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The People v. Daniel David Sanchez

December 28, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DANIEL DAVID SANCHEZ, PLAINTIFF AND RESPONDENT.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JORGE CABALLERO SERRATO, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed with directions. (Super.Ct.No. RIF138958)

The opinion of the court was delivered by: Richli J.

P. v. Sanchez

CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Two friends were walking in an alley in Corona when they were confronted by five Hispanic males who were members of the Corona Varrio Loco (CVL) gang. Defendants Daniel David Sanchez and Jorge Caballero Serrato were among the men. The two friends were forced to empty their pockets, which included a cellular telephone, as a "tax" to enter the gang's neighborhood. Sanchez and Serrato were later detained and identified at a field show up.

Serrato filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, but joined in Sanchez's opening brief. Sanchez contends:

1. There was insufficient evidence to support that the crime was committed for the benefit of or in furtherance of the gang to support his conviction for violating Penal Code section 186.22, subdivisions (a) and (b), and gang expert testimony was improperly admitted.

2. The $30 fines imposed pursuant to Government Code section 70373 for each conviction was improper as it was an improper retroactive application of the statute.

We affirm the judgment but order the abstract of judgment for Sanchez be modified to reflect the proper offense as discussed in part V, post. We find no other arguable issues.

I

PROCEDURAL BACKGROUND

A jury found Serrato and Sanchez guilty of robbery (Pen. Code, § 211)*fn1 and active participation in a street gang (§ 186.22, subd. (a)). The jury also found that Serrato and Sanchez committed the robbery for the benefit of or in furtherance of a criminal street gang. (§ 186.22, subd. (b).) The jury could not reach a verdict on whether Sanchez had personally used a knife during the commission of the crime (§ 12022, subd. (b)(1)), and a mistrial was declared on that charge. The charge was later dismissed.

Sanchez was sentenced to three years for the robbery, plus 10 years for the gang enhancement, for a total of 13 years in state prison. The additional gang crime under section 186.22, subdivision (a) was ordered stayed pursuant to section 654. He was ordered to pay $30 per convicted charge under Government Code section 70373. Serrato received the same sentence.

II

FACTUAL BACKGROUND

A. Prosecution

1. The Crime

On September 15, 2007, about 11:00 p.m., Tyler P. and Jose C. were drinking with some other friends near an alley located between 9th and 10th Streets in Corona. After they finished, ...


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