Filed 12/9/13 P. v. Farias 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                         G047674

             v.                                                        (Super. Ct. No. 11CF0716)

EDGAR JESUS FARIAS,                                                    OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   Denise M. Rudasill, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
              A jury convicted defendant Edgar Jesus Farias of second degree vehicle
burglary (Pen. Code, §§ 459-460, subd. (b), count 1; all further statutory references are to
this code unless otherwise indicated) and street terrorism (§ 186.22, subd. (a), count 3.) It
further found he committed the burglary to promote, further, or assist criminal street gang
activity (§ 186.22, subd. (b)(1)). The court sentenced him to state prison for three years
and four months (16 months on for the burglary and two years consecutively for the gang
enhancement).
              Defendant’s appeal raises three issues: (1) the evidence fails to support the
vehicle burglary conviction because there was insufficient evidence the vehicle was
locked; (2) the court erred in admitting evidence that defendant’s companion in
committing the crimes was carrying a gun; and (3) insufficient evidence supports the
gang charge or the gang enhancement. We disagree with his contentions and affirm the
judgment.


                                          FACTS


              Early in the morning, Santa Ana police received a report of a possible
vehicle burglary. Officer David Prewett responded and saw two men, later identified as
defendant and Israel Sanchez. After Prewett shined his car spotlight on the two, Sanchez
dropped an object; Prewett subsequently discovered the object was a handgun. After
other officers arrived and assisted in detaining defendant and Sanchez, defendant was
found to possess various items that had been taken from a truck belonging to Marco
Batalla. One of the truck’s windows was shattered and the stereo was missing.




                                             2
                                        DISCUSSION


1. Sufficient evidence supports defendant’s conviction of vehicle burglary.
              Section 459’s definition of burglary includes entering “any . . . vehicle . . .
when the doors are locked . . . with intent to commit grand or petit larceny or any
felony . . . .” There was no direct evidence the truck had been locked before the burglary,
however there was evidence that a window had been broken. Relying on People v. Burns
(1952) 114 Cal.App.2d 566 (Burns), defendant argues this is insufficient. The Attorney
General argues that the breaking of the window provides sufficient circumstantial
evidence that the vehicle was locked.
              In Burns, the court reversed a conviction for vehicle burglary where there
was no direct evidence the vehicle had been locked, although the evidence did show that
a “windwing” window was broken. In a rather cursory opinion, the court stated: “The
fact that the windwing was broken and glass was on the front seat was not proof that the
doors of the Buick were locked, and an inference could not be drawn from that fact that
the doors were locked. There was no evidence as to the condition of the windwing at the
time the Buick was left at the parking place ‒ the broken condition could have been
caused in various ways not related to the alleged burglary. The evidence was insufficient
to support a finding that the doors of the Buick were locked.” (Burns, supra, 114
Cal.App.2d at p. 570.)
              We disagree with this holding. The fact a window was broken supports an
inference defendant used this means to enter the vehicle and that this manner of entry
would have been unnecessary unless the vehicle was locked. “In reviewing the
sufficiency of evidence to support a conviction, we examine the entire record and draw
all reasonable inferences therefrom in favor of the judgment to determine whether there is
reasonable and credible evidence from which a reasonable trier of fact could find the



                                              3
defendant guilty beyond a reasonable doubt. [Citation.] Our review is the same in a
prosecution primarily resting upon circumstantial evidence. [Citation.] We do not
reweigh the evidence or the credibility of witnesses. [Citation.] We must accept logical
inferences that the jury might have drawn from the evidence although we would have
concluded otherwise. [Citation.] ‘If the circumstances reasonably justify the trier of
fact’s findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.]”
(People v. Ogg (2013) 219 Cal.App.4th 173, 180.)
              As the Attorney General points out, this case is similar to People v. Rivera
(2003) 109 Cal.App.4th 1241 (Rivera). There a police officer found defendants inside a
car with a broken window, but no direct evidence that the car had been locked. As
distinguished from the present case there was evidence in Rivera that the car window had
not been broken six or eight hours earlier. No such evidence was presented here.
Nevertheless we do not view the absence of such evidence fatal to the conviction. A car
window does not generally break without a human applying force to it. The jury could
infer that defendant here, who was found in possession of some of the vehicle’s contents,
who either applied or participated in applying such force. And, as noted, it was similarly
a permissible inference that the reason he did so was because the vehicle was locked.
              As the court noted in Rivera, “we cannot reverse on the ground of
insufficient evidence unless there is no reasonable hypothesis supporting the verdict.”
(People v. Rivera, supra, 109 Cal.App.4th at p. 1244.) And “[i]t is not rational to
conclude someone would break a car window in the early morning hours in order to enter
a car that is unlocked. Substantial circumstantial evidence supports the finding necessary
to a conviction that the car was locked when entry occurred.” (Id. at p. 1245.)




