Filed 1/7/14 P. v. Loera CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                                        E057131

v.                                                                       (Super.Ct.No. RIF1200290)

ALEX SALVADOR LOERA, JR.,                                                OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge

(Retired judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI,

§ 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.

        Barbara A. Smith, 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, Senior Assistant Attorney General, Christopher Beesley and

Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Jim Patton was working under the hood of Jose Meza’s car when defendant Alex

Salvador Loera, Jr. approached him and asked Patton if he thought he was a “bad ass.”

Defendant held a knife to Patton’s throat and threatened to cut him “ear to ear.” Still

holding the knife in his hand, defendant approached Meza, who was sitting inside the car,

and asked Meza if he thought he was also a bad ass. Defendant then demanded that Meza

give him a blue bandanna that was in the backseat (presumably because the color was

representative of his gang, the Corona Varrio Locos (CVL)).

       Defendant was convicted by a Riverside County jury of two counts of assault with

a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts 1 & 2) 1; robbery (§ 211; count

3); and active gang participation (§ 186.22, subd. (a); count 4). The jury also found that

defendant had served two prior prison terms within the meaning of section 667.5,

subdivision (b). Defendant was sentenced to a total state prison sentence of nine years.

       Defendant now contends on appeal as follows:

       1.     Insufficient evidence was presented to support his conviction of assault on

Meza with a deadly weapon.

       2.     Insufficient evidence was presented to support the active gang participation

conviction under section 186.22, subdivision (a) because he was alone at the time he

committed his crimes.

       3.     His conviction of assault with a deadly weapon against Meza should have

been stayed pursuant to section 654.

       1      All further statutory references are to the Penal Code unless otherwise
indicated.


                                             2
       4.      He was erroneously sentenced to the upper term on the robbery conviction

and received ineffective assistance of counsel due to his counsel’s failure to object to the

imposition of the upper term.

       We agree that defendant’s conviction of active gang participation pursuant to

section 186.22, subdivision (a) must be reversed. We affirm the judgment in all other

respects.

                                                  I

                                FACTUAL BACKGROUND

       In the afternoon of December 26, 2011, 55-year-old Joe Patton was working on

Jose Meza’s car near the 91 Freeway in Corona. Patton provided mechanic services. He

did not have a shop but generally worked in Corona. On that day, he had the hood up on

Meza’s car and was working on the engine. Meza was sitting in the driver’s seat of the

car.

       As Patton was working on Meza’s car, defendant approached him, and

immediately said “You think you’re a bad ass, don’t you?” Patton had seen defendant in

the area on prior occasions and defendant had tried to intimidate him. Patton told

defendant he was just working on the car. Defendant made a few more remarks to

Patton. Suddenly, defendant grabbed Patton’s head and held a “pretty good size” knife to

his throat. Defendant told Patton, “I’m going to cut your fucking throat ear to ear and

watch you bleed.” Patton was scared and tried to talk to defendant about why he wanted

to hurt him. Defendant held the knife to Patton’s throat for about 30 seconds then walked

toward Meza.


                                              3
      At this time, Meza was still in the driver’s seat. He saw defendant hold the knife

to Patton’s throat. Defendant then approached Meza. Defendant put his hand down to

his side. Although the knife was partially covered by defendant’s hand, Meza could see

the handle of the knife. He believed the knife was foldable and six-inches long.

Defendant walked to the driver’s side door and stood at the door.

      Defendant asked Meza, “You think you’re a bad ass too?” Meza responded, “No,

I don’t. No.” At this time, defendant had his hand to his side and was holding the knife

in a fist he made around it with his right hand. The blade was open and visible. Meza

was scared.

      Defendant looked into the car. A blue bandanna was in the backseat of the car.

Defendant demanded that Meza give him the bandanna. Meza gave the bandanna to

defendant to keep him from becoming more violent. Defendant fled.

