Filed 5/21/15 P. v. Resendez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B256614
                                                                           (Super. Ct. No. KA103784)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

MICHAEL RESENDEZ,

     Defendant and Appellant.


                   Michael Resendez appeals a judgment following conviction of battery, with
a finding that he committed the criminal offense to benefit a criminal street gang. (Pen.
Code, §§ 242, 186.22, subds. (b), (d).)1 We affirm.
                                FACTUAL AND PROCEDURAL HISTORY
                   In the early evening of November 19, 2013, Isabell Gutierrez noticed
Resendez "staggering" in the street outside her home. Resendez's behavior appeared odd;
he stared at Gutierrez and held a "very tense" posture.
                   Resendez then walked along the driveway of the Gutierrez residence and
approached Gutierrez. She asked if she could assist him, but he stared at her and did not
respond. Resendez then "lifted . . . his shirt up" and walked to the neighboring property.
Gutierrez telephoned for police assistance.



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    All further statutory references are to the Penal Code unless stated otherwise.
              Resendez entered the home of Irma Flores through an unlocked back door.
Flores's sister saw Resendez attempt to open the locked door of a bedroom occupied by
Jesus Bernal, the boyfriend of Flores's daughter. At the time, Bernal and his infant were
asleep. Flores's sister became frightened and screamed that an intruder was present.
Resendez walked along the hallway of the Flores home, staring at the walls, ceiling, and a
painting. Flores opened the front door, stood behind it, and encouraged Resendez to
leave.
              The commotion awoke Bernal who then walked outside. Resendez was
"looking around" and walked through the gate of another residence. Bernal recognized
Resendez as an inhabitant of a nearby residence that was frequented by members of the
"East Side Bolen" criminal street gang. Bernal repeatedly warned Resendez to leave, but
Resendez responded twice, "This is my hood."
              Bernal and Resendez approached each other. Bernal asked Resendez his
purpose in entering the Flores residence. Resendez again responded, "This is my hood."
Bernal testified that Resendez "looked normal . . . [n]o drugs, no alcohol, . . . talk[ed] . . .
normal." Resendez then punched Bernal in the face. Bernal, a self-described "big ass
guy," responded by punching and kicking Resendez to the ground.
              Baldwin Park Police Officer James Gallegos soon arrived and stopped the
altercation by drawing his service weapon and Taser. During a subsequent search of
Resendez, Gallegos found a baggie of methamphetamine and an unused syringe.
              Baldwin Park Police Detective Jason Adams testified as a criminal street
gang expert regarding Baldwin Park gangs. Adams stated that the Locos, a subset of the
East Side Bolen gang, controls the area near the Gutierrez and Flores residences. Adams
described the principal activities of East Side Bolen as committing crimes of theft,
making criminal threats, narcotics and weapon sales, and murder. Resendez, a self-
admitted member of East Side Bolen, has a "Locos" tattoo on his neck, an "ES" and a
"BP" tattoo on his hands, and a "East Side Bolen" tattoo on his back.
              Adams opined that Resendez is a mid-level member of East Side Bolen.
Adams also opined that Resendez's battery on Bernal stemmed from Resendez's

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association with East Side Bolen. Resendez's statements regarding "my hood," meant:
"This is my gang's territory. I own this as well as my gang does, and I'm going to do
what I want to further my activity, my criminal activities to instill fear so I can move
forward." Adams concluded that the battery benefitted East Side Bolen because
Resendez's behavior ("he's not going to back down") tended to establish that non-gang
members cannot confront and challenge his actions. Adams pointed out that Gutierrez
and Flores were unable to identify Resendez at trial and opined that the two women were
intimidated and frightened by the gang's criminal reputation.
              At trial, Resendez testified that he has been an East Side Bolen member for
five years and was known in the neighborhood: "Everybody seen me before. Everybody
knows exactly who I am." He stated that he was under the influence of drugs when he
entered the neighboring residences and that he struck Bernal because he felt threatened.
Resendez denied stating that the neighborhood was his "hood."
              The jury convicted Resendez of battery and found that he committed the
offense to benefit a criminal street gang. (§§ 242, 186.22, subds. (b), (d).) The trial court
sentenced Resendez to a two-year prison term pursuant to section 186.22, subdivision (d).
The court also imposed a $300 restitution fine, a $300 parole revocation restitution fine
(stayed), a $40 court security assessment, and a $30 criminal conviction assessment, and
awarded Resendez 386 days of presentence custody credit. (§§ 1202.4, subd. (b),
1202.45, 1465.8, subd. (a); Gov. Code, § 70373.)
              Resendez appeals and challenges the sufficiency of evidence to support the
criminal street gang enhancement of section 186.22, subdivision (b).
                                        DISCUSSION
              Resendez argues that the evidence presented at the close of the prosecutor's
case-in-chief is insufficient to support the gang enhancement pursuant to section 1118.1
("Judgment of Acquittal") standards and the due process clause of the Fourteenth
Amendment to the United States Constitution. He also contends the evidence presented
at the close of the evidentiary phase of the trial is insufficient to support the gang
enhancement pursuant to the Fourteenth Amendment. Resendez relies upon evidence

