Filed 4/29/13 P. v. Zapata 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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. B238306
                                                                           (Super. Ct. No. BA373635)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

RUBEN ZAPATA et al.,

     Defendants and Appellants.



                   Ruben Zapata and Miguel Vivas appeal a judgment after conviction by jury
of one count each of assault with a semiautomatic weapon. (Pen. Code, § 245, subd.
(b).)1 The jury found true allegations that Zapata and Vivas committed the assault on
behalf of a criminal street gang. (§ 186.22, subd. (b)(1)(B).) It also found true
allegations that Zapata (the principal) was armed with, and personally used, a firearm.
(§§ 12022, subd. (a)(1), 12022.5, subds. (a) & (d).)
                   Zapata and Vivas contend the trial court abused its discretion when it
allowed evidence that, three months after the assault, Zapata and Vivas committed a
robbery with a gang member. They also contend that there was insufficient evidence to
support the jury's finding on the gang allegation. Vivas requests review of any file
produced in the trial court pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d. 531.


         1
             All statutory references are to the Penal Code.
We review the sealed transcript of the Pitchess hearing and determine no information was
improperly withheld. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
              Dogtown is a criminal street gang. Its territory includes the Willliam Mead
Housing Development in Los Angeles (the housing project). Vivas lived in the housing
project; Zapata grew up there.
              One evening in July 2010, Los Angeles Deputy Sheriff Adrian Rendon
drove an unmarked car near the housing project, along the boundary of Dogtown
territory. He made eye contact with the driver of an oncoming car, Vivas.
              Vivas made a U-turn and pulled along aside Rendon so that his passenger,
Zapata, was within two feet of Rendon. Zapata pointed a handgun at Rendon, and then
said, "Oh fuck. He's a cop." Vivas drove away. Deputy Rendon is Hispanic. His hair
was cut very short. He was wearing a uniform.
              Rendon followed the car. It turned into the housing projects and Rendon
called for assistance.
              Deputies found the parked car in the project, still warm to the touch. It
belonged to Zapata. A helicopter search light illuminated Zapata and Vivas who were
standing by an abandoned sofa in the project. Zapata put something under the sofa before
they ran. They were caught. Each denied involvement in the assault. A deputy found a
small loaded handgun beneath the sofa.
              In a recorded telephone call from jail, Vivas told his sister to retrieve guns
from his room and to give them to "Reaper or somebody." Zapata's brother is a Dogtown
member whose moniker is "Reaper."
              Over defense objection, the trial court admitted evidence that Zapata and
Vivas were involved in a robbery after the assault. The trial court conducted a section
352 hearing before admitting the evidence. It found the subsequent robbery to be highly
relevant to the "association" element of the gang allegation. A Los Angeles police officer
testified that, about three months after the charged assault, Zapata and Vivas "robbed" a
case of beer from a liquor store with Reaper. The court instructed the jury to consider the

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robbery only "as it related to the gang allegation," on the issue of "whether the defendants
were associating together or acting for the benefit of the gang."
              A Los Angeles Police Officer, Adrian Lopez, testified that Zapata is an
admitted member of the Dogtown gang. Lopez believed Vivas to be an associate or
affiliate of Dogtown. He had prior contacts with Vivas in the company of other Dogtown
members including Vivas's brother, Genaro. Vivas's other brother was the victim of a
gang related killing.
              Another Los Angeles Police Officer, Tyler Fox, testified about the criminal
activity of the Dogtown gang. He knew Zapata to be an admitted member. He believed
Vivas was a Dogtown associate based on Vivas's association with Zapata during the
assault, the subsequent robbery, and the telephone call from the jail. Fox had seen Vivas
in the housing project in 2009 and 2010 but had not seen him with other gang members.
He knew one of his brothers was a gang member.
              Zapata testified. He denied any involvement in the Dogtown gang and said
his tattoos were only a tribute to his upbringing in the housing project. He denied any
involvement in the assault. He said he had lent his car to an acquaintance that evening.
He described a history of mistreatment by Officer Lopez.
              Before trial, Vivas moved for disclosure of Rendon's personnel records
concerning dishonesty or threatening or interfering with witnesses. (Pitchess v. Superior
Court, supra, 11 Cal.3d 531.) The trial court conducted an in camera hearing and found
no discoverable information.
                                      DISCUSSION
                           Evidence of the Subsequent Robbery
              Zapata and Vivas contend the trial court abused its discretion when it
admitted evidence of the robbery because the robbery was not gang related. We disagree.
              We review for abuse of discretion a trial court's decision to admit evidence
of an uncharged offense pursuant to section 352. (People v. Kipp (1998) 18 Cal.4th 349,
369.) The evidence was relevant to prove association with a street gang and the trial


