Filed 10/27/14 P. v. Ledezma 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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. B249658
                                                                          (Super. Ct. No. 2012035338)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

MAXIMILIANO ADAM LEDEZMA,

     Defendant and Appellant.


                   Maximiliano Adam Ledezma appeals a judgment following conviction of
second degree robbery, and assault with a deadly weapon by means likely to produce
great bodily injury, with findings that he personally and intentionally discharged a
firearm, carried the firearm within a vehicle, and committed the crimes to benefit a
criminal street gang. (Pen. Code, §§ 211, 245, subd. (a)(1), 12022.53, subd. (c), 25850,
subd. (a), 186.22, subd. (b)(1).)1 We affirm.
                               FACTUAL AND PROCEDURAL HISTORY
                   During the afternoon of May 27, 2011, Chase Christensen, Ronald Allen,
Ricky Garcia, and Jacqueline Ayala were "hanging out" and smoking marijuana at Grant
Park in Ventura. After a while, Christensen decided to drive the group to the beach in his
automobile.



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    All further statutory references are to the Penal Code unless stated otherwise.
              As they prepared to leave, Allen noticed a vehicle stopping behind them.
Garcia then saw that he had neglected to remove his blue Jansport backpack from the
hood of the automobile. Garcia or another passenger asked Christensen to retrieve the
backpack. Before Christensen could remove the backpack, however, Ledezma and
another Hispanic man approached.
              Ledezma held a firearm, announced "Ventura Avenue, fool," and demanded
that Christensen "empty out his pockets" and "give [Ledezma] [his] shit." Christensen
replied, "If you are going to pull a gun on me, you better pull the trigger." Ledezma
responded by pistol-whipping Christensen and then firing the firearm at the ground. The
man accompanying Ledezma grabbed Garcia's backpack and both men fled toward the
vehicle parked behind.
              The passengers in Christensen's automobile saw the attack, but could not
identify Ledezma as the man who struck Christensen and demanded his money. Ayala
recorded the acts with her cellular telephone but due to her position in the backseat, did
not fully capture Ledezma's face. The prosecutor played the 30-second recording at trial.
              Christensen then drove to a fast-food restaurant where the group reported
the crimes. Officer Jon Fournell interviewed Christensen and noted his forehead
laceration. Christensen gave "very little description" of his assailant, stating that he
preferred not to be "a rat."
              Officer Michael Gens drove to Grant Park and saw a "fresh disturbance" in
the gravel where Ledezma fired the firearm, but did not find a firearm shell casing in the
area. Officer Mark Knackstedt also responded to the police dispatch and stopped the
driver of a gray-colored automobile leaving Grant Park at "a high rate of speed."
Knackstedt recognized the driver of the automobile as Joseph Guinn, a member of a
white supremacy criminal street gang who associated with the Ventura Avenue criminal
street gang. Garcia's blue backpack lay on the back floor of the automobile, but the
money that had been inside was missing.
              Ventura Detective Todd Hourigan viewed the video recording on Ayala's
cellular telephone and studied the gunman's nose, right eye, and throat ("a large Adam's

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apple"). Hourigan knew Ledezma as an active and registered member of the Ventura
Avenue criminal street gang. Based upon a comparison with Ledezma's police
photograph, Hourigan believed that Ledezma was the man who assaulted and robbed
Christensen.
               Hourigan later displayed a photographic lineup to Christensen who selected
Ledezma's photograph. At trial, Christensen identified Ledezma as his assailant.
               Following Ledezma's arrest and advisement of rights pursuant to Miranda
v. Arizona (1966) 384 U.S. 436, 444, Officer Cameron Goettsche interviewed him.
Ledezma denied committing the crimes at Grant Park but admitted that he knew Guinn.
                              Criminal Street Gang Evidence
               At trial, Hourigan testified that the Ventura Avenue criminal street gang
had 250 to 300 members and associates and was "the most fierce" gang in Ventura. He
stated that Grant Park fell within the gang's claimed territory and that the occupants of the
gray automobile in which Garcia's backpack was found are admitted Ventura Avenue
gang members or associates. Hourigan stated that Ventura Avenue gang members
commit assaults, robberies, car thefts, drug sales, and weapon sales, and members have
been convicted of specific predicate crimes. He testified that Ledezma had been arrested
previously for gang-related crimes. Hourigan also opined that Ledezma committed the
crimes at Grant Park to benefit his gang because stating "Ventura Avenue" instilled fear
in a victim.
                                Conviction and Sentencing
               The jury convicted Ledezma of second degree robbery, and assault with a
deadly weapon by means likely to produce great bodily injury. (§§ 211, 245, subd.
(a)(1).) The jury also found that Ledezma personally and intentionally discharged a
firearm, carried the firearm within a vehicle, and committed the crimes to benefit a
criminal street gang. (§§ 12022.53, subd. (c), 25850, subd. (a), 186.22, subd. (b)(1).)
               The trial court sentenced Ledezma to a total prison term of 35 years,
consisting of an upper five-year term for the robbery, a 20-year term for the personal
firearm use enhancement, and a 10-year term for the criminal street gang enhancement.