      Meza called 911. Meza reported that a Hispanic man had pulled a knife on him

and his friend. Meza was scared. The 911 dispatcher kept telling Meza that he had to

calm down. Meza told the dispatcher that the man put the knife in his shirt.

      Defendant’s sister lived nearby where the incident occurred and the responding

Corona police officer observed defendant sitting outside the house. Defendant briefly

went inside to change his shirt but came back out. Meza identified defendant at a field

show-up. Inside the house, the officer found a blue bandana. A knife fitting the

description given by Meza and Patton was not found in the house.

      Corona Police Detective David Vicondoa testified as a gang expert. Defendant

was an active member of the CVL criminal street gang. The primary activities of the


                                            4
gang included robbery and assault with a deadly weapon. Defendant had admitted his

gang membership in 2003, 2011, and twice in 2012. The crimes committed by defendant

against Meza and Patton were signature crimes of the CVL. CVL identified with the

color blue. Blue bandannas were worn by CVL members to show their loyalty to the

gang.

                                                  II

          INSUFFICIENT EVIDENCE OF ASSAULT WITH A DEADLY WEAPON

        Defendant contends that the evidence was insufficient to support his conviction of

assault with a deadly weapon (§ 245, subd. (a)(1)) because he made no threats of violence

toward Meza and did not menace him with the knife.

        “Our task is clear. ‘On appeal we review the whole record in the light most

favorable to the judgment to determine whether it discloses substantial evidence –– that

is, evidence that is reasonable, credible, and of solid value –– from which a reasonable

trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The

standard of review is the same in cases in which the People rely mainly on circumstantial

evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds

that circumstantial evidence is susceptible of two interpretations, one of which suggests

guilt and the other innocence [citations], it is the jury, not the appellate court which must

be convinced of the defendant's guilt beyond a reasonable doubt. ‘“If the circumstances

reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the

circumstances might also reasonably be reconciled with a contrary finding does not

warrant a reversal of the judgment.”’ [Citations.]” [Citation.]’ [Citations.] The


                                              5
conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there

sufficient substantial evidence to support [the conviction].”’ [Citation.]” (People v.

Cravens (2012) 53 Cal.4th 500, 507-508.)

       Section 245, subdivision (a)(1) provides, in pertinent part that “[a]ny person who

commits an assault upon the person of another with a deadly weapon or instrument other

than a firearm . . . shall be punished by imprisonment in the state prison . . . .”

       Assault with a deadly weapon is a general intent crime. (People v. Rocha (1971) 3

Cal.3d 893, 899.) “[A] defendant . . . must be aware of the facts that would lead a

reasonable person to realize that a battery would directly, naturally and probably result

from his conduct.” (People v. Williams (2001) 26 Cal.4th 779, 788.) “[T]he question of

intent for assault is determined by the character of the defendant’s willful conduct

considered in conjunction with its direct and probable consequences. If one commits an

act that by its nature will likely result in physical force on another, the particular intention

of committing a battery is thereby subsumed. Since the law seeks to prevent such harm

irrespective of any actual purpose to cause it, a general criminal intent or willingness to

commit the act satisfies the mens rea requirement for assault.” (People v. Colantuono

(1994) 7 Cal.4th 206, 217)

       “As this court explained more than a century ago, ‘Holding up a fist in a menacing

manner, drawing a sword, or bayonet, presenting a gun at a person who is within its

range, have been held to constitute an assault. So, any other similar act, accompanied by

such circumstances as denote an intention existing at the time, coupled with a present




                                               6
ability of using actual violence against the person of another, will be considered an

assault.’ [Citations.]” (People v. Colantuono, supra, 7 Cal.4th at p. 219.)