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court did not abuse its discretion when it decided its probative value outweighed any risk
of undue prejudice.
              Zapata and Vivas argue the robbery was inadmissible to prove the gang
enhancement because it was not itself gang related. (In re Daniel C. (2011) 195
Cal.App.4th 1350, 1364 [stealing a bottle of liquor to drink with companions was not
alone sufficient to support a gang allegation].) But whether or not the robbery alone
would support a gang allegation is not dispositive. It has a tendency in reason to prove
association. That Zapata and Vivas committed a crime with another gang member
shortly after they committed this offense had a tendency in reason to prove that they
associated with members of the Dogtown gang. They correctly point out that association
alone is not a crime. But association is one of two elements necessary to prove a gang
allegation. That element required proof that Zapatas and Vivas assaulted the deputy "for
the benefit of, at the direction of, or in association with" the Dogtown gang. (§ 186.22,
subd. (b)(1).) The trial court did not abuse its discretion when it admitted evidence of the
subsequent robbery to prove association.
                              Criminal Street Gang Allegation
              Zapata and Vivas challenge the sufficiency of the evidence to support the
jury's finding that the criminal street gang allegations were true. We review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence from which a reasonable trier of fact could find beyond a reasonable
doubt that the assault was committed (1) "for the benefit of, at the direction of, or in
association with" the Dogtown gang, and (2) "with the specific intent to promote, further,
or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1); People v.
Livingston (2012) 53 Cal.4th 1145, 1170.) Substantial evidence is evidence that is
reasonable, credible, and of solid value. (Livingston, at p. 1170.) We presume every fact
in support of the judgment the trier of fact could have reasonably deduced from the
evidence. (Ibid.) We do not reweigh the evidence or reassess credibility. (Ibid.)
Reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. (Ibid.)

                                              4
              It is undisputed that Dogtown is a criminal street gang. Two officers
testified that Zapata was a known member. A reasonable jury could disbelieve his
testimony to the contrary. There was no evidence that Vivas had previously been
involved in the gang, but his association with Zapata during the assault, his telephone call
from jail arranging to have guns moved to a known gang member, and his involvement in
a subsequent robbery with two gang members were sufficient to support an inference that
he was associated with the Dogtown gang.
              A reasonable jury could have concluded from the circumstances of this
crime that Zapata and Vivas committed the assault with the specific intent to benefit the
Dogtown gang. Not every crime committed by gang members is gang related (People v.
Livingston, supra, 53 Cal.4th at p. 1170), but the evidence supported an inference that
Zapata and Vivas acted with intent to protect Dogtown's dominance within its territory.
They encountered an unfamiliar young Hispanic man in a car at the boundary of the
Dogtown territory. When they made eye contact, Vivas turned his car around and pulled
his car up to the man's car so Zapata could confront him with a gun. A reasonable jury
could infer that Zapata and Vivas acted with the intent to enforce and defend gang
territory, for the benefit of the Dogtown gang.
              Vivas argues that the evidence of his gang membership was weak. But the
evidence that he was associating with and assisting a known gang member was strong.
Association is sufficient to establish the first element of the allegation. (§ 186.22, subd.
(b)(1).) And Vivas maneuvered his car to help a known gang member point a gun at the
deputy. "[I]f substantial evidence establishes that the defendant intended to and did
commit the charged felony with known members of a gang, the jury may fairly infer that
the defendant had the specific intent to promote, further, or assist criminal conduct by
those gang members." (People v. Albillar (2010) 51 Cal.4th 47, 68.)
                       Independent Review of the Pitchess Hearing
              Vivas requested independent review of the trial court's in camera hearing
on his Pitchess motion to determine whether any records were improperly withheld. We
conducted an independent review of the in camera hearing pursuant to People v. Mooc

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(2001) 26 Cal.4th 1216, 1229-1232. We conclude the trial court did not abuse its
discretion when it determined that there were no discoverable records.
                                     DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED.




                                         GILBERT, P.J.


We concur:



             YEGAN, J.



             PERREN, J.




                                            6
                               Stephen A. Marcus, Judge

                         Superior Court County of Los Angeles

                         ______________________________


             Jonathan P. Milberg, under appointment by the Court of Appeal, for
Defendant and Appellant Ruben Zapata.
             Murray A. Rosenberg, under appointment by the Court of Appeal, for
Defendant and Appellant Miguel Vivas.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Eric E.
Reynolds, Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.




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