People v. Catalan

THE PEOPLE, Plaintiff and Respondent, v. DANIEL OSBALDO CATALAN et al., Defendants and Appellants.

F070809

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

August 20, 2018

(Kern Super. Ct. Nos. LF009916B, LF009916C & LF009916D)

ORDER MODIFYING OPINION[NO CHANGE IN JUDGMENT]

It is hereby ordered that the opinion filed herein on August 20, 2018, be modified as follows:

1. The second full paragraph on page 65 is deleted in its entirety and replaced with the following:

Regarding the second argument, respondent contends that, because at least one of the described prior convictions of a VCL member was proven by Monsibais's personal knowledge, there was sufficient evidence to establish a pattern of criminal gang activity without violating Sanchez. Appellants concede that Monsibais had personal knowledge and his testimony regarding the first predicate offense did not violate Sanchez.

Except for the modification set forth, the opinion previously filed remains unchanged.

This modification does not effect a change in the judgment.

/s/_________

MEEHAN, J.

WE CONCUR:

/s/_________

LEVY, Acting P.J.

/s/_________

POOCHIGIAN, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. LF009916B, LF009916C & LF009916D)

OPINION

APPEAL from judgments of the Superior Court of Kern County. Charles R. Brehmer, Judge.

Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Osbaldo Catalan.

William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant Edy Catalan.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Roberto Rodriguez.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellants Daniel Catalan, Edy Catalan and Roberto Rodriguez, along with a fourth individual, Dennis Ruth, were charged and tried for crimes in connection with the assault of three victims, one of whom suffered critical stab wounds.¹ Defendants were charged with five counts: count 1, attempted premeditated murder of German (Pen. Code,² § 664/187, subd. (a)); count 2, assault with a deadly weapon of German (§ 245, subd. (a)(1)); count 3, assault of Jamie by force likely to produce great bodily injury (§ 245, subd. (a)(4)); count 4, active participation in a criminal street gang (§ 186.22, subd. (a)); and count 5, robbery (§ 212.5, subd. (c)).

The information included conduct enhancements alleging that defendants committed the crimes in counts 1, 2, 3, and 5 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); personally used a knife in connection with counts 1, 4, and 5 (§ 12022, subd. (b)(1)); and personally inflicted great bodily injury with respect to all counts (§ 12022.7); along with status enhancements alleging that: Daniel served a prison term for possession of a stolen vehicle in 2012; Edy was convicted of a serious felony for manslaughter in 2010 (§§ 667, subd. (a), 1170.12) and served a prior prison term (§ 667.5, subd. (b)); and Rodriguez was convicted of a serious felony for assault with force likely to produce great bodily injury in 2012 and that he served prior prison terms for that assault and for possession of tear gas. Defendants entered pleas of not guilty and denied all allegations.

The matter proceeded to trial and on October 28, 2014, the jury returned a verdict against appellants.³ The jury acquitted appellants on the charge of attempted murder in count 1 (victim German), but convicted them of the lesser offense of attempted voluntary manslaughter, and found the accompanying conduct enhancements true. Appellants were also convicted of counts 2 (assault of German), 4 (gang participation), and 5 (robbery), and jurors found the accompanying conduct enhancements true but for the great bodily injury enhancements for counts 4 and 5, and knife use in count five. The jury acquitted appellants on count 3 (assault of Jamie), but convicted Daniel and Rodriguez of the lesser offense of misdemeanor assault.

A bifurcated trial on the status enhancements was held and the court found true that Edy had served a prior prison term, but found that the prior conviction was not a serious felony. The court further found true that Rodriguez had served two prior prison terms.

