Filed 9/2/16 P. v. Martin CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                C072265

                   Plaintiff and Respondent,                                 (Super. Ct. No. CRF 09-4637)

         v.                                                                    ORDER MODIFYING
                                                                              OPINION AND DENYING
MATTHEW BRYAN MARTIN,                                                              REHEARING

                   Defendant and Appellant.                                 NO CHANGE IN JUDGMENT




THE COURT:
It is ordered that the opinion filed herein on August 5, 2016, be modified as follows:
         On page 4, the paragraph under the heading “1. Presence at the Scene” is deleted
and the following paragraphs are inserted in its place:


                   Defendant contends the evidence presented at trial was insufficient
         to prove he was present at the scene of the attack. To the contrary, the
         attack was recorded by surveillance cameras. That video was admitted into


                                                             1
       evidence. After watching the video, two detectives and a parole officer
       identified defendant, whose left arm is amputated below the elbow and
       whose neck is tattooed, as present at the scene of the attack. Such evidence
       is sufficient to place defendant at the scene of the attack.


There is no change in the judgment.
Appellant’s petition for rehearing is denied.


BY THE COURT:



  /s/
Nicholson, J.



  /s/
Raye, P. J.



  /s/
Robie, J.




                                                2
Filed 8/5/16 P. v. Martin CA3 (unmodified version)
                                           NOT TO BE PUBLISHED



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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C072265

                   Plaintiff and Respondent,                                   (Super. Ct. No. CRF 09-4637)

         v.

MATTHEW BRYAN MARTIN,

                   Defendant and Appellant.




         Defendant Matthew Bryan Martin, along with other Norteño gang members,
participated in an attack on Osvaldo Hernandez and Victor Arechiga. Defendant stole
beer that Arechiga had just purchased and put in the back of Hernandez’s car. Then,
another of the gang members slashed Hernandez’s face. We conclude the evidence was
not sufficient to convict defendant of assault by means of force likely to produce great
bodily injury (Pen. Code, § 245, subd. (a)(1))1 and accept the People’s concession that



1        Undesignated statutory references are to the Penal Code.

                                                             1
the sentence imposed on defendant’s conviction for active participation in a criminal
street gang (§ 186.22, subd. (a)) should be stayed. We find no merit in the remainder of
defendant’s contentions.
                   PROCEDURAL AND FACTUAL BACKGROUND
       In the early morning hours of September 20, 2009, Osvaldo Hernandez drove
acquaintance Victor Arechiga to a gas station with a convenience store in order to buy
beer. Hernandez parked in front of the store, and Arechiga went inside to buy the beer.
Arechiga came out of the store with two 30-packs of beer. Two girls were walking
behind Arechiga. Arechiga looked back and said something to the girls.
       Arechiga put the beer on the backseat of Hernandez’s car; a group of men
approached the car and asked Arechiga what he said to the girls. Defendant took a swing
at Arechiga. Believing defendant was going to beat him up, Arechiga backed up and
“squared off.” The other men with defendant then rushed the car. One of the men yelled,
“Are you a scrap?” or, “You’re a scrap,” a disrespectful term used by Norteños for
Sureños and defendant took the beer from the backseat. At the same time, the other men
began hitting and kicking Hernandez as he sat in the driver’s seat, trapped because one of
the men was blocking the door. Someone else then entered the car from the front
passenger door, leaned over, and slashed Hernandez across the right cheek from his ear to
his mouth—splitting open his face. This left Hernandez with a “bitch mark” or “puta
mark,” signifying Hernandez is “no good within the gang.” Such marks are left
intentionally to mark the victim for life. Leaving such a mark often benefits the Norteños
and boosts the status of the gang member who inflicted it.
       In 2011, defendant and three other men were tried by jury for crimes committed
during the attack on Hernandez.2 The jury found defendant guilty of second degree



2      The three other defendants were Jose Rivas, Michael Santiago, and Arturo Vega.
The jury deadlocked on all counts related to Rivas and the trial court declared a mistrial.