       In People v. Vorbach (1984) 151 Cal.App.3d 425, the defendant disputed that the

elements of assault with a deadly weapon were proved by the evidence because his mere

display of a knife without an accompanying attempt to commit a battery, such as a lunge,

was insufficient as a matter of law. (Id. at pp. 429-430.) The appellate court rejected the

claim, finding that the victim’s testimony that the defendant “held the knife in a

threatening manner and demanded money is sufficient to satisfy the requisite intent to use

the knife. [Citations.]” (Id. at p. 429.)

       Here, the evidence established that defendant committed assault with a deadly

weapon against Meza. Defendant approached Patton and asked him if he thought he was

a “bad ass.” Defendant held the knife to Patton’s throat and threatened to cut him ear to

ear. Meza witnessed this assault. Defendant then walked toward Meza with the knife in

his hand at his side. The knife was described as a folding knife, but defendant kept the

blade extended. Defendant, with the knife in his hand, while standing near the driver’s

side door of the car in which Meza was seated, asked if he thought he was a “bad ass”

too. This threat, along with the fact that defendant continued to hold the knife in his hand

and could easily lift his arm to stab Meza, supported the assault with a deadly weapon

charge.

       Based on the foregoing, substantial evidence supported defendant’s conviction of

assault with a deadly weapon against Meza.




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                                                  III

            INSUFFICIENT EVIDENCE OF ACTIVE PARTICIPATION IN A GANG

                                  (§ 186.22, SUBDIVISION (a))

       Defendant argues that the evidence presented was insufficient to support his

conviction for active participation in a street gang pursuant to section 186.22, subdivision

(a) based on the recent California Supreme Court case of People v. Rodriguez (2012) 55

Cal.4th 1125 (Rodriguez). Respondent concedes in its brief that the conviction must be

reversed.

       “The substantive offense defined in section 186.22[, subdivision] (a) has three

elements. Active participation in a criminal street gang, in the sense of participation that

is more than nominal or passive, is the first element of the substantive offense defined in

section 186.22[, subdivision] (a). The second element is ‘knowledge that [the gang’s]

members engage in or have engaged in a pattern of criminal gang activity,’ and the third

element is that the person ‘willfully promotes, furthers, or assists in any felonious

criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42

Cal.4th 516, 523.)

       The California Supreme Court has held that the third element of the offense is not

satisfied when a gang member commits a felony while acting alone. The word

“members,” as the Supreme Court explained, “is a plural noun.” (Rodriguez, supra, 55

Cal.4th at p. 1132.) “Therefore, to satisfy the third element, a defendant must willfully

advance, encourage, contribute to, or help members of his gang commit felonious

criminal conduct. The plain meaning of section 186.22[, subdivision] (a) requires that


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felonious criminal conduct be committed by at least two gang members, one of whom

can include the defendant if he is a gang member.” (Ibid.) The felonious criminal

conduct referred to in the statute must be committed “‘by members of that gang.’” (Id. at

p. 1131.)

       Here, there was no evidence presented that a fellow CVL member was with

defendant when he put a knife to Patton’s throat. Nor was there any other gang member

with defendant when he threatened Meza with the knife and took the bandanna from him.

As such, we agree that defendant’s section 186.22, subdivision (a) conviction must be

reversed. Since the trial court stayed the sentence on this count, there is no impact on the

resulting sentence in this case.

                                             IV

                                      SECTION 654

       Defendant contends that his sentence for the conviction of assault with a deadly

weapon against Meza should have been stayed pursuant to section 654 because he was

sentenced to the upper term of five years on the robbery of Meza.

       At the time of sentencing, defendant’s counsel argued that the robbery count

against Meza should be the principal count. However, he argued, “I believe that Count 1,

which is the 245 violation to the same victim in Count 3 - - my assessment is that Count 1

and Count 3 are 654.” The trial court responded, “In terms of Count 1 and 3 being 654,

however, it’s clear - - and the jury had no issue with this. Those are distinct and separate

crimes. The defendant’s thought process was different in both of those crimes. They

were not committed at the same time. They were two separate distinct events that


                                             9
happened.” In addition, the trial court stated, “My recollection of the evidence was - - is

that he made the assault initially using the knife, then noticed the bandanna and decided

again to steal it. And he still has the knife then at that point. So it was taken by force and

fear. But there was force and fear used before he ever had the intent to commit a robbery,

before he even knew there was something that he wanted. And on that basis I find that

they’re not 654.” Defendant was sentenced to five years on the robbery of Meza and a

consecutive sentence of one year for the assault with a deadly weapon on Meza.