On December 16, 2014, the court sentenced Edy to 17 years 8 months in prison, Daniel was sentenced to 15 years 8 months in prison, and Rodriguez was sentenced to 18 years 8 months in prison.⁴

Appellants present seven separate claims on appeal; however, each appellant did not join in each claim. Unless stated otherwise, all three appellants presented claims asserting: (1) that the prosecution failed to provide or otherwise destroyed evidence favorable to the defense, (2) Daniel and Rodriguez alleged that the court failed to excuse a sleeping juror, (3) that the court erred in permitting the jury to convict appellants of attempted voluntary manslaughter based on a natural and probable consequences theory,(4) that the court erred in providing a jury instruction regarding motive that conflicted with the elements of the gang enhancement allegations, (5) Daniel and Rodriguez assert that the trial court improperly provided the jury instructions regarding flight in relation to CALCRIM No. 372; (6) Edy asserts that the identification techniques used were unduly suggestive, and (7) Edy and Rodriguez were prejudiced by the introduction of hearsay evidence by the gang expert under People v. Sanchez (2016) 63 Cal.4th 665.

For the reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Incident at Gas Station

At around 7:00 p.m. on March 9, 2014, brothers German and Elbardo, along with their cousin, Jamie, drove to a gas station and attached convenience store in Lamont, a small community outside of Bakersfield, California. German and Elbardo lived in Arvin, a town about seven miles away from Lamont, and Jamie lived in Weedpatch, a small community bordering Lamont. German was aware that Jamie was affiliated with the Weedpatch street gang. At the time of the incident, Jamie was wearing a white T-shirt and blue pants.

They parked at a gas pump, and Elbardo and Jamie exited the vehicle and went in the attached convenience store as German stayed in the back seat of the vehicle. While in the store, Elbardo noticed two Hispanic males standing outside of the store, one wearing a white shirt and the other a checkered shirt.

After about five minutes, Elbardo and Jamie emerged from the store and German saw two males approach them from a grey or brown sport utility vehicle (SUV). One of the individuals said something to a third person, who was driving the SUV, and then proceeded to shake hands with Jamie. The male then hit Jamie, who fell to the ground. Both men proceeded to kick Jamie while he was on the ground. Elbardo grabbed and pushed one of the individuals away from Jamie, and German exited the vehicle. The other individual, the one who originally shook Jamie's hand, was still kicking Jamie inthe face. German punched that individual in the face three times, and he fell to the ground. Jamie then got up and ran off behind the store.⁵

After Jamie had been knocked to the ground, Elbardo noticed two additional men wearing white shirts approach the scene. One of these individuals punched Elbardo in his face.

German next remembered getting hit in the head and falling to the ground, but did not see who hit him. German was hit several times while he was on the ground, but was eventually able to get back up and went back into the vehicle. He attempted to call 911 on his phone, but was having difficulty concentrating. While German was sitting in the vehicle, an individual opened a different door, searched the car, and took Elbardo's cell phone and charger from the console. German was unable to tell if the individual was one of the two men that had originally approached Elbardo and Jamie. German then went into the store and was taken by ambulance to the hospital.

Elbardo saw the individuals get back in the SUV and drive south. He then noticed that German had been stabbed several times in the chest.

Sheriff's Deputy Justin Fernandez arrived at the scene and observed German's injuries. German had a stab wound to his head and several to his abdomen. German had puncture-type stab wounds under his right nipple and on his right side.

German was treated at the hospital for two lacerations to his liver, two cuts to his diaphragm and some abdominal bleeding. The surgeon opined that German's injuries were potentially life threatening and he was hospitalized for 10 days.

Identification of Appellants

Law enforcement placed a request for location information regarding Elbardo's stolen cell phone with the phone company. The company provided geographic coordinates of the cell phone, which coincided with a residential address in Lamont.⁶

Deputy Tovar was one of the first law enforcement officers to arrive at the residence indicated from the cell phone signal. Tovar encountered Edy in the backyard. Tovar was also able to see into the house and observed several males and females inside. Upon entering, Tovar contacted Daniel, Rodriguez, Ruth, and three other males, Juan H., Richard P. and a 14-year-old male juvenile.

Later, Tovar transported Elbardo to the residence. When they pulled up, Elbardo recognized the SUV parked in front of the residence as the vehicle from the gas station. Tovar read Elbardo an admonition stating that the individuals being shown may or may not be the individuals...