                                             2
robbery (§§ 211, 212.5, subd. (c)), assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(1)), active participation in a criminal street gang (§ 186.22,
subd. (a)), and battery causing serious bodily injury (§ 243, subd. (d)), a lesser included
offense to the charged offense of aggravated mayhem (§ 205).
       In a bifurcated proceeding, the trial court found true the People’s allegations that
defendant was previously convicted of a strike offense and served two prior prison terms.
The trial court sentenced defendant to an aggregate term of 19 years four months in state
prison, awarded him 1,001 days of custody credit, and ordered him to pay various fines
and fees.
                                       DISCUSSION
                                              I
                                  Sufficiency of Evidence
       Defendant contends the evidence was insufficient to convict him on any of the
charges. He claims that, as to all of the charges, the evidence was insufficient to establish
that he was present at the scene of the crimes. As to the robbery count, he claims the
evidence was insufficient that Hernandez possessed the stolen beer. He also claims the
evidence was insufficient to convict him on the remaining counts of assault, battery, and
participation in a criminal street gang. We conclude that, with the exception of the
assault charge, the evidence was sufficient to convict defendant of each of these charges.
       A. Legal Background
       “ ‘In reviewing the sufficiency of evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution, the question we ask is
“whether, after viewing the evidence in the light most favorable to the prosecution, any


The jury found Santiago and Vega not guilty on all counts. Rivas was later convicted of
aggravated mayhem, robbery, aggravated assault, and participation in a criminal street
gang along with various firearm and gang enhancements. (See People v. Rivas (2015)
238 Cal.App.4th 967.)

                                              3
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” ’ [Citation.] We apply an identical standard under the California
Constitution. [Citation.] ‘In determining whether a reasonable trier of fact could have
found defendant guilty beyond a reasonable doubt, the appellate court “must view the
evidence in a light most favorable to respondent and presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the evidence.” ’
[Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1175, italics omitted.) In
reviewing the sufficiency of the evidence, “a reviewing court resolves neither credibility
issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact. [Citation.]” (Id. at p. 1181.)
We will reverse for insufficient evidence only if “ ‘ “ ‘upon no hypothesis whatever is
there sufficient substantial evidence to support [the conviction].’ [Citation.]” ’ ” (People
v. Manriquez (2005) 37 Cal.4th 547, 577.)
       B. Analysis
              1. Presence at the Scene
       Although neither the People nor defendant mention it in their briefs, defendant’s
trial counsel stipulated defendant was present at the scene of the attack then repeatedly
acknowledged throughout trial that defendant was present at the scene of the attack.
Defense counsel even argued in closing that defendant was present at the scene, while
minimizing his violent misconduct: “I told you, right from jump street, right from the
beginning that [defendant] was there.” Defendant cannot now claim the evidence was
insufficient to establish he was present at the scene of the attack: “a party is bound by a
stipulation . . . in open court of his counsel . . . , he cannot mislead the court by seeming
to take a position on the issues and then disputing or repudiating the position on appeal.
[Citations.]” (In re Francis W. (1974) 42 Cal.App.3d 892, 903; cf. People v. Palmer
(2013) 58 Cal.4th 110, 118 [“Stipulations obviate the need for proof and are
independently sufficient to resolve the matter at issue in the stipulation”].)

                                               4
               2. Robbery
        Defendant argues the evidence was insufficient to convict him of robbery because
the evidence was insufficient to show Hernandez had possession of the beer when it was
stolen. We disagree.
        “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.” (§ 211.) A person possesses property if he owns it or has direct physical
control over it. (People v. Scott (2009) 45 Cal.4th 743, 749.) Here, the property at issue
was the beer purchased by Arechiga. That beer was on the backseat of Hernandez’s car
and Hernandez was still in the driver’s seat when defendant stole it. Hernandez could
have driven off with the beer, drunk the beer, or thrown the beer out of the car window.
Because it was inside his car, Hernandez also could exclude strangers from getting the
beer.
        The evidence shows Hernandez had direct physical control over the beer and was,
therefore, in possession of the beer when it was stolen. Just because Hernandez chose not
to stop defendant from taking the beer does not, as defendant suggests, belie the fact that
Hernandez possessed the beer. Indeed, defendant cites no authority to support a rule that
a victim must defend the property being stolen in order to establish possession. Such a
rule would be misguided in any event. There also is no basis in the law or logic for
defendant’s argument that because Hernandez did not intend to drink the beer that he did
not possess the beer.
               3. Assault
        We agree the evidence was insufficient to convict defendant of assault by means
likely to produce great bodily injury. (§ 245, subd. (a)(1).)
        A conviction for violating section 245, subdivision (a)(1) requires proof that the
defendant (1) willfully committed an unlawful act that by its nature would probably and
directly result in the application of physical force on another person; (2) was aware of

