleged that he murdered Cuevas (Pen. Code, § 187, subd. (a)),1 a felony, while an active
participant in a criminal street gang and that the murder was carried out to further the
activities of the gang (§ 190.2, subd. (a)(22)). It was further alleged that he committed
the offense for the benefit of, at the direction of, or in association with a criminal street
gang with the specific intent to promote, further, or assist in criminal conduct by gang
members within the meaning of section 186.22, subdivision (b)(2), and that he was a
principal in the offense and personally and intentionally used a firearm that proximately
caused great bodily injury or death to a person who was not an accomplice (§ 12022.53,
subd. (e)).
       Count two alleged that defendant willfully, unlawfully, and actively participated in
a street gang with knowledge that its members engaged or had engaged in a pattern of
criminal activity and willfully promoted, furthered, or assisted in felony criminal conduct
by gang members (§ 186.22, subd. (a)), a felony.
       Count three charged defendant with felony perjury (§ 118), and further alleged
that he perjured himself for the benefit of, at the direction of, or in association with a
criminal street gang and with the specific intent to promote, further, or assist in criminal
conduct by gang members within the meaning of section 186.22, subdivision (b)(2).
       Defendant’s indictment was subsequently consolidated with the indictments of
Cazarez, Jaime Rodriguez, and Michael Rodriguez. The indictment was then amended
regarding defendant so that previous counts one through three were renumbered as counts
three through five. Count five, the perjury count, was amended to state that the gang
enhancement allegation was made pursuant to section 186.22, subdivision (b)(1)(A) and
allege that the offense was a serious felony (§ 1192.7, subd. (c)(28)).




       1
           All further statutory references are to the Penal Code.

                                               5
       Two additional counts were alleged against defendant in the amended indictment.
Count six alleged that he willfully, unlawfully, and maliciously disabled and disfigured
Cuevas (§ 203), a felony, that he did so for the benefit of, at the direction of, or in
association with a criminal street gang and with the specific intent to promote, further, or
assist in criminal conduct by gang members within the meaning of section 186.22,
subdivision (b)(1)(C), and that this was a serious felony. Count seven alleged that
defendant assaulted Luis Ramirez with force likely to cause great bodily injury (§ 245,
subd. (a)(4)), a felony.
       On May 14, 2013, defendant appeared before the court for a negotiated disposition
of his case. He was advised of his legal and constitutional rights, including the maximum
penalties he faced, the consequences of changing his plea and making admissions, the
provisions of section 1016.5, and the period of parole pursuant to section 1170,
subdivision (c). He stipulated to a waiver regarding section 654 and waived any
procedural irregularities regarding the amended indictment. He then entered pleas of no
contest to counts five, six, and seven and admitted the special allegations that
accompanied counts five and six. His counsel stipulated that there was a factual basis for
the pleas and admissions based on the grand jury indictments in the matter, the discovery
of police reports and other documents (which are not in the record), conversations
defense counsel had had with defendant, and recognizing that this was a stipulated
sentence between the parties.
       The court found that defendant made a knowing and intelligent waiver of his legal
and constitutional rights, and that his pleas were freely and voluntarily entered. The court
concurred with the pleas based on what the court had been told in chambers about what
had factually occurred, also not contained in the record. It accepted defendant’s pleas
and found him guilty of the counts to which he pled no contest. The remaining counts
were dismissed and the remaining allegations were stricken.
       Defendant requested immediate sentencing and waived various procedural rights
so that this could occur. The court sentenced him to consecutive terms as follows: the
middle term of four years for count six; one-third of the middle term, that being one year,


                                               6
for count five; one-third of the middle term, that being one year, for count seven; 10 years
for the special gang allegation contained in count six; and one year for the special gang
allegation contained in count five. Thus, he was sentenced to a total term of 17 years.
He was given 449 days’ credit for time served, consisting of 390 actual days and 59 days
in good conduct credits. He was also ordered to pay certain fines, fees, assessments, and
restitution, register as a gang member pursuant to section 186.30, and submit to genetic
marker testing pursuant to section 296.
       On July 5, 2013, defendant filed a notice of appeal and request for certificate of
probable cause on the ground that he received ineffective assistance of counsel in
violation of the United States and California Constitutions. The trial court denied his
request for a certificate of probable cause.
       On August 2, 2013, defendant filed another notice of appeal and request for
certificate of probable cause. This time, he stated that he intended to raise sentencing
issues on appeal that might or might not require a certificate of probable cause, and that
he was unable without the assistance of appellate counsel to determine “what (if any)
sentencing errors occurred and/or whether any claim for appellate relief from any
sentencing error could be perceived as one that challenges defendant’s guilty or no
contest plea.” He further asserted that an appellate attorney might identify potential
issues as to the ineffective assistance of counsel he received. The trial court denied this
request as well.

                                       DISCUSSION
       Defendant was represented throughout the proceedings by counsel. We find no
indication in the record that counsel provided ineffective assistance. Also, pursuant to
our duty under Wende and Anders, we have conducted an independent review of the
entire record, including regarding defendant’s sentencing. It reveals no arguable issues
requiring further briefing.

                                      DISPOSITION
       The judgment is affirmed.


                                               7
                  STEWART, J.

We concur.


KLINE, P.J.


RICHMAN, J.




              8
