Frank Ochoa, Judge Superior Court County of Santa Barbara (Super. Ct. No. 1240389)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
The Legislature has the exclusive power to define crime and prescribe punishment. It has recently focused on criminal street gangs, dramatically increasing punishment for certain felonies committed for the benefit of, at the direction of, or in association with the gang. For example, ordinary attempted witness dissuasion is a "wobbler," i. e. punishment by up to one year in county jail as a misdemeanor or in state prison for 16 months, 2 years, or 3 years. (Pen. Code, § 136.1, subd. (b), (18.)*fn1 When committed in the criminal street gang context, the punishment is increased to a potential life term. (§ 186.22, subd. (b)(4)(c); (e)(8).) This case shows that the law takes a dim view of gang members who interfere with the reporting of a crime in progress. Such interference strikes at the very heart of preserving public safety. It is a responsible act of citizenship to report street gang crimes. A gang member who seeks to harm the reporter deserves, and here receives, the full measure of the law.
Edward Michael Galvez, Jr., aka "Monster," appeals from the judgment entered after his conviction by a jury of second degree robbery (count 1 - Pen. Code, §§ 211, 212.5), attempting to dissuade a witness (count 2 - § 136.1, subd. (b)(1)), assault by means of force likely to produce great bodily injury (count 3 - § 245, subd. (a)(1)), and active participation in a criminal street gang (count 4 - § 186.22, subd. (a)). As to counts 1 through 3, the jury found true allegations that the offenses had been committed for the benefit of or in association with a criminal street gang. (§ 186.22, subds. (b)(1) & (b)(4)(C).) As to the count 3 felony assault conviction, the jury also found true an allegation that appellant personally inflicted great bodily injury. (§ 12022.7, subd. (a).)
The trial court sentenced appellant to prison for an aggregate term of 19 years to life. The determinate term consisted of 12-years, five years for the robbery, plus seven years for the felony assault with the great bodily injury enhancement, plus a consecutive indeterminate term of seven years to life for the witness dissuasion conviction with the gang enhancement.
Appellant contends that the evidence is insufficient to support the witness dissuasion and robbery convictions as well as the gang enhancements. He also contends that (1) as to the robbery count, the trial court erroneously failed to instruct sua sponte on the lesser included offense of theft; and (2) the trial court made several sentencing errors. We conclude that, pursuant to section 654, the court should have stayed the five-year sentence for robbery. We modify the judgment to stay this sentence and affirm the resulting 14-year-to-life sentence.
In June 2007 William V. and three companions were walking by a restaurant in Carpinteria. A group of four or five Hispanic men including appellant, Anthony Garibay, Juan Alcala, and others, came out of a restaurant. One of the Hispanic men said that V. and his companions were "pussies." One of V.'s companions answered back, "Yeah, we are pussies." The Hispanic men ran toward V. and his companions and attacked them. V. was kicked in the head, side, and leg. He was also punched in the face.
Charles McChesney, an off-duty Santa Barbara Deputy Sheriff, witnessed the attack. He called 911 on his cell phone. While McChesney was still on the phone, one of the attackers asked, "Are you calling the police[?]" McChesney replied, "Yes, just take off." This attacker and several cohorts ran toward McChesney and assaulted him. The assailants included appellant, Garibay, and Alcala.
After receiving blows to various parts of his body, McChesney dropped the cell phone and fell to the ground. While on the ground, he was repeatedly "stomped on and kicked." McChesney sustained serious injuries, including a complete tear of a knee ligament, one broken rib and one or two cracked ribs, facial abrasions and contusions, and a bruised kidney. The knee injury required surgical repair.
Another off-duty police officer saw McChesney on the ground. "[S]everal Hispanic males . . . were kicking and hitting" him. The officer concluded that McChesney "was in severe danger." He displayed his badge, yelled at the assailants, and identified himself as a police officer. The assailants fled. One of the assailants started to run away, but then turned around and grabbed McChesney's cell phone before fleeing. This assailant, who was not appellant, was the same man who had asked McChesney if he was calling the police.
Julie K. witnessed the assault on McChesney. She saw three men "going after the onlooker with the cellphone, trying to get his cellphone away from him." K. identified appellant as "the main attacker, the sort of leader of the group." K. saw appellant "[g]oing after [McChesney], trying to get his cellphone, and then . . . actually physically hitting and kicking him." Appellant hit McChesney while he was standing and kicked McChesney several times while he was on the ground.
Detective Christopher Corbett, a gang expert, testified as follows: Appellant, who weighs 300 pounds, is an active member of Carpas, the only criminal street gang in Carpinteria. The gang claims the entire city as its territory. Appellant's gang moniker, "Monster," is based on his size, his stature, and his penchant for violence. Two other persons who participated in the assault on McChesney, Garibay and Alcala, are also Carpas gang members.
The prosecutor propounded a hypothetical question incorporating the facts of the instant case. Detective Corbett opined that, based on the hypothetical facts, the offenses against the 911 caller were committed for the benefit ...