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The court imposed and stayed sentence for the assault with a deadly weapon conviction,
and struck the vehicle-firearm enhancement. (§§ 654, 1385, subd. (a).) It also imposed a
$500 restitution fine, a $500 parole revocation restitution fine (stayed), an $80 court
security assessment, and a $60 criminal conviction assessment, and awarded Ledezma
777 days of presentence custody credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a);
Gov. Code, § 70373.)
              Ledezma appeals and contends that: 1) insufficient evidence supports his
conviction for robbery, and 2) insufficient evidence supports the criminal street gang
finding. Ledezma claims that the conviction and finding violate his federal and
California constitutional rights to due process of law and a fair trial. Pursuant to federal
and California constitutional principles, we conclude otherwise.
                                       DISCUSSION
                                              I.
              Ledezma argues that insufficient evidence supports his robbery conviction
because he did not take property from Christensen, and insufficient evidence exists that
he aided and abetted the man who took the backpack. He asserts that, at most, he
committed an attempted robbery of Christensen. To support his argument, Ledezma
points out that he was not a passenger in the gray-colored automobile that contained
Garcia's backpack.
              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 defendant guilty beyond a reasonable doubt.
(People v. Jackson (2014) 58 Cal.4th 724, 749; People v. Streeter (2012) 54 Cal.4th 205,
241.) 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 reweigh the
evidence or reassess the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th
47, 60.) We accept the logical inferences that the jury might have drawn from the
evidence although we would have concluded otherwise. (Streeter, at p. 241.) "If the

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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." (Albillar, at p. 60.) In our review, we focus upon the evidence that
was presented at trial, rather than evidence that could have been presented, but was not.
(People v. Story (2009) 45 Cal.4th 1282, 1299.)
              A person may be liable for a criminal act as an aider and abettor. (§ 31
["principals" in a crime include those who "aid and abet in its commission, or . . . have
advised and encouraged its commission"]; People v. Delgado (2013) 56 Cal.4th 480,
486.) An aider and abettor must act with knowledge of the direct perpetrator's unlawful
intent and with an intent to assist in achieving those unlawful ends, and his conduct must
in fact facilitate commission of the crime. (People v. Lopez (2013) 56 Cal.4th 1028,
1069; Delgado, at p. 486.) "[A]n aider and abettor will 'share' the perpetrator's specific
intent when he or she knows the full extent of the perpetrator's criminal purpose and
gives aid or encouragement with the intent or purpose of facilitating the perpetrator's
commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 560.)
              Section 211 provides that robbery is "the felonious taking of personal
property in the possession of another, from his person or immediate presence, and against
his will, accomplished by means of force or fear." For purposes of robbery, possession
may be actual or constructive. (People v. Scott (2009) 45 Cal.4th 743, 748, 753.) The
law requires "only that there be some type of 'special relationship' with the owner of the
property sufficient to demonstrate that the victim had authority or responsibility to protect
the stolen property on behalf of the owner." (Ibid.)
              The law of robbery also includes a broad definition of "immediate
presence." (People v. Gomez (2008) 43 Cal.4th 249, 257.) "Immediate presence" is an
area over which the victim, at the time force or fear was used, exercised some physical
control over his property. (Ibid.) Thus, property may be within the victim's immediate
presence although it is found in a different room of a building or in another building on
the premises, for example. (Ibid.)


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              There is sufficient evidence that Christensen had constructive possession of
Garcia's backpack and that it was taken by Ledezma's crime partner from Christensen's
immediate presence. When Christensen left his automobile to retrieve Garcia's backpack,
he had a "special relationship" with Garcia and the authority or responsibility to protect
the backpack resting upon the hood of his car. (People v. Scott, supra, 45 Cal.4th 743,
753.) The backpack was also within Christensen's immediate presence because he could
have retained constructive possession of it had he not been prevented by fear or violence.
(People v. Gomez, supra, 43 Cal.4th 249, 257 [the spatial concept of immediate presence
has been broadly applied].)
              There is also sufficient evidence and reasonable inferences therefrom that
Ledezma aided and abetted his crime partner in taking Garcia's backpack. Ledezma and
his partner approached Christensen as Christensen prepared to retrieve the backpack and
drive away. Ledezma demanded money, pistol-whipped Christensen, and fired his
firearm at the ground, as his partner seized the backpack. Ledezma declared the name of
his criminal street gang as he committed the crimes. The two men then ran to the vehicle
parked behind Christensen's automobile. The backpack was later found in an automobile
occupied by Ventura Avenue gang members and associates. This evidence satisfies
constitutional principles of due process and a fair trial.
                                              II.
              Ledezma contends that there is insufficient evidence that he committed a
gang-related crime, asserting that he acted alone in confronting Christensen and that
Christensen testified that the gang name may have been declared after the backpack had
been taken.
              There is sufficient evidence that Ledezma committed the crimes in
association with a criminal street gang and that he had the specific intent to promote the
gang by his acts. (§ 186.22, subd. (b)(1).) Ledezma was a longtime admitted member of
the Ventura Avenue gang and the crimes occurred in a neighborhood claimed by the
gang. Passengers in Christensen's automobile heard Ledezma declare "Ventura Avenue"
as he pointed a firearm at Christensen. (People v. Debose (2014) 59 Cal.4th 177, 205

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[commission of robbery is ongoing until robber has reached a place of temporary safety].)
Garcia's backpack was found in an automobile in which the driver and passengers were
Ventura Avenue gang members or associates. Based upon a hypothetical question,
Hourigan opined that Ledezma committed the crimes in association with the Ventura
Avenue gang and that the crimes benefitted the gang by instilling fear in the victim and
the community. (People v. Vang (2011) 52 Cal.4th 1038, 1048 [expert opinion that
particular criminal conduct benefitted a criminal street gang is sufficient to support a
section 186.22, subdivision (b) enhancement].)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           GILBERT, P. J.


We concur:



              YEGAN, J.



              PERREN, J.




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                               Patricia M. Murphy, Judge

                            Superior Court County of Ventura

                           ______________________________


             Laurie A. Thrower, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant
Attorney General, James William Bilderback II, Supervising Deputy Attorney General,
Brendan Sullivan, Deputy Attorney General, for Plaintiff and Respondent.




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