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that he acted alone, did not "shout" his gang name, and did not flash any gang signs
during the crime. (In re Daniel C. (2011) 195 Cal.App.4th 1350, 1361-1364 [insufficient
evidence supports gang enhancement where minor acted alone in stealing liquor and
striking liquor store clerk]; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199
[insufficient evidence supports gang enhancement where minor possessed knife while
riding a bicycle].) He adds that he testified that he was under the influence of drugs when
he entered the neighboring homes by mistake.
              Section 186.22, subdivision (d) provides a sentence enhancement for "[a]ny
person who is convicted of a public offense punishable as a felony or a misdemeanor,
which is 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 . . . ." The enhancement set forth in section 186.22,
subdivision (b), containing identical relevant language, may be established by proof of
gang-related conduct by a lone actor. (People v. Rodriguez (2012) 55 Cal.4th 1125,
1138-1139 [lead opinion]; Id. at pp. 1140-1141 (conc. opn. of Baxter, J.).)
              In reviewing a claim of insufficient evidence, we examine the entire record
and draw all reasonable inferences therefrom in favor of the finding or judgment to
determine whether there is reasonable and credible evidence from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. (People v.
Jackson (2014) 58 Cal.4th 724, 749.) Our review is the same in a prosecution primarily
resting upon circumstantial evidence. (People v. Watkins (2012) 55 Cal.4th 999, 1020.)
We do not redetermine the weight of the evidence or the credibility of witnesses. (People
v. Albillar (2010) 51 Cal.4th 47, 60; People v. Young (2005) 34 Cal.4th 1149, 1181
["Resolution of conflicts and inconsistencies in the testimony is the exclusive province of
the trier of fact"].) We must accept logical inferences that the jury might have drawn
from the evidence although we would have concluded otherwise. (People v. Streeter
(2012) 54 Cal.4th 205, 241, disapproved on other grounds as stated in People v. Harris
(2013) 57 Cal.4th 804, 834.) "If the circumstances reasonably justify the trier of fact's


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findings, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding." (Albillar, at p. 60.)
              This standard of review applies to findings made pursuant to the criminal
street gang enhancement of section 186.22, subdivisions (b) and (d). (In re Daniel C.,
supra, 195 Cal.App.4th 1350, 1359.) On review, our determination involves an analysis
of evidentiary support for implied findings that, at the time the defendant committed the
charged offense, he had the specific intent to "promote, further, or assist" gang members
who themselves are engaged in criminal conduct. (Ibid.)
              Regarding a motion for judgment of acquittal, section 1118.1 provides: "In
a case tried before a jury, the court on motion of the defendant or on its own motion, at
the close of the evidence on either side and before the case is submitted to the jury for
decision, shall order the entry of a judgment of acquittal of one or more of the offenses
charged in the accusatory pleading if the evidence then before the court is insufficient to
sustain a conviction of such offense or offenses on appeal. . . ." In determining whether
the evidence was sufficient to support the trial court's ruling denying a section 1118.1
motion, we review the evidence "'as it stood at that point.'" (People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1183; People v. Houston (2012) 54 Cal.4th 1186, 1215 [appellate
review of denial of section 1118.1 motion uses standard of review of sufficiency of
evidence to support a conviction, but focuses on evidence existing at time of motion].)
                                   Judgment of Acquittal
              The trial court properly denied Resendez's motion for judgment of acquittal
because sufficient evidence and all reasonable inferences therefrom establish the gang
enhancement finding beyond a reasonable doubt. Resendez brazenly entered and walked
through a neighbor's home after testing a locked bedroom door. He repeatedly stated,
"This is my hood," when confronted by Bernal outside another neighbor's home. As the
trial court noted, Resendez's tattoos (neck and hand) of his gang name and initials were
prominent and obvious. When Resendez met Gutierrez outside her home, he lifted his
shirt thereby exposing the back tattoo "East Side Bolen." It matters not that Gutierrez
may not have seen or understood the tattoo; Resendez represented his gang membership

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by this action. Gang expert Adams testified that the Locos subset of the East Side Bolen
gang controls the area of the Gutierrez and Flores residences. This evidence and
reasonable inferences therefrom etablish that Resendez battered Bernal "in association
with any criminal street gang." (§ 186.22, subd. (d).)
              The battery also benefitted East Side Bolen because Resendez demonstrated
by his actions that non-gang members cannot confront and challenge him. Adams opined
that Resendez's conduct created fear and intimidation and may have precluded Gutierrez
and Flores from identifying him at trial.
              There was also sufficient evidence that Resendez had "the specific intent to
promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd.
(d).) The trial court could reasonably conclude that Resendez's actions created
intimidation and fear in the neighborhood, thereby benefitting his gang's reputation for
violence and facilitating future crimes by his gang.
                                  Judgment of Conviction
              Sufficient evidence also supports the jury finding of a criminal street gang
enhancement. The jury was free to disbelieve Resendez's exculpatory testimony. As
discussed ante, the testimony of Bernal and gang expert Adams establish the truth of the
gang enhancement beyond a reasonable doubt.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                            GILBERT, P.J.
We concur:



              YEGAN, J.



              PERREN, J.

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                                 Douglas Sortino, Judge

                         Superior Court County of Los Angeles

                          ______________________________


             Ann Krausz, under appointment by the Court of Appeal, for Defendant and
Appellant.


             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, Nathan Guttman, Deputy Attorney
General, for Plaintiff and Respondent.




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