                                             4
2. The trial court did not err in admitting evidence defendant’s cohort was carrying a
gun.
              Defendant does not argue the evidence that his companion carried a gun
was not relevant. He implicitly acknowledges that the evidence was relevant to prove
both the substantive gang crime and the gang enhancement. He claims the evidence was
“only minimally probative on the gang enhancement issues and it was highly
prejudicial.” His attack on the admission of this evidence is based on Evidence Code
section 352. That statute provides in part: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will . . . (b) create substantial danger of undue prejudice.”
              A trial court’s decision to exclude evidence under Evidence Code section
352 is reviewed for an abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 578;
People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.) After fairly extensive argument by
counsel on defendant’s in limine motion to exclude evidence of the gun, the court stated,
“The court is going to permit the fact that the co-defendant . . . had a gun. It shows, it is
some evidence of active participation. It’s some evidence that they were out doing
something for the gang, not just for totally private purpose. As I read the prosecutor’s
trial brief, the thought struck me, well, how was this gang involved? Maybe a guy
needed a radio and decided to get it the quick way. How does that benefit the gang?
What does that prove? And I think a jury may have some of the same questions. [¶] The
court is concerned about 352, but I would cite . . . [People v. Gionis (1995)] 9
Cal.4th [1196], which indicates that all sorts of evidence that is probative, may be
prejudicial. And . . . 352 is designed for something which proves very little, but has a
high negative impact. And I don’t find that to be the case here.”
              In People v. Gionis, supra, 9 Cal.4th 1196, where our Supreme Court
considered the admissibility of incriminating statements defendant made more than a year



                                              5
before the assault which was the subject of the action. The court stated, “‘The prejudice
which exclusion of evidence under Evidence Code section 352 is designed to avoid is not
the prejudice or damage to a defense that naturally flows from relevant, highly probative
evidence. “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the
defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’ The ‘prejudice’
referred to in Evidence Code section 352 applies to evidence which uniquely tends to
evoke an emotional bias against the defendant as an individual and which has very little
effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with
‘damaging.’” [Citation.]’ [Citation.]” (Id. at p. 1214, italics omitted.) We cannot
conclude that the introduction of evidence of possession of a gun in this case qualifies as
“‘“uniquely tend[ing] to evoke an emotional bias against the defendant as an individual
and which has very little effect on the issues.”’” (Ibid.) Therefore, the trial court did not
abuse its discretion.


3. Substantial evidence supports the gang charges.
              Defendant claims there was insufficient evidence to support the gang
charges. We only need to summarize the testimony of the gang expert to show this
argument must fail.
              Santa Ana Police Officer Gerardo Zuniga testified as a gang expert. No
question has been raised about his qualifications as an expert. He testified that weapons
are vitally important to criminal street gangs and that such guns are generally not owned
by a specific gang member, but rather are available to any member of the gang.
Frequently members of criminal gangs commit their crimes in association with other
members of the same gang. He described a group identified as SAS, SASK, or SASC,
which stands for Santa Ana Stoners, Sick Ass Stoners, and Smoking all Snitches. The
“K” or “C” stands for “Krew” or “Crew.” The group has 30 to 40 members. Zuiniga



                                              6
testified that the group, which he characterized as a “gang,” engages in robberies and
felony firearm possession. The Seattle Mariners logo baseball cap, which has a large
“S”, is used by the gang members to identify themselves.
              Gang members would commit an automobile burglary to sell the items
stolen. Whatever is gained from the crimes is shared with the gang. Zuiniga identified
two active members of the gang having been convicted of stealing a motor vehicle and
robbery. Defendant was identified in connection with SAS graffiti in two instances. A
baseball cap and a shot glass with the letters “SAS” were found in defendant’s room.
Based on these facts, Zuiniga opined that defendant was an active member of SAS. The
prosecutor then presented a hypothetical question based on the facts of this case. Zuiniga
expressed the opinion that the crime would have been committed for the benefit of or in
association with, the criminal street gang and that the vehicle burglary would have
promoted, furthered, or assisted the gang.
              In support of his argument, defendant notes that evidence of such gang
affiliation as gang tattoos and admission of gang membership were missing. But not
every case must necessarily rely on the same evidence. The expert testimony was
sufficient. There was sufficient evidence that SAS is a criminal street gang, the vehicle
burglary was related to activities of the gang, and
defendant actively participated in that gang. In reviewing a challenge to the sufficiency
of the evidence, we consider whether a rational jury “‘could have found the essential
elements of the crime beyond a reasonable doubt.’” (People v. Gamez (1991) 235
Cal.App.3d 957, 977, disapproved on another point in People v. Gardeley (1996) 14
Cal.4th 605, 624, fn. 10.)




                                             7
                                  DISPOSITION


            The judgment is affirmed.




                                            RYLAARSDAM, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




                                        8