                                              5
facts that would lead a reasonable person to realize that as a direct, natural, and probable
result of this act, physical force would be applied to another person; (3) had the present
ability to apply physical force to the person of another; and (4) committed the assault by
means of force likely to produce great bodily injury. (CALCRIM No. 875.)
       At trial, the People argued all four defendants committed the assault likely to
produce great bodily injury on Hernandez. The People told the jury to look at the video
and see the four men “hitting, punching, kicking at one time.” This, the People argued,
showed all four men intentionally performed an act they each knew would result in force
being applied to Hernandez in a manner that was likely to result in great bodily injury.
       The evidence, however, showed that while the other three men were kicking and
hitting Hernandez, defendant was taking beer from the back of Hernandez’s car. And,
while there was evidence that defendant took a swing at Arechiga, there was no evidence
that defendant ever raised a fist to Hernandez. Accordingly, the evidence was not
sufficient to convict defendant of assaulting Hernandez by means likely to produce great
bodily injury.
       On appeal, the People do not argue the evidence was sufficient to convict
defendant of assaulting Hernandez directly. Instead, they argue the evidence was
sufficient to convict defendant because his actions and his role as a “high-ranking,
influential Woodland Norteño” established he “aided and abetted the assault.” The
People did not argue this legal theory at trial. And, while the trial court instructed the
jury on the theory of aider and abettor liability as it related to the robbery charge, that
same instruction was not given relative to the assault charge. Whether defendant was
liable as an aider or abettor cannot be resolved without facts in addition to those found in
this record, consequently the People cannot raise this new legal theory on appeal. (See
People v. Chapman (1990) 224 Cal.App.3d 253, 259-260.)
       In sum, we find the evidence was not sufficient to convict defendant of assault by
means likely to produce great bodily injury and reverse the conviction accordingly.

                                               6
               4. Battery Causing Serious Bodily Injury—As a Lesser Included Offense
                  of Aggravated Mayhem
       The trial court instructed the jury that in order to find defendant guilty of
aggravated mayhem or the lesser included offense of battery causing serious bodily
injury, the jury must first find defendant guilty of either robbery or assault. Then,
determine whether a reasonable person would have known that the mayhem or battery
was the natural and probable consequence of the robbery or the assault.
       Defendant contends because there was insufficient evidence to convict him of
either robbery or assault, the evidence was necessarily insufficient to convict him of
battery. Because we conclude the evidence was sufficient to convict defendant of
robbery, this contention fails.
               5. Participation in a Criminal Street Gang
       The trial court instructed the jury that in order to find defendant guilty of
participation in a criminal street gang, the jury must first find defendant committed or
attempted to commit any one of the charged crimes. Defendant contends, because the
evidence was not sufficient to convict him of robbery, assault, or battery, the evidence
was necessarily insufficient to convict him of participation in a criminal street gang.
Because we conclude the evidence was sufficient to convict defendant of robbery and
battery, this contention also fails.
                                              II
                                         Section 654
       Defendant contends the sentence on his conviction for participation in a criminal
street gang, as well as the sentence on his conviction for battery, should be stayed
pursuant to section 654. We accept the People’s concession that the sentence on
defendant’s conviction for participation in a criminal street gang should be stayed and
affirm the sentence on defendant’s conviction for battery.