         Section 654, subdivision (a) states: “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.” Section 654 applies not only to

the same criminal act, but also to an indivisible course of conduct committed pursuant to

the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-

1209.)

         “‘“Whether a course of criminal conduct is divisible and therefore gives rise to

more than one act within the meaning of section 654 depends on the intent and objective

of the actor. If all of the offenses were incident to one objective, the defendant may be

punished for any one of such offenses but not for more than one.”’ [Citation.]” (People

v. Green (1996) 50 Cal.App.4th 1076, 1084.) A defendant’s intent and objective are

factual determinations for the trial court, and those determinations must be upheld if

supported by substantial evidence. (Id. at p. 1085.)




                                              10
       Here, it is clear from the facts that the crimes involved separate intents and

objectives. Defendant approached Meza with the knife and asked if he was a “bad ass”

like Patton. This was immediately after Patton had been approached by defendant and

defendant had threatened to kill Patton by cutting his throat from ear to ear. Patton had

previous encounters with defendant and defendant tried to intimidate him. Defendant

approached Meza and Patton to intimidate them or harm them.

       The evidence supports that the robbery was just an afterthought. Defendant

looked inside the car and scanned the car. He then demanded the blue bandanna from

Meza. Certainly, defendant could not have known the bandanna was in the car when he

first approached Patton and Meza. Even defendant’s counsel argued that the robbery was

an afterthought in closing argument.2

       Defendant’s intent in committing the assault with the deadly weapon was separate

from, rather than incidental to, his intent and objective in committing the robbery.

Imposing a separate, consecutive sentence for the assault with a deadly weapon offense

was thus proper under section 654 and did not constitute dual punishment. The trial court

properly imposed separate punishments on counts 1 and 3.




       2      Defendant’s counsel argued the robbery was an afterthought and was not
committed through the use of force or fear. Defendant does not contest the sufficiency of
the evidence on the robbery on appeal. It was clear defendant used force or fear to take
the bandanna.


                                             11
                                              V

                                       UPPER TERM

       Defendant contends that the trial court erroneously imposed the upper term

sentence on his robbery conviction and he received ineffective assistance of counsel due

to his counsel’s failure to object to the imposition of the upper term on the robbery.

       “Establishing a claim of ineffective assistance of counsel requires the defendant to

demonstrate (1) counsel’s performance was deficient in that it fell below an objective

standard of reasonableness under prevailing professional norms, and (2) counsel’s

deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’

that, but for counsel's failings, defendant would have obtained a more favorable result.

[Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in

the outcome. [Citations.] [¶] Our review is deferential; we make every effort to avoid

the distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s

perspective at the time. [Citation.] A court must indulge a strong presumption that

counsel’s acts were within the wide range of reasonable professional assistance.

[Citation.] . . . .Nevertheless, deference is not abdication; it cannot shield counsel’s

performance from meaningful scrutiny or automatically validate challenged acts and

omissions. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)

       At the time of sentencing, defendant’s counsel asked the trial court to impose “a

midterm of three years on count 3,” which was the robbery charge. Hence, the premise

upon which defendant claims ineffective assistance is flawed as counsel did advise the




                                              12
trial court that the midterm was the appropriate sentence on count 3. There was no

failure to object.

       Defendant contends that his counsel was ineffective for not stating objections to

the aggravated terms listed in the probation report and that his counsel made a “weak

sentencing presentation” when stronger arguments were available. At the time of

sentencing, the trial court noted that it had received the probation report. The trial court

also noted there had been an off-the-record discussion on the sentence. The record on

appeal does not shed light on the in-chambers discussion.

