THE PEOPLE v. EDGAR

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. EDGAR R. Defendant and Appellant.

2d Crim. No. B220058

Decided: November 22, 2010

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Edgar R. appeals from the judgment entered after the juvenile court sustained a Welfare and Institutions Code section 602 petition alleging assault by means of force likely to produce great bodily injury.  (Pen.Code, § 245, subd. (a)(1).) 1  The court found true an allegation that the offense had been committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)  (CT 1-3;  RT 165-166) Appellant was committed to the Division of Juvenile Justice for a maximum of 3,285 days.

The issues on appeal concern appellant's claim of defense of another, which the juvenile court rejected.   Appellant contends that (1) the court erroneously concluded that he did not have the right to assert the claim because he had “never disengaged from the fight” initiated by the person whom he allegedly was defending;  (2) the evidence is insufficient to support the court's finding that he had used excessive force;  and (3) the prosecutor committed misconduct and violated due process by making an argument that was inconsistent with the People's position in another case.   We affirm.

Facts

Appellant is a member of the Southside criminal street gang.   Ramiro Orozco (Ramiro) and Bryan Herrera (Herrera) are members of a rival criminal street gang:  the Westside V.L.P. On April 3, 2009,

Ramiro and Herrera fought with appellant in Southside territory.

Later that same day, appellant and his fellow gang member, Eduardo O. (Eduardo), “went looking” for Ramiro and Herrera “to show them that they weren't going to come [into Southside] territory and punk [appellant].”   Appellant was “looking for a fight” and had armed himself with a knife.   Appellant knew that Ramiro was a member of Westside V.L.P.

When appellant and Eduardo found Ramiro and Herrera, Eduardo asked them why they had hit appellant.   Ramiro and Herrera started walking toward Eduardo.   Eduardo testified that Ramiro was holding a handkerchief.   Eduardo feared that the handkerchief might be concealing a knife.   Eduardo grabbed a stick that was on the ground and tried to hit Ramiro with it.   Eduardo claimed that he was trying to defend himself and “scare them away.”   A witness heard Eduardo yell, “This is us, 24/7.”   The same witness heard appellant yell “Southside” or “Southsiders” several times during the fight.

The stick slipped from Eduardo's hand, and Ramiro picked it up.   Ramiro hit Eduardo on the head with the stick.   Eduardo “blacked out” and fell to the ground.   Ramiro continued to hit Eduardo with the stick while he was on the ground.

Appellant testified that he believed Eduardo”was being hurt.”   Appellant “ran over there to help” Eduardo and stabbed Ramiro three times in the back with a knife.   After the stabbing, appellant and Eduardo ran away.   Appellant stabbed Ramiro because he “just wanted him to stop hitting [appellant's] friend.”

Detective Mark Powell, an expert on criminal street gangs, testified as follows:  After the stabbing, Powell interviewed Eduardo and appellant.   Eduardo did not say that Ramiro was holding a handkerchief or that Eduardo feared that Ramiro had a knife.   Appellant admitted stabbing Ramiro, but did not say that he had acted in defense of Eduardo.   Powell opined that appellant and Eduardo had confronted Ramiro and Herrera because the latter were Westside V.L.P. gang members who had “disrespected” appellant in Southside territory.   Powell further opined that the stabbing “was done to promote ․ criminal conduct by Southside gang members” because “their gang was disrespected and ․ by [appellant] stepping up and helping a fellow Southside gang member who is being assaulted, he is going to gain status within the Southside gang․”  “[T]he more violent the crime, the more prestige the gang member gains.”   A gang member who did not assist a fellow gang member engaged in a fight “would be seen as weak and would be targeted by [his] own gang for not ․ helping a fellow gang member in need.”

Juvenile Court's Decision

The juvenile court stated:  “[T]here are a number of issues that do negatively impact the credibility of [appellant] in terms of his defense of third person․”  The court explained:  “The way I view the totality of the evidence is [appellant] got beat up earlier in the day and got a hold of his best friend and gang mentor to come back and take care of business, and [Eduardo] came armed with a stick, and [appellant] came armed with a knife, and [Eduardo] and [Ramiro] got down, got into the fight, and [appellant] stood by with the knife ready in case things didn't go the right way.  [¶] ․ [Ramiro] disarms [Eduardo], takes the stick and starts hitting him, and then [appellant] at that point decides that it's no longer a fight that his friend and mentor ․ is going to win, so he jumps into the fray to even the odds, stabs [Ramiro] three different times.  [¶] ․ [¶] So I have some real questions about [appellant's] credibility.   I think this simply was a gang fight.”

The court further concluded that appellant “does not have the right to assert the [claim] of defense of a third party because he never disengaged from the fight.   He was there to back up [Eduardo].”   In addition, the court concluded that, even if the defense were available to appellant, the defense would fail because he had used excessive force.

Discussion

Appellant contends that the juvenile court erroneously concluded that he did not have the right to assert a claim of defense of another because he had “never disengaged from the fight.”   Appellant also contends that the evidence is insufficient to support the juvenile court's finding that appellant had used excessive force in defending Eduardo.   We need not consider appellant's contentions because the juvenile court found that the stabbing was gang motivated.   This finding, by itself, defeats appellant's claim of defense of another.  “[W]e must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.  [Citation.]'  [Citation.]”  (People v. Perez (2010) 50 Cal.4th 222, 229.)

