Filed 8/26/14 P. v. Buendia CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064348

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD245795)

DAVID AMIR BUENDIA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael T.

Smyth, Judge. Affirmed.



         David K. Rankin, 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, Kristine A. Gutierrez and

Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION

       A jury convicted David Amir Buendia of assault with a deadly weapon (Pen.

Code, § 245, subd. (a)(1); count 1) and assault by means likely to produce great bodily

injury (Pen. Code, § 245, subd. (a)(4); count 2). The jury also found true gang benefit

enhancement allegations (Pen. Code, § 186.22, subd. (b)(1)). The trial court sentenced

him to eight years in prison, then suspended execution of the sentence and placed him on

three years of formal probation, conditioned in part upon him waiving his presentence

custody credits and serving 365 days in jail.

       Buendia appeals, contending there was insufficient evidence to convict him of

count 1. We disagree and affirm the judgment.

                                     BACKGROUND

       After an evening out, the victim and two friends went to a taco stand for a bite to

eat. They drove there in the victim's car, which the victim's younger brother sometimes

uses. The victim ordered his food and sat down with his friends at a nearby table.

Buendia and two male companions walked by talking angrily. They circled the victim's

car, pointed at it, and then glared and cussed at the victim and his friends. The victim had

never seen Buendia or his companions before.

       One of the victim's friends tried to defuse the situation by initiating a conversation

with one of Buendia's companions. The conversation ended abruptly with one of

Buendia's companions repeatedly remarking, "Fk all you three."

       The victim ignored the remarks, picked up his order, and started to eat his food.

Around then, Buendia asked about the victim's younger brother and, in a confrontational
                                                2
manner, told the victim to let his younger brother know Buendia1 was looking for him.

The victim got up, walked toward Buendia, and asked why Buendia was looking for his

younger brother. Buendia said the victim's younger brother tried to jump someone close

to Buendia. Although the victim tried to explain his younger brother would never fight

that way, Buendia continued to insist the victim tell his younger brother Buendia was

looking for him and was "going to find him . . . [and] get him."

       At some point during this exchange, Buendia and his companions circled the

victim, charged him and started throwing punches at him. One of Buendia's companions

lunged at the victim with a weapon. The victim quickly took off his jacket and backed

away from the men while holding his arms in a defensive position. One of Buendia's

companions got close to the victim to throw a few more punches, which the victim

blocked. The victim grabbed the man's shirt and pushed him toward Buendia, while

continuing to back away. Around then, the victim's older brother happened by and

stopped the fight. Although the victim did not realize it at the time, he was stabbed four

times during the altercation: once on his forearm, once on his triceps, once around his

left ribcage, and once in the back.

       Someone called 911 and when police officers responded to the scene, Buendia and

his companions "tried to act casual, like nothing was happening." The man who lunged

at the victim with the weapon quickly discarded the weapon in some bushes. A police

officer later recovered an awl from the bushes.


1     Buendia referred to himself by a moniker. The victim thought Buendia referred to
himself as "Toad," but later learned Buendia referred to himself as "Toker."
                                             3
      A gang detective interviewed Buendia after the attack. During the interview,

Buendia denied being a member, but admitted being an affiliate of the Tiny Locos subset

of the Linda Vista 13 street gang (gang). However, Buendia had previously claimed to

be a gang member and had been documented as a gang member since 2010. His

companions were also documented gang members.

      After hearing hypothetical questions mirroring the facts of this case, the detective,

who was also a gang expert, opined the assault was done in association with and for the

benefit of a the gang. The detective also opined the assailants were promoting,

furthering, or assisting criminal conduct by gang members. In addition, the detective

opined the two assailants who were not armed would have known the third assailant was

armed because, when gang members are together as a group, one or more of them will be

armed and the others will want to know who is armed so they know who will be able to

help them if they are losing a fight. Nonetheless, the detective acknowledged one gang

member might not always know whether another gang member was armed. The

detective further acknowledged he was not testifying Buendia actually knew one of his

companion's was armed.

                                     DISCUSSION

      As to count 1, the People prosecuted Buendia under two separate theories of

accomplice liability: (1) Buendia aided and abetted the commission of an assault with a

deadly weapon; and (2) Buendia aided and abetted the commission of a simple assault the

natural and probable consequences of which was the commission of an assault with a



                                            4
deadly weapon. Buendia contends there was insufficient evidence to convict him under

either theory.

       In evaluating a sufficiency of the evidence claim, " 'we review the whole record to

determine whether any rational trier of fact could have found the essential elements of the

crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial

evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid

value—such that a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt. [Citation.] In applying this test, we review the evidence in the light

most favorable to the prosecution and presume in support of the judgment the existence

of every fact the jury could reasonably have deduced from the evidence. [Citation.]

"Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the

reversal of a judgment, for it is the exclusive province of the trial judge or jury to

determine the credibility of a witness and the truth or falsity of the facts upon which a

determination depends. [Citation.] We resolve neither credibility issues nor evidentiary

conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for

insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever

is there sufficient substantial evidence to support' " the jury's verdict.' " (People v.

Manibusan (2013) 58 Cal.4th 40, 87.)

       We begin our analysis with the sufficiency of the evidence to support a conviction

under the second theory, the natural and probable consequences doctrine. "The natural

and probable consequences doctrine is based on the recognition that those who aid and

abet should be responsible for the harm they have naturally, probably, and foreseeably

                                               5
put in motion." (People v. Avila (2006) 38 Cal.4th 491, 567.) Under the doctrine, " '[a]

person who knowingly aids and abets criminal conduct is guilty of not only the intended

crime [target offense] but also of any other crime the perpetrator actually commits

[nontarget offense] that is a natural and probable consequence of the intended crime. The

latter question is not whether the aider and abettor actually foresaw the additional crime,

but whether, judged objectively, it was reasonably foreseeable. [Citation.]' [Citation.]

Liability under the natural and probable consequences doctrine 'is measured by whether a

reasonable person in the defendant's position would have or should have known that the

charged offense was a reasonably foreseeable consequence of the act aided and abetted.' "

(People v. Medina (2009) 46 Cal.4th 913, 920.) " '[T]o be reasonably foreseeable "[t]he

consequence need not have been a strong probability; a possible consequence which

might reasonably have been contemplated is enough." ' " (Ibid.)

       Here, the evidence viewed most favorably to the judgment showed Buendia

instigated and actively participated in a group assault on the victim. The evidence also

showed Buendia and his companions were gang members and that, when gang members

are together in a group, one or more of them will typically carry a weapon to ensure the

group will not be disadvantaged should they become embroiled in a physical altercation.

Under such circumstances, a reasonable person in Buendia's position would have or

should have known the commission of an assault with a deadly weapon was a reasonably

foreseeable consequence of the commission of the assault Buendia aided and abetted.

As the applicable test is an objective one rather than a subjective one, whether Buendia

actually knew the perpetrator had a weapon is immaterial. (People v. Montes (1999) 74

                                             6
Cal.App.4th 1050, 1056.) Accordingly, we conclude Buendia has not established there

was insufficient evidence to support his conviction under the second theory. Given this

conclusion, we need not decide whether there was sufficient evidence to support his

conviction under the first theory.

                                     DISPOSITION

       The judgment is affirmed.




                                                                    MCCONNELL, P. J.

WE CONCUR:


HUFFMAN, J.


NARES, J.




                                            7