       Defendant’s counsel may have had a tactical reason for not further explicating his

objection to the upper term sentence as he may have exhausted that argument in

chambers. Since we can conceive of this tactical reason for counsel’s actions, defendant

cannot prove counsel’s performance was deficient.

       Based on the foregoing, it appears that counsel did object to the upper term

sentence. The trial court was on notice that defendant believed the upper term on count 3

was not appropriate. As such, we need not address the issue of prejudice due to

ineffective assistance of counsel because it has not been established, but rather, we

address whether the trial court abused its discretion by imposing the upper term on the

robbery.

       The trial court stated in sentencing, “I have reviewed the probation report in terms

of the factors in aggravation and concur that there were none found in mitigation.” The

probation report listed the following aggravating factors: (1) the crime involved great

violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high


                                             13
degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2)

the manner in which the crime was carried out indicates planning, sophistication, or

professionalism (id., rule 4.421(a)(8)); (3) the defendant had engaged in violent conduct

that indicates a serious danger to society (id., rule 4.421(b)(1)); (4) the defendant’s prior

convictions as an adult or as a juvenile are numerous or of increasing seriousness (id.,

rule 4.421(b)(2)); (5) the defendant had served a prior prison term (noting it was used as

an enhancement) (id., rule 4.421(b)(3)); (6) the defendant was on probation or parole

when the crime was committed (id., rule 4.421(b)(4)); and (7) the defendant’s prior

performance on probation or parole was unsatisfactory (id., rule 4.421(b)(5)).

       “‘Sentencing courts have wide discretion in weighing aggravating and mitigating

factors . . . .’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) “[A] trial court is

free to base an upper term sentence upon any aggravating circumstance that the court

deems significant, subject to specific prohibitions. [Citations.] The [trial] court’s

discretion to identify aggravating circumstances is otherwise limited only by the

requirement that they be ‘reasonably related to the decision being made.’ [Citation.]”

(People v. Sandoval (2007) 41 Cal.4th 825, 848, fn. omitted.) “In making such

sentencing choices, the trial court need only ‘state [its] reasons’ [citation]; it is not

required to identify aggravating and mitigating factors, apply a preponderance of the

evidence standard, or specify the ‘ultimate facts’ that ‘justify[ ] the term selected.’

[Citations.] Rather, the court must ‘state in simple language the primary factor or factors

that support the exercise of discretion.’ [Citation.]” (Id. at pp. 850-851.) It is clear here




                                               14
that the trial court agreed with the probation department’s assessment of the aggravating

and mitigating factors.

       Despite the numerous factors listed in the probation report, a single factor in

aggravation is sufficient to justify the upper term. (People v. Cruz (1995) 38 Cal.App.4th

427, 433.) We review the trial court’s sentencing decision for an abuse of discretion.

(See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

       Here, defendant held a knife to Patton’s throat and threatened to cut him ear to ear.

He then approached Meza, threatening him with the knife. Approaching these two men

in broad daylight and threatening them as he did showed his violent conduct was a danger

to society (Cal. Rules of Court, rule 4.421(b)(1)). In addition, he had an extensive prior

criminal history and performed poorly on his prior probation and parole. (Id., rule 4.421

(b)(2) & (b)(5)). These factors alone justified the upper term.

       There were ample aggravating factors and no mitigating factors to support the

upper term on count 3. The trial court did not abuse its discretion.




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                                            VI

                                     DISPOSITION

       We strike defendant’s conviction of active gang participation pursuant to section

186.22, subdivision (a) in count 4. We order the clerk of the Riverside County Superior

Court to prepare an amended abstract of judgment and forward it to the Department of

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               RICHLI
                                                                                           J.

We concur:


MCKINSTER
                Acting P. J.


MILLER
                          J.




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