The juvenile court in effect found that appellant's stabbing of Ramiro was not motivated by an actual belief in the need to defend Eduardo against an imminent danger of death or great bodily injury.   Instead, the court found that the incident “simply was a gang fight.”   The use of deadly force in self-defense or defense of another requires that “ ‘the defendant's acts ․ were motivated by an actual (also referred to as “genuine” or “honest”) belief or perception that ․ the defendant [or other person] was in imminent danger of death or great bodily injury from an unlawful attack or threat by the victim․’  “ (People v. Humphrey (1996) 13 Cal.4th 1073, 1093, italics added;  see also People v. Trevino (1988) 200 Cal.App.3d 874, 879 [“the party killing may justifiably use deadly force in self-defense as long as the use of such force is motivated only by a reasonable fear and the belief that it is necessary to prevent his death or great bodily injury”].)

Substantial evidence supports the juvenile court's finding that appellant's stabbing of Ramiro was gang motivated.   Appellant testified that he and Eduardo “went looking” for Ramiro and Herrera “to show them that they weren't going to come [into Southside] territory and punk [appellant].”   Appellant was “looking for a fight” and had armed himself with a knife.   During the fight between Eduardo and Ramiro, a witness heard appellant yell “Southside” or “Southsiders” several times.   Appellant did not testify that he had believed Eduardo was in imminent danger of death or great bodily injury.   Instead, he testified that he had believed Eduardo “was being hurt.”   When Detective Powell interviewed appellant after the stabbing, appellant admitted stabbing Ramiro but did not say that he had acted in defense of Eduardo.   Detective Powell opined that the stabbing “was done to promote ․ criminal conduct by Southside gang members because “their gang was disrespected and ․ by [appellant] stepping up and helping a fellow Southside gang member who is being assaulted, he is going to gain status within the Southside gang․”  Appellant could expect his use of deadly force to markedly enhance his gang status because “the more violent the crime, the more prestige the gang member gains.”

Moreover, the juvenile court found true the allegation that, pursuant to section 186.22, subdivision (b)(1), the “assault was committed by [appellant] for the benefit of or at the direction of or in association with a criminal street gang, to wit Southside, with the specific intent to promote or further or assist in criminal conduct by gang members.”   Appellant does not contend that this gang enhancement was not supported by substantial evidence.   The true finding on the gang enhancement defeats any claim that appellant's stabbing of Ramiro was motivated only by an actual belief that Eduardo was in imminent danger of death or great bodily injury.

In any event, substantial evidence supports the juvenile court's finding that appellant used excessive force.  “ ‘The principles of self-defense [or defense of another] are founded in the doctrine of necessity.   This foundation gives rise to two closely related rules․  First, only that force which is necessary to repel an attack may be used in self-defense [or defense of another];  force which exceeds the necessity is not justified.  [Citation.]  Second, deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury․’  “ (People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.) 2  Viewing the evidence in the light most favorable to the People, we conclude that the juvenile court reasonably concluded “that the amount of force that was used stabbing [Ramiro] ․ three times with a knife was excessive and unreasonable given that the apparent weapon that was used to subdue [Eduardo] by [Ramiro] has been described most frequently as a stick.   Not a club, but a stick.”   We also consider that, according to Detective Powell, Eduardo sustained “minor” injuries for which he did not seek medical attention.   We further consider the juvenile court's remarks that photographs showed appellant had stabbed Ramiro in the back.   The court stated, “Clearly if [appellant] was in a position to be behind [Ramiro] in order to inflict these stab wounds, ․ he could have taken other physical actions other than use of deadly

force․”

Appellant contends that the prosecutor committed misconduct and violated due process by arguing that “the evidence proved that [Eduardo] was never in any real danger.”   This argument, appellant maintains, was inconsistent with the prosecution's filing of a felony charge against Ramiro for assaulting Eduardo by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1).   But there was no inconsistency because the prosecutor represented that, “based on the evidence that came out at trial” in the instant case, it was her “understanding” that the charge against Ramiro was going to be dismissed.   Even if the prosecutor's argument were erroneous, the error would be harmless beyond a reasonable doubt in view of the juvenile court's finding that the stabbing was gang motivated.

Disposition

NOT TO BE PUBLISHED.

We concur:

Superior Court County of Santa Barbara

David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

FN2. See also CALCRIM No. 505 (justifiable homicide:  self-defense or defense of another):  “The defendant acted in lawful (self-defense/ [or] defense of another) if:  [¶] 1. The defendant reasonably believed that (he/she/ [or] someone else/ ․ was in imminent danger of being killed or suffering great bodily injury ․;  [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;  AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger.”.  FN2. See also CALCRIM No. 505 (justifiable homicide:  self-defense or defense of another):  “The defendant acted in lawful (self-defense/ [or] defense of another) if:  [¶] 1. The defendant reasonably believed that (he/she/ [or] someone else/ ․ was in imminent danger of being killed or suffering great bodily injury ․;  [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;  AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger.”

GILBERT, P.J. COFFEE, J. James E. Herman, Judge