                                              7
       A. Legal Background
       Section 654, subdivision (a) provides in part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision. . . .”
       “It has long been held that section 654 bars multiple punishment for separate
offenses arising out of a single occurrence where all of the offenses were incident to one
objective. [Citations.]” (People v. Calderon (2013) 214 Cal.App.4th 656, 661, fn.
omitted.) “However, if the defendant harbored ‘multiple or simultaneous objectives,
independent of and not merely incidental to each other, the defendant may be punished
for each violation committed in pursuit of each objective even though the violations share
common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’
[Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) “Whether section
654 applies in a given case is a question of fact for the trial court, which is vested with
broad latitude in making its determination. [Citations.] Its findings will not be reversed
on appeal if there is any substantial evidence to support them. [Citations.]” (People v.
Jones, supra, at p. 1143.)
              1. Participation in a Criminal Street Gang
       In People v. Mesa (2012) 54 Cal.4th 191 (Mesa), our Supreme Court held that
section 654 did not permit separate punishment for a section 186.22, subdivision (a)
crime of active participation in a criminal street gang when the only evidence of such
participation was the current charged offenses, even if there were multiple objectives.
(Mesa, supra, at pp. 199-200.) This is because the crime of being an active participant in
a criminal street gang requires not only that the defendant be a member of the gang, but
that he also promote, further, or assist in the felonious conduct. (Id. at pp. 196-197.)
Thus, where the underlying felony is also the act “ ‘that transform[s] mere gang



                                              8
membership—which, by itself, is not a crime—into the crime of gang participation,’ ”
section 654 bars multiple punishment for that single act. (Mesa, supra, at pp. 197-198.)
       In this case, the trial court imposed separate sentences for the robbery, battery, and
active participation in a street gang. The People acknowledge that defendant’s robbery
and battery convictions formed the basis for the active participation in a street gang
conviction and those underlying felonies were “carried out against a single victim during
a single criminal episode.” Accordingly, the People concede the sentence imposed on
defendant’s conviction for active participation in a street gang should be stayed. We
accept the People’s concession.
              2. Battery
       Here, the trial court had the proper standard well in mind when it imposed
consecutive sentences for battery and robbery. It said: “I agree with [the People] that the
battery with serious bodily injury, the slashing is a discreet act of violence which
occurred after the robbery had taken place, and was an act of violence that had nothing to
do with any attempt to reclaim property that was stolen. Therefore, consecutive
sentencing is warranted for Count 1 [battery], that would add an additional year . . . .”
       Defendant disagrees. He writes: (1) “the robbery had not ended,” (2) “the
evidence showed only one objective, stealing the beer,” and (3) defendant committed
only the single act of taking the beer and should not be punished twice.
       First, “[r]obbery 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.” (§ 211.) Thus, the crime of robbery is committed the moment
property is taken by force or fear. That the crime continues until the robber has reached a
place of safety does not change that analysis. (See People v. Anderson (2011) 51 Cal.4th
989, 994 [property peacefully acquired by force or fear used to carry it away is robbery
because robber has not reached a place of relative safety].) Indeed, following defendant’s
logic, someone who took property from another person’s immediate presence through

                                              9
force or fear could not be convicted of robbery if they were arrested while fleeing the
scene. Such a result would be preposterous.
       Second, we must accept the trial court’s interpretation of the evidence because it is
supported by the evidence. The evidence was sufficient to support the conclusion that the
slashing of Hernandez’s face was meant to disfigure him and leave the mark as an
advertisement for the Norteño gang. It did not facilitate the robbery, which had already
been accomplished, and it was done with a separate intent.
       In short, we reject defendant’s contention.
                                      DISPOSITION
       We reverse defendant’s conviction for assault by means of force likely to produce
great bodily injury and stay the sentence imposed on defendant’s conviction for active
participation in a criminal street gang. In all other respects, the judgment is affirmed.
The trial court clerk is directed to prepare an amended abstract of judgment and forward
it to the Department of Corrections and Rehabilitation.


                                                          NICHOLSON            , J.



We concur:



      RAYE                  , P. J.




      ROBIE                 , J.